\i6 .1 ay (UnrtwU Slaui ^rlinnl ffiibrarg Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018093892 DIGEST OF CASES DETERMINED IN THE SUPREME COURT OF CANADA. DIGEST OF CASES DETERMINED IN THE SUPREME COURT OF CANADA ON APPEAL FROM DOMINION, PROVINCIAL AND TERRITORIAL COCTRTS, AND UPON REFERRED QUESTIONS FROM THE ORGaNIZA- TION OF THE COURT IN 1875 TO 20th OCTOBER, 1903. Cmnprising all cases reported in volumes 1 to 33 of the official reports, inclusively , the cases specially reported in Gassels's Digest {8nd ed.), and a number of caset>, hitherto unreported, decided during the sa??ie period. COMPILED BY LOUIS WILLIAM COUTLlilE, K.G. (Que.), B.C.L. (McGill), SOMETIME AN OFFICIAL LAW BEPOETEK OF THE COUET. TORONTO, CANAIJA. THE CARS WELL COMPANY, Limited. 1904. Entered according to tbe Act of the Parliament of Canada, in the year one thousand nine hundred and four, by Thk Carswell Company, Limited, in the Office of the Minister of Agriculture. printed by The Cakswell Co., Limited 30 Adelaide St. East. Toronto. PREFACE. This digest has been compiled with a view to supplying a more comprehensive and classified index to the jurisprudence of the Supreme Court of Canada, in concise form, than has hitherto been within reach of the profession and other persons interested in following the deci- sions of the highest appellate tribunal in Canada. The decisions digested in Mr. Cassels's work have been, as a rule, incorporated as found in the head-notes of the official reports, and the cases that were specially reported by Mr. Cassels have been digested in more con- venient shape. The remainder of the officially reported cases, with numerous unreported decisions, have been brought down to the datS of the first judgments on appeals heard during the last Autumn Ses- sions of the court, 30th October, 1903, and som.e important notes added since that date. Many useful additions have been made to the official head-notes based upon careful re-consideration of the reasons for judgments, and, in some instances, new syllabi have been constructed, errors and omissions have been corrected where necessary, and it is hoped that the present work as revised, condensed and re-framed, will aft'ord greater facility for consultation and shew more clearly the prin- ciples involved in the decisions of the court than any work of the kind heretofore published. References to the decisions of the courts appealed from are given in all cases reported in the courts below, and the decisions of the Judicial Committee of the Privy Council, in cases reviewed on appeal from the Supreme Court of Canada, have been inserted wherever it was possible to do so. In the Appendices, A and B lists appear of cases judicially noticed and the dispositions made in Supreme Court cases on appeal to the Privy Council. iv PREFACE In order to bring the work within convenient size without limiting its usefulness, copious cross-references have been inserted in the nature of further analytical index of the subjects, which should meet all ordinary needs of the profession in getting at the side-lights and hav- ing ready reference to the jurisprudence established since the organiza- tion of the court. The names of the eminent Jurists of whom the Supreme Court of Canada has been constituted since its organization, in 1875, will be found at page vii. A tabular statement of the business of the court is given at page xi. It is sug-gested that in citations from this work a convenient abbreviated reference would be " Cout. Dig." (without mentioning it as a second edition, which it, in fact, is not), and that the column paginations should be treated as pages. Ottawa, 17th December, 1903. CONTENTS PAGE. List of Chief Justices, Judges and Principal Officers .... vii. Memorandum of Abbreviations used in the Digest ix. Statistical Table xi. Additions and Corrections xiii. Digest of Cases 1 Appendix " A " — List of Cases Judicially JSToticed 1569 Appendix " B " — List of Cases Appealed to the Privy Council 1583 Index of Cases Digested 1591 CHIEF JUSTICES, JUDGES AND PEINCIPAL OFFICERS OF THE SUPEEMB COUET OF CANADA, SINCE ITS OEGANIZATION, IN 1876. Chief Justices. Hon. Sir William Buel Eichards, Knight, appointed 8th October, 1875, resigned 10th January, 1879, died 26th January, 1889. Hon. Sir William Johnstone Eitchie, Knight, appointed 11th January, 1879, died 12th September, 1892. Eight Hon. Sir Samuel Henry Strong, Knight, appointed 13th December, 1892, resigned 18th November, 1902. Hon. Sir Henri Elzear Taschereau, Knight, appointed 2 1st -November, 1902. Judges. Hon. Sir William Johnstone Eiix;hie, Knight, appointed 8th October, 1875, afterwards Chief Justice. Eight Hon. Sir Samuel Henry Strong, Knight, appointed 8th October, 1875, afterwards Chief Justice. Hon. Jean Thomas Taschereau, appointed 8th October, 1875, resigned 6th October, 1878, died 9th November, 1893. Hon. Teleephore Fournier, appointed 8th October, 1875, resigned 12th September, 1895, di«d 10th May, 1896. Hon. William Alexander Henry, appointed 8th October, 1875, died 5th May, 1888. Hon. Sir Henri Elzear Taschereau, Knight, appointed 7th October, 1878, afterwards Chief Justice. Hon. John Wellington Gwynne, appointed 14th January, 1879, died 7th Jamiary, 1902. Hon. Christopher Salmon Patterson, appointed 37th October, 1888, died 24th May, 1893. Hon.-Eobert Sedgewick, appointed 18th February, 1893. Hon. George Edwin King, appointed 21st September, 1893, died 8th May, 1901. Hon. Desir6 Girouard, appointed 28th September, 1895. Hon. Sir Louis Henry Davies, K.C.M.G., appointed 25th September, 1901. Hon. David Mills, appointed 8th February, 1902, died 8th May, 1903. Hon. John Douglas Armour, appointed 21st November, 1902, died 11th July, 1903. Hon. Wallace Nesbitt, appointed 16th May, 1903. Hon. Albert Clements Killam, appointed 8th August, 1903. viii PRINCIPAL OFFICERS OF THE SUPREME COURT. Registrars. Robert Cassels, Q.C., appointed 8th October, 1875, died 17th June,. 1898. Edward Robert Cameron, K.C., appointed 3nd July, 1898. Note. — Charles Harding Masters, K.C., was acting Registrar from 15th June, 1897, until 2nd July, 1898, under General Order jSTo. 97 of the Supreme Court of Canada, which became effete on the death of Robert Oassels, K.C., during the illness of whom the order was in force- and effect. Law Reporters. George Duval, Q.C., appointed 20th January, 1876, died 6th June,. 1895. Archibald Sandwith Campbell, appointed Assistant Reporter, 3rd March, 1886, died 3rd September, 1886. Charles Harding Masters, K.C., appointed Assistant Reporter, 1st October, 1886, appointed Chief Reporter, 2nd October, 1895. Louis William Coutlee, K.C., appointed 2nd December, 1895. Librarian. Harris Harding Bligh, K.C., appointed 26th July, 1892. Sheriffs. William F. Powell, ex officio, under the Supreme Court Act, from the- organization of the Court till his resignation of the office of Sheriff of the County of Carleton (Ont.), on 11th December, 1879. John Sweetland, Sheriff of the County of Carleton, ex officio, front 11th December, 1879. ABBREVIATIONS USED IN THIS DIGEST. A.C. or App. Cas Law Reports, House of Lords and Privy Council Appeal Cases. Art Article. B.C British Columbia. B.N.A British North America. (;., ch., or cap Chapter. " C.C Civil Code of Lovi'er Canada. O.C.P Code of Civil Procedure, Lower Canada (1867) . Cf Compare ( Conferre ) . C.J Chief Justice. C.C.P Code of Civil Procedure (Lower Canada, 1867) . 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. C.S.M; Consolidated Statutes of Manitoba. C.S.U.C Consolidated Statutes, Upper Canada. Can. or ,(C.) 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. Frac Cassels's Supreme Court Practice, 2nd edition, by Masters. Ch Chancery. Ch. App Law Reports, Chancery Appeals. Ch. D Law Reports, Chancery Division. Cout. Dig Coutlee's Digest, Supreme Court Cases (1903) . (D.) Dominion of Canada. DeG.M. & G DeGex, McNaughton & Gordon's Reports. Div. Ct Divisional Court. Dor. Q.B Dorion, Queen's Bench Reports (Quebec) . E. & I House of Lords, English aiid Irish appeals. ed Edition. Ed. & Oi'd Edits & Ordonnances (Lower Canada). Ex. C.R Reports of the Exchequer Court of Canada. F. & P Foster & Pinlayson's Reports. 6r Grant's Chancery Reports. Gr.T.R Grand Trunk Railway of Canada. H.L House of Lords. Imp Imperial. J Justice. JJ Justices. K.B King's Bench. I^- C Lower Canada. L.C. Jur. Lower Canada Jurist. L-C.R Lower Canada Reports. L.R Law Reports (English) . ABBREVIATIONS USED IN THIS DIGEST. Man Manitoba. Man. L.R Manitoba Law Reports. 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 Xorth-west. N.W.T. or N.W. Ter. .. . North-west Territories of Canada. N.W.T. Rep Xorth-west Territories Reports (Canada). N.S Nova Scotia. N.S. Rep Nova Scotia Reports. O. or Ont Ontario. Ont. App. R Ontario Appeal Reports. Out. P.R Ontario Practice Reports. O.R Ontario Reports (Queen's Bench, Chancery and Com- mon 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.B.I Prince Edward Island. Q., or Que Quebec. OD o &I OD Ti D- CO T-* •aaiQoasoHj lojvj ao ONiaNaj saaiiTj\r OS fJ< W3 t- W3 ^ ■luaMoaiij" aOJ ONIIINYIg ■anojsj ■noisiaiq; ao aONiAoa J HOTg; Ni SNOisioaQ; ao aaaMQjij (?a CO^CSI>lO'M00(M-H i-H I> C CO rH ■SNOIIOpi iavNiMiiaaj; no ao aasodsig ao aaiiiag 'aansvaf) I ■aaiaiaoj\[ •aawaiaay ■aasaaAag •SNOINIJO 5. >* Q f^ " H ° § S Was " S H CM « «OC-CD»Oa0Ol-^^rH CO M >-( CS;S , o « P3 O OO'aaSCMmZfH 9^ .2|> o O £ 3 * o a a — i-i'B ADDITIONS AND CORRECTIONS To BE MADE BEFORE USING THIS BOOK. " Neglecta prudens corrigat lector." Page 45, lines 17, 18, 19, 20, for " 280 " read " 279 "; for^^Sl ' read " 280 " ; for " 282 " read " 281 " ; and for " 283 " read^82." Page 90, line 32, for " action " read " order." Page 91, at foot, add reference to report in cojuft below " Q. E. 12 K. B. 445.- Page 102, after par. 251, add "Leave to^peal to Privy Council granted August, 1903.'" Page 105, under the sub-title " Jueisdiction " add the following: ■" 282. Criminal conviction — Affirmalxon by full court — Judges absent at hearing or judgment — Unanimous decision — Appeal io Su- preme Court. " A criminal case reserved on points of law was argued before the 'Chief Justice and a Judge of the Court of Queen's Bench (Ont.), and ■on 4th February, 1878, the same Judges affirmed the conviction. The full court should be constituted of the Chief Justice and two puisne Judges. On appeal to the Supreme Court, under 38 Vict. c. 11, s. 49 : Held, that, although the conviction had been affirmed by but two Judges, the decision was unanimous, and, therefore, not appealable. Amer v. The Queen, ii. 592.'' And in line 9, from bottom, for " 282 '' read " 283." Page 117, line 15, for " SuperiM*" read " Supreme." Page 125, after first paragr^h add " Leave to appeal to Privy Council, in forma pauperis, grafited August, 1902." Page 135, after second^ paragraph for " Institution " read " COKPOEATIONS.' Page 195, line 48, fo/"£e" read "La," and, at line 51, for "L. T." read "Times L. Page 234, line 1^, for " Const " read " Court.'^ Page 265, lin^/SS, add "Judgment appealed from (Q. E. 8 Q. B. 128) reversed.' Page 266yafter first paragraph add " Judgment appealed from (33 N. S. E^. 77) affirmed." Pagey^S, line 31, for " 180 " read " 183." 319, line 24, for " granted " read " refused." /age 325, line 68, for " 10 Q. L. E. 305 " read " 13 Q. L. E. 205." XIV ADDITIONS AND CORRECTIONS. 339, line 53, add "Judgment appealed from (35 N. B. Eep. 77), a%med/ 364, line 40, after "Nova Scotia" add "(33 N. S. Rep. 156).^^ Page SyD, after first paragraph, add " See 9 B. C. Eep. 343." Page 383L line 8, for " granted " read " refused." Page. 387Vfter paragraph 36, add " Costs are now allowed. See Peactice of the Supreme Court, No. 63, note." Page 4^ li\e 14, for " 195 " read " 201." Page 413, linV 19, for " 195 " read " 201." Page 415, line\32, for " 195 " read " 201." Page 419, afteA paragraph 84, add reference to " Can. Gaz. vol. xli., p. 400," also to ieport " 33 Can. S. C. E. 667." Page 426, line 28V for " 195 " read " 201." Page 441, line 3, fbr " 234 " read " 243." Page 475, at foot aad " And see Quakers."" Page 544, line 21, fV " Lunenburg " read " Louisburg." Page 548, line 43, fo:^' 372 " read " 373." Page 555, line 25, forY(s6r.)" read "(4 ser.)" Page 567, after first patagraph. add " Leave to appeal to Privy Council, in forma pauperis, granted August, 1902." Page 568, line 4, for " 2]\ " read " 221." ? Page 571, line 46, for " ormiis" read " omnia." Page 583, after paragraph \81, add " Judgment appealed from (33 N. S. Eep. 77), affirmed." Page 624, after first paragraph add dismissed for non. pros." Page 631, line 30, after "from"'Vdd Page 649, after first paragraph a^ Council granted, November, 1903." Page 651, line 31, after "Bench" ad\ " Q. B. 9 Q. B. 367." Page 678, lines 29 and 65, for "xxi.Aread "xxxi." Page 743, line 34, for " 211 " read " 2*1." Page 802, after paragraph 2, add " See itoot-note, col. 967, post." Page 837, line 26, for "refused" read ^as granted ^'33 Can. Gaz. 393), but subsequently, on compromise be^^een the parties, the appeal was dismissed for want of prosecution.'- Page 863, after title "Mortmain Acts," a.d\" See Statute of Mortmain."' Page 872, line 54, for " 295 " read " 365.'^ Page 910, line 35, for " 236 " read " 245." Page 1054, after first paragraph, add " Appea.1 to\Privy Council dismissed for non. pros." Page 1081, lines 53, 54, delete the word " Edward." Page 1118, line 40, delete " v. Sullivan.' Page 1150, line 4 from bottom, add after "value," "Judgment appealed from (9 B. C. Eep. 82), reversed.'- ■ Appeal to Privy Council "(Q. E. 12 K. B. 44)." " Leave to appeal to Privy ANALYTICAL DIGEST OF CASES IN THE SUPREME COURT OF CANADA. DECISIONS FROM THE ORGANIZATION OF THE COURT TO OCTOBER, 1903; VOLUMES I. TO XXXIII, INCLUSIVELY. ABANDONMENT. See Assignment foe Benefit of Cbedit- OES — Execution — Insueance, Maeine SUEEENDEE. ABANDONMENT OF HYPOTHE- CATED IJi.NDS. Hypothecary action — Ui'laissement en justice ■ — Action on personal covenant — Joint deht — Joint and several hypothec — Eviction as to part only. See MoETGAGE, 50. I ACCESSORY. Fraudulent appropriation — Unlawful re- ceiving — Simultaneous acts-] — A .fraudulent appropriation by a principal and a fraudulent receiving by an accessory may take place at the same time and by the same act. Mcintosh V. The Queen, xxiii., ISO. ABANDONMENT OF SEIZURE. Writ of attachment — Seizure in esfecution- Action against sheriff — Estoppel. See Sheriff, 5. ABATEMENT OF ACTION. Peremption d'instance — Retrospective legis- lation—Arts. 1 & 2'19 G. P. Q.—Art. 454 C. G. P. See Limitation of Actions, 13. ABATEMENT OF APPEAL. Election petition— Dissolution of Parliament — Abatement of proceedings — Return of de- posits — Payment out of court ielow — Practice. See Election Law, 1. ACCESSION. Title to Land — ■ Description — Plan of sub- division — Ghange in street line -^ — Troubles de droit — Eviction. See Title to Land, 125. S. C. D. — 1 ACCIDENT. Insurance Accident — Negligence — Vis Majoe. ACCORD. See Conteact. ACCOUNT. 1. Gharges against succession — Debats de comptes — Sale of stock-in-trade — Onus pro- bandi — Evidence.] — In a debats de comptes between the tutor to a minor child and the universal legatee who had possession of the minor's property items, — $5,466.63 (for stock of goods sold by L. R. to his son) and $451.07 and $90.76 for " cash received at the counter," — were contested. In 1871, L. L. R., the minor's father, by his contract of mar- riage obtained from his father, L. R., immove- able property, en avanrciiiciit d'hoirie. At the same time L. R. retired from business and left L. L. R. the whole of his stock-in-trade, valued at $5,466.63. L. L. R. died in 1872, leaving one child, said minor. There was no evidence that the stock-iuTtrade had been sold by the father and purchksed by the son, or that the father gave it to his son, but in making an inventory of the succession of L. L. R. he was charged with this amount of $5,466.63: Meld, reversing the judgment ap- pealed from (2 Dor. Q. B. 74), that it was for the universal legatee to prove that there had been a sale of the stock-in-trade by L. R. to L. L. R., and there being no evidence of such a sale, she could not legally charge the minor child with that amount. — The other ACCOUNT. two items were allowed by the Court of Queen's Bench on the grpund that, although they had been entered as cash received at the counter, there Vas evidence that they had been already entered in the ledger. The only evidence to support this fact was the affidavit of the book-keeper of L. R., since deceased, filed with the reddition de eomptes before a notary, prior to action : Beld, re- versing the judgment appealed from (2 Dor. Q. B. 74), that the affidavit of the book- keeper was inadmissible as evidence, and, therefore, these two items could not be charged against the minor. Gagnon v. Prince, vii. 386. The Privy Council refused leave to appeal ; 8 App. Oas. 103. 2. Reddition de compte — Contradictory pleas ■ — Unsworn account — Practice.] — In an action en reddition de compte by an assignor against his assignee, the assignee by his plea answered that he was not bound to render an account, and at the sanle time al- leged that he had already accounted for the moneys as garnishee in another suit, but he produced an unsworn account, and asked the court to declare the same to be a true and faithful account of his administratioii, and I)rayed for the dismissal of the plaintiff's ac- tion : Meld, reversing the judgment appealed from (11 .Q. L. R. 342) and restoring the judgment of the Court of Review at Quebec, that although the parties had joined issue and heard witnesses to prove certain items of the unsworn account produced, the plain- tiff was first entitled to a judgment of the court ordering the defendant to produce a sworn account supported by vouchers, and therefore his action had been improperly dis- missed. L'Heureux v. Lamarche, xii., 460. 3. Taking accounts — Charge to jury — In- aiility to deal with accounts.'] — Counsel for plaintiff requested the judge to, instruct the jury to take certain accounts into consideration. 'The jury stated that they were unable to deal with the a&ounts : Held, that the case could not be projerly decided without taking ac^ counts and that it could be more properly dealt with as an equity case. Griffiths v. BoscowHz, xviii., T18. 4. Curator — Administration ■ — Form of action — Indivisibility — Release - — ■ Specific per- formance — Mandate — Purchase of trust estate — Parties to suit — Art. IJfii. G. G. — Art. 920 C. C. P.] — Respondent, representing the insti- tutes and substitutes under the will of the late J. C, brought an action against anpel- lant, one of the institutes who acted as curator and administrator of the estate for a certain time, for an account of three particu- lar sums, which plaintiff alleged defendant had received while curator : Held, reversing the judgment appealed from (18 R, L. 647), that an action did not lie against the appel- lant for these particular sums apart and dis- tinct from an action for an account of his administration of the rest of the estate. — Plaintiff alleged that he represented S. D.. one of the substitutes, in virtue of a deed of release and subrogation by which it appeared he had paid to S. D.'s attorney for and on behalf of defendant £447 7s. 6%d.. defendant having in an action of account settled by deed with S. D. for $4,000 which he agreed to pay and for which plaintiff became surety : Held. that as the deed gave defendant a full and complete discharge of all accounts as curator or administrator of the estate, plaintiff could not claim a further account of these particu- lar sums. — Plaintiff also claimed to represent F. D. and E. D. two other institutes, in vir- tue of assignments to him by them on 21st January and 15th November. 1869, respec- tively. In 1865, after defendant had been sued in an action of account, by a deed of settlement, F. D. and E. D. agreed to accept as their shares in the estate $4,000 each, and gave defendant a complete and full discharge: Held, affirming the judgment appealed from, that the defendant could not be sued for a new account, but could only be sued for the specific performance of the obligations he had contracted under the deed of settlement. — By the judgment appealed from (18 R. L. 647), defendant 'was condemned to account for his own share transferred to plaintiff in 18Q2, and also for C. D.'s share, another institute who in 1882 transferred his rights to plain- tiff. The transfer by defendant was as co- legatee of such rights and interests as he had at the time of transfer, and he had at that time received the sixth of the sum for which he was asked to account : H eld, reversing the court below, that plaintiff took nothing as regards these sums under the transfer, and even if he was entitled to anything, the de- fendant would not be liable in action to ac- count as mandatory or negotiorum gettor of plaintiff. 2. That F. D. and E. D., having acquired an interest in C. Z. D.'s share after the transfer of their shares to plaintiff in 1869, plaintiff could not maintain his action without making them parties to the ^it. — Qu(ere, Were the transfers made by the in- stitutes to plaintiff while curator, null and void under art. 1484, C. C. V Dorion v. Dorion, xx., 480. 5. Partnership — Settled accounts — Re- leases — Setting aside releases and opening accounts.] — One of two members of a firm not possessing business capacity the other managed and controlled all its affairs, pre- senting at intervals to his partner statements of account which the latter signed on being assured of their correctness. In 1891 mutual releases of all claims and demands against each other, based upon statements so sub- mitted by the active partner, were executed by each. In an action against the active part- ner to set aside these releases and open up the accounts: Held, that all it was neces- sary to establish was, that in the accounts as settled there were such errors and mistakes as would inflict material injustice upon the plaintiff if the accounts should be held to be closed. West v. Benjamin, xxix., 282. 6. Appeal — Diiats de compte — Issues en reddition — Amount in controversy — Jurisdic- tion.] — In an action en reddition de compte, where items in the account filed exceed- ing in the aggregate two thousand dollars have been contested, the Supreme Court o'f Canada has jurisdiction to entertain an ap- peal. Bell V. Vipond, xxxi., 175. 7. Action for account — Agent's returns — Compromise — Subsequent discovery of error — Rectification — Prejudice.] — P. was agent to manage the whai-f property of W., and receive the rents and profits thereof, being paid by commission. When his agency terminated W. was unable to obtain an account from nim and brought an action therefor which was compromised by P. paying $375, giving $l^E) cash and a note for the balance, and receivmg an assignment of all debts ACQUIESCENCE. due tx) W. in respect to the wharf property during his agency, a list of which was pre- pared at the time. Shortly before the note became due P. discovered that, on one of the accounts assigned to him, $100 had been paid and demanded credit on his note for that sum. This W. refused, and in an action on the note P. claimed that the error avoided the compro- mise and that the note was without consider- ation or, in the alternative, that the note should be rectified : Held, affirming the judg- ment of the Supreme Court of Nova Scotia, that as. it appeared that P.'s attorney had knowledge of the error before the compromise was effected, and as, by the compromise, W. was prevented from going fully into the ac- counts and perhaps establishing greater lia- bility on the part of P., W. was entitled to recover the full amount of the note. Peters V. Worrall, xxxil., 52. 8. Illegal possession — Ejectment — Injunc- tion — Order for account — Jurisdiction of Court of Chancery — li. 8. 0. (1677 J c. 40, s. 87—33 V. c. as (OntJ. See Title to Land, 99. 9. Assignment of mortgg,ge — Purchase of equity — Action for account. See Mortgage, 57. 10. Beddition — Settlement — Reformation — Errors and omissions. See Action, 2. 11. Sale of mvnor's property — Shares held " in trust " — Notice — Purchase for value. See Trusts, 7. 12. Parties to suit — Chose in action — In- dorsement of order for money — Absolute transfer — Res judicata. See Practice and Procedure, 4. 13. Administration hy trustee — Claims in insolvency — Payments on secured claims — Release of hypothec — Security for advances — PrUe-nom. — Interest. See Banks and Banking, 17. 14. Reference to accountant by court — Adoption of report — Supplemental demand. See CoNTEAcr, 11. 15. Administration — Discharge by minor — Debats de compte — Interest. See Tutorship, 2. 16. Action on bond — Collateral securities — Equitable plea — Reference to master — Trust by mortgagee — Neglect in collecting. See Mortgage, 1. 17. Statement of account — Errors and omissions — Notice of acknowledgment. " See Sale, 75. 18. Will — Legacy — Bequest of partnership business — Acceptance by legatee — Right of legatee to an account. See Partnership, 41. 19. Partnership — Division of assets — Art. 1898 C. C. — Mandate — Debtor and creditor. See Partnership, 7. 20. Debtor and creditor — Security for debt — Security realized by creditor — Appropria- tion of proceeds — Res judicata. See Banks and Banking, 19. 21. Trust funds — Abandonment by cestui que trust — Evidence. See Trusts, 18. 22. Municipal corporation — Railway aid debentures — Sale of shares at discount — Trustee — Debtor and oreditoi Division of county — Erection of new municipalities — As- sessment — Action en reddition de comptes — Arts. 78, 164, 939, Uun. Code, Que.— 24 Vict. c. 30 (Que.)— 29 Vict. c. 50 (Que.). See Action, 4. 23. Debats de compte — Issues on reddition — Amount in controversy. See Appeal, 94. 24. Repetition de I'indu — Unlawful con- sideration — Monopoly — Trade combination — Public policy — Interest — Matters judicially noticed. See Contract, 165. 25. Partnership - cedure. - Action pro socio — Pro- See Partnership, 10. ACCRETION. 1. Gradual rising of alveus — Owner of land adjacent — Right of way — Public works — Obstruction of access — Cobourg harbowi Statutory extinction of easement. See Title to Land, 32. I 2. Marsh lands — Staking boundaries — Cut- ting hay — Possession — Evidence — Trespass by sewers commissioner. See Title to Land. 100. 3. Description of lands — Falsa demonstra- tio — Water lots — After acquired title — Con- tribution to redeem. See Mortgage, 52. And see Navigable Waters ; Rivers and Streams ; Water Lots. ACQUIESCENCE. Trustees — Misappropriation — Surety — Knowledge by cestui que trust — Estoppel — Parties. See Evidence, 176. And see Estoppel. ACTION. 8 ACTION. 1. AocouuT, 1-6. 2. Assumpsit and Common Counts, 7-11. 3. condiotio indebiti, 12-20. 4. Condition Precedent, 21-40. 5. Damages, 41-61. 6. Estoppel, 62-67. 7. Judgment, 68-70. 8. Jurisdiction, 71-74. 9. Hypothecary Actions, 75, 76. 10. Limitation of Actions, 77-83. 11. Married Women, 84, 85. 12. Negligence, 86-88. 13. Notice, 89-93. 14. Nullity, 94, 95. 15. Parties, 96-105 16. Partnerships, 106-108. 17. Petition of Right, 109-117. 18. Petitory Actions, 118-124. 19. Possessory Actions. 125-127. 20. Principal and Agent, 128. 21. Prohibition, 129. 22. Replevin and Revendication, 130-133. 23. Right of Action, 134-162. 24. Scire Facias, 163. 25. Service, 164. 26. Specific Performance, 165. 27. Suretyship, 166-169. 28. Trespass, 170-177. 29. Trover. 178, 30. Warranty, 179-181. 31. Other Cases, 182-194. 1. Account. 1. Reddition de compte — Contradictory pleading — Practice — Right of action.] — Where incompatible pleas have 'been filed and no sworn account regularly rendered in an action en reddition de compte, the point to be first decided is the plaintiff's right to have an account properly rendered. Judgment ap- pealed from (11 Q. R. R. 342), reversed. L'Heureux v. Lamarche, xii., 460. 2. Reddition de compte — Mandate — Settle- ment without vouchers — Reformation de com- pte — Errors and omissions-J — If a ma;n- dator and a mandatary, labouring under no legal disability, come to an amieable settle- ment about the rendering of an account due by the mandatary without vouchers or any formality whatsover, such a rendering of account is perfectly legal ; and if subse- quently the mandator discovers any errors or omissions in the account his recourse against his mandatary is by an action en reformation di compte, and not by an action asking for an- other complete account. Judgment appealed from (M. L. R. 3 Q. B. 167), affirmed. GU- lespie V. Stephens, xiv., 709. 3. Account — Dealings through third party — Lien on raft — Interest of plaintiff — Pro- ceeds of sale of timber — Advances.] — The plaintiff as owner in possession of a raft of timber, valued at $30,000, being in want of monev, applied to the defendant for a loan of $3,000, which he obtained on transferring the raft as security. The defendant disposed of the timber, but did not account for the proceeds. The plaintiff, admitting that the de- fendant was entitled to re-pay himself the ad- vance of $3,000, and expenses, prayed for an account, or, in default, $30,000, the alleged value. The defendant pleaded that the raft was received, not from the plaintiff, but from one B., whose property it was, un- der whose instructions he had disposed of it, and to whom he had, before suit, accounted : Held, aiErming both courts below, that the plaintiff was not entitled to the aetount for which he asked, the dealings of defendant hav- ing been \yith B., to whom alone he was ac- countable, and plaintiff having no real inter- est when his action was brought. Pournier and Henry, JJ., dissented. Doran v. Ross, 23rd June, 1884; Cass Dig. (2 ed.) 829. 4 Municipal corporation — By-law — Railway aid — Subscription for shares — Debentures — Division of county — Erection of new munici- palities — Assessment — Sale of shares at dis- count — Action en reddition de comptes — Trustee — Debtor and creditor — Arts. 78, 164, 9S9, Mun. Code. Que. — 2Jf Vict. c. 30 (Que.)~S9 Vict. c. 50 (Que.)]— An ac- tion en reddition de comptes does not lie against a trustee invested with the admin- istration of a fund, until such adminis- tration is complete and terminated. — The relation existing between a county corpo- ration under the provisions of the muni- cipal code of the Province of Quebec and the local municipalities of which it is composed, in relation to money by-laws, is not that of agent or trustee, but the county corporation is a creditor, and the several local municipalities are its debtors for the amount of the taxes to be assessed upon their rate- payers respectively. — Where local municipali- ties have been detached from a county, and erected into separate corporations, they remain in the same position, in regard to subsisting money by-laws, as they were before the divi- sion, and have no further rights or obligations than if they had never been separated there- from, and they cannot either conjointly or in- dividually institute actions against such county corporation to compel the rendering of special accounts of the administration of funds in which they have an interest, their proper method of securing statements being through the facilities provided by article 164, and other provisions of the municipal code. Township of Ascott v. County of Compton; Village of Lennoxville v. County of Compton, xxix., 228. 5. Partition — Parties — Substitution — Transfer of shares — Release. See Account, 4. 6. Testamentary succession — Balarice due by tutor — Executors — Action for account — Ac- tion for provisional possession — Parties to action. See Practice, 1. 2. Assumpsit and Common Counts. 7. Pledge— Lien — Art. 9175 G. C— Inter- vention—Factor.'] —Where a consignment of goods has been sold and they remain no longer m specie, the only recourse by a person who claims an interest therein is by an ordinary action for debt, and he cannot claim any lien ACTION. 10 upon the goods themselves nor on the price received for them. Dingwall v. MoBean, xxx., 441. 8. Special assumpsit — Agreement with ship's husband — Breach. See CoNTEACT, 194. 9. Contract to saw logs — Rescission — Work and labour done — Recovery on common counts. See Contract, 27. 10, Parol agreement — Memo, in writing — Damages — Special count — Common counts. See Evidence, 16, 11, Bailees — Honey sent by express — Con- dition precedient to action — Notice of claim for non-delivery — Special plea — " Never in- debted." See No, 21 infra. 3. CONDICTIO Indebiti. 12, Contract — Sale of patent — Future im- provements — Money had and received.] — By contract under seal M. agreed to sell to B. and S. the patent for an acetylene gas machine for which he had applied and a caveat had been filed, and also all improvements and patents for such machine that he might there- after make, and covenanted that he would pro- cure patents in Canada and the United States and assign the same to B. and S. The latter received an assignment of the Canadian patent and paid a portion of the purchase money, but when the American patent was issued it was found to contain a variation from the de- scription of the machine ia the caveat and they refused to pay the balance, and in an action by M. to recover the same, they demanded by counterclaim a return of what had been paid on account : HeM. reversing the judgment of the Court of Appeal, that the agreement was not satisfied by an assignment of any patent that M, might afterwards obtain ; that he was bound to obtain and assign a patent for the machine described in the caveat re- ferred to in the agreement ; and that as the evidence shewed the variation therefrom in the American patent to be most material, and to deprive the purchasers of a feature in the machine which they deemed essential, M. was not entitled to recover. Held, further, Gwynne, J,, dissenting, that as B. and S, accepted the Canadian patent and paid a por- tion of the purchase money in consideration thereof, and as they took the benefit of it, worked it for their own profit and sold rights under it, they were not entitled to recover back the money so paid as money had and received by M. to their use. Bingham v. Mc- Murray, xxx., 159. 13. Condicto indebiti — Title to land — Ex- posure to eviction — Sheriff — Vacating sale — Refund of price of adjudication — Substitu- tion not yet open — Prior incumbrancer — Peti- tion—Arts. 706, 710, 7U, 715, C. C. P.]— The provisions of article 715 of the Code of Civil Procedure of Lower Canada do not apply to sheriff's sales which have been perfected by payment of the pric* of adjudication and the execution of a deed, nor does that article give a right to- have such a sale vacated, and the amount paid refunded. The actio condictio iru- dobiti for the recovery of the price paid by the purchaser of lauds lies only in cases where there has been actual eviction. Jlere exposure to eviction is not sufficient ground for vacat- ing a sheriff's sale. The procedure by petition provided by the Code of Civil Procedure for vacating sheriff's sales can only be invoked in cases where an action would lie. Trust and Loan Co. v. Quintal (2 Dor. Q. B. 190), fol- lowed. Deschamps v. Bury, xxix., 274. 14. Condictio indebiti — RC-petition de I'indti — Fictitious claims — Misrepresentation — — Evidence — Onus probandi — Arts. lOlp, lOka, IIJ/O C. C. — Railway subsidies — .54 Vict. c. 88 (Que.) — Insolvent company — Construc- tion of railroad by new company — Payment of claims by crown — Transfer by payee.] — X company formed for the construction of a subsidized railway having failed, another com- pany undertook to complete it, and the gov- ernment of Quebec agreed to pay all the actual debts against the road out of the unearned subsidies. A., the contractor of the former company, presented a claim for $175,000, which was approved of and paid, whereupon he paid over $100,000 of the amount to P. for services performed in organizing the new company and obtainirig payment of the claim. The government afterwards brought an ac- tion against P. to recover back the $100,000 on the ground that A.'s claim was fictitious and was paid on false representations : Held, reversing the judgment of the Court of Queen's Bench, that the actioa must fail if it could not have been maintained against A., that the onus was on the Crown of proving A.'s claim to be fictitious, and that the Crown not only failed to satisfy such onus, but the evidence clearly established the claim to be a just and rea- sonable one. Held, further, that, in any case, the action could not be maintained, as it failed to ask for the cancellation of the order in council, the letter of credit and the payment made by the Crown thereunder. Held, fur- ther, that the payment to A., with the con- sent of the new Company, was a discharge to the government pro tanto of the subsidy due to the company, and if wrongfully paid the latter only could recover it back. Held, also, that even if the Crown could have recovered the amount from A., it could not succeed against P,, who, as the record shewed, had ample reason for believing that the company was indebted to A., as claimed. Pacaud v. The Queen, xxix., 637. 15. Municipal taxes — Railways — By-laws ■ — ■ Voluntary payment — Action to recover bach moneys paid to corporation.] — Held, per Strong O.J., that where taxes have been paid to a municipal corporation voluntarily and with knowledge of the state of the law and the circumstances under which the tax was imposed, no action Can lie to recover the money so paid from the municipality. Judgment of the Court of Queen's Bench (Q. R. 8 Q, B. 246) affirmed. Canadian Pacific Ry. Co. V. City of Quebec. Grand Trunk Ry. Co. V. City of Quebec, xxx., 73, 16. Money paid — Failure of considera- tion — Right to recover — Construction of con- tract. See Conteact, 240, 17. Condictio indebiti — Payment of illegal tax — Error of law — Proof. See Assessment and Taxes, 49. 18. Unconstitutional act — Payment with departmental sanction — Recovery of money See LiQUOB Laws, 6. 11 ACTION. 13 19. Stock jobbing — Margin payments — Money had and received. See Bhokeb, 2. 20. Repetition de I'indn — Actio oondictio indebiti — Error as to fact — Payment under threat of prosecution — Ratification — Trans- action. See Mistake, 3. 4. Condition" Pkecedent. 21. Bailees — Common Carriers — Express company — Receipt for money parcel — Condi- tions precedent — Formal notice of claim, - — Pleading — Money had and received — Special pleas — " Never indebted."] — Where an ex- press company gave a receipt for money to be forwarded with the condition indorsed that the company should not be liable for any claim in respect of the package unless within sixty days of loss or damage a claim should be made by written statement with a copy of the con- tract annexjHj : Held, that the consignor was obliged to comply strictly with these terms as a condition precedent to recovery against the express company for failure to deliver the parcel to the consignee. Richardson v. The Canada West Farmers' Ins. Co. (16 XT. C. C. P. 430) distinguished. — In an action to recover the value of the parcel, on the common count for money had and received, the plea of " never indebted " put in issue all material facts necessary to establish the plaintiff's right of action. Northern Pacific Express Co. v. Mar- tin, xxvi., 135. 22. Damages — • Quasi-delit — Limitations —Arbitration— C. S. L. C. c. 5i.]— The mode of proceeding provided by C. S. L.C. c. 51, does not exclude the right of proceeding by action. ( See 7 Q. L. R. 286 ; 15 R. L. 514) . Breakey v. Carter, 12th May, 1885. Cass. Dig. (2 ed.) 463. 23. Compensation — Defence ■ — Taking advantage of one's own wrong.] — In an ac- tion to recover an amount received by the de- fendant for the plaintiff, the defendant plead- ed inter alia that the action was premature inasmuch as he had got the money irregularly from the treasurer of the Province of Quebec on a report of distribution of the prothonotary before all the contestations to the report of Collocation had been decided : Held, affirming the judgment of the court below, that this defence was not open to the defendant, as it would be giving him the bene- fit of his own improper and illegal proceedings. Bury V. Murray, xxiv., 77. 24. Accident insurance — Condition in policy-r-Notice — Condition precedent — Ac- tion.] — A policy contained a condition that written notice should be given within thirty days of accident, to the manager at Boston, or the agent whose name was endorsed thereon. Insured having died from an accident, the beneficiary brought action on the policy to which the company pleaded want of notice un- der the condition. The plaintiff's demurrer was allowed. Held, Gwynne, J., dissenting, that notice in conformity with the condition was a condition precedent to action, and that / the demurrer must be overruled. Employers' Liability Ass. Go. v. Taylor, xxix., 104. 25. " Mortgage clause " — Fire ■ insurance — Assignment of interest in property in- sured — Arbitration — Award — Condition prece- dent.] — A mortgagee of insured premises to whom payment is to "be made in case of loss " as his interest may appear " cannot recover on the policy when his mortgage has been assigned and he has ceased to have any in- .terest at the time of the loss. — Where a condi- tion in the policy provided that no action should be maintainable against the company for any claim under the policy until after an award should have been obtained in the man- ner therein provided fixing the amount of the claim : Held, that the making of such an award was a condition precedent to any right of action to recover a claim for loss uhder the policy. Guerin v. Manchester Fire Assur- ance Company, xxix., 139. 26. Fire insurance — Condition in policy — Time limit for submitting particulars of loss — Condition precedent — Waivei Auth- ority of agent.] — ^A condition in a policy of insurance against fire provided that the as- sured " is to deliver within fifteen days after the fire, in writing, as particular an account of the loss as the nature of the case permits." Held, following Employers' Liability Ass- Corp. V. Taylor, (29 Can. S. C. R. 104), that compliance with this provision was a condition precedent to an action on the policy. The Atlas Assurance Company v. Brownell. xxix., 537. 27. Condition precedent — Allegation of performance — Burden of proof — Waiver — In- surance policy.] — Under the Ontario Judica- ture Act the performance of conditions pre- cedent to a right of action must still be alleged and proved by the plaintiff. Home Life As- sociation V. Randall, xxx., 97. 28. Mines and minerals — Adverse claim — Form of plan and nffidavit — • Ttight of action — Condition precedent — Necessity of actual survey — Blank in jurat — R. 8. B. G. {1897) c. 135, s. 37 — R. 8. B. G. (1897) c. 3, s. 18—61 Vict. c. 33, s. 9 {B.G.)—B. C. Supreme Court Rule JjlS of 1890.] — The plan required to be filed in an action to adverse a mineral claim under the provisions of s. 37 of the " Mineral Act " of British Columbia, as amended by s. 9 of the " Mineral Act Amendment Act, 1898," need not be based on an actual survey of the location made by the provincial land surveyor who signs the plan. The filing of such plan and the affidavit re- quired under the said section, as amended, is not a condition precedent to the right of the adverse claimant to proceed with his adverse action. Paulson v. Beaman, et al., xxxii., 655. 29. Condition precedent — Mutual insurance policy — Notice of loss — Filing of claim papers — Time allowed for payment — Suit prema- turely instituted. See INSTJKANCE, FiKE, 40. 30. Petition of right — Condition precedent — Certificate of engineer — Intercolonial railway contract— Claim for extras. See Contract, 94. 31. Condition precedent — Engineer's certifi- cate — Want of diligence — Laches. See Conteact, 54. 32. Contract for carriage of goods — Partial loss — Delivery — Notice — Condition precedent ' — Estoppel — Joint tort-feasors. See Railways, 3. 13 ACTION". 14 33. Public works contract — Progress esti- mates — Engineer's certificate. See Action, 111. 34. Contract for pulUc works — Suspension of right of action — Agreement for arbitration. See Contract, 62. 35. Right of action — Condition precedent — Signification of transfer — Issue as to. See Signification, 1. 36. Condition precedent — Arbitration — Award — Action for possession — Payment for improvements. See Lessor and Lessee, 1. 37. Accident insurance — Condition in policy — Notice — Condition precedent. See Insurance, Accident, 4. 38. Award— R. S. O. (1887) o. 121— River improvements — Detention of saw logs on drive — Construction of statute. See Arbitration and Award, 22. 39. Contract — Construction of railway — Certificate of engineer — Condition precedent. • See CONTRApT, 69. 40. Contract by correspondence — Post letter — Time limit — Term for delivery — Breach of contract — Damages — Counterclaim — Condi- tion precedent — Right of action. See Contract, 217. 5. Damages. 41. Tort — Lease of pew — Disturbance in possession — Rights of pew-holder — Mea- sure of damages.} — J., an elder and member of the congregation at St. Andrew's Church, Montreal, had been a pew-holder in St. Andrew's Church continuously from 1867 to 1872, inclusive. In 1869 and 1872 he occu- pied pew No. 68, and on payment of the rental of 1872 obtained a receipt in the fol- lowing words : " Montreal, January 9th, 1872. $66.50. Received from James John- ston the sum of sixty-six dollars and fifty cents, being rent of first-class pew No. 68, in St. Andrew's Church, Beaver Hall, for the year 1872. For the trustees^ J. Clements." It appeared by the by-laws, custom, and usage of the church that pew-holders, being members of the congregation were entitled to have their pews re-let to them from year to year on payment of the annual rental. On the 7th December, 1872, the trustees notified J. that they 'would not let him a pew for the following year. J. thereupon tendered them the rental for the next year, in advance. On several occasions in 1873, and while still an elder and member of the congregaaon, he was disturbed in the possession of pew No. 68, by the respondents, the pew having been pla- carded " for strangers," strangers seated in it, his books and cushions removed, and so forth. For these torts he brought an action against respondents, claiming $10,000 dam- ages. Held (the Chief Justice and Strong, J., dissenting), that as J. continued an elder and member of the congregation and tendered the rent of his pew in advance, he was en- titled to a continuance of his lease for the year 1873 ; that the disturbance complained of gave him a right of action for tort, and that reasonable, but not vindictive, damages should be allowed. Johnston v. Minister and Trustees of St. Andrew's Church, i. 235. The Privy Council refused leave to appeal from this judginent and held that Her Ma- jesty's prerogative to allow an appeal, pre- served by 38 Vict. c. 11, s. 47, should not be exercised either because of the magnitude of the case or its effect upon other cases. (3 App. Cas. 159.) 42. Maritime Court of Ontario — Juris- diction — R. S. O. (1877) 0. 128 — Negli- gence — Action in rem — Damages for death of servant — Lord Campbell's Act — Right of action.'] — Petition against " The Garland," libelled under the Mai-itime Court Act (O.), claimed $2,000 damages for the death of ap- jjellant's son and servant, caused by the neg- ligence of its officers. The respondent inter- vened, and demurred on the ground that the petition did not set forth a cause of action against " The Garland " within the jurisdic- tion of the court. Held, Fournier and Tas- chereau, JJ., dissenting, that the Maritime Court of Ontario has no jurisdiction apart from R. S. O. (1877) c. 128 re-enacting Lord Campbell's Act (9 & 10 Vict. c. 98), in an action for personal injury resulting in death, and therefore the appellant had no locus standi, not having brought her action as the personal representative of the child. Per Fournier, Taschereau, Henry, and Gwynne, JJ., reversing the judgment of the Maritime Court of Ontario that Vice-admir- alty Courts in British possessions ar,d the Maritime Court of Ontario have whatever jurisdiction the High Court of Admiralty has over " any claim for damages done by any ship, whether to person or to property." Per Fournier and Taschereau, JJ.. dissent- ing, that apart from and independently of the Act, R. S. O. (1877) c. 128, the Maritime Court of Ontario has jurisdiction in a proceed- ing in rem against a foreign vessel for the re- covery of damages for injuries resulting in death and that the appellant, either in the ca- pacity of parent or of mistress, was entitled to claim damages for the loss of her son or ser- vant. Monaghan v. Horn, " The Garland," vii., 409. 43. Malicious prosecution — Evidence — Favourable termination.'] — Where a party pays under protest a penalty imposed upon him by a justice of the peace in pro- ceedings taken against him under the provi- sions of c. 22, C. S. L. C, "An Act respecting Good Order in and near Places of Public Worship," and afterwards brings an action in damages against the person, whom he al- leged had maliciously instigated such proceed- ings, and at the trial before a jury there is no evidence of the favourable termination of the prosecution against him, the court were equally divided as to the right of such party to maintain his action. Sir W. J. Ritchie, C.J., and Strong and Taschereau, JJ., were of opinion that the action could not be maintained under such circumstances. Fournier, Henry, and Gwynne, JJ., contra. The appeal was in consequence dismissed without costs. Poitras v. Lebeau, xiv., 742. 44. Cause of action — Trade union — Combination in restraint of trade — Strikes 15 ACTION. 16 — Social pressure.] — Workmen who, in car- rying out the regulations of a trade union forbidding them to work at a trade in company with non-union worlcmen, without threats, violence, intimidation or other illegal means, take such measures as result in ^ pre- venting a non-union workman from obtaining employment at his trade in establishments where union 'workmen are engaged, do not thereby incur liability to an action, for dam- ages. Judgment of the Court of Queen's Bench (Q. R. 6 Q. B. 65) affirmed. Per- rauU V. (iauthier et al., xxviii., 241. 45. Liquor laws — Municipal corporation — Discretion of mernbers of council — Refusal to confirm certificate — Liability of corpora- tion.] — In an action against a municipal corporation for damages claimed on ac- count of the council of the municipality hav- ing, as alleged, illegally refused to confirm a certificate to enable the plaintifi: to obtain a license for the sale of liquors in his hotel : Held, affirming the judgment appealed from (Q. R. 8 Q. B. 276), that the municipal council had a discretion under the provisions of the "Quebec License Law," (R. S. Q. art. 839 ) , to be exercised in the matter of the confirmation of such certificates for the exercise of which no action could lie, and further, that even if the members of the council had acted maliciously in refusing to confirm the certificate, there could be no right of action for damages against the cor- poration on that account. Beach \. Town- ship of Stanstead, xxix., 736. 46. Government railway' — Injury to em- ployee — Lord Vamphell's Act — Art. 1056 V. G. — Exoneration from liability — R. 8. C. c. 38, s. 50.]— Art. 1056 C. C. embodies the action previously given by a statute of the Province of Canada re-enacting Lord Camp- bell's Act. Robinson v. Canadian Pacific Railway Co., ( [1892] A. C. 481) distinguish- ed. — An employee on the Intercolonial Rail- way became a member of the Intercolonial Railway Belief and Assurance Association, to the funds of which the government contri- Ijuted annually $6,000. In consequence of such contribution a rule of the association provided that the members renounced all claims against the Ctown arising from in- jury or death in the course of their employ- ment. The employee having been killed in discharge of his duty by negligence of a fel- low servant : Held, reversing the judgment of the Exchequer Court (6 Can. Ex. C. R. 276) that the rule of the association was answer to an action by his widow under art. 1056 C. C. to recover compensation for his death. 'The Queen v. Grcnier, xxx., 42. 47. Prescription — Arts. 2188, 2262, 2267 C. C. — Waiver — Failure to plead limitation — Defence supplied by the court of its own motion — Reservation of recourse for future damages — Judicial admission — In- terruption of prescription — Novation — Costs.] — The prescription of actions for per- sonal injuries established by art. 2262 of the Civil Code of Lower Canada is hot waived by failure of the defendant to plead the limita- tion, but the court must take judicial notice of such prescription as absolutely extinguish- ing the right of action. — The reservation of recourse for future damages in a judgment upofi an action for tort is not an adjudication which can preserve the right of action be- yond the time limited by the provisions of the Civil Code. — Wlien in an action of this nature there is but one cause of action damages must be assessed once for all. And when damages have been once recovered, no new action can be maintained for sufferings after- wards endured from the unforeseen "effects of the original injury. City of Montreal v. M\cGe&, XXX., 582. 48. Indemnity for land expropriated — Widening streets — Montreal city charter — Re- course for damages — Expropriation — Arbi- tration and award.] — The owner of land expropriated for the widening of streets in 1895 may maintain an action for damages to recover the value of the land so taken not- withstanding the provisions of 52 Vict. c. 79, as to expropriation, arbitration" and award, and the amendment thereto by 59 Vict. c. 40, s. 17 passed after possession had been taken by the corporation. Fairman v. City of Montreal, xxxi., 210. 49. Pledge — Deposit with tender — For- feiture — Breach of contract — Municipal cor- poration — Right of action — Damages — Com- pensation and set-off — Restitution of thing pledged— Arts. 1966, 1969, 1971, 1912, 1^75, C. C — Practice on appeal — Irregular proce- dure.] — C. on behalf of J. C. & Co., a firm of contractors of which he 'was a member, de- fiosited a sum of money with the City of Mon- treal as a guarantee of the good faith of J. C. & Co., in tendering to supply gas for illu- m.inating and other purposes to the city and the general public within the city limits at certain fixed rates, lower than those previ- ously charged by companies supplying such gas in Montreal, and for the due fulfilment of the firm's contract entered into according to the tender. After the construction of some works and laying of pipes in the public streets, J. C. & Co. transferred their rights and privi- leges under the contract to another company and ceased operations. The plaintiff, after- wards, as assignee of C, demanded the re- turn of the deposit which was refused by the city council which assumed to forfeit the de- posit and declare the same confiscated to the- city for non-execution by J. C. & Co. of their contract. After the transfer, however, the companies supplying gas in the city reduced the rates to a price below that mentioned in the tender so far as the city supply was af- fected, although the rates charged to citizens were higher than the price mentioned in the contract. Held, that the deposit so made was a pledge subject to the provisions of the sixteenth title of the Civil Code of Lower Can- ada and which, in the absence of any express stipulation, could not be retained by the pledgee, and that, as the city had appropriated the thing pledged to its own use without au- thority, the security was gone by the act of the creditor and the debtor was entitled to its restitution although the obligation for which the security had been given had not been ex- ecuted. — On a cross-demand by the defendant for damages, to be set-off in compensation against the plaintiff's claim: Held, that, as the city had not been obliged to pay rates in excess of those fixed by the contract, no dam- age could be recovered in respect to the obli- gation to supply the city ; and that the breach of contract in respect to supplying the public did not give the corporation any right of ac- tion for damages suffered by the citizens in- dividually. Held, further, that prospective damages which might result from the occu- pation of the city streets by the pipes actually 17 ACTION. 18 laid and abandoned were too remote and un- certain to be set-off in compensation of the claim for the return of the deposit. Finnie V. City of Montreal, xxxii., 335. 50. Navigable Waters — OTistruction of ac- cess— Damages— ^3 <& U Vict. 0. JfS (©.) — Remedy. See Railway, 68. 51. Specific performance — Damages for non-performance — Conditions of honiis by- law — Prior agreement — Remedy of municipal corporation. See Railways, 89. 52. Obstruction of beach privileges — Com- pensation for loss of riparian nghts — Tort. See ExpKOPEiATlOJf, 21. 53. Statutory redress — ■ Damages — Negli- gence — H ighway — Loicering grade — Excava- tions— 51 Vict. c. It2, s. 190 (B.C.) See Municipal Institution, 162. 54. Damages — Flooding lands — Repairs to roads — Mandamus — Municipal drains. See Damage, 3. 55. Nuisance — Damages — Use of street by railway company — North Shore Railway. See Railways, 71. 56. Breach of contract — Lease of printing press — Damages — Power of attorney — Art. 120 (7) G. G. P. See CONTKAOT, 13. 57. Municipal corporation — Expropriation proceedings — Negligence — Interference with proprietary rights — Abandonment of proceed- ings — Damages — Servitudes established for public utility— Arts. 406, 417, 507, 1053 G. C. — Eminent domain. See Servitude, 6. 58. Action to compel completion of pur- chase — Settlement after judgment — Subsequent action for interim damages. See Insolvency, 49. 59. Damages — Evidence — Misdirection — New trial— 60 Vict. c. Z4, s. 3~0 (N.B.) See New Trial, 80. 60 Personal injuries caused by negligence — Examination of plaintiff de bene esse — Death of plaintiff — Subsequent action under Lord Campbell's Act — Material issues — Evidence. See Evidence, 19. 61. Injuries to leased lands — Domain utile — Petitory action by lessor — Adding parties. See Railways, 152. 6. Estoppel. 62. Municipal work — Improper construction — Suit by a contractor. See Estoppel, 3. 63. Art. 19 C. C. P. — Suit by trustee — Deed by defendant — Estoppel — Prescription. See Trusts, 5. 64. Bar to action — Sheriff — Trespass — Sale of goods by insolvent — Bona fides — Judgment of inferior tribunal— Estoppelr-^Res judicata — Fraudulent preferences — Pleading. See Pleading, 29. 65. Title to land — Action en bornage — Sur- veyor's report — Chose jugee. See Res Judicata, 8. P6. Assessment and taxes — Appeal from as- sessment — Estoppel — Judgment confirming de- cision of municipal committee — Payment of taxes under protest — Res judicata. See Assessment and Taxes, 1. 67. Emphyteutic lease — Sale of lands— De- scription of boundaries — Conduct of parties — Acquisitive prescription — Right of action — Priority — Registry laws. See Railways, 152. 7. Judgment. 68. Order by foreign tribunal — Judgment — Winding-up order — C ontributories — Calls- — Declaration — Demurrer, See Winding-up Act, 11. 69. Bar to action — Foreign judgment — Es- toppel — Judgment obtained after action begun —R. S. N. S. (5 ser.), c. 104, «• 1^, s.-s. 7. See Judgment, 20. 70. Action on judgment — Partnership — Judgment against firm — Liability of reputed partner — Bills and notes. See Partnership, 40. 8. Jurisdiction. , 71. Jurisdiction — Mortgage of foreign lands — Action to set aside — Secret trust — Lex rei sitce.} — ■ A Canadian court cannot en- tertain an action to set aside a mortgage on foreign lands on the ground that it was taken in pursuance of a fraudulent scheme to de- fraud creditors of the original owner through whom the mortgagee claimed title, it not being alleged in the action, and the court not be- ing able to assume, that the law of the foreign country in which the lands :were situate cor- responded to the statutory law of the pro- vince in which the action was brought. Burns V. Davidson (21 O. R. 547) approved and followed. Purdom v. Pavey ct Co.. xxvi., 412. 72. Appeal — Jurisdiction — Appealable amount — Monthly allowance — Future rights — " Other matters and things " — R. S. C. c. 135, s. 29 {b)—56 Vict. c. 29 { D.)— Established jurisprudence in court appealed from. See Appeal, 78. 73. Penalties — Plea of ultra vires of statute — Judgment on other grounds — Jurisdiction of Supreme Court of Canada. See Appeal, 89. 19 ACTION. 2» 74. Domicile — Contract iy correspondence — Indication of place of payment — Delivery of goods sold — Cause of action — Jurisdiction. See CoNTEACT, 134. 9. Hypothecary Actions. 75. D4claration d'hypotMque — Surrender of lands — ■ Personal condemnation — Art. 2015 G. C] — In an action en declaration d'hypo- tMque the defendant may, in default of his surrendering the property within the period fixed by the court, be personally condemned to pay the full amount of the sheriff's claim. Duiuo V. Kidston, xvi.i 357. 76. Personal action on covenant — Sale of mortgaged property — Hypothecary action — Res inter alios acta. See Sam, 108. 10. Limitation op Actions. 77. Mortgage — Bond — Covenant — Pay- ment — Interruption of prescription. See Limitation of Actions, 1. 78. Recovery of land — Joint interest — Life estate — Survivorship — Possession — Remain- der. See Title to Land, 79. 79. Suit iy trustee — Deed iy defendant — Estoppel— Art. 19 G. C. P. See Tetjsts, 5. 80. Restoration of land griv4 de substitu- tion — Possession — Bad faith- — Art. 2Z68 C. G. See Substitution, 4. 81. Limitation of action — Commencement of prescription — Torts — Liaiility of employee for act of contractor — Continuing damages — Puh- lic work. See Peescbiption, 30. 82. Municipal drains — Continuing trespass — Limitation of actions — Actions ex delictu — 58 Vict. c. 4, s. 295 {N. S.) See Limitations of Actions, 12. 83. Adverse possession — Acquisitive pre- scription — Estoppel ty deed — Conduct of parties — Registry laws. See Railways, 152. 11. Maeeied Women. 84. Married.- woman — Community — Per- sonal injuries — Right of action — Pleading — Exception a la forme — Arts. H, US 119, C. G. P. (old text)— Appeal—Ques- tions of procedure.] — The right of action for damages for personal injuries sustained by a married woman, commune en biens, belongs exclusively to her husband and she cannot sue for the recovery of such damages in her own name, even with the authorization of her husband. — Where it appears upon the face of the writ of summons and statement of claim that the plaintiff has 'no right of ac- tion, it is not necessary that the objection should be taken by exception d, la forme. — Absolute want of legal right of action may- be invoked by a defendant at any stage of a suit. Judgment of the Court of Queen's Bench, 3 Q. P. R. 1. overruled on the motifs, but affirmed in its result. McFarran v. Mon- treal Park and Island liy. Co., xxx., 410. 85. Husiand and wife — Separate prop- erty of wife — Married Woman's Property Acts {N. S.) — Action by wife against hus- band.'] — ^Under the Married Woman's Prop- erty Acts of Nova Scotia, a promissory note indorsed to the maker's wife can be sued on by the latter against her husbands Judgment appealed from (33 N. S. Rep. 1) reversed. Michaels v. Michaels, xxx., 547. 12. Negligence. 86. Negligence — Risk voluntarily incurred — " Volenti non fit injuria."] — On the trial of an action for damages in consequence of an employee of a lumber company being killed in a loaded car which was being shunted, the jury had found that " the de- ceased voluntarily accepted the risks of shunting," and that the death of the deceased was caused by defendant's negligence in shunting, in giving the car too strong a push. Held, that the verdict meant only that de- ceased had voluntarily incurred the risks at- tending the shunting of the cars in a care- ful and skillful manner, and that the maxim " volenti non fit injuria " had no application. Smith V. Bakier ([1891] A. C. 825) applied. The Canada Atlantic Ry. Co. v. Burdman, XXV., 205. 87. Negligence — Joint tort-feasors — Joinder of defendants — B. C. Judicature Act — Motion for judgment — Findings of jury — New trial — Judgment by appellate court. See Navigation, 2. 88. Negligence of crown servant — Public- work — Personal injuries — Prescription. See Negligence, 206. 13. Notice. 89. Notice — Suits against Government offi- cials — " Employee " Intercolonial Railway — Expropriation — U Vict. u. 25, s. 109. See Ceown, 64. 90. Notice — Letter by solicitor — Pleading.. See Municipal Coepokation, 141. 91. Right of action at common law — Arbi- tration — Municipal duty — Repair of drains —R. S. O. (1887) c. 184— Notice of action.. See Deainage, 2. 92. False arrest — Notice — Public officer. See Notice, 30. 93. Carriers — Express company — Receipt for money parcel — Notice of claim. See No. 21 ante. 21 ACTION. 14. Nullity. 94. Administration — Trustees — Agents — Nullity — Art. 1^84 C. C] — In an action where no special demand to that effect has been made, the court cannot declare the nul- lity of a deed of transfer alleged to have been made in contravention of the provisions of art. 1484 of the Civil Code. Guertin v. t^Sunsterre, xxvii., 522. 95. Setting aside voluntary conveyance — Pleading — Assignment for benefit of creditors. See Assignment, 2. 15. Parties. 96. Husband and wife — Community — Del- tor and creditor— Liquidation of insolvent estate — Principal and agent — Deposit in bank — Bight of action — Recovery of wife's prop- erty. See Principal and Agent, 20. 97. Parties — Promotion of joint stock com- pany — Misrepresentation — Action by share- holders — Delay — Blstoppel. See Company Law, 37. 98. Insolvency — Setting aside chattel mort- gage — Parties. , See Fraudulent Peeferbnoes, 3. 99. Tierce-opposition — Setting aside judg- ment- — Intervention — Locus standi — Prescrip- tion — Want of parties. See Title to Land, 131. 100. Fictitious lease — Attornment by mort- gagor — Distress for rent — Seizure in execu- tion — Locus standi of third parties. See Landlord and Tenant, 1. 101. Suit in vice-admiralty — Salvage — Parties — Proceeding in rem. See Shipping, 5. 102. Ejectment — Pleading — Husband ' and wife — ti'raudulent conveyance. See Ejectment, 1. 103. Accidental injury — Runaway team — Telephone pole — Third party — Costs. See Negligence, 192. 104. Parties — Principal and agent — Statu- tory board of commissioners — Contract — Waterworks. See Municipal Corporation, 65. 105. Adding parties — Damages to leasehold property — Legal and beneficial estates. See Railway., 152. 16. Partnerships. 106. Partnership — Division of assets — Art. 1898 C. C. — Mandate — Debtor and creditor — Account.'] — Upon the dissolution of a part- nership, where one of the partners has been entrusted with the collection of moneys due as the mandatary of' the others, any ^ of his co-partners may bring suit against him dir- ectly either for an account under the man- date, or for money had and received. Lefebvre V. Aubry, xxvi., 602. 107. Contract under seal — Undisclosed principal — Partnership — Amendment.] — P. sold mining areas and was paid part of the price. The purchaser signed an agreement under seal that he would organize a com- pany to work the areas and give P. stock for the balance at the market price. H. organized a company which received a deed of the land and did some work but fin- ally ceased operations. Only a small part of the stock was sold and none was given to P., who took action against the purchaser and H., claiming that the latter was a partner of the purchaser and that the agreement was signed on behalf of both. The purchaser did not defend the action. Held, that no action could lie against H. on the agreement under seal not signed by him even if it was for his benefit and a seal was not necessary. — The court re- fused to interfere, with the discretion of the court below in refusing an amendment to the statement of claim. Porter v. Pelton, xxxiii., 449. 108. Penal statute — Prohibited contract — Nullity — Raihcay director — Partnership with contractor — Action pro socio — ** The Consoli- dated Railway Act, 1879." See Constitutional Law, 30. 17. Petition of Right. 109. Petition of right — Public work — Negli- gence of Crown servants — Liability as com- mon carrier — Contract — Tolls.] — A petition of right does not lie to recover compensa- tion from the Crown for damage occasioned by the negligence of its servants to the prop- erty of an individual using a public work. An expressed or implied contract is not created with the Crown because an individual pays tolls imposed by statute for the use of a public work, such as slide dues for passing his logs through government slides. In such a case the Crown cannot be held liable as a common carrier. 2'he Queen v. MoFarlane, vii., 216. , 110. Claim aoainst Province of Canada — B. N. A. Act (1861) s. Ill— Contract— Order- in-council — Petition of right.] — Prior to con- federation T. was cutting timber under li- cense from the Province of Canada on ter- ritory in dispute with New Brunswick. To utilize the timber he had to send it down the St. John River, and it was seized by the authorities of New Brunswick and only re- leased upon payment of fines. T. continued paying the fines for two or three years until he was obliged to abandon the business. After the two provinces had agreed upon the boundary, a commission was appointed to determine the state of accounts between them in respect to such territory. One mem- ber only reported findins; New JBrunswick in- debted ■ to Canada in $20,000 and upwards, and in 1871 these figures 'were verified by the Dominion auditor. Both before and after confederation T. frequently urged the Govern- ment of Canada to collect this amount, and indemnify licensees who had suffered while 23 ACTION. 24: cutting timber owing to the dispute. ■ Finally by order-iu-council of the Dominion Govern- ment (to whom it was claimed the debt of New Brunswick was transferred by the B. N. A. Act) it was declared that a certain amount was due to T. which would be paid on the consent of the Governments of Ontario and Quebec. Such consent was obtained, and payments on account iwere made by the Dominion Government first to T. and after- wards to the suppliant to whom T. assigned. Suppliant proceeded by petition for the bal- ance. The Crown demurred on the ground that the claim was not founded upon a con- tract, and was not properly a subject for IXitition of right. Fournier, J., overruled the demurrer (1 Ex. C. R. 356) . Held, revers- ing the judgment appealed from, (Fournier and Henry, JJ., dissenting), that there be- ing no previous indebtedness shewn to T. either from New Brunswick, the Province of Canada or the Dominion, the order-in-coun- cii did not create a debt between T. and the Dominion Government which could be en- forced by petition of right. The Queen v. JJiinn, xi., 385. 111. Contract — PuUio works — Progress estimates — Engineer's certificate ■ — Revision by succeeding engineer — Action for payment on monthly certificate.] — A contract with the Crown for building locks and other works on a government canal provided for monthly payments to the contractors of 90 per cent, of the value of the work done at the prices named in a schedule annexed to the con- tract, such payments to be made on the certificate 'of the engineer, approved by the Minister of Railways and Canals, that the work certified for had been executed to his satisfaction ; the certificate so approved was to be a condition precedent to the right of the contractors to the monthly payments, and the remaining 10 per cent, of the whole of the work was to be retained until its final completion ; the engineer was to be the sole judge of the work and materials, and his decision on all questions with regard thereto, or as to the meaning and inten- tion of the contract, was to be final ; and he was to be at liberty to make any changes or alterations in the work which he should deem expedient. Held, that though the value of the work certified to by the monthly certi- ficates was only approximate and subject to revision on completion of the whole, yet where the engineer in charge had changed the char- acter of a particular class of work, and when completed had classified it and 'fixed the value, his decision was final and could not be re- opened and revised by a succeeding engineer. Held, also, that the contractors could pro- ceed by action if payment on a monthly cer- tificate was withheld, and were not obliged to await the final completion of the 'work be- fore suing. Murray v. The Queen, xxvi., 203. 112. Grown — Contract — Right of action — , PuUie officer — Solicitor and client — R. S. C. cc. llJt, 115 — Inquiry as to public matters — Remuneration of commissioner — Quantum meruit.'] — The judgment appealed from (7 Ex. C. R. 351) held that a person appointed under R. S. C. c. 115, as commissioner to make inquiry and report on conduct in ofiice of an officer or servant of the Crown, could not recover for his services as such commis- sioner, there being no provision for such pay- ment ; that such service was not rendered in virtue of any contract but merely by virtue of appointment under the statute and that such appointment partakes more of the character of a public office than of a mere employment under a contract express or implied. The Su- preme Court affirmed the judgment appealed from, Strong, C.J., and Girouard, J., dis- senting. Tucker v. King, xxxii., 722. 113. Public work — Negligence of Crown officials — Right of action — Liability of the Crown— 50 d 51 Vict. c. 16, ss. 16, 23, 58— Jurisdiction of the Exchequer Court — Pre^ scription — Art. 2261 C. 0.] — Lands in the vicinity of the Lachine Canal were injuri- ously affected through flooding caused by the negligence of the Crown officials in failing to keep a syphon-tunnel clear and in proper order to carry off the waters of a stream which had been diverted and carried under the canal and also by part of the lands being spoiled by dumping excavations upon it. Held, re- versing the judgment appealed from (7 Ex. C. R. 1), (Pavies, J., dissenting), that the owner had a right of action and was entitled to recover damages for the injuries sustained and that the Exchequer Court of Canada had exclusive original jurisdiction in the matter under the provisions of ss. 16, 23, and 58 of the Exchequer Court Act. The Queen v. Filion, (24 Can. S. C. R. 482) approved; The City of Quebec v. The Queen, (24. Can. S. C. R. 430) referred to. — The prescription established by art. 2261 of the Civil Code of Lo\^er Canada applies to the damages claimed by appellant in his petition of right. Letour- neux V. The King, sxxiii. 335. 114. Public work — Contract binding on the Crown — Appropriation by Parliament ' — Unauthorized expenditure — Quantum mer- uit — Petition of right — 31 Vict. o. 12, ss. 7, 15, 20. See Contract, 91. 115. Negligence — Tort — Public wor¥ — Car- rier — Petition of right — Public servants. See Railways, 100. 116. Petition of right — Contract for public work — Transfer witjiout consent — Cancellation — Breach — Right to recover. See Contract, 93. 117. Petition of right — Allegation of per- formance — Condition precedent — Pleading — Am,endment. See Contract, 58. 18. Petitory Actions. 118. Petitoire — Demolition of completed works — Form of action — Mitoyeneti — DHon- ciation de nouvel oeuvre — Possessoire.J — Plaintiff prayed for the removal of a wall and demolition of works in connection therewith and also for £500 damages with interest and costs. Held, that demolition of completed works may properly be demanded in a peti- tory action for the recovery of property and that the present action is one in the nature of a petitory action and not an action posses- soire or en denonoiation de nouvel eeuvre. Joyce V. Hart, i., 320. 119. Petitory conclusions — Removing trus- tee — Recovery of church property — Pleading — 25 ACTION. 26 38 Vict. c. 72 (Q.)]— By deed on 23rd Novem- ber, 1871, duly registered, plaintiff, defendant, and two others as trustees of the Presbyterian Church of COte St. George, in connection with the Church of Scotland, became purchasers of the ground upon which a church was subse- quently erected. At the time of action the trustees, with the exception of the plaintiff and defendant, were dead. A union of the Presbyterian Churches of Canada took place in June, 1875. To further this union and re- move any obstructions which might arise out of the trusts by which the property of any of the churches was held, the " Union Act," (38 Vict. c. 72 (Q.)) was passed, which by s. 2, provided " that if any congregation in connection or communion with any of the said churches decide, at any meeting of the said congregation regularly convened, accord- ing to the rules of the said congregation, or the custom of the church with which it is in connection, and held in the two years after such union, by the majority of the votes ot those who, according to the rules of the said congregation, or the custom of the church with which it is in connection, are entitled to vote at such meeting, not to form part of the said union, but on the Contrary to separate itself therefrom, then and in such case, the property of the said congregation shall not be affected by this Act, nor by any of the pro- visions thereof." Plaintiff claimed that no meeting of the congregation had been regu- larly convened, or conducted according to its rules, or the custom of the church, and that consequently the property was affected by the statute, and should be held and administered for the benefit of the congregation in connec- tion with the united church, i. e.. "The Pres- byterian Church in Canada." Plaintiff also alleged that defendant had ceased to be a trus- tee, and, acting with a minority of the congi-e- gation who refused to enter into the united church, had taken forcible possession of the church property and excluded therefrom the plaintiff and the congregation, for which he was trustee. Plaintiff as sole surviving and acting trustee, sueing for himself in his said quality, and for the congregation, claimed the property and that defendant be ordered to quit and abandon the same, and be declared not to be a trustee of said property. Defend- ant admitted that he was not a trustee, but, while saying that he had no quality to defend the action, alleged that 3 regularly convened meetings had been held, within the 2 years, the effect of which 'was to take the- church and property out the union and that, at these meetings, trustees were legally appointed to replace those deceased. The Superior Court dii:missed the action on the sole ground that because the trust deed said nothing about sur- vivors, but provided for a succession, there could be no action unless the succession was first filled up. The Queen's Bench afiirmed this judgment, the majority presumably on the ground stated, Cross, J., alone giving as his reason that the meetings referred to were suffi- cient compliance with the law to take the property out of the union. Held, affirming the judgment appealed from, that the action being petitory, and defendant having pleaded and proved that he was not and had never pretended to be in possession of the property, plaintiff must fail ; and that he was not en- titled to a judgment declaring one not a trus- tee who did not pretend to be and admitted that he was not a trustee, Henry, J., dis- senting. Morrison v. McCuaig, 19th June, 1883; Cass. Dig. (2 ed.) 642. 120. Lease — Transfer of lease — Title to land — Alienation for rent — Emphyteusis — Bail a rente — Bail a longues annies — Droit mohilier — Cumulative demand — Incompatible pleadings — Action pititoire — Arts. 567, 572, J50S G. G.—Arts. 176, 177 (6) 106J,, 1066 G. P. Q. — Possessory action — Reintegrande — D6- nonciation de nouvel oiuvre.'] — An instrument by which lands were leased for sixteen years at an annual rental, subject to renewal for a further term of twelve years, provided for the construction of certain buildings and improve- ments by the lessee upon the leased premises, and hypothecated these contemplated amelior- ations to secure payment of rent and perform- ance of the obligations of the lessee. The leased premises were transferred by the lessee by deed of sale, and on disturbance an action, with both petitory and possessory conclusions^ was brought by the transferee against an al- leged trespasser, who pleaded title and pos- session in himself without taking objection to its cumulative form. Held, affirming the judgment appealed from, that under the cir- cumstances the action should be treated as petitory only ; that the ' contract under the instrument described was neither emphyteusis nor a hail a rente (lease in perpetuity), but merely an ordinary contract of lease which did not convey a title to the land nor real rights sufficient to confer upon the transferee the right of instituting a petitory action in his own name. Held, also, that the transfer by the deed of sale of such leased premises would not support the petitory action, as the lessee could not convey proprietary rights which he did not himself possess. Price v. LeBlond, xxx., 539. 121. Petitory action — Deed to married woman — Authorisation of husband — Title to land — Trespass.'] — Qucere, Would a deed of land to a married woman without the author- ization of her husband be sufficient to support a petitory action? Ghalifour v. Parent, xxxi., 224. 122. Action petitoire — Title to lands — Mistake of title — Oood faith — Common error — Demolition of works — Right of ac- cession—Arts. 412, 413, 429, et sea., 1047, 1241 C. G. See BouNDABY, 4. 123. Municipal . corporation — Construction of sidewalk — Trespass — Action en homage — Petitory action — Amendment of pleadings — Practice. See No. 171, infra. 124. Recovery of property under lease — Em- phyteusis — Damages — Beneficial estate — Add- ing parties. See Railways, 152. 19. Possessory Actions. 125. Trespass — Possession annale — Pos- sessory action — Equivocal possession — Ri^ht of way.] — In a possessory action by P. against H., the latter denied P.'s possession and pleaded that he was proprietor and had exercised a right of way over the lands in dis- pute, a roadway between their adjoining pro- perties, for a number of years. At the trial defendant put in his title. The plaintiff proved possession for a year by closing up the 37 ACTION. 38 roadway with a fence and putting his cattle there, and that at times he allowed defendant and others to use the roadway to get to the river, but that when defendant took down the fence he immediately restored it, and that de- fendant then asked him to let him use it ; that it was after defendant had again taken forcible possession that he instituted the pre- sent action. The courts below held that both parties had only proved an equivocal posses- sion and dismissed the plaintiff's action, or- dering that their rights should be tried au petitoire. Held, Fournier, J., dissenting, that as plaintiff had proved possession animo domini for a year and a day, he should be re- instated and maintained in peaceable posses- sion of the land, and defendant forbidden to trouble him by exercising a right of way over the land in question, reserving to the latter his recourse to revendicate au petitoire any right he might have. Pinsonneault v. Rehert, xiii., 450. 126. Action on disturbance — Possessory action — "Possession annale" ■ — Arts. 946, and 948 C. G. P. — Nature of possession of unenclosed vacant lands — Boundary marks — Delivery of possession.] — In 1890, G. pur- chased a lot of land 25 feet wide, and the vendor pointed it out to him, on the gi'ound, and shewed him the pickets marking its width and depth. The lot remained vacant and un- enclosed up to the time of the disturbance, and was assessed as a 25 foot lot to G., who paid all municipal taxes and rates thereon. In 1895 the adjoining lot, which was also vacant and unenclosed, was sold to another person "who commenced laying foundations for a building, and, in doing so, encroached by two feet on the width of the lot so purchased by G., Who brought a possessory action with- in a couple of months from the date of the disturbance. Held, that the possession an- nate, required by article 940 of the Code of Civil Procedure, was sufficiently established to entitle the plaintiff to maintain his action. Gauthier v. Masson, xxvii., 575. 127. Municipal corporation — Construction of sidewalk — Trespass — Action en homage — Petitory action — Amendment of pleadings — Practice. See No. 171 infra. 20. Peincipal and Agent. 128. Sale of goods — Action by undisclosed principal — Contract hy agent — Option to take hill of lading or reweigh — Deficient de- livery — Pleading — Tender and payment into court — Acknowledgment of liahUity — Estop- pel.']— Action for $3,038.44, price of 810 tons, 5 cwt. of coal sold by their agents T., M. & Co., through a broker, as per following note. " Messrs. T., M. & Go. : — I have this day sold for your account, to arrive, to the V. Hudon Cotton Mills Co., the 810 tons, 5 cwt. . . coal per bill of lading, per ' Lake Ontario,' at $3.75 per ton of 2,240 lbs., duty paid, ex ship ; ship to have prompt dispatch. Terms, net cash on delivery, or 30 days adding interest, buyers' option. Brokerage payable by you, buyer to have privilege of taking bill of lading, or re-weighing at sellers' expense." Defendants pleaded that the contract was with T., M. & Co. personally, that plaintiffs had no action ; that the cargo contained only 755 tons, 580 lbs. = $2,868.72, which they had offered T., M. & Co., together with the price of 10 tons more to avoid litigation, in all $2,890.72, which they brought into court, without ac- knowledging their liability to plaintiffs, and prayed dismissal of action as to any greater sum. Held, per Kitchie, C.J., and Tascher- eau and Gwynne, J J., (Fournier and Henry, J J., dissenting,) that it was unnecessary to decide the question as to whether the action could be brought by the undisclosed principal, for by their plea of tender and payment into court the defendants had acknowledged their liability to the plaintiffs, although such ten- der and deposit had been made " without ac- knowledging their liability." — Per Strong, J. That the action by respondents (undisclosed principals) was maintainable. — Per Fournier and Henry JJ., (dissenting), that the action by respondents (undisclosed principals) was not maintainable, and that the appellants were not precluded from setting up this defence by their plea of tender and payment into court.^ — ■ It was proved that defendants agreed to take the coal as per bill of lading without having it weighed. They, however, caused it to be weighed in their own yard, without notice to the vendors, and the Cargo was found to con- tain only 755 tons, 580 lbs. About three weeks after having received the bill of lading, when called upon to pay, they claimed a re- duction for the deficiency. Held, Fournier and Henry, JJ., dissenting, that defendants had no right to refuse payment for the cargo on grounds of deficiency in delivery, consider- ing that the weighing was done by them in the absence of plaintiffs without notice to them, and at a time when defendants were bound by the option they had previously made of taking the coal in bulk. Judgment appealed from (2 Uor. Q. B. 356) affirmed. 7. Uudon Cotton Co. V. Canada Shipping Co., xiii., 401. 21. Prohibition. 129. Mortgage deht — Collateral hond — Foreclosure — Sale of land — Suit for residue of deht — Prohihition. See Mortgage, 59. 22^ Replevin and Revendication. 130. Replevin — Confusion of chattels — Common property — 'Trespass — Title to land ■ — Possession — Unmarked logs.] — L. claiming lands under a paper title, built a barn and camp in 1875, commenced and continued log- ging all that winter and in subsequent years. In 1877 McD., setting up title under pre- tended authority of a town-meeting, entered upon and cut trees on the lands and put the logs, unmarked, on the ice outside and inside L.'s boom, mixing them with logs already cut by L., m such a way that they could not be distinguished. In an action of replevin by L. : Held, that L.'s possession of the lands was sufficient to entitle them to recover, in the pre- sent action against the wrongdoer, all the logs cut on the lands. — Per Strong, J. When a party wrongfully commingles his chattels with those of another, all the latter can re- quire is, that he should be permitted to take from the whole an equivalent in number and quality for those which he originally possessed. McDonald v. Lane, vii., 462. •Z9 ACTION. 30 131. Revendication — Replevin — Criminal Code, s. 575 — Confiscation of gaming instru- ments, moneys, etc.} — Moneys were seized in a gaming house, under a warrant issued under s. 575 of the Criminal Code, and con- fiscated by the judgment of a police magis- trate sitting in the City of Montreal. In an action against the Attorney-General to recov- er the moneys so seized: Held, per Strong, O.J., that a judgment declaring the forfeiture of money so seized cannot be collaterally im- peached in an action of vendication. O'Neil V. Attorney-General of Canada, xxvi., 122. 132. Trust — Principal and agent — Ad- vances to agent to bny goods — Trust goods mimed with those of agent — Replevin — Equit- able title.} — If an agent is entrusted by his principal with money to buy goods, the money will be considered trust funds in his hands, and the principal has the^ same interest in the goods when bought as he had in the funds producing them. — If the goods so bought are mixed with those of the agent the principal has an equitable title to a quantity to be taken from the mass equivalent to the portion of the money advanced which has been used in the purchase, as well as to the unexpended bal- ance. — Under the present system of procedure in Ontario an equitable title to chattels will support an action of replevin. Carter v. Long d Bishy, xxvi., 430. 133. Deposit of bonds as collateral — Re- covery back upon performance of conditions — ■ Right of trustee to revendicate — Interest of plaintiff. See Peincipal and Agent, 19. 23. Right of Action. 134. Cheese factory supply agreement — Sale of personal rights — PrUe-nom. — War- ranty — Emotion — ■ Restitution de deniers — Bulk price— Arts. 1510, 1511, 1518, G. C] — ^Respondent, owner of a cheese factory, made agreement with farmers by which the latter agreed to give the milk of their cows to no other cheese factory. He subsequently sold to appellant, the factory and sous la simple garantie de ses fait et promesses, whatever rights he might have under his agreement with the farmers, for the bulk sum of $7,000. Ap- pellant assigned to B. the factory and the same rights, but excluding warranty, for $7,500. A company, subsequently formed to whom B. assigned the factory and rights, sued one of the farmers on original agreement for having sold milk to another cheese fac- tory, but the action was dismissed on the ground that respondent could not validly as- sign personal rights he had against the farm- ers. Thereupon appellant brought action against respondent to recover the price paid for rights which he could not assign. It was proved that although the price mentioned in the deed and paid was a bulk sum for the factory and the rights, the parties at the time valued the rights under the agreement with the farmers at $5,000, and that the action was taken for the benefit of present owners of the factory. Meld, affirming the Court of Queen's Bench, Strong and Fournier, JJ., dissenting, that inasmuch as appellant, by the sale made to B., had received full benefit of all that he had bought from respondent and had no inter- est in the suit, he could not claim to be re- imbursed a portion of the price paid. — Per Taschereau, J. If any action lay, it could only have been to set the sale aside, the parti.es being restored to the status quo ante if it were maintained. Demers v. Duhaime, xvi., 366. 135. Recovery of funds entrusted for invest- ment — Condition precedent — Limitation of ac- tion — Evidence — Transfer — Prete-nom. — judi- cial admission.'] — Money was entrusted to M. for the purpose of being invested in a land speculation, under special conditions, that were disregarded. A claim against M. therefor was transferred sous seing prive to J., who brought an action for the amounts so entrusted. Ob- jection was made that the transfer had not been proved. Held, that as it appeared that the transfer had been admitted by M., the transferee, even if considered a prete-nom, had sufficient interest to bring the action. Moodie V. Jones, xix., 266. 136. Chattel mortgage ■ — Mortgagee in possession — Negligence — Sale under powers — Practice — Assignment for benefit of creditors — Revocation of.] — Under the provisions of B. S. O. c. 122, in order to enable the assignee of a chose in action to sue in his own name, the assignment must be in writing, but a writ- ten instrument is not required to restore the assignor to his original right of action. — Where creditors refused to accept the benefit of an assignment under R. S. O. c. 124, and the as- signor was notified of such refusal, and that the assignment had not been registered an ac- tion for damages was properly brought in the name of the assignor against a mortgagee of his stock-in-trade, who sold the goods in an improper manner. Rennie v. Block, xxvi., 356. 137. Right of action — Conveyance sub- ject to mortgage — Obligation to indemnify — Assignment of — Principal and surety — Im- plied contract.] — The obligation of a pur- chaser of mortgaged lands to indemnify his grantor against the personal covenant for pay- ment may be assigned even before the insti- tution of an action for the recovery of the mortgage debt and, if assigned to a person en- titled to recover the debt, it gives the assignee a direct right of action against the person liable to pay the same. Maloney v. Campbell, xxviii., 228. 138. Cancellation of contract — Fraud — Misrepresentation — Life insurance-^-Wager policy — Endowment — 14 Geo. 3, c. 48, s. 1 (Imp.) — Return of premiums.] — If the bene- ficiary of a life insurance policy has no inter- est in the life of the insured, has effected the insurance for his own benefit and pays all the premiums himself, the policy is a wagering policy and void under 14 Geo. 3, c. 48, s. 1 (Imp.). The Act applies to an endowment as well as to an all life policy. Judgment of the Court of Appeal (2 Ont. L. R. 559) affirmed. — In an action by the company for cancellation of the policy under said Act a re- turn of the premiums paid will not be made a condition of obtaining cancellation. Judg- ment of the Court of Appeal (2 Ont. L. B. 559) reversed. Davies and Jlills, JJ., dis- senting. Brophy v. North American Life As- surance Co., xxxii., 261. 139. Assessment of damages — Reservation of recourse for future damages — Expropria- tion — Res judicata — Right of action.] — A lessee of premises used as an ice-house re- covered indemnity from the city for in- juries suffered in consequence of the espro- 31 ACTIOK. 32 priation of part of the leased premises and, in liis statement of claim, had specially re- served the right of further recourse for dam- ages resulting from the expropriation. In an action brought after his death by his universal legatee to recover damages for loss of the use of the ice-house during the unexpired term of the lease: Held, afiarming the judgment ap- pealed from, that the reservation in the first action did not preserve any further right of action in consequence of the expropriation and, therefore, the plaintiff's action was prop- erly dismissed by the courts below, as, in such cases, all damages capable of being foreseen must be assessed once for all and a defendant cannot be twice sued for the same cause. The City of Montreal v: McGee (30 Can. S. C. R. 582), and The Chaudiire Machine and Foundry Go. v. The Canada Atlantic Railway Co. (33 Can. S. C. R. 11) followed. Anotil V. Gity of Quebec, xxxiii., 347. 140. Leased lands — Emphyteusis — In- juries to property — Trespass — Recovery of lands — Recovery of damages — Legal and 'beneficial estates — Adding parties. '\ — ^Where lands have been leased for a long term, amounting to an emphyteusis, the right of action au petitoire for the recovery of the lands from a third party in adverse occupation lies in the lessor, and the action to recover damages for injuries caused to the leased lands lies in the lessee. Where the petitory action has been bx'ought by the lessor with a demand for damages for injuries Caused to the leased lands by the defendant, the lessee may be added, on application to amend, as a party plaintifE to the action for the purpose of re- covering the damages. Massawippi Valley Ry. Go. V. Reed, xxxiii., 457. 141. Policy for benefit of creditors — Gon- iract with insured — Right of action. See INSTJEANCE, FlEE, 17. 4 142. Assignee in insolvency — Pleading — Issue — Onus of proof — Insolvent Act of 18T5. See Insolvency, 4. 143. Assignment of interest — Collateral se- curity — InsuYable interest — Concealment — Right of action. See INSUKANCE, Maeine. 36. 144. Husband and wife — Liquidation of in- solvent estate — Deposits in bank — Recovery by heirs to succession of deceased wife. See Pkincipal and Agent, 20. 145. Subscription for shares — Promotion of joint stock company — Bona fide statement — Prospectus — Misrepresentation — Concealment — Deceit — Rescission — Specific performance — Damages— W aiver. See Company Law, 11. 146. Recovery of land — Joint tenants — Sur- vivorship — Life estate — Possession of tenant — Remainder — Statute of limitations. See Title to Land, 79. 147. Curator to substitution — Money due by former curator — Intervention by plaintiff. See Substitution, 1. 148. Preventing waste — Devise subject to charge — Legacy to survivor — Contingent in- terest. See Will, 28. 149. Sale of goods — Security- hypothec — Right of action. See Sale, 32. -Simulated 150. Substitute — Right of action — Re- storation of land greve de substitution — Con- version by institute — Damages — RevendicOr- tion — Possession — Bad faith — Evidence — Prescription — Art. 2268 G. C. See Substitution, 4. 151. Judgment creditor — Shareholder — Transfer of shares — Evidence. See Company Law, 44. 160. Provisions of will — Deferred distribu- tion — Premature action: See Will, 20. 161. Money paid — Voluntary payment — Recovery for benefit of creditors — Insolvency of debtor — Action by assignee — Status. See Payment, 3. 162. Insurance policy — Contract — Mortgage clause — Right of action by mortgagee. See Insueance, Fiee, 54. 24. Scire Facias. 163. Scire facias — Annulment of letters patent — Tendei Concealment of material facts — Transfer of Grown lands.'] — Held, Taschereau, J., dissenting, that it is not neces- sary that an action for the annulment of let- ters patent should be preceded or accompanied by tender or deposit of the dues paid to the Crown in order to obtain the issue of the letters patent. The Queen v. Montmimy, xxix. 484. 25. Sekvice. 164. Service — Judgment by default — Op- position to judgment — Reasons of — " Reds- soire " joined with " rescindant " — Arts. 16, 89 et seq., Jf83, J,89, C. C. P.— False return of service.'} — No entry of default for non-appear- ance can be made, nor ex parte judgment ren- dered, against a defendant who has not been duly served with the writ of summons, al- though the papers in the action may have actually reached him through a person with whom they were left by the bailiff. — The pro- visions of articles 483 and following of the Code of Civil Procedure of Lower Canada re- late only to cases where a defendant is legally in default to appear or to plead and have no application to an ex parte judgment ren- dered for default of appearance, in an action which has not been duly served upon the de- fendant, and the defendant may at any time seels relief against any such judgment, and have it set aside notwithstanding that more than a year and a day may have elapsed from the rendering of the same, and without al- leging or establishing that he has a good de- fence to the action on the merits. — An opposi- tion asking to have a judgment set aside, on 33 ACTION. 34 the ground that the defendant has not been duly served with the action, which also al- leges the defendant's grounds of defence upon the merits, should not be dismissed merely for the reason that the rescissoire has thus been improperly joined with the rescindant. Tur- coUe V. Dansereau, xxvii., 583. . 26. Specific Perfokmance. 165. For specific performance— i-Agreement to convey interest in mine — Dismissal of ao- fion — Subsequent suit — Agreement to trans- fer part of proceeds of sale of mine. See Res Judicata, 3. 27. SUKETTSHIP. 166. Warranty — Suretyship — ■ Recourse of sureties inter se — Rataile contribution — Banking — Discharge of co-surety — ■ Reserve of recourse — Trust funds in possession of a surety— Arts. 1156, 1959 G. 0.]— Where one of two sureties has moneys in his hands to be applied towards payment of the creditor, he may be compelled by his co-surety to pay such moneys to the creditor or to the co-surety himself if the creditor has already been paid by him. — Where a creditor has released one of several sureties with a reservation of his recourse against the others, and a , stipulation against warranty as to claims they might have against the surety so released by reason of the exercise of such recourses reserved, the tTedi- tor has not thereby rendered himself liable in an action of warranty by the other sureties. Macdonald v. Whitfield; 'Whitfield v. Mer- chants Bank of Canada, xxvii., 94. 167. Suretyship — Promissory note — Quali- fied indorsement.] — D. indorsed two promis- sory notes, pour aval, at the same time marking them with the words ". not negotiable and given as security." The notes were in- tended as security to the firm of A. & R. for advances to a third person on the publication of certain guide-books which were to be left in the hands of the firm as further security, the proceeds of sales to be applied towards re- imbursement of the advances. It was also agreed that payment of the notes was not to be, required while the books remained in the possession of the firm. The notes were protested for non-payment, and, A. having died, R. as surviving partner of the firm and vested with all rights in the notes, sued the maker and indorser jointly and severally for the full amount. At the time of the action some of the books were still in the possession of R.. and it appeared that he had not ren- dered the indorser any statement of the finan- cial situation between the principal debtor and the firm. Held, that the action was not based upon the real contract between the par- ties, and that the plaintiff was not, under the circumstances, entitled to recover in an action upon the notes. Held, further, per Sedge- wick, J., that neither the payee of the promis- sory note nor the drawer of a bill of exchange can maintain an action against an indorser, where the action is founded upon the instru- ment itself. Robertson v. Davis, xxvii., 571. 168. Construction of statute — 20 & 21 Vict. c. 5Jt, s. 12 {Imp.) — Application — Crim- inal prosecution — Embezzlement of trust a. c. D. — 2 funds — Suspension of civil remedy — Stifling prosecution — Partnership.] — The Imperial Act, 20 & 21 Vict. c. 54, s. 12, provides that " nothing in this Act contained, nor any proceeding, conviction or judgment to be had or taken thereon against any person under this Act, shall prevent, lessen, or impeach any re- medy at law or in equity which any party aggrieved by any offence against this Act might have had if this Act had not been passed . . . ; and nothing in this Act contained shall affect or prejudice any agreement entered into, or security given by any trustee, hav- ing for its object the restoration or repayment of any trust property misappropriated." Held, afiBrming the judgment of the Supreme Court of British Columbia, that the class of trustees referred to in said Act were those guilty of misappropriation of property held upon express trusts. Semble, that the sec- tion only covered agreements or securities given by the defaulting trustee himself. Quwre, Is the said Imperial Act in force in British Columbia? If in force it would not apply to a prosecution for an offence under R. S. 0. c. 1(54 (The Larceny Act) c. 58. — An action was brought on a covenant given for the purpose of stifling a prosecution for the embezzlement of partnership property under R. S. C. C. 164. s. 58, which was not re^ enacted by the Criminal Code, 1892. Held. that the alleged criminal act having been committed before the Code came into force, was not affected by its provisions and the cov- enant could not be enforced. Further, the partnership property not having been held on an express trust, the civil remedy was not pre- served by the Imperial Act. Major v. Mc- Graney, xxix., 182. 169. Suretyship — Conditional warranty — 'Notice — Possession of goods — Art. 1959 G. 0.] — T. wrote a letter agreeing to guarantee payment for goods consigned on del credere commission to R., on condition that he should be allowed, should occasion arise, to take over the goods consigned. Shortly afterwards the creditor, without giving any notice to T., Closed the agency, withdrew some of the goods and permitted others to be seized in execution and removed beyond the reach of T. The cre- ditor did not give T. any authority to take pos- session of the goods as stinulated in the letter of guarantee. In an action by the creditor to recover the amount of the guarantee : Held, that the condition of the guarantee had not been complied with by the creditor, and that he could not hold the warrantor responsible. Brown v. Torrance, xxx., 311. 28. Trespass. 170. Trespass by individual corporators — Corporation suing members — R. S. N. S. {Jfth ser.) c. 23, s. SO — Pleading — Stay of proceeding's.'] — Defendants, while trustees of a school section, entered upon the school plot of their section, removed the school-house from its foundation and destroyed a portion of the stone wall. Subsequently their successors as trustees brought action for trespass guare clausum fregit and de boni^ asportatis against them for injury to the school-house, the prop- erty of the section. The defendants pleaded justification, asserting that the acts were legally performed by them in their capacity of trustees. Sub-section 4 of s. 30. c. 23, R. S. N. S. (4 ser.), declares that the sites for 35 ACTION. 36 school-houses shall be defined by the trustees, subject to the sanction of the three nearest commissioners residing out of the section. In this case the sanction of the three nearest commissioners was not obtained. On appeal from rule of Supreme Court of N. S., setting aside a verdict for plaintiffs : Held, reversing the court below, that under c. 23, li. S. N. S. (4 ser.), the defendants were not aij.thorized to remove the school-house from its site in the manner mentioned ; that defendants having subsequently abused their right to enter upon the lands of the corporation by an overt act of spoliation, the plaintiffs, who are a Corpor- ate body identical with the corporation which existed at the time of the trespass, can main- tain trespass against the defendants for the in- jury done to the corporate property. That when an action is brought in the name of a corporation without due authority, it is not sufficient for the defendants to plead that the plaintiffs did not legally constitute the cor- poration, but in such a Case defendants ought to apply to the summary jurisdiction of the court to stay proceedings. Pictou School Trustees v. Cameron, ii., 690. 171. Municipal corporation — Construction 'of sidewalks — Trespass — Action en homage ■ — Petitory action — Amendment of pleadings — Practice — R. S. G. o. 135, s. 65.] — The plaintiff brought action to recover the value of a strip of land of which the de- fendant was illegally in possession. The courts below dismissed the action on the ground that the proper remedy was by action en iornage or au petitoire. In order to cease litigation the Supreme Court of Canada, without directing any amendment of the pleadings, reversed the judgments of the courts below, directed that the record should be remitted to the trial court for the purpose of ascertaining the extent of the property affected by the trespass and or- dered the restoration thereof to the plaintiff. Biirland v. City of Montreal, xxxiii., 373. 172. Trespass — Constructions on public property — Long user — Damages — Right to in- demnity. See Estoppel, 1. 173. Trespass — Fishery officer — Riparian owner — Notice — G. 8. N. B. cc. 89, 90. See FisHEBiBS, 3. 174. Use and occupation — Tenants in com- mon — Trespass — Mesne profits — Parties. See Ejectment, 2. 175. Staking mineral claims — Placer mining — Hydraulic concessions — Annulment of prior lease — Volunteer plaintiff — Right of action — Status of adverse claimants — Trespass. See Mines and Minerals, 14. 176. Railway embankment — Trespass — Nuisance — Continuing damages — Right of action. See Nuisance, 7. 177. Location of railway line — Fencing — Boundaries — Adverse possession — Tenant by liuffrance — Riparian rights — Prescription. See Railways, 152. 29. Teovee. 178. Trover — Delivery of cargo — Lien for freight — Storage — Charter party. See Cabeiees, 23. 30. Waerantt. 179. Warranty — Proceedings taken by warrantee before judgment on principal de- mand.'] — It is only as regards the princi- pal action that the action in warranty is an incidental demand. Between the warrantee and the warrantor it is a principal action, and mav be brought after judgment on the princi- pal action, and the defendant in warranty has no interest to object to the manner in which he is called in where no question of jurisdic- tion arises and he suffers no prejudice there- by. But if a warrantee elect to take proceed- ings against his warrantors before he has himself been condemned he does so _ at his own risk, and if an unfounded action has been taken against the warrantee, and the warrantee does not get the costs of the action in warranty included in the judgment of dis- missal of the action against the principal plaintiff, he must bear the consequences. Archbald v. deLisle; Baker v. deLisle; Mowat V. deLisle, xxv., 1. 180. Action en garantie — Warranty — Delit. See Warranty, 3. 181. Deed of lands — Possession — Vendor and purchase) — Acquisitive prescription — Tenant by suffrance — Estoppel. See Kailvcays, 152. 31. Other Cases. 182. Counsel fee — Right of action — Quan- tum meruit — Lex loci. See Counsel. 183. Remedy at law — Bonus by-law — Man- damus. See Municipal Corporation, 37. 184. Ejectment — Suit by devisee of mort- gaged land — Statutory title — Title under fore- closure. See Title to Lands, 65. 185. Confessoria servitutis — Demolition of works — Art. 557 C. G. — Damages. See Servitude, 1. 186. Personal injuries — Death of plaintiff — — New cause of action — Abatement. See Appeal, 1. 187. Promissory note — Identity of payee-^ Incorrect designation — Evidence. See Bills and Notes, 17. 188. Damage — " Reasonable expenses " — B. S. N. 8. (4 ser.) c. 29, s. 12 — Contract — Wrongful dismissal — Remedy — Mandamus. See Municipal Corporation, 158. 37 admiealtY law. 38 189. Sale of land — Collection of price on delivery of deed — New agreement with agent — Right of action. See Contract, 128. 190. Tender by firm ^- Alteration of speoi- fieation and conditions — Right of action by member of firm. See CONTEAOT, 258. 191. Contract sale — Contre lettre — Princi- pal and agent — Construction of contract — Actio Mandata Gontrana. See CONTKACT, 227. 192. Premature action — Contract for sale of timber — Delivery — 2'ime of payment. See CowTBACT, 212. 193. Municipal corporation — Water com- missioners — Statutory body — Powers — Con- tract — 37 Vict. c. 79 (Ont.) — Right of action. See Municipal Cokpoeation, 65. 194. Pledge — Deposit with tender — For- feiture — Breach of contract — Damages — Set- off — Restitution of thing pledged — Arts. 1966 et seq. C. C. — Right of action. See No. 49 ante. ADJUSTMENT. See INSUKANCE, Marine. ADMINISTRATION. 1. Administratrix purchasing estate — As- sets sufficient to pay incumbrance — Parol agreement to sell land — Compensation for land expropriated — R. 8. N. S. (4 ser.) c. 38, s. JfO — Married woman.] — About 1837 McM. devised his land to his wife for life with re- mainder to M. K. Administration with the ■will annexed was granted to the widow. At the testator's death the lands were mortgaged for £150. In a suit after testator's death, a foreclosure was obtained, and the property sold, and purchased by the administratrix for £905. Administratrix receiveu personal as- sets of the testator sufficient to have paid off the mortgage, had she Chosen so to apply them. The sum of £725 was lent to the ad- ministratrix by A. K. The administratrix then sold the property to the public authori- ties for £1,750. out of which she paid A. K. £400. From 1858 A. K.. with the leave of the administratrix, occupied % of an acre of the land, until ejected in 18,73, under expro- priation, the commissioner taking in all 3 acres 3-lOths of this property, the balance be- ing in the occupation of M. K., and her hus- band (the appellants). These 3 acres 3-lOths were appraised at $2,310, which was paid into court. A. K. claimed title to the whole land taken under parol agreement, that she should have it in satisfaction of £325, the residue unpaid of the loan, and obtained a rule nisi for the payment to her of the $2,310, awarded as compensation. In May, 1872, the administratrix executed an informal instru- ment under seal, purporting to be a lease of her life estate to the appellants in the whole property, reserving a rental of $80 a year and liberty to occupy two rooms in the dwelling house. On motion to make this rule absolute, affidavits were filed, including those of appel- lants. On the 18th January, 1875, the mat- ter was referred to a master to take evidence and report thereon, subject to being modified by the court or a judge. The master reported that the appellants had the sole legal and equitable rights in the property. On motion to confirm that report, the court made an order apportioning the $2,310 between A. K. and the appellants, the former being declared entitled to be paid $1,015.61, and the latter, on filing the written consent of the widow, to the residue of the $2,310. Held, on appeal, 1st. That the administratrix, having personal assets of the testator sufiicient to discharge the mortgage, was bound in the due course of her administration to discharge said incum- brance, and that the parol agreement made by her with her daughter was null and void. 2ndly. That when the land is taken under au- thority similar to R. S. N. S. (4 ser.), c. 36, s. 40, et seq., the compensation money, as re- gards the capacity of married women to deal with it, is still to be regarded in equity as land. Kearney v. Kean, iii., 332. 2. Payment of claim against estate — Death of administrator — Administration de bonis non — Unadministered asset.] — If an admin- istrator, on Competent advice, pays a claim bona fide made against the estate, the money paid is not on his death, even though paid under a mistake in law, an unadministered asset so as to vest in an administrator de bonis non a right of action to recover it back. .Mayhew v. Stone, xxvi., 58. 3. Building Societies — Participating Bor- rowers — Shareholders — G. S. L. C. c. 69 — 42 d 43 Vict. (D.) c. S2 — Liquidation — Expiration of classes — Assessments on loans — Notice of — Interest and bonus — Usury laws—C. S. C. c. 58— Art. 1785 C. C— Ad- ministrators and trustees — Sales to — Prete- nom—Art. U8Jf C. C. See Building Society, 3. 4. Fraudulent conversion — Past due bonds ■ — Securities transferable by delivery — Estop- pel — Implied notice — Innocent holder for value — Commercial paper. See Pledge, 7. 5. Nova Scotia Probate Act — R. S. N. S. (5 ser.) c. 100. and 51 Vict. (N.H.) c. 26 — License to sell lands — Estoppel^Res judi- cata. See Res Judicata, 10. And see Account — Curatoe — Executors and Administrators — Insolvency — Pro- bate AND Administration — Trust — Will. ADMIRALTY LAW. 1. Collision — Negligence — Rule of the road — Steamer — Sailing vessel — Opinion of assessors — Delegation of judicial powers.] — In a case of collision, the marine protest by the captain of the schooner stated that the cause of the accident was that the steamer's wheel was put to port when it should have been put to starboard just before the collision. The action was twice tried, the first trial having been set aside on the ground that the 39 ADMIEALTY LAW. 40 judge by adopting the opinion of the asses- sors, had delegated his judicial functions (19 Ont. App. R. 298) . The second trial result- ed in a verdict for the plaintiff, which was affirmed by the Court of Appeal for Ontario. The Supreme Court of Canada affirmed the judgment of the Court of Appeal, sustaining the plaintiff's verdict, and, dismissing the ap- peal with costs. Oollier v. Wright, xxiv., 714. 2. Collision — Rules of the road — Narrow channel — Rules of navigation — R. 8. C. c. 79, s. 2, arts. 15. 16, 18. 19. 21, 22, and 23— " Grossing " ships — " Meeting " ships — " Passing " ships — Breach of rules — Pre- sumption of fault — Contributory negligence ■ — Moiety of damages — 36 & 37 Yict. {Imp.), c. 85, s. n — Manmuvres in " agony of oolli- stom."] — If two vessels approach each other in the position of "passing" ships (with a side light of one dead ahead of the other ) , where unless tjie course of one or both is changed, they will go clear of each other, no statutory rule is imposed, but they are gov- erned by the rules of good seamanship. — If one of two " passing " ships acts consistently with good seamanship and the other persists, without good reason, in keeping on the wrong side of the channel ; in starboarding her helm when it was seen that the helm of the other was hard to port, and the vessels rapidly ap- proaching ; and, after signalling that she was going to portj in reversing her engines and thereby turning her bow to starboard, she is to blame for a collision which follows. — The non-observance of the statutory rule (art. 18), that steamships shall slacken speed, or stop, or reverse, if necessary when apxjroaching -an- other ship, so as to involve the risk of a col- lision, is not to be considered as a fact con- tributing to a collision, provided the collision could have been avoided by the impinging vessel by reasonable care exerted up to the time of the collision. — Excusable manoeuvres executed in " agony of collision " brought about by another vessel, cannot be imputed as contributory negligence on the part of the vessel collided with. — The rule that in narrow channels steamships shall, when safe and practicable, keep to' the starboard (art. 21), does not override the general rules of naviga- tion. The Leverington. (11 P. D. 117) fol- lowed. The Cuba v. McMillan, xxvi., 651. 3. Collision — Appreciation of evidence — Findings of fact — Appeal — Proper naviga- tion — Negligent loohout — Anchor light.] — In an action claiming compensation for loss of the fishing schooner " Carrie B. Sayward " by being run into and sunk while at anchor by the " Reliance " the decision mainly de- pended on whether or not the lights on the lost schooner were burning as the admiralty rules required at the time of the accident. The local judge gave judgment against the "Reliance." Held, that though the evidence given was contradictory, it was amply suffi- cient to justify the said judgment which should not, therefore, be disturbed on appeal. Santandenno v. Vanvert (23 Can. S O. R. 145), and The Village of Oranby v. Minard (31 Can. S. C. R. 14), followed. 8chr. Re- liance V. Conwell, xxxi., 653. 4. Collision — Ship at anchor — Anchor light — Lookout — Weight of evidence — Credibility — Findings of trial judge — Negligence.'] — The S. S. " Lake Ontario " was proceeding in charge of a pilot to her dock in Halifax harbour, N. S., on a blustery night in January, 1900, came in collision with and sank appellant's coal barge " A. L. Taylor " lying at anchor north of George's Island. •The S. S. had signalled by guns and whistles for a medical officer at the quarantine grounds before the collision and her officers and crew testified that they were alert, anxiously work- ing the S. S. through anchored vessels in the darkness and blustery weather and came sud- denly upon the " Taylor " and that no lights were seen on her. 'ITie barge caretaker, who was not on deck at the time, swore that a pro- per anchor light was burning on the barge, his statement being corroborated by the captain of a schooner lying close by and by several boatmen and labourers on the wharves. The trial judge accepted the evidence of the de- fence as correct and found that the collision and loss were wholly attributable to negligence of the " Taylor " in failing to have an anchor light and to keep a sharp lookout, and dis- missed the action. On appeal the Supreme Court of Canada affirmed the decision at the trial (7 Ex. C. R. 403). Dominion Coal Co. V. S. S. Lake Ontario, xxxii., 507. 5. Collision — Undue speed — Ship in de- fault — Rule 16 — Navigation during foo.] — The judgment appealed from (7 Ex. C. R. 390) decided that the " Pawnee " a steamship, was wholly to blame for colliding with the schooner " Roland " in a thick fog near the entrance of St. John Harbour, N. B., in July, 1901, and awarded damages to the owner of the schooner. It was held that on hearing fog signals sounded by the schooner, the S. S. shouH have stopped her engines as far as possible and navigated with caution till danger of collision was past and that, having neglected these precautions, she was wholly to blame. On appeal the Supreme Court (Gir- ouard, J., dissenting), affirmed the principle of the trial court decision but reduced the damages and allowed no costs on tlie app^l. S. 8. " Pawnee " v. Roberts, xxxii., 509. 6. Admiralty law — Navigation — Narrow channels — "White law," r. 21t — Right of way — Meeting ships — Collision.] — Rule 24 of the " White law " governing navigation in United States waters provides " that in all narrow channels where there is a cur- rent, and in the rivers St. Mary, St. Clair, Detroit, Niagara, and St. Lawrence, when two steamers are meeting the descending steamer shall have the right of way and shall, before the vessels shall have arrived within the distance of one-half mile of each other, give the signal necessary to indicate which side she elects to take." Held, that this rule has no reference to the general course of ves- sels navigating the waters mentioned but ap- plies only to meeting vessels. Therefore, a steamer ascending the St. Clair with a tow was not in fault when she followed the cus- tom of up-going vessels to hug the United States shore. — The " Shenandoah " with a tow was ascending the St. Olair River in a fog hugging the United States shore. The " Carmona " was coming down the river and they sighted each other when a few hundred yards apart. They simultaneously gave the port and starboard signals respectively and the port signal was repeated by the " Car- mona." The " Shenandoah " then gave the port signal and steered accoi'dingly; The " Carmona," thinking there was not room to pass between the other vessel and one lying at the elevator dock, reversed her engines. She passed the " Shenandoah " but on going ahead again collided with the vessel in toyv. 41 AGENCY. 43 Beld, reversing the judgment of the local judge (8 Ex. C. R. 1), that the "Shenan- doah " was not in fault, and that as the local judge had found the "Oarmona " not to blame, and aa her Captain's error in judgment, if it was such, in thinking he had not room to pass between the two vessels was commit- ted while in the agonies of collision, his judg- ment as to her should be affirmed. Davidson V. Georgian Bay Navigation Co.; The Shenan- doah and The Crete, xxxiii., 1. 7. Rescue of stranded vessel — Salvage — Special agreement — Action hy agents — Parties. See Shipping, 5. 8. Collision — Steamship — Defective steering apparatus — Negligence — Question of fact. See Appeal, 227. 9. Seal Fishery {North Pacific) Act, 189S, 56 <& 57 Vict. c. 23 (Imp.), ss. 1, 3, and -i— Judicial notice of order in council thereunder ■ — Protocol of examination of offending ship hy Russian war vessel — Presence within pro- hibited zone — Bona fides — Statutory presump- tion of liability — Evidence — Question of fact. See Evidence. 162. ADVOCATE. 1. Rinht of action for fees — Retainer — Refresher — Lex loci. See Counsel. 2. Purchase of litigious rights — Champerty — Collusive judgment. See Title to Land, 131. And see Bae — Solicitor. AFFIDAVIT. 1. Manitoba Newspaper Act — Joint stock company — Corporate propriety Affidavit or affirmation — Commissioner — Presumption of authority — Persons having religious scruples.^ — The Act respecting newspapers (50 Vict. c. 23 (Man.)), provides, that no person shall print or publish a newspaper until an aflSdavit or affirmation, containing such matter as the Act directs is deposited with the prothonotary of the court and that such affidavit or affirmation may be taken be- fore a justice or commissioner. Held, that such affidavit or affirmation, if a corporation is proprietor of the newspaper, may be made by the managing director ; that there is an option either to swear or affirm and the right to affirm is not confined to members of certain religious bodies or persons having religious scruples ; and that if the affidavit or affirma- tion purport to have been taken before a commissioner his authority will be presumed. Ashdown v. Manitoba " Free Press " Co., xx., 43. 2. Mines and minerals — Adverse claim — Form of affidavit — Right of action — Condi- tion precedent — Blank in jurat — R. 8. B. C. (1897) c. 135, s. 37— R. S. B. C. (1897) c. 3, s. 16—61 Vict. c. 33, s. 9 (B.C.) — B. O. Supreme Court Rule J/IS of 1890.] — The jurat toJ^ affidavit filed pursuant to s. 37 of the B. C. " Mineral Act " did not mention the date upon which the affidavit had been sworn. Held, that the absence of the date was not a fatal defect, and that, even if it could be so considered at common law, such a defect would be cured by the " British Columbia Oaths Act " and the British Columbia Su- preme Court Rule 415 of 1890. Paulson v. Beaman, et al., xxxii., 655. 3. Nova Scotia Bills of Sale Act- tration — Defective jurat. See Bill of Sale, 1. -Regis- 3. Bona fides- witness. -Statutory form — Attesting See Bill of Sale, 2. 5. Chattel mortgage — Compliance with statutory form — R. S. N . S. [5 «er.] c. 92, s. h. See Chattel Moetgage, 5. 6. Controverted election — Status of peti- tionee Certified copy of voters' list — Im- print of Queen's Printer — Evidence — Form of petition — Jurat on affidavit of verifica- tion — Preliminary objections. See Election Law, 2. AFFIKMATION. See Affidavit. AFFREIGHTMENT. Charter party — Contract — Negligence — Stowage — Fragile goods — BUI of lading — Notice— Acts 1674, 1675, 1676, 2383, 2390, 24U9, 2413, 2JM, 2427, C. C— Fault of ser- vants. See Cabrieks, 4. And see Charter Party; Shipping. AGENCY. 1. Insurance agent — Duty towards com- pany — Acting for rival company — Divided interests — Dismissal.] — Acting as the agent of a rival insurance company is a breach of an insurance agent's agreement, " to fulfil conscientiously all the duties assigned to him, and to act constantly for the best interests of " his employer, and is sufficient justification for his dismissal. Judgment of the Court of Appeal for Ontario (22 Out. App. R. iO&), affirmed. Eastmure v. Canada Accident As- surance Co., XXV., 691. 2. Bona fides — Chattel mortgage - pliance with statutory forms. See Chattel Mortgage, 6. - Com- 3. Agent of creditor — Obtaining payment from debtor — False representations—Fraud — Ratification — Indictable offence. See Debtor and Creditor, 17. 4. Sale of goods — Sale through brokers — Authority of brokers — Acquiescence. See Principal and -■\.gent, 8. 43 ANNUITY. 44 5. RaUvMy company — Carriage of goods — Connecting lines — Authority of agent. See Contract, 17. 6. Insurance company — General manager — Medical examiner — Agreement with — Author- ity of manager. See CoNTBACT, IS. 7. Insurance company — Authority — Waiver. See Principal and Agent, 26. 8. Supreme Court agents — " Agent's book '' —S. G. Rule 16. See Peaotice of Supreme Court, 45. And see Principal and Agent — Contract. AGREEMENT. 1. Bonds heJd as collateral — Performance of condition — Right to recover possession — Revendication 'by trustee. See Principal and Agent, 19. 2. Waiver of distress — Landlord's agree- ment — Guarantee on hired furniture. See Landlord and Tenant, 8. 3. Sale of land — Vendor and purchaser — Agreement to sell — Title under will — Restric- tion — Part performance — Special legislation — ■ Compliance with terms of. See Specific Performance, 5. 4. Charge upon lands — Mortgage — Statute of Frauds — Registration. See Mortgage, 25. 5. Vendor and purchaser — Agreement for sale of lands — Assignment by vendee — Princi- pal and surety — Deviation from terms of agreement — Giving time — Creditor depriving surety of rights — Secret dealings with prin- cipal — -Release of lands — Arrears of interest — Novation — Discharge of surety. See Principal and Surety, 4. 6. Municipal corporation — By-law — Assess- ment — Local improvements — Agreem,ent with owners of property — Construction of subway — Benefit to land. See Municipal Corporation, 28. And see Contract. AIMABLES COMPOSITEURS, Setting aside award — Art. 1346 C. C. P. See Arbitrations, 52. ALIAS DICTUS. Indictment for murder — Names of de- ceased — Evidence — Variance. See Criminal Law, 9. ALIMENTARY ALLO^VANCE. 1. Appeal — Jurisdiction — Future rights — Alimentary allowance — R. S. C. c. 1S5, s. 29, s.-s. 2; SJf & 55 Vict. c. 25, s. 3; 56 Vict. o. 29, s. 2.] — Actions or proceedings respecting disputes as to mere personal alimentary pen- sions or allowances do not constitute con- troversies wherein rights in future may be bound within the meaning of the second sub- section of the twenty-ninth section of " The Supreme and Exchequer Courts Act " as amended, which allows appeals to the Supreme Court of Canada from judgments rendered in the Province of Quebec in cases where the controversy relates to " annual rents or other matters or things where rights in future might be bound." Macfarlane v. Leclaire, (15 Moo. P. C. 181), distinguished; Sauvageau v. Gauthier, L. R. 5 P. C. 494), followed. La Banque du Peupte v. Trottter, xxviii., 422. 2. Appeal — Jurisdiction — Appealable amount — Future rights — Alimentary allow- ance — " Other matters and things." See Appeal, 74. 3. Will — Construction ■ of — Donation — Partition per stirpes or per capita — Usufruct — Accretion between legatees. See Substitution, 5. 4. Appeal — Jurisdiction — Appealable amount — Monthly allowance — Future rights. See Appeal, 78. ALLUVION. See Title to Land. ALVEUS. Accretion to riparian lands — Gradual and imperceptible additions — Right of access — Statutory extinction of right of way — Public works. ' See Title to Land, 32. AMENDMENT. See Appeal — Pleading — Practice. ANCIENT LIGHTS. See Easement. ANNUITY. Annual rents — Rentes fonciires — R. 8. C. c. 135, s. 29 (6) — Jurisdiction — Future rights. See Appeal, 44. ' 45 APPEALS TO THE SIJPEEME COUET. 46 APPEALS TO THE SUPREME COURT. 1. Abatement of Appeai, 1. 2. Appeal Bond, 2-6. 3. Application of Statutes, 7-10. 4. Aebitration and Awards, 11-16. 5. Cebtioeaki, 17. 6. Controversy Involved, 18-101. 7. CoTTET Appealed from, 102-115. 8. Ceiminal Appeals, 116-118. 9. Cross-appeals, 119-126. 10. Death of Parties, 127-128. 11. Discretionary Oedees, 129-142. 12. Election Appeals, 143-155. 13. Final Judgments, 156-201. 14. Findings in Couets below, 202-273. 15. Habeas Corpus, 274-28^f 16. Injunction, SS^-JL^O 17. Insolvency, 39ft 5^*' IS. Jurisdiction, 2Q^308. 19. Leave to Appeal, 309-340. 20. Legislative Jueisdiction, 341-343. 21. Mandamus, 344. 22. New Grounds Taken on Appeal, 345- 365. 23. New Teials, 366-377. 24. NoN Peos. Judgments;- 378-380. 25. Notice of Appeal, 381-383. 26. Petition of Right, 384. 27. Peecedent, 385. 28. Privy Council, 386-389. 29. Pbocedure in Courts below, 390-404. 30. Quorum of Supreme Court, 405-407. 31. Quo Warranto, 408. 32. Right of Appeal, 409-421. 33. Stat of Proceedings, 422-424. 34. Time for Appealing, 425-435. 1. Abatement of Appeal. 1. Ahatement of appeal — Death of — Actio personalis moritur cum persona — Lord CamiibeU's Act—C. 8. N. B. c. 86.]— P.'s action against a railway conductor for in- juries received in attempting to board a train and alleged to have been caused by the negli- gence of the conductor in not bringing the train to a standstill, was nonsuit, and, on motion to the full court, the nonsuit was set aside and a new trial ordered. Between ver- dict and judgment ordering mewl trial, P. died, and a suggestion of his death was en- tered on the record. On appeal from the or- der of the full court : Held, that under Lord Campbell's Act, or the equivalent sta- tute in New Brunswick, an entirely new cause of action arose on the death of P., and the original action was entirely gone and •could not be revived. There being no cause before the court, the appeal was quashed without costs. White v. Parker, xvi., 699. 2. Appeal Bond. _ 2. Prosecution — Form of bond — Objec- tions — Application in chambers to dismiss — Waiver.'] — The bond for security for costs of appeal to the Supreme Court should provide for the prosecution of the appeal. Objections to the form of the bond should be taken by application in chambers to dismiss the appeal, and if not so made objections will be held to have been waived. Whitman v. Union Bank of Halifax, xvi., 410. 3. Security Bond — Parties interested, — Quashing appeal.l — ^Where the bond for se- curity of costs of appeal has not been given to the parties really interested in the appeal and before the court, the appeal will not lie. Scammell v. James, xvi., 593. 4. Security for costs — Condition pre- cedent to appeal.'] — Except in cases specially provided for, no appeal can be heard by the Supreme Court unless security for costs has been given as provided by R. S. C. c. 135, s. 46. In re Cahan, xxi., 100. 5. Security for costs — Appeal to Su- preme Court — Amount of bond.] — Per Osier, J. — The court has no discretion to increase the amount of security on an appeal to the Supreme Court of Canada, fixed by R. S. C. c. 135, s. 46, at $500, because of the number of respondents. Archer v. Severn, xii., Ont. P. R. 472. 6. Bond on appeal — Separate issues — 'Number of respondents.] — Upon apijlication to file bond of security for costs of an appeal to the Supreme Court of Canada, several re- spondents who had appeared separately in the Superior Court and in the Court of Appeal, urged that the.y were respectively entitled to separate security bonds for each of four ap- pellants, i.e., four bonds of $500 each. Held, per Hall, J., that leave to appeal should be granted on the furnishing of a single bond for $500. Archer v. Severn .(12 Ont. P. R. 472) followed. Bonsack Machine Co. v. Falk, Q. R. 9 Q. B. 355. 3. Application of Statutes. 7. Jurisdiction — Right to appeal under 3S Vict. c. 11, ss. 26, HO — Judgments prior to establishment of Supreme Court of Canada.] — The Supreme Court of Canada cannot en- tertain appeals from judgments signed, en- tered or pronounced prior to 11th January, 1870, when its judicial functions took effect by proclamation under s.' 80 of the Supreme and Exchequer Courts Act, and no court pro- posed to be appealed from, nor any judge there- of, can, under s. 26 of the Act, grant leave to appeal from any such judgment. Taylor v. The Queen, i., 65. 8. Right of appeal — 5^ & 55 '\lct. c. 25 — Construction of.] — By 54 & 55 Vict. c. 2^>. s. 3 (D.). passed on 30th September, 1891, the Supreme Court of Canada can hear appeals from the Court of Revie^A' " where and so long as no appeal lies from the judgment of that court when it confirms the judgment rendered in the court appealed from, which by the law 'of the Province of Quebec is ap- pealable to the Judicial Committee of the Privy Council." The judgment was delivered by the Superior Court on 17th November, 1891, and affirmed unanimously by the Court of Review, on 29th February, 1892, which lat- ter judgment was by the law of Quebec ap- pealable to the Judicial Committee. PlaintifiE's 47 APPEALS TO THE SUPREME COUET. 48 action was instituted on the 22nd November, 1890, and was standing for judgment in the Superior Court in June, 1891. On appeal from the Court of Review respondent moved to quash for the want of .iurisdietiou. Held, Taschereau and Gwynne, JJ., dissent- ing, that the right of appeal given by 54 & 55 Vict. c. 25, did not extend to cases stand- ing for judgment in the Superior Court prior to the passing of that Act. Couture v. Bou- chard (21 Can. S. C. R. 181), followed. — Held, per Fournier, J. That the statute is not applicable to cases already instituted or pending before the courts, no special words applicable to cases already instituted or to that effect being used. Williams v. Irvine, xxii., 108. 9. Right to appeal in Ontario cases — 60 & 61 Vict. c. 34 — Retrospective legislation ■ — Pending cases.] — The Act 60 and 61 Vict. c. 34, which restricts the right of appeal to the Supreme Court in cases from Ontario, as therein specified, does not apply to a case in which the action was pending when the Act came into force, although the judgment di- rectly appealed from may not have been pro- nounced until afterwards. Hyde v. Lindsay, xxix., 99. 10. Construction of statute — Appellate jur- isdiction — Court of Review — Art. 43 C. P. Q. —54 & 55 Vict. 0. 25, s. 3. See No. 289 infra. 4. Aebiteation and Awards. 11. Arbitration — Reference l>y consent —R. 8. O. (,1877) e. 50, s. iS9.]— Under R. S. O. (1877) c. 50, s. 189, an appeal will lie where that right has been reserved in a refer- ence made to arbitration by consent of parties. Bickford v. Canada Southern Ry. Co., xiv., 743. 12. Expropriation of land — Arbitration ■ — Award — Increase by Exchequer Court — Hearing of additional witnesses on appeal- — Appreciation of evidence — Weight of evi- dende.'i — In expropriation of land for a rail- way, the award of the arbitrators was in- creased by the Exchequer Court from $4,155 to $10,824.25, after additional witnesses had been examined by the judge. Held. afSrming the judgment appealed from (1 Ex. C. R. 291 ) , that as it was supported by evrdence, and there was no principle on which it was fairly open to blame, nor any oversight of material consideration, the judgment should not be disturbed, Gwynne, J., dissenting. The Queen v. Charland, xvi., 721. 13. Expropriation — 35 Vict. c. 32, s. 7 (Que.) — Interference ivith award of arbitra- tors.] — In a matter of expropriation tile de- cision of a majority of arbitrators, men of more than ordinary business experience, upon a question merely of value should not be in- terfered with on appeal. Lemoine v. City of Montreal; Allan v. City of Montreal, xxiii., 390. (Leave to appeal was refused by Privy Council.) 14. Jurisdiction — Award of arbitrators — 54 . 36. Repealed by-law — Appeal as to costs — Jurisdiction — Sup. Court Act, s. 24 — Prac- tice.^ — After judgment refusing to quash a by- law, it was repealed. On appeal to the Su- preme Court of Canada from the judgment in question ; Held, that as the only matter re- maining in dispute was a mere question of costs, the court would not entertain the ap- peal. Moir V. Village of Huntingdon, xix., 363. 37. Homologation of procis-verial — Juris- diction — Action to set aside proc^s-verial — Supreme Court Act, ss. Zlf {g) , 29.J — The County of Yercheres homologated a prods- verbal defining who were to be liable for re- building and maintenance of a bridge. The Municipality of Varennes took action and had the prods-verbal set aside for irregularities. H^d, that the case was not appealable, under s. 29 or s. 24 {g) of the Supreme Court Act, no future rights within the meaning of the former section being in question, and the appeal not being from a rule or order of a court quashing or refusing to quash a by-law of a municipal corporation. County of Ver- chires v. Village of Varennes, xix., 365. 38. Jurisdiction — Mattel- in controversy — Order to construct drain — Question of dam- ages reserved — Future rights — Title to lands — Servitude — Supreme Court Act, s. 29 (6).] — Defendants were Condemned to complete cer- tain drains, within a time fixed, in a lane separating defendant's and plaintifE's proper- ties, to prevent water from entering plaintifE's house on a lower level. The question of dam- ages were reserved. Held, that the case was not appealable, there being no controversy as to $2,000 or over, and no title to lands or future rights in question within the meaning of s. 29 (6) of the Supreme Court Act. — The words " title to lands " in this sub-section are only applicable to a case where a title to the prop- erty or a right to the title may be in question. — The fact that a question of the right of servitude arises would not give jurisdiction. — Wheeler v. Black. (14 Can. S. C. R. 242) referred to; Gilbert v. Oilman, (16 Can. S. C. R. 189) approved. Wineberg v. Hampson, xix., 369. 39. Jurisdiction — Matter in controversy — Subscription for joint stock shares — Action for call — Future rights — R. S. C. c. 135, s. 29, s.-s. (6).]— Suit for $1,000, being a call of ten per cent, on 100 shares of $100 each alleged to have been subscribed by B., in the capital stock of the company. During the suit, the company's business was ordered to be wound up under the Winding-up Act, and the liquidator authorized to continue the suit. The Superior Court found for plaintiff, but on appeal the Court of Queen's Bench dis- missed the action. Held, Gwynne, J., dissent- ing, that no appeal would lie, the amount in controversy being under $2,000 and no future rights bound as specified in the Supreme Court Act, s. 29, s.-s. 6. Gilbert v. GUman. (10 Can. S. C. R. 189), followed. Dominion Salvage dc Wrecking Co. v. Brown, xx., 203. 40. Jurisdiction — Business tax — Action to set aside municipal by-law — Supreme Court Act, s. 2-'f (ff).] — By a by-law passed in the absence of the mayor, a councillor elected to the ehair presiding, an annual tax of $800 was imposed on the Bell Tel. Co., and another of $1,000 on the Quebec Gas Co. In actions by appellants to annul the by-law, the Court of Queen's Bench reversed the Superior Court and dismissed the actions holding the tax valid. Held, that the cases were not appeal- able, the appellants not having taken out or been refused, after argument, a rule or order quashing the by-law in question within the terms of s. 24 (g) of the Supreme Court Act providing for appeals in cases of municipal by-laws. Varennes v. Vercheres, (19 C. S. C. R. 365) ; Sherbrooke v. McManamy (18 C. S. C. R. 594), followed. Bell Telephone Co. v. City of Quebec; Quebec Gas Co. v. City of Quebec, xx., 230. 41. Amount in controversy — Jurisdiction — Disavowal — Parties — Issue on appeal.^ — In an action brought in 1866 for $800 and interest at 12% per cent, against S. D. and W. D., amount of a promissory note signed by them, one copy of the summons was served at the domicile of S. D. at Three Rivers, the other de- fendant W. D. then residing in New York. On the return of the writ, respondent filed an appearance as attorney for both defendants and proceedings were suspended until 1874 when judgment was taken and in December, 1880, upon the issue of an alias writ of execution, appellant, having failed in an oppo- sition to judgment, filed a petition iu dis- avowal of respondent. The disavowed attor- ney pleaded inter alia that he had been author- ized to appear by a letter signed by S. D., saying : " Be so good as to file an appearance in the case to which the inclosed has refer- ence, etc.," and also prescription, ratification and insufficiency of the allegations of ilie petition of disavowal. The petition in dis- avowal was dismissed. On appeal to the Supreme Court of Canada respondent moved to quash on the ground that the matter in controversy did not amount to $2,000. Held, that as the judgment obtained against the appellant, in March, 1874, on the appearance filed by respondent, exceeded $2,000, the judg- ment on the petition for disavowal was appeal- able. Held, also, that where a petition in dis- avowal has been served on all parties to the suit and is only contested by the attorney, whose authority to act is denied, the latter cannot on an appeal complain that all parti-^s interested in the result are not parties to the appeal. Dawson v. Dumont, xx., 709. 42. Jurisdiction — Fraudulent conveyance — Deed of land — Action by creditor — Amount in controversy — R. S. C. c. 135, s. 20.] — In December, 1889, Perland, a trader, sold to G., one of respondents, real estate in Jlontreal, mortgaged for $7,000, or $8,000, with a right of remere for one year. In January, 1890, Ferland made an assignment, and Flatt. et al. creditors for $1,880, brought action against G. to have "the deed of the property (valued at over $11,000) set aside as made in fraud of creditors. G. pleaded that he was willing to return the property upon payment of $1,000 advanced to F.. and the courts below dismissed the action. Held, that as appellants' claim 55 APPEALS TO THE SUPEEME COURT. 56 was under $2,000 and they did not represflni Ferland's other creditors, the amount in con- troversy jvas insufficient to make the case appealable. Flatt v. Ferland, xxi., 32. 43. Jurisdiction — Road repair — Municipal ly-law — Rights in future — Supreme Court Act, s. 29(6).] — ^Action by the corporation for $262.14 paid out for macadam work on a road fronting appellants' lands, the work of macadamizing and keeping it in repair being imposed by by-law. Appellants pleaded nullity of the by-law. Beld, Gwynne, J., dissenting, that appellants' obligation to keep the road in repair under the by-law not being a charge affecting " future rights " within the meaning of R. S. C. c. 135, s. 29 (6), the Case Avas not appealable. County of VercMres v. Village of Varennes, (19 Can. S. C. R. 365), followed, Reburn v. Paroisse de Ste. Anne, (15 Can. S. C. R. 92), distinguished. Dubois v. Village of kte. Rose, xxi., 65. 44. Jurisdiction — Monthly allowance of $200 — ■ Amount in controversy — " Future rights " — " Annual rents " — Rentes fonciires —R. 8. G. c. 135, s. 29 {b)—54 Vict. c. 06 (Que.)] — R. claimed under a will and an Act of the Legislature of Quebec, from L., testa- mentary executrix of the estate. $200, an in- stalment of the monthly allowance L. was authorized to pay to each of testator's daugh- ters out of the revenues of his estate. Held, that the amount in controversy being only $200, and there being no " future rights " which might be bound within the meaning of those words in s. 20 (6) of the Supreme Court Act, the case was not appealable. — Annual rents in R. S. C. c. 135 s. 29 (6), mean "ground rents" (rentes fonciires) and not an annuity or any other like charges or obligations. Hodier v. Lapierre, xxi., 69. 45. Jurisdiction — Supreme Court Amending Act, 1891— Judgment of Court of Review — Case standing over for judgment — A.mount in dispute— Arts. 1118 d 1178 (a), C. C. P.] — Action by respondent for $2,006 was heard arid taken en delihire by the Court of Review on 30th Sept., 1891. date of assent to 54-55 Vict. c. 25, s. 3, giving an appeal from the Court of Review to the Supreme Cqurt of Can- ada. Judgment was rendered a month later. Held, per Strong, Fournier and Taschereau, JJ., that the plaintiif's right could not be pre- judiced by the delay of the court in rendering judgment which should be treated as having been given on the day, when the case was taken en deliberi, and therefore the case was not appealable. HurtuMse v. Desmarteau (19 Can. S. C. R. 562), followed. Per Gwynne and Patterson, JJ., that the case did not come within 54-55 Vict. C. 25, s. 3, inasmuch as the judgment, being for less than £500 sterling was not a judgment of right appeal- able to the Privy Council. Couture v. Bouchard, xxi., 281. 46. Matter in controversy — Bornage — In- junction — Jurisdiction — R. .S. C. c. 135, s. 29 (6).] — In a case between adjoining pro- prietors of lands, an encroachment was com- plained of, and it appeared that the limits had not been legally determined by bornage, the judgment appealed from (M. L. R., 7 Q. B. 196), held that injunction would not lie, the proper remedy being an action en born- age. Held, that as the matter in controversy did not put in issue any title to land, the case was not appealable to the Supreme Court of Canada. Emerald Phosphate Co. v. Anglo- Continental Guano Works, xxi., 422. 47. Jurisdiction — Amount in controversy — Opposition to seizure for less than $2,000 — Objection taken by court — Costs.] — Con- testation on opposition by respondent to a seizure of lands by appellant on a judgment for $640. The opposition alleged that re- spondent was a creditor of defendant for $31,000, and asked that seizure be annulled on the ground that by agreement of 17th Oct., 1876, no property of the defendant should be sold without the respondent's consent. Der fendant was a building society, and respondent alleged that appellant as a director had be- come a party to and bound by the agreement. The opposition was maintained by the Superior Court, and by the majority of the Court of Queen's Bench. Held, that the ap- peal did not come within any of the cases men- tioned in 42 Vict c. 39, s. 8, providing for ap- peals from the Province of Quebec. The de- mand was for $640 ; the opposition was not for any particular sum and did not ask for the payment of the debt of $31,000, but attacked only the seizure for $640 and sought to interfere with the execution of a judgment for that sum ; the amount in dispute therefore was this $640, and the question of jurisdic- tion was governed by this amount and not by the value of property seized, although such value exceeded the sum of $2,000. Henry, J., dissented. — ^Appeal quashed for want of juris- diction, but without costs, the objection having been raised by the court. Champoux v. La- pierre, Cass. Dig. (2 ed.), 426; Cass.. Prac. (2 ed.), 40, 81. 48. Amount in controversy — Matter in issue — Jurisdiction — Opposition to seizure — Affidavit as to value.] — The appellant was allowed to shew by affidavit that the amount in dispute was over $2,000. McCorkUl v. Knight, 31st Jan., 1879; Cass. S. Ot. Prac. (2 ed.), 40. 49. Jurisdiction — Seizure of lands — Opposir- tion afin de distraire — Amount in dispute — Supreme Court Act (1879). s. 8 — Costs.] — The appellants, having recovered judgments for $528.83, with interest and $231, with in- terest and costs, issued execution upon the last judgment, under which lands were seized. Re- spondents contested the seizure by opposition afin de distraire. alleging title to the land seized, acquired for the price of $2,000, and prayed that they might be declared owners, and the seizure set aside. Appellants con- tested this opposition, impugning the alleged sale and the title of respondents to the land in question. On appeal from the judgment of the Court of Queen's Bench, reversing the Superior Court on this contestation. Held, that the opposition having been tiled in a suit in which the amount in dispute was less than $2,000. the appeal would not lie. Mac- farlane v. Leclaire (15 Moo. P. C. C. 181), refei red to ; also Champoux v. Lapierre, Cass. Dig. (2 ed.), 426; Oass. S. C. Prac. (2 ed.), 40, 81. — ^Appeal quashed for want of jurisdiction, but without costs, a motion_ to quash not having been made at the earliest convenient moment. Gendron v. McDougall, Oass. Dig. (2 ed.), 429; Cass. S. C. Prac. (2 ed.), 40, 81. 50. Jurisdiction — Superior Court — Evoca- tion from Circuit Court — Limited contract — Rights in future — ^2 .Vict. o. 39, s. 8 (D.)J— D. entered into an agreement with the de- fendant and others, whereby they agreed to 57 APPEALS TO THE SUPREME COURT. 53 furnish for 20 years all the milk of their cows to D., to be manufactured into cheese, at a percentage rate, at his factory of which the plaintiff subsequently became proprietor and vested with all the rights of D. The de- fendant, among others, contrary to the agree- ment, sold his milk to an opposition factory, whereupon the plaintiff sued for damages in the Circuit Court. The action was evoked on the ground that future rights were in question, and the Superior Court gave plaintiff $8.51 damages for the breach of the agreement. The Court of Queen's Bench having reversed the judgment and dismissed the action, plaintiff applied to a judge of that court for leave to appeal to the Supreme Court, who refused on the ground that the future rights were limit- ed, and that multiplied by their duration they would not reach the amount required for an appeal. On further application to Gwynne, J., of the Supreme Court, in chambers : Held, that the case was similar to one of a contract for payment of a sum by instalments to an amount of $170.20 in all, and also that it did not come within the meaning of " rights in future," as used in s. 8 of the Supreme Court Amendment Act of 1879, and an appeal did not lie to the Supreme Court of Canada. Beaubien v. Bernatches. Cass. Dig. (2 ed.), 433; Cass. S. C. Prac. (2 ed.), 43. 51. Jurisdiction — Sup. Ct. Amendment Act, 1879, s. S — Duty payable to the Crown — Future rights — tix post facto legislation — Right of appeal.'] — Motion to quash appeal from Queen's Bench CQue.), on ground that amount involved ($222.80) was below $2,000, and that the case did not come within any of the exceptions provided for in 42 Vict. c. 39, s. 8. — Two actions (combined at trial,) which constituted the case in appeal, were brought by D., an importer of crockery, against the collector of customs at Montreal for the re- covery of difference between 20 and 30 per cent, ad valorem duty on value of importa- tions of " printed ware." The Tariff Act of 1879, 42 Vict. c. 15, sch. A., imposed 30 per cent, ad valorem duty on " earthenware, white granite or iron stoneware, and ' C. C or cream coloured ware," the only enumerated class under which the goods in question Could come. At the end of the schedule all unenum- erated goods and goods not declared free were subjected to a duty of 20 per cent. The collector insisted upon duty being paid by appellant under the class enumerated as above. D. claimed that they should not be classified, but came under the unenumerated class, and should only pay 20 per cent., paid the 30 per cent, and brought the actions to recover the difference. The importations in question were in spring and summer of 1883. Judgment was given (Jan., 1884), in favour of defendant, and the Queen's Bench dis- missed an appeal in May, 1885. In 1884 (47 Viet. c. 30, s. 2, schedule). Parliament amend- ed the Tariff Act as to earthenware as fol- lows : " Earthenware, decorated, printed or spauged, and all earthenware, not elsewhere specified, 30 per cent, ad valorem," thus dis- tinctly covering D.'s description of his own importations and declaring such goods subject to 30 per cent., and making it relate back to March. 1884. The collector contended that if before the Act of 1884 the matter in question was a proper subject of appeal, 42 Vict. c. 39 s. 8, by reason of its relation to a duty or revenue payable to the Crown in respect of which the decision appealed from might affect appellant's future rights, it ceased to be such a case by virtue of the Act of 1884, because that amending Act declared distinctly that from March, 1884, and for the future, the particular class of goods in question was to be subject to a 30 per cent, duty, and that therefore, appellant's future rights could not be affected. Held, 1. That there might have been impoi-tations of the same class of goods by D. subsequent to those in question in the appeal and before the amendment of 1884 effected a change, in respect of which the deci- sion in the present cases would bind appellant, and that, therefore, the case in that respect at least would still come within the meaning of 42 Vict. c. 39, s. 8, that is to say, being in respect of a duty payable to the Crown, the decision of which might affect the then future rights of appellant. 2. That there might be a dispute still as to whether the amending Act of 1884 expressly covered the same class of goods as were in question in this case, in order to decide which the evidence and merits would require to he discussed, and that this should not be discussed on a motion to quash. 3. That if the appellant had a right to appeal, such right could only be taken away by ex- press and clear words, and there was nothing to shew that such right was taken away. — Motion refused, with $25 costs. Darling v. Ryan, Cass. Dig. (2 ed.), 435; Cass. S. C. Prac. (2 ed.), 43. 52. Jurisdiction — Aboard by Drainage Re- feree-^Jf Vict. c. 51 {Ont.)~-'R.- 8. G. g. 135, s. 2It — Costs.] — A judgment of the Court of Jippeal for Ontario, afiirming the decision or award of a referee under the provisions of "The Drainage Trials Act, 1891," (Ont.), is not appealable to the Supreme Court of Can- ada under sub-section (f) of section 24, or any other provision of " The Supreme and Exchequer Courts Act." (Gwynne, J., dis- sented from the judgment of the majority of the court). — Memo. The question as to juris- diction having been taken by the Court, the appeal was dismissed without costs. Town- ship of Harwich v. Toivnship of Raleigh, 18th May, 1895. 53. Appeal — Amount in controversy — R. 8. 0. c. 135—54 & 55 Viot. c. '25 — Costs.]— C. brought an action against E., claiming : 1. That a certain building Contract should be rescinded; 2. $1,000 damages; 3. $545 for value of bricks in possession of E., but be- longing to C. The judgment of the Superior Court dismissed CJ.'fe claim for $1,000 but granted the other conclusions. On appeal to the Court of Queen's Bench by E., the action was dismissed in 1893. C. then appealed to the Supreme Court. Held, that the building for which the contract had been entered into having been completed, there remained but the question of costs and the claim for $545 in dispute between the parties and that amount was not sufiicient to give jvirisdiction to the Supreme Court under R. S. C. c. 135, s. 29. Cowen v. Evans, xsii., 328. 54. Jurisdiction — Right to appeal — 5Jf £ 55 Vict. c. 25, s. 3, s.-s. J/ — Amount in dispute — R. 8. G. c. 135, s. 29.]— The statute 54 & 55 A''ict. c. 25, s. 3, which provides that "when- ever the right to appeal is dependent upon the amount in dispute, such amount shall be understood to be that demanded and not that recovered, if they are different " does not apply to cases in which the Superior Court has rendered judgment, 'or to cases argued and standing for judgment {en ddibere) before that court, when the act came into force (30tli September, 1891). Williams v. Irvine (22 59 APPEALS TO THE SUPEEME COUET. 60 Can. S. C. E. 108) followed. — In actions for damages Claiming more than $2,000, the Court of Queen's Bench for Lower Canada on appeal in one case gave plaintiff judgment for $800, reversing the judgment of the Su- perior Court which had dismissed the actions, and in the other cases, on appeal by the de- fendants, affirmed the judgments of the Su- perior Court giving damages for an amount less than $2,000. Held, following Monette V. Lefebvrc (16 Can. S. C. R. 387), that no appeal would lie to the Supreme Court in these cases by the defendants from the judg- ment of the Court of Queen's Bench under s. 29 of c. 135 R. S. C. Gwynne. J., dis- sented. Cowen V. Evans; Mitchell v. Tren- holme; Mills v. lAmoges. xxii., 331. 55. Jurisdiction — Amount in dispute — R. 8. G. c. 135, s. 29—54 & 55 Vict. c. 25. s. 3, s.-s. 4 (/>.)] — Prior to the passing of the Act, 54 & 55 Vict. c. 25, amending the Supreme and Exchequer Courts Act, and declaring that, wher.e the right of appeal depended upon the amount in controversy, the amount in dis- pute should be deemed to be that demanded by the action, and not the amount recovered, if they were different, the Superior Court, at Montreal, dismissed an action for $5,000 dam- ages by a judgment which vfas reversed on ap- peal, and the entry of judgment for $600 in favour of the plaintiff was ordered by the Court of Queen's Bench. The defendant then appealed to the Supreme Court of Canada. On motion to quash for want of jurisdiction : Held, following Cowen v. Evans; Mitchell v. Trenholme, and Mills v. Limoges (22 Can. S. C. R. 331), that the Supreme Court of Can- ada had no jurisdiction to entertain the ap- peal. Montreal Street Railway Oo. v. Car- riire, 11th October, 1893. (See footnote at page 335 of Vol. 22, Can. Sup. Ot. Reps.) 56. Opposition afin de conserver on proceeds of a judgrnent for $1.129 — Amount in dispute — Bight to appeal B. 8. C. c. 135, s. 29.] — K. (plaintiff) contested an opposition afin de conserver for $24,000 filed by L. on the proceeds of a sale of property upon the ex- ecution by K. against H. & Co. of a judg- ment obtained by K. against H. & Co. for $1,129. The Superior Court dismissed L.'s opposition but on appeal the Court of Queen's Bench (appeal side) maintained the opposi- tion and ordered that L. be collocated au marc la livre on the sum of $930, being the amount of the proceeds of the sale. Held, that the pecuniary interest of K. appealing from the judgment of the Court of Queen's Bench (appeal side) being under $2,000 the case was not appealable under R. S. C. c. 135, s. 29. Gendron v. McDougall (Cass. Dig., 2 ed. 429), followed. — Held, also, that s. 3 of 54 & 55 Vict.c. 25, providing for an appeal where the amount demanded is $2,000 or over has no application to the present case. King- horn V. Larue, xxii., 347. 57. Actio negatoria servitutis — Amount in controversy — Future rights — B. 8. C. c. 135. s. 29 {T))—56 Vict. c. 29, s. i.]— In an action negatoire the plaintiff sought to ha\'e a servitude claimed by the defendant declared non-existent, and claimed $30 damages. Held, that under 56 Vict. c. 29, s. 1, amending R. S. 0. c. 135, s. 29 (b), the case was appealable, the question in controversy relating to mat- ters where the rights in future might be bound. Winelerg v. Hampson (39 Can. S. C. R. 369) distinguished. Chamherland v. Fortier, xxiii., 371. 58. Bond in appeal — 8ohool mistress — Fee of office — Future rights — R. 8. G. c. 135, s. 29 (6)— t'. 8. L. G. c. 15. s. 68— B. 8. Q. art. 207S-'\ — E. Larivi&re, a school mistress, bv her action Claimed $1,243 as fees due to her in virtue of s. 69, c. 15, C. S. L. C, which was collected by the School Commis- sioners of the city of Three Rivers, while she was emplo.ved by them. At the time of the action the plaintiff had ceased to be in their employ. The Court of Queen's Bench for liower Canada (appeal side) affirming the judgment of the Superior Court, dismissed the action. On motion before the Supreme Court of Canada to allow a bond in appeal, which had been refused by a judge of the court below, the Registrar of the Supreme Court and a judge of that court, in Cham- bers, on the ground that the case was not appealable : H eld, that the matter in con- troversy did not relate to any office or fee of office within the meaning of s. 29 (6) of the Supreme and Exchequer Courts Act. R. S. C. 0. 135. 2. Even assuming it did, no rights in future would be bound, and the amount in dis- pute being less than $2,000 the case was not appealable. 3. The words " where the rights in future might be bound" in s.-s. (6) of s. 29 govern all the preceding words " any fee of office, etc." Ghagnon v. Normand (16 Can. S. C. R. 661) ; ailiert v. Oilman, (16 Can. S. C. R. 189) ; Bank of Toronto v. Les Cure, etc., de St. Vierge (12 Can. S. O. R. 25), re- ferred to. Lariviire v. School Commissions for Three Bivers, xxiii., 723. 59. Amount in controversy — Pecuniary in- terest — B. 8. C. 0. 135, s. 29 — Contract of sale — Centre lettre — Principal and agent — Con- struction of contract.] — The plaintiff, who had acted as agent for the late J. B. S., brought an action for $1,471.07 for a balance of account as negotiorum gestor of J. B. S., against the defendants, executors of J. B. S. The defendants, in addition to a general de- nial, pleaded compensation for $3,416 and interest. The plaintiff replied that this sum was paid by a dation en paiement of certain immovables. The defendants answered that the transaction was not a giving in payment but a giving of a security. The Court of Queen's Bench, reversing the judgment of the Superior Court, held that the defendants had been paid by the dation en paiement of the immovables, and that the defendants owed a balance of $1,154 to the plaintiff. Held, that the pecuniary interest of the defendants, affected by the judgment appealed from, was more than $2,000 over and above the plain- tiff's Claim and therefore the case was appeal- able under li. S. C. c. 135, s. 29. Hunt v. Taplin, xxiv., 36. 60. Bight of appeal — Petition to quash hy- law under art. 4,389 B. S. Q.—B. 8. G. c. 135, s- 2.4 (g)-'\ — Proceedings were commenced to quash a by-law passed by the corporation of the City of Sherbrooke under art. 4,389 R. S. Q. which gives the right to petition the Super- ior Court to annul a municipal by-law. The judgment appealed from, reversing the judg- ipent of the Superior Court, held that the by- law was intra vires. On motion to quash an appeal to the Supreme Court of Canada: Held, that the proceedings being in the in- terest of the public, are equivalent to the mo- tion or rule to quash of the English practice, and therefore the court had jurisdiction to entertain the appeal, under s.-s. (g) of s. 24, c. 135, R. S. C. Sherbrooke v. MoManamy (18 Can. S. C. R. 594), and VercMres v. Varennes 61 APPEALS TO THE SUPREME COURT. 63 (19 Oan. S. C. R. 350), distinguished. Wel- ster V. City of Hherbroohe, xxiv., 52. 61. Supreme and Exchequer Courts Act, R. 8. C. 0. 135, ss. 24 and W— Costs.-]— Held, that a judgment in an action by a ratepayer contesting the validity of a homologated valu- ation roll is not a judgment appealable to the Supreme Court of Canada under s. 24 {g) of the Supreme and Exchequer Courts Act, and does not relate t;p future rights within the meaning of s.-s. (6) of s. 29, of the Su- preme and Exchequer Courts Act. Held, also, that as the valuation roll sought to be set aside in this case had been duly homologated and not appealed against within the delay pro- vided in art. 1061 (Mun. Code, Que.), the only matter in dispute between the parties v?as a mere question of costs, and therefore the court would not entertain the appeal. Moir v. Corporation of the Village of Hunt- ingdon (19 Can. S. C. R. 363), followed; Webster v. Sherbrooke (24 Can. S. C. R. 52), distinguished. McKay v. Township of Hinch- inbroohe, xxiv., 55. 62. Amount in dispute — 54 & 55 Vict. c. 25, s. 3, s.-s. Jf.] — By virtue of s.-s. 4 of s. 3 of c. 25 of 54 & 55 Vitft., in determining the amount in dispute in cases in appeal to the Supreme Court of Canada, the proper course is to look at the amount demanded by the statement of claim, even though the actual amount in controversy in the court appealed from was for less than $2,000. Thus where the plaintiff obtained a judgment in the court of original jurisdiction for less than $2,000, and did not take a xross-appeal upon the defendants appealing to the intermediate Court of Appeal where such judgment was reversed, he was entitled to appeal to this court. Levi v. Reid (6 Can. S. C. R. 482), restored, affirmed, and followed, Gwynne, J., dissenting. Laberge v. Equitable. Life Ass. Soo., xxiv., 59. 63. Jurisdiction — Future rights — R. S. G. c. 135 s. 29 {b)—56 Vict. c. 29 (D.)]— By R. S. C. c. 135, s. 29 (6). amended by 56 Vict. c. 29 (D.), an appeal will lie to the Supreme Court of Canada from the judgments of the courts of highest resort in the Pro- vince of Quebec, in cases where the amount in controversy is less than $2,000, if the matter relates to any title to lands or tenements, an- nual rents and other matters or things where the rifehts in future might be bound. Held, that the words " other matters or things " mean rights of property analogous to title to lands, etc., which are specifically mentioned and not personal rights ; that " title " means a vested right or title already acquired though the enjoyment may be postponed; and that the right of a married woman to an annuity provided by her marriage contract in case she should become a widow is not a right in future which' should authorize an appeal in an action by her husband against her for separation de corps in which if judgment went against her the right to the annuity would be forfeited. O'Dell v. Gregory, xxiv., 661. 64. Jurisdiction — Winding-up Act — Amount in controversy — Aggregate liability — Jomt or separate liability — Gontribu- tortes.'i—A decision of the Court of Appeal for Ontario reversed the order of the Mas- ter in Ordinary settling the respondents on the list of contributories under the Winding- up Act. Appeal lies to the Supreme Court of Canada, in proceedings under the Winding- up Act, only where the amount involved is $2,000 or over. In this case there were six persons placed on the list by the Master ; one for $1,000, and the others for $900 each, and all were released from liability by the decision of the Court of Appeal from which this appeal was brought. The Supreme Court held that although the aggregate amount for which the respondents were sought to be made liable exceeded $2,000, there was no jurisdiction under the Act to entertain the appeal, because the position was the same as if proceedings had been taken separately against each of the contributories. The ap- peal was quashed with costs. Stephens v. Gerthj In re Ontario Express <& Transporta- tion Co., xxiv., 716. 65. Appeal for vests — Jurisdiction — Ac- tion in warranty — Proceedings taken by warrantee before judgment on principal de- mand.] — Though an appeal will not lie in respect of costs only, yet where there has been a mistake upon some matter of law, or of principle, which the party appealing has an actual interest in having reviewed and which governs or affects the costs, the party prejudiced is entitled to have the benefit of correction by appeal. Archibald v. DeLisle; Baker v. DeLisle; Mowat v. DeLisle, xxv., 1. 66. By-law — Petition to quash — Appeal to Court of Queen's Bench — 4^ Vict. c. 29 (Q.) — 53 Vict. c. 70 (Q.) — Judgment quashing — Appeal to Supreme Court — R. S. C. c. 135, s. 2i (s).]— Section 439 of the Town Corpora- tions Act (40 Vict. c. 29 (Q.), not having been excluded from the charter of the City of Ste. Cunegonde (53 Vict. c. 70) is to be read as forming a part of it and prohibits an appeal to the Court of Queen's Bench from a judgment of the Superior Court on a petition to quash a by-law presented under s. 310 of said charter. — Where the Court of Queen's Bench has quashed such an appeal for want of jurisdiction, no appeal lies to the Supreme Court of Canada from its decision. City of Ste. Cunegonde v. Gougeon, xxv., 78. 67. Mandamus — Judgment of Court of Re- view.] — 54 & 55 Vict. c. 25 (D.) does not authorize an appeal to the Supreme Court of Canada from a decision of the Court of Re- view in a case where the judgment of the Superior Court is reversed and there is an ap- peal to the Court of Queen's Bench. Danjou V. Marquis (3 Can. S. C. R. 251) and Mc- Donald V. Abbott (3 Can. S. C. R. 278) fol- lowed. Barrington v. City of Montreal, xxv., 202. 68. Amount in controversy — Pecuniary in- terest of appellant — Arts. 746, 747 C. C. P.] — L. having proved a claim of $920 against an insolvent estate contested a claim for which respondents had been collocated against the same estate amounting to $2,044.66. The contestation having been decided in favour of respondent, L. appealed to the Supreme Court. Held, that to determine whether or not there was a sufiicient amount in contro- versy to give jurisdiction to the Supreme Court the pecuniary interest of the appellant only could be taken into consideration, and his interest being under $2,000 the appeal would not lie although the consequence of the appellant's contestation might result in bring- ing back to the insolvent estate a sum of over $2,000. Lachance v. Societe de Pr$ts et de Placements de Qu4bec, xxvi., 200. 63 APPEALS TO THE SUPREME COURT. 64 69. Appeal from Court of Review^ — Appeal to Privy Council — Appealable amount — Ad- dition of interest— C. C. P. Arts, 1115, 1178, 1178a— R. 8. Q. Art. .2311— H & 55 Viet. (D.), c. 25, s. 3, s.-s. S—54 Vict. (Q.), c. 48 (Amending C. C. P. Art. 1115).'}— Under 54 & 55 Vict. (D.) c. 25, s. 3, s.-s. 3, there is no appeal to the Supreme Court of Canada from a decision of the Court of Review, which would not be appealable as of right to the Privy ■Council.— Article 2311. R, S. Q., which pro- vides that " whenever the right to appeal is dependent upon the amount in dispute such amount shall be understood to be that de- manded and not that recovered if they are different" applies to appeals to the Privy Coun- cil.^ — Interest cannot be added to the sum de- manded to raise it to the amount necessary to give a right of appeal. Stanton v. Home Ins. Co. (2 Legal News 314) approved. Du- fresne v. Ouevrcmont, xxvi., 216. 70. Appeal — Jurisdiction — Judicial pro- ceedings — Opposition to judgment — Arts. m-li93 C. C. P.—R. S. C. c. 135, s. 29— Ap- pealaMe amount — SJy & 55 Vict. c. 25, s. 3, s.-s. If — Retrospective legislation.^ — An oppo- sition filed under the provisions of articles 484 and 487 of the Code of Civil Pro- cedure of Lower Canada for the purpose of vacating a judgment entered by default, is a " judicial proceeding " within the meaning of s. 29 of " The Supreme and Exchequer Courts Act," and where the appeal depends upon the amount in controversy, there is an appeal to the Supreme Court of Canada if the amount of nrincipal and interest due at the time of the filing of the opposition against the judgment sought to be annulled is of the sum or value of $2,000. Turcotte v. Danse- reau, xxvi., 578. 71. Jurisdiction — Expropriation of lands — Assessments — Local improvements ■ — Fu- ture rights — Title to lands and tenements — R. 8. C. c. 135, s. 29 Ih) ; 56 Vict. c. 29, s. 1 (D.)] — A by-law was passed for the widening of a portion of a street up to a cer- tain homologated line, and for the necessary expropriation therefor. Assessments for the expropriations for certain years having been made whereby proprietors of a part of the street were relieved from contributing any pro- portion of the cost, thereby increasing the burden of assessment on the properties actually assessed, the owners of these properties brought an action to set aside the assessments. The Court of Queen's Bench aflSrmed a judg- ment dismissing the action. On an application for leave to appeal ; Held, that as the effect of the judgment sought to be appealed from would be to increase the burden of assessment not only for the expropriations then made, but also for expropriations which would have to be made in the future, the judgment was one from which an appeal would lie, the matter in controversy coming within the meaning of the words " and other matters or things where the rights in future might be bound," contained in sub-sec. (6) of sec. 29, Supreme and Ex- chequer Courts Act, as amended by 56 Vict. c. 29 s. 1. Stevenson v. City of Montreal, xxvii., 187. 72. Action en tornage — Future rights — Title to lands— R. 8. 0. c. 135, s. 29 (I)— 54 & 55 Vict. 0. 25, s. S {D.)—56 Vict. c. 29, s. 1 (D.)] — The parties executed a deed for the purpose of settling the boundary between con- tiguous lands, of which they were respectively proprietors, and thereby named a provincial surveyor as their referee to run the line. The line thus run being disputed, M. brought an action to have this line declared the true boundary, and to revendicate a disputed strip of land lying upon his side of the line so run by the surveyor. Held, that under R. S. C. c. 185, s. 29, s.-s. (6), as amended by 56 Vict. c. 29, s. 1 (D.), an appeal would lie to the Supreme Court of Canada, first,, on the ground . that the question involved Was one relating to a title to lands, and secondly, on the ground that it involved matters or things where rights in future might be bound. Chamlerland v. Fortier (23 Can. S. C. R. 371) referred to and approved. McGoey v. Leamy, xxvii., 193. 73. Court of Review — Appeal to Privy Coun- cil — Appealable amount — 54 & 55 Vict. c. 25, s. S, s.-ss. S and 4 (D.)—G. 8. L. G. c. 77, s. 25— Arts. 1115, 1178 C. C. P.—R. 8. Q. Art. 2311.'] — In appeal's to the Supreme Court of Canada from the Court of Review (which, Uy 54 & 55 Vict. c. 25. s. 3, s.-s. 3. must be ap- pealable to the Judicial Committee of the Privy Council), the amount by which the right to appeal is to be determined is that demanded and not that recovered, if they are different. Dufresne v. Guivremoni (26 Can. S. 0. E. 216) followed. Citizens Light & Poxcer Co. V. Parent, xxvii., 316. 74. Jurisdiction — Appealahle amount — Fu- ture rights — " Other matters and things " — R. S. G. c. 135, s. 29 (I)— 56 Vict. c. 29 (D.)]— The classes of matters which are made ap- pealable to the Supreme Court of Canada un- der the provisions of s. 29, s.-s. (6) of "The Supreme and Exchequer Courts Act," as amended by 56 Vict. e. 29, do not include future rights, and do not affect rights to or in real property, or rights analogous to interests in real property. Rodier v. Lapierre (21 Can. S. C. R. 69) , and O'Dell v. Gregory (24 Can. S. C. R. 661) followed. Raphael v. Maclaren, xxvii. 319. 75. Jurisdiction — Title to lands — Municipal law — By-law — Widening streets — Exproptia- tion^R. 8. G. c. 135, s. 29 (i)—54 & 55 Vict. c. 23, s. 3 — 56 Vict. c. 29, s. J.] — In an action to quash a by-law passed for the expropriations of land, the controversy relates to a title to lands, and an appeal lies to the Supreme Court of Canada, although the amount in contftversy is less than $2,000. — The judgment on the merits dismissed the appeal for the reasons stated in the judgment of the Court below. (See Q. R. 6 Q. B. 345). Murray v. West- mount, xxvii., 579. 76. Jurisdiction — Judgment — Reference to court for opinion — 54 Vict. c. 5 (B.C.) — B. 8. C. c. 135, ss. 24 and 28.]— The Supreme Court of Canada has no jurisdiction to enter- tain an appeal from the opinion of a provincial court upon a reference made by the Lieuten- ant-Governor in Council, under a provincial statute, authorizing him to refer to the court for hearing and consideration any matter which he may think fit, although the statute provides that such opinion shall be deemed a judgment of the court. Union Colliery Co. of Brit. Col. V. Attorney-General of Brit. Got, xxvii., 637. 77. Jurisdiction — Title to land — Petitory action — Encroachment — Constructions under mistake of title — Good faith — Common error — 65 APPEALS TO THE SUPEEMB COUET. 66 Demolition of works — Right of accession — In- demnity — Res judicata — Arts. 412, JflS, Ji29 et seq., 104T, 12^1 G. C] — An action to revendi- cate a strip of land upon which an encroach- ment was admitted to have taken place, by the erection of a building extending beyond the boundary line, and for the demolition and re- moval of the walls, and the eviction of the de- fendant, involves questions relating to a title to land, independently of the controversy as to bare ownership, and is appealable to the Su- preme Court of Canada under the provisions of the Supreme and Exchequer Courts Act. Delorme v. Cusson, xxviii., 66. 78. Action — Jurisdiction — Appealahle amount — Monthly allowance — Future rights — " Other matters and things " — R. 8. G. c. 135, s. 29 (l)—56 Vict. c. 29 (D.) — Established jurisprudence in court appealed from,.'] — In an action en declaration de pater- nity the plaintiff claimed an allowance of $15 per month until the child (then a minor aged four years and nine months), should attain the age of ten years, and for an allowance of $20 per month thereafter " until such time as the child should be able to support and provide for himself." The court below, following the decision in Lizotte v. Descheneau (6 Legal News, 107) , held that under ordinary circum- stances such an allowance would cease at the age of fourteen. Held, . that the demande must be understood to be for allowances only up to the time the child should attain the age of fourteen years and no further, so that, apart from the contingent character of the claim, the demande was for less than the sum or value of two thousand dollars, and conse- quently the case was not appealable under the provisions of the twenty-ninth section of " The Supreme and Exchequer Courts Act," even if an amount or value of more than two thousand dollars might become involved under certain contingencies as a consequence of the judgment of the court below. Rodier v. La- pierre (21 Can. S. C. R. 69), foUowed.— Held, also, that the nature of the action and demande did not bring the case within the exception as to " future rights " mentioned in the section of the Act above referred to. O'Dell v. Gregory (24 Can. S. C. R. 661) ; Raphael v. Maolaren (27 Can S. C. R. 319) followed. Macdonald V. Oalivan, xxviii., 258. 79. Jurisdiction — Amount in controversy — ■ Affidavits — Evidence as to amount — The Exchequer Court Acts 50 & 51 Vict. c. 16, ss. 51-5S (D.)—5Jt & 55 Vict. c. 26, s. 8 (D.) — The Patent Act—R. 8. G. c. 61, s. 36.]— On a motion to quash an appeal where the re- spondents filed afBdavits stating that the amount in controversy was less than the amount fixed by the statute as necessary to give jurisdiction to the appellate court, and aflada.vits were also filed by the appellants, shewing that the amount in controversy was sufiicient to give jurisdiction under the sta- tute, the motion to quash was dismissed, but the appellants were ordered to pay the costs, as the jurisdiction of the court to hear the appeal did not appear until the filing of the appellants' afBdavits in answer to the motion. Dreschel v. Auer Incandescent Light Mfg. Go. xxviii., 268. 80. Jurisdiction — 54 c6 55 Vict. o. 25, s. 2 — Prohibition — Railways — Expropriation ' — Arbitration.] — The provisions of the second section of the statute, 54 & 55 Vict. c. 25, giv- ing the Supreme Court of Canada jurisdiction s. c. D. — 3 to hear appeals in matters of prohibition, ap- ply to such appeals from the Province of Que- bec as well as to all other parts of Canada. 8hannon v. Montreal Parh S Island Ry. Co., xxviii., 374. 81. Jurisdiction — A mount in controversy — Opposition afin de distraire — Judicial pro- ceeding — Demand in original action — R. 8. G, c. 135, s. 29.] — An opposition afln de dis- traire, for the withdrawal of goods from seizure, is a "judicial proceeding " within the meaning of the twenty-ninth' section of " The Supreme and Exchequer Courts Act," and on an appeal to the Supreme Court of Canada, from a judg- ment dismissing such opposition, the amount in controversy is the value of the goods sought to be withdrawn from seizure, and not the amount demanded by the plaintiff's action, or for which the execution issued. Turcotte v. Dansereau (26 Can. S. C. R. 578), and Mc- Gorlcill V. Knight (3 Can. S. C. R. 233 ; Cass Dig. 2 ed. 694) followed ; Champoux v. La. pierre (Cass. Dig. 2 ed. 426), and Q-endron v, McDougall (Cass. Dig. 2 ed. 429), discussed and distinguished. King v. Dupuis dit Gilbert, xxviii., 388. 82. Jurisdiction — Puturfi rights — Aliment- ary allowance — R. 8. G. c. 135 s. 29, s.-s. 2 ; 5J, & 55 Vict. 0. 25, s. 3—56 Vict. c. 29. s. 2.] — ^Actions or proceedings respecting disputes as to mere personal alimentary pensions or al- lowances (Jo not constitute controversies where- in . rights in future may be bound within the meaning of the second sub-section of the twenty-ninth section of " The Supreme and Exchequer Courts Act," as amended, which al- lows appeals to the Supreme Court of Canada from judgments rendered in the Province of Quebec in cases where the controversy relates to " annual rents or other matters or things where rights in future might be bound." Macfarlane v. Leclaire, (15 Moo. P. C. 181), distinguished ; Sauvageau v. Oauthier, (L. R. 5 P. C. 494), followed. Banque du People v. Trottier, xxviii., 422. 83. Assuming jurisdiction — Amount in controversy — 60 & 61 Vict. c. 34, s. 1, s.-s. (c).] — Where the jurisdiction of the Supreme Court of Canada to entertain an appeal is doubtful, the court may assume jurisdiction when it has been decided that the appeal on the merits must be dismissed. Great Western Railway Company of Canada v. Braid (1 Moo. P. C. N. S. 101), followed.— By 60 and 61 Vict. c. 34, s. 1, s.-s. (e), no appeal lies from judgments of the Court of Appeal for Ontario unless the amount in controversy in the appeal exceeds $1,000, and by sub-section (f), in case of difference, it is the amount de- manded, and not that recovered which deter- mines the amount in controversy. Held, per Taschereau, J., that to reconcile these two sub-sections, paragraph (f) should probably be read as if it meant the amount demanded upon the appeal. To read it as meaning the amount demanded in the action, which is the construction the court has put upon R. S. C. c. 135, s. 29, relating to appeals from the Province of Quebec, would seem to be contrary to the intention of parliament. Laberge v. The Equitable Life Assurance Society (24 Can. S. C. R. 59) distinguished. Bain v. Anderson & Co., et at, xxviii., 481. 84. Jurisdiction — Matter in controversy — Interest of second mortgagee — Surplus on sale of mortgaged lands — 60 d 61 Vict. c. 34, s. 67 APPEALS TO THE SUPEEME COUKT. 1 (D.) — Statute, construction of — Practice.'] ■ — While an action to set aside a second mort- gage on lands for $2,200 was pending, the mort- gaged lands were sold under a prior mortgage, and the first mortgagee, after satisfying his own claims, paid the whole surplus of the proceeds of the sale amounting to $270 to the defendant as subsequent incumbrancee. Judg- ment was afterwards rendered declaring the second mortgage void, and ordering the de- fendant to pay to the plaintiff, as assignee for the benefit of creditors, the amount of $270 so received by him thereunder, and this judg- ment was afiirmed on appeal. Upon an appli- cation to allow an appeal bond on further ap- peal to the Supreme Court of Canada, objec- tions were taken for want of jurisdiction un- der the clauses of the Act 60 & 61 Vict. c. 34, but they were overruled by a judge of the Court of Appeal for Ontario, who held that an interest in real estate was in question' and the appeal was accordingly proceeded with, and the appeal case and factums printed and delivered. On motion to quash for want of jurisdiction when the appeal was called for hearing; Held, that the case did not involve a question of title to real estate or any interest therein, but Was merely a controversy in relation to an. amount less than the sum or value of one thousand dollars, and that the Act 60 & 61 Vict. c. 34, prohibited an appeal to the Su- preme Court of Canada. Jermyn v. Tew, xxviii., 497. 85. Jurisdiction — Injunction — Ditches and watercourses — Title to land.] — Proceedings to restrain the owner of land from constructing a ditch there6n under the Ditches and Water- courses Act to prevent injury to adjoining property do not involve any question of title to land or any interest therein within the meaning of 60 & 61 Vict. c. 34, s. 1, s.-s. (a) relating to appeals to the Supreme Court of Canada in Ontario cases. The fact that the adjoining land was to be taxed for benefit by construction of the ditch would not authorize an appeal under sub-section (d) as relating to the taking of a duty or fee nor as affecting future rights. Wators v. 3Iaiiigault, xxx., 304. 86. Jurisdiction — Amount in dispute — Question raised iy plea — Incidental issue.] — Issues raised merely by pleas cannot have the effect of increasing the amount in controversy so as to give the Supreme Court of Canada jurisdiction to hear an appeal. Girouard, J., duMtante. Standard Life Ass. Co. v. Trudeau, XXX., 308. 87. Jurisdiction — Matter in controversy — R. 8. G. c. 135, s. 29 {b)— Tutorship— Petition for cancellation of appointment — Arts. 249 et seq. C. G. — Tutelle proceedings.] — The Su- preme Court of Canada has no jurisdiction to entertain an appeal from a judgment pro- nounced in a controversy in respect to the cancellation of the appointment of a tutrix to minor children. Noel v. Ghevrefils, xxx., 327. 88. Jurisdiction — Servitude — Action con- fessoire — Execution of judgment therein — Localization of right of way — Opposition to writ of possession — Matter in controversy — Title to land — Future riglits.] — An opposition to a writ of possession issued in execution of a judgment allowing a right of way over the opposant's land does not raise a question of title to land nor bind future rights, and in such a case the Supreme Court of Canada has no jurisdiction to entertain an appeal. O'Dell V. Gregory (24 Can. S. C. R. 661) followed; Ghamberlund v. Forficr (23 Can. S. C R. 371), and McGoey v. Leamy (27 Can. S. C. R. 193) distinguished. — If the jurisdiction of the court is doubtful the appeal must be quashed. Langevin v. Les Commissaires d'Ecole de St. Marc (18 Can. S. C. R. 599) followed. Gully v. Ferdais, xxx.. 330. 89. Jurisdiction — Action for penalties — Plea of ultra vires of statute— Judgment on other grounds — B. S. G. c. 13o, s. 29 (a).] — To an action claiming $325 as penalties for an offence against the Pharmacy Act, the pleas were : — 1. General denial. 2. That the Act was ultra vires. In the courts below the ac- tion was dismissed for want of proof of the alleged offence. Held, Strong, C.J., and Gwynne, J., dissenting, that an appeal would lie to the Supreme Court; that if the court should hold that there was error in the judg- ment which held the offence not proved the re- spondent would be entitled to a decision on his plea of ultra vires and the appeal would there- fore lie under s. 29 (a) of the Supreme Court Act. L' Association Pharmaceutiquc de Que- bec V. Livernois, xxx., 400. 90. Jurisdiction — Action for separation de corps — Money demand — Supreme Court Act.] — In an action by a wife for separation de corps for ill treatment the declaration con- cluded by demanding that the husband be con- demned to deliver up to the wife her property valued at $18,000. The Judgment in the ac- tion decreed separation and ordered an ac- count as to property. 3eld, that no appeal would lie to the Supreme Court from the de- cree for separation ; O'Dell v. Gregory (24 Can. S. C. R. 661) followed ; and the money demand in the declaration being only incidental to the main cause of action could not give the court jurisdiction to entertain the appeal. Talbot V. Ouilmartin, xxx., 482. 91. Jurisdiction — Amount in controversy — 60 d 61 Vict. c. Sit, s. 1, s.-s. (c) and {f) — Inoperative provisions — Prior enactment.] — Section 1, s.-s. (f) of 60 and 61 Vict. c. 34, providing that in appeals from the Court of Appeal for Ontario " whenever the right to appeal is dependent upon the amount in dis- pute, such amount shall be understood to be that demanded, not that recovered, if they are different," is inoperative, being repugnant to s.-s. _(c).— The fact that s.-s. (() is placed last in point of order in the section does not require the court to construe It as indicating the latest mind of Parliament as the whole sec- tion came into force at the same time. City of Ottawa V. Hunter, xxxi., 7. 92. Jurisdiction — Amount in dispute — R. S. C. c. 135, s. 29 (6).]— In an action by the lessee of lands, leased for four years and nine months at a rental of $250 per annum, to have the lease cancelled as being simulated as he was, at the time of the lease, owner of the property leased ; Held, that no amount of $2,- 000 or upwards was in dispute, and that as the appeal did not relate to any title to land or tenements nor to annual rents within the meaning of s. 29 (ft) of R. S. C. c. 135, it could not be entertained by the Supreme Court of ' Canada. Frechette v. Simmoneau, xxxi., 12. 93. Jurisdiction — Withd/rawal of defence raising constitutional question — Quebec 69 APPEALS TO THE SUPREME COUET. 70 Pharmacii Act.'i — Where a motion to quash an appeal has been refused on the ground that a decision upon a constitutional question is in- volved, the subsequent abandonment of that question cannot affect the jurisdiction of the Supreme Court of CanaSa to entertain the ap- peal. L' Association Pharmaceutigue de Que- bec V. Livernois, xxxi., 43. 94. Jurisdiction — Debats de compte — Issues on reddition — Amount in controversy.'] — In an action en reddition de compte, where items in the account filed exceeding in the aggregate $2,000 have been contested, the Supreme Court of panada has jurisdiction to entertain an ap- peal. Bell v. Vipond, xxxi., 175. 95. Jurisdiction — Amount in controversy — Secretion of estate by insolvent — Gontrainte per corps — Arts. 885, 888 G. P. Q.]— On a contestation of a statement of an insolvent trader by a creditor claiming a sum exceeding $2,000, the judgment appealed from condemned the appellant, under the provisions of art. 888 C. P. Q., to three months' imprisonment for secretion of a portion of his insolvent estate, to the value of at least $6,000. Held, that there was no pecuniary amount in controversy and there could be no appeal to the Supreme Court of Canada. Glement v. Bangue Na- tionale, xxxiii., 343. 96. Jurisdiction — Matter in controversy — Right of appeal — Personal condemnation — Action possessoire.'] — In a possessory action with conclusions for $200 damages, the defen- dant admitted plaintiff's title and claimed the right of occupying the premises as her tenant. The judgment appealed from affirmed the trial court judgment, dismissing the possessory con- clusions and adjudging $200 for rent of the premises in question. Held, that the defend- ant had no right to appeal to the Supreme Court of Canada. Davis v. Roy, xxxiii., 345. 97. Appeal on special guestions — Issues on appeal — l-'oioers of appellate court.] — Per Armour, J. — Where an appeal has been taken as to a part only of a judgment complained of the whole issues are before the appellate court and it has power to review them and render the judgment which ought to have been pronounced in the' court below. ViUe de Mai- sonneuve v. Bangue Provinciale, xxxiii., 418. 98. Amount in controversy — Determining value — Appellant's acguiescement in trial court judgment — Issue on appeal. See No. 24 ante. 99. Appeals from Esecheguer Court — Con- troversy less than $500 — Discretion of judge in chambers — Special leave. See No. 326 infra. 100. Order of provincial judge — Motion to set aside — Opposition to seizure — Amount in controversy — Jurisdiction. See No. 320 infra. 101. Execution for costs — Amount in dis- pute—Jurisdiction. See Opposition, 3; Practice of Supreme Court, 249. 7. CouKT Appealed from. 102. Court of last resort in P. E. Island — Jurisdiction — 38 Vict. c. 11, ss. 11. 17.] — An appeal lies direct to the Supreme Court of Canada from the Supreme Court of Judicature of the Province of Prince Edward Island, as being the highest court of final resort in that Province. Kelly v. Sulivan, i., 1. 103. Supreme and Exchequer Courts Act, s. 68 — Appeals from Exchequer Court deci- sions.] — There is nothing in s. 68 of the Su- preme and Exchequer Courts Act confining ap- peals from that court to a recourse against final judgments only, the word used being " de- cision " which is applicable as well to rules and orders not final as to final decisions. {Per Strong, J., at p. 257.) Danjou v. Marquis, iii., 251. 104. Certificate as to deposit — Security for costs — Supreme and Exchequer Courts Act — Rule 6 — Court of Review (Que.)] — The de- posit of $500, in the court below, by appellant, without a certificate that it was so made to the satisfaction of the court appealed from, or one of its judges, is nugatory and inef- fectual as security for the costs of the appeal. — Per Taschereau, J. The case should, under such circumstances, be sent back to the court below in order that a proper certificate might be obtained. — Per Strong and Taschereau, JJ. An appeal does not lie from the Court of Review (Que.) to the Supreme Court of Canada. Henry, j., contra. (See Uanjou v. Mar- guis (3 Can. S. C. K. 251), A'o. 103. ante). — This appeal was quashed with costs, which included the general costs of respondent up to time motion made. The full fee of $25 was taxed by the registrar on hearing of motion. This was increased by fiat of Fournier, J., to $100. Macdonald v. Abbott, iii., 278. [Appeals now lie from the Court of Review in cases where it affirms the trial court judg- ment, provided appeal as of right may be had to the Privy Council (54 & 55 Vict. c. 25, s. 3; 56 Vict. c. 29, s. 2.)] 105. Jurisdiction — Original Court — Su- perior Court — Supreme and Exchequer Court Act, s. n.] — ^An appeal will not lie to the Su- preme Court of Canada in cases in which the court of original jurisdiction is not a Superior •Jourt, and the Court of Wills and Pro- bate for the County of Lunenburg, Nova Scotia, is not a Superior Court within the meaning of s. 17 of " The Supreme and Ex^he- qucft: Court Act," before amendment by 52 Vict. c. 37, s. 2. Beamish v. Kaulback, iii., 704. 106. Expropriation of land — Persona desig- nata — Order by judge in chambers — Moneys deposited— R. S. C. c. 135, s. 28— R. 8. C. c. 109, s. S.] — The respondent petitioned for an order for payment to them of $4,000 deposifjed by appellants for land taken for railway pur- poses and a judge of the Superior Court, in chambers, after formal answer and hearing of the parties granted the order under the Rail- way Act. The company appealed to the Court of Queen's Bench which affirmed the order. Held, that the order having been made by a judge sitting in chambers, and, further, acting under the statute as persona designata. the proceedings had not originated in a Superior Court within the meaning of s. 28 of the Su- preme and Exchequer Courts Act, and the case was therefore not appealable. Canadian 71 APPEALS TO THE SUPREME COURT. 73 Pacific Ry. Co. v. Little Seminary of 8te. Thirisc, xvi., 606. 107. Decision of Court of Revision — Appeal to District Court — Judgment of Supreme Court of North-West Territories — Court of first instance— R. 8. G. c. 135, s. S4 — 51 Vict. o. 37, s. 3 (D.)]— By N.-W. T. ordinance an appeal lies from the Court of Revision for ad- judicating upon assessments for school rates to the district court of the school district ; on such appeal being brought the clerk of the court issues a summons, making the ratepayer plaintiff and the school trustees defendants, which summons is returnable at the next, sit- ting of the court, when the appeal is heard. The district court by 49 Vict. c. 23, became merged in the Supreme Court of the North- West Territories, on 2.5th October, 1888. Held, that an appeal will not lie from the judgment of the Supreme Court affirming a decision of the Court of Revision in such a case, as the proceedings did not originate in a Superior Court. Angus v. Calgary School Trustees, xvi., 716. 108. Jurisdiction — Question of procedure — Judgment simultaneous with passing of Act — Existing adjudication — Supreme Court Amend- ing Act, 1891— 5Jt & 55 Vict. c. S5, s. 3— Ap- peal from Court of Review.} — By s. 3 of the Supreme Court Act of 1891, an appeal may lie from tlie Court of Review in cases which are, by the law of Quebec, appealable direct to the Privy Council. A judgment was delivered by the Court of Review in favour of respondent, o'T the day on which the Act came into force. Held, that appellants not having shewn that the judgment was delivered subsequent to the passing of the Act the court had no jurisdic- tion. Quaere, Whether an appeal will lie from a judgment pronounced after the passing of the Act in an action pending before the change of the law. Hurtuoise v. Desmarteau, xix., 562. 109. Jurisdiction — Case originating in Cir- cuit Court — Objection taken ty the court — Gosts.'l — ^Appeal from the Court of Queen's Bench reversing the judgment of the Circuit Court, Three Rivers, setting aside a seizure for a tax of $10 imposed by by-law of the City of Three Rivers on strangers and non-resi- dents selling goods by samples. The case was settled and agreed to by both parties, who toak no objection to the jurisdiction. Held, that an appeal will not lie to the Supreme Court of Canada in cases where the court of original jurisdiction, is the Circuit Court for the Pro- vince of Quebec. AppeaJ quashed without costs, the objection having been taken by the court. Major v. City of Three Rivers, 18 C. L. J. 122; Cass. Dig. (2 ed.) 422; Cass. Prac. (2 ed.) 27, 81. [Followed in The Mayor, etc., of Terrebonne V. The Sisters of the Providence Asylum, No. Ill, infra.'l 110. Jurisdiction — Prosecution iefore Jus- tice of the Peace — Certiorari — Court of origi- nal jurisdiction — Cosis — Objection taken by court.} — A conviction by J. P. for selling liquor contrary to the " Canada Temperance Act, 1878," and papers connected therewith were brought before the Court of Queen's Bench for Manitoba, by certiorari, and a rule nisi to quash the conviction was made abso- lute. Held, that an appeal would not lie, the cause not having arisen in a Superior Court of original jurisdiction. — The question of costs was reserved. The court subsequently deter- mined that the respondent should have the costs of appeal, although the objection had been taken bv the court. The Queen v. Nevins, Cass. Dig. (2 ed.) 427; Cass. Prac. (2ed.) 27, 81. 111. Court of original jurisdiction — Circuit Court judgment — Future rights — Suit for land tax — Objection taken in factum — Costs — jl^ Vict. c. 39, s. 3 (D.) ] — The action was brought in the Circuit Court, District of Terrebonne, for $125 and interest for taxes imposed uiron real estate. The respondents moved to quash appeal for want of jurisdiction, relying on s. 3 of the Supreme Court Amendment Act of 1879. Appellants contended that in Montreal and som4 other districts in the Province of Quebec, such an action, in which future rights would be bound, would be brought in the Superior Court, and only by virtue of a special statute was it brought in the Circuit Court in Terre- bonne ; that such statute was applicable to only some of the districts of the province, and that if the contention of the counsel for appellants was correct, the anomaly would arise that in such a case if the action were brought in one district there would be no appeal, while, if brought in another district, there would be an appeal and argued that, in this case, the Cir- cuit Court must be considered as substituted for and in lieu of the Superior Court. Held, that the statute was clear, and in no case would an appeal lie in an action which origi- nated in the Circuit Court. Major v. Corpor- ation of Three Rivers (No. 109, ante), follow- ed. Motion granted and appeal quashed with costs. The objection to the jurisdiction was taken by the respondents in the factum. Le Maire, etc., de Terrebonne v. Sosurs de la Pro- videmce, Cass. Dig. (2 ed.) 434; Cass. S. C. Prac. (2 ed.) 81. 112. Public street — Encroachment on — Building " upon " or " close to " the line — Charter of Halifax, ss. 454. 455 — Petition to remove obstruction — Judgment on — Variance.] — By s. 454 of the charter of the City of Hali- fax any person intending to erect a building upon or close to the line of the street must first cause such line to be located by the- city engineer and obtain a certificate of the loca- tion ; and if a building is erected upon or close to the line without such certificate hav- ing been obtained the Supreme Court, or a judge thereof, may, on petition of the recorder, cause it to be removed. On appeal from the decision of the Supreme Court of Nova Scotia reversing the judgment of a judge under this section an objection was taken to the jurisdic- tion of the Supreme Court of Canada on the ground that the petition having been presented to a judge in chambers the matter did not originate in a Superior Court. Held, Tas- chereau, J., dissenting, that the court had jur- isdiction. Canadian Pacific Railway Go. v. Ste. Therise (16 Can. S. C. R. 606), and Virtue v. Hayes (16 Can. S. C. R. 721) distinguished. City of Halifax v. Reeves, xxiii., 840. 113. Court of Review — Jurisdiction — Man- damus — 54 & 55 Vict. c. 25, s. 3 (D.) — Costs.] — B. applied for a mjandamus to compel the corporation of the City of Montreal to carry out the provisions of one of its by-laws. The writ of mandamus was granted by the Superior Court, but on appeal, this judgment was re- versed by the Court of Review, and the peti- tion for mandamus dismissed. B. then insti- tuted an appeal from the latter judgment to 73 APPEALS TO THE SUPEEME COUET. 74 the Supreme Court of Canada. On motion to quash the appeal : Held, that the case was not within the provisions of 54 & 55 Vict. c. 25, s. 3, allowing appeals from the Court of Review in certain cases, and that as the appeal was not from the judgment of the Court of Queen's Bench ( appeal side ) , the court of highest re- sort in the province, there was no jurisdiction in the Supreme Court of Canada to entertain it. Danjou v. Marquis (3 Can. S. C. R. 251). and McDonald, v. Aibott (3 Can. S. C. R. 278), followed. — As the point upon which the appeal was quashed had not been taken in the factum, nor by the motion, the appeal was quashed without costs. Barrington v. City of Montreal, xxv., 202. 114. Jurisdiction — 52 Vict. c. 37, s. 2 (D.) — Appointment of presiding officers — County Court Judges — 55 Vict. c. %8 (Ont.) — 58 Vict, c. Jjl (Out.) — Gonstrvction of statute — Appeal from assessment — Final judgment.] — By 52 Vict. c. 37, s. 2, amending " The Supreme and Exchequer Courts Act," an appeal lies in cer- tain cases to the Supreme Court of Canada from courts " of last resort created under pro- vincial legislation to adjudicate concerning the assessment of property for pi'ovincial or muni- cipal purposes, in cases where the person or persons presiding over such court is or are ap- pointed by provincial or municipal authority." By the Ontario Act, 55 Vict. c. 48, as amended by 58 Vict. c. 47, an appeal lies from rulings of Municipal Courts of Revision in matters of assessment to the County Court judges of the County Court district where the property has been assessed. On an appeal from a decision of the County Court judges under the On- tario statutes : Held, King, J., dissenting, that if the County Court judges constituted a " court of last resort " within the meaning of 52 Vict. c. 37, s. 2, the persons presiding over such court were not appointed by provincial or municipal authority, and the appeal was not authorized by the said Act. — Held, per G Wynne, J., that as no binding efEect is given to the decision of the County Court judges, under the Ontario Acts cited, the court ap- pealed from was not a ".court of last resort " within the meaning of 52 Vict. c. 37, s. 2. — Quwre, Is the decision of the County Court judges a " final judgment " within the mean- ing of 52 Vict. c. 37, s. 2? City of Toronto v. Toronto Railway Co., xxvii., 640- 11,5. Jurisdiction — Case originating in Coun- ty Court — Transfer to High Court.] — There is no appeal to the Supreme Court of Canada in a case in which the action was commenced in the County Court and transferred by order to the High Court of Justice in which all sub- sequent proceedings were carried on. — Per Gwynne, J., contra. Where the case is trans- ferred because the pleas ousted the County Court of jurisdiction an appeal lies. — Leave to appeal cannot be granted under 60 & 61 Vict. c. 34, s. 1 ( e ) , in a case not appealable under the general provisions of R. S. C. c. 135. Tucker v. Young, xxx., 185. 8. Ceimiuai. Appeals. 116. Grown case reserved — Questions of law —New trial— G. 8. U. G. c. 112— C. S. L. G. c. 77, ss. 51, 58, and 59; 32 & 33 Vict. c. 29, s. 80—38 Vict. c. 11, s. 49- ]— Since the passing of 32 & 33 Vict. c. 29, s. 80, repealing so much of C. S. L. C. c. 77 as would authorize a court in Quebec to order a new trial in a criminal case, and of 32 & 33 Vict. c. 36. repealing C. S. -L. O. c. 77, s. 63, the Court of Queen's Bench (Que.) has no power to gi-ant a new trial, and the Supreme Court of Canada, ex- ercising its ordinary appellate powers under 38 Vict. c. 11, ss. 38 and 49, rendered the judg- ment which the court appealed from ought to have given, reversed the judgment and ordered the prisoner's discharge. Laliherte v. The Queen, i., 117. ■ 117. Criminal trial — Motion for reserved case — Unanimity on one of several grounds — Jurisdiction.] — Where the court appealed from has affirmed the refusal to reserve a case moved for at a criminal trial on two grounds, and is unanimous as to one of such grounds but not as to the other, the Supreme Court on appeal can only take into consideration the ground of motion in which there was dissent. Alclntosh V. The Queen, xxiii., 180. 118. Jurisdiction — Criminal laio — The Criminal Code, 1892, ss. 742-750— New trial — Statute, construction of — 55 d 56 Vict. c. 20, s. 742.] — An appeal to the Supreme Court of Canada does not lie in cases where a new trial has been granted by the Court of Appeal, un- der the provisions of the Criminal Code, 1892, ss. 742 to 750 inclusively. The word "opinion" as used in s.-s. 2 of s. 742 of " The Criminal Code, 1892," must be construed as meaning a "decision" or "judgment" of the Court of Appeal in criminal cases. Viau v. The Queen, xxix., 90. 9. Cross Appeals. 119. Verdict — Reduction of damages hy judgment appealed from — Gross-appeal — Re- lief for respondent — Restoration of trial judg- ment.] — Where there has beenjio cross-appeal taken relief against an improper reduction of damages assessed at the trial cannot be grant- ed to the respondent. Stephens v. Chausse, XV., 379. 120. Order for new trial — Issues on appeal ■ — Failure to cross-appeal.] — A rule was dis- charged so far as it asked a nonsuit but was made absolute for a new trial. Held, on an appeal by defendant, that although the plain- tiff was entitled to recover, yet, as he had not appealed from the order' for a new trial, the rule should be affirmed and the appeal dis- missed with costs. Qanadian Facific Ky. Go. V. Lawson, Cass. Dig. (2 ed.) 729. 121. Gross-appeal pending in Privy Council — Stay of proceedings — Practice.] — Ai the hearing of the appeal it appeared that the re- spondent had taken an appeal from the same judgment to Her Majesty's Pri.vy Council, and that the respondent's said appeal was then pending before the Judicial Committee of the Privy Council. The court, in consequence, stopped the arguments of counsel and ordered that the hearing of the appeal to the Supreme Court of Canada should stand over until after the adjudication of the said appeal to the Privy Council. McOreevy v. MoDougall, 3rd March, 1888. 122. Gross-appeal — Rules 62 and 63 — Com- pliance loith.] — A cross-appeal will be disre- garded by the court when rules 62 and 63 of the Supreme Court Rules have not been com- plied with. Bulmer v. Th<3 Queen, xxiii., 488. 75 APPEALS TO THE SUPEEME COUET. 76 123. Increasing damages loithout cross-ap- peal — Rule 61, Supreme Court Rules — Special statute.} — Under the Ontario Judicature Act, R. S. O. 1887 c. 44, ss. 47 and 48, the Court of Appeal has power to increase damages awarded to a respondent without a cross-ap- peal, and the ^preme Court has the like power under its rule No. 01. Taschereau, J., dissented. — Per Strong, C.J. Though the court will not usually increase such damages without a cross-appeal, yet where the original proceedings were by arbitration under a sta- tute providing that the court, on appeal from the award, shall pronounce such judgment as the arbitrators should have given, the statute is sufficient notice to an appellant of what the court may do, and a cross-appeal is not neces- sary. Town of Toronto Junction v. Christie, XXV., 551. 124.' Appeal hy respondent ■ quash — Cross-appeal — Costs . See Costs, 8. Motion to 125. Verdict for damages — Solatium — Death of parent — Negligence — Art. 1056 G. C.—Lord GampleU's Act — Evidence of pecuniary loss — Cross-appeals— Practice. See Damages, 3. 126. Filing case — Inscription — Cross-appeal — Principal appeal case not filed. See Peactice op Supkeme Coukt, 27. • 10. Death of Parties. 127. Death of party — Appeal iy executors — Motion to quash. See Practice and Procedure, 75. 128. Action under Lord Campbell's Act — Abatement of appeal — Death of plaintiff — Actio personalis moritur cum persond. See No. 1, ante. 11. DiSCRETIONABY ORDERS. 129. Jurisdiction — Section 22, Supreme and Exchequer Courts Act — Matter of discretion.'] ■ — 'Under s. 22 of the Supreme and Exchequer Court Act, no appeal lies from the judgment of a court granting a new trial, on the ground that the verdict was against the weight of evidence, that being a matter of discretion. [See R. S. C. c. 135, s. 24 {d) . as amended by 54 & 55. Vict. c. 25, s. 2, enacted since date of above decision.] Boak v. Merchants' Marine Ins. Co., i., 110. 130. Jurisdiction of Appellate Court — New trial — Setting aside verdict to enter another —37 Vict. 0. 1, ss. 32, S3 (Ont.)—R. S. O. (1S77) c. 50. ss. 264, 283— 38, Vict. c. 11, ss. 20, 22, 38 (D.) — Amendments to pleadings.] — In an action tried with a jury, under 37 Vict. c. 7, s. 32 ( Ont. ) , the judge entered a verdict for the plaintiff upon the ansssers of the jury to questions submitted. Upon a rule nisi the Court of Queen's Bench entered a verdict for the defendants (41 U. C. Q. B. 497) and, on an appeal, the Court of Appeal for Ontario, being equally divided (3 Ont. App. R. 331), the Q. B. judgment stood. Held, reversing the judgment appealed from, Taschereau, .T.. dis- senting, that the Court of Queen's Bench had no power to set aside the verdict for the plain- tiff and direct a verdict to be entered for the defendants in direct opposition to the finding of the jury on a material issue ; that the court below might have ordered a new trial upon the ground that the finding of the jury upon the questions submitted to them was against the weight of evidence, but they exercised their discretion in declining to act, or in not acting, on this ground and, therefore, no appeal to the Supreme Court of Canada would lie on such ground, under 38 Vict. c. 11, s. 22. — That before the Act 43 Vict. c. 34, if an amend- ment to a plea was authorized by the court below, but such amendment was never actu- ally made, the Supreme Court had no power to consider the case as if the amendment had in effect been made. — Per Gwynne, J. That the plaintiff could not have been non-suited in virtue of 37 Vict. c. 7, s. 33 (Ont), as it is only where there is no evidence in support of the plaintiff's case, that a non-suit can be entered ; and that in this case, the proper ver- dict which the law required to be entered upon the answers of the jury was one in favour of the plaintiff. [Note. — The Privy Council (6 App. Cas. 644) affirmed the first holding and held that the Act, 38 Vict. c. 11, gave the Supreme Court power to render any judg- ment which the court below might or ought to have given, and might order a new trial on ground of misdirection or verdict being against weight of evidence ; and that power was not taken away by s. 22 in case the court below did not exercise discretion as to the question of a new trial, and where the appeal from their judgment did not relate to that subject.] Moore v. Connecticut Mut. Life Ins. Co., vi., 634. 131. Discretion of court below — New trial ordered hy court below — Verdict against weight of evidence.] — Held, that the Supreme Court will not hear an appeal from a judg- ment of the court below, in the exercise of its discretion, ordering a new trial on the ground that the verdict is against the weight of evid- ence. Eureka Woollen Mills Co. v. Moss, xi., 91. 132. Discretion of court below — Interfer- ence on appeal.] — A Court of Appeal ought not to interfere with the order of the court below on a matter of discretion, unless it is made absolutely clear that such discretion has been wrongly exercised. Per Ritchie, C.J. Jones V. Tuck, xi., 197. 133. Matter of practice — Bail — Security for costs — Exoneretur — Parties — Discretion of court below — Jurisdiction.] — S. brought an action against J. and issued a writ of capias. Bail was given and special bail entered in due course, but the bail-piece was not filed, nor iudgment entered against J., for some months after. On application to a judge in chambers an order was made for the discharge of the bail on account of delay in entering up judgment, and the full court refused to set aside the order. An anueal was brought to the Supreme Court of Canada entitled in the suit against J., from the judgment of the full court, and the bond for security for costs was given to J. Held, that as the bail, the only parties really interested in the appeal, were not before the court and not entitled to the benefit of the bond, the appeal must be quashed 77 APPEALS TO THE SUPEEME COUKT.. 78 for want of proper security. Held, also, that the appeal would not lie "as the matter was simply one of practice, in the discretion of the court below. Scammcll ,v. James, xvi., 593. 134. Judicial discretion — Executors and trustees — Accounts.'] — The Supreme Court of Canada, on appeal from a decision affirming the report of a referee in a suit to remove executors and trustees which report disallowed items in accounts previously passed by the Probate Court, will not reconsider the items so dealt with, two courts having previously exercised a judicial discretion as to the amounts and no question of principle being involved. Grant v. McLaren, xxiii.. 310. 135. Order to amend pleadings — Interfer- ence with — Discretion of court helow — Pro- cedure.] — The Supreme Court will not inter- fere on appeal with an order made by a pro- vincial court granting leave to amend the pleadings, such orders being a matter of pro- cedure within the discretion of the court be- low. Williams v. Leonard & Sons, xxvi., 406. 136. Notice of action — Negligence of muni- cipal corporation — Discretion of trial judge — Reviewing on appeal.] — An appellate court should not interfere with the discretion exer- cised by the trial judge in dispensing with notice of action against a municipal corpor- ation guilty of gross negligence as provided by the Ontario Municipal Act in respect to the condition of winter sidewalks. (23 Out. App. R. 406, affirmed). City of Kingston v. Dren- nan, xxvii., 46. 137. Discretion of court appealed from — Costs.] — It is only when some fundamental principle of justice has been ignored, or some other gross error appears that the Supreme Court will interfere with the discretion of pro- vincial courts in awarding or withholding costs. Smith v. The Saint John City Railway Company; The Consolidated Electric Com- pany V. The Atlantic Trust Company; Con- solidated Electric Co. v. Pratt, xxviii., 603. 138. Issue on appeal — Church discipline — Domestic triivnal.] — Where an appeal raised the question of the proper or improper exer- cise of disciplinary powers by the Conference of the Methodist Church, the Supreme Court refused to interfere, the matter complained of being within the jurisdiction of the Con- ference. Ash V. The Methodist Church, xxxi., 497. 139. Parties on appeal — Practice — Proceed- ing in name of deceased party — Amendment — ■ Jurisdiction — Interference with discretion on appeal.] — Between the hearing of a case and the rendering of the judgment in the trial court, the defendant died. His solicitor by inadvertance inscribed the case for revision in the name of the deceased- defendant. The plaintiffs allowed a term of the Court of Re- view to pass without noticing the irregularity of the inscription but, when the case was ripe for hearing on the merits, gave notice of mo- tion to reject the inscription. The executors of the deceased defendant then made a motion for permission to amend the inscription by substituting their names es qualite. The Court of Review allowed the plaintiffs' motion as to costs only, permitted amendment and subsequently reversed the trial court judgment on the merits. The Court of King's Bench (appeal side), reversed the judgment of the Court of Review on the ground that it had no jurisdiction to allow the amendment and hear the case on its merits, and that, conse- quently, all the orders and judgments given were nullities. Held, reversing the judgment appealed from, (Q. R. 10 K. B. 511), the Chief Justice and Taschereau, J., dissenting, that the Court of Review had jurisdiction to allow the amendment and that, as there had been no abuse of discretion and no parties prejudiced, the Court of King's Bench should not have interfered. Price v. Eraser, xxxi., 505. 14(). Practice — Adding alternative claims — Amendment — Discretionary orders — Duty of appellate court.] — Where the courts below have, in the exercise of judicial discretion ordered or refused leave to amend the plead- ings there ought not to be any interference with this exercise of their discretion on an appeal. Porter v. Pelton, xxxiii., 449. 141. Discretionary ordei — Revision hy ap- pellate court. See Mandamus, 1. 142. Order extending time — Jurisdiction of Court of Appeal for Ontario. See No. 436, infra. 12. Election Appeals. 143.' Election law — 38 Vict. c. 11, s. IfS— Judgment on preliminary objections.] — No appeal lay under 38 Vict. c. 11, s. 48, to the Supreme Court of Canada, from a judgment dismissing an election petition on preliminary objections. The Charlevoix Election Case; Brassard v. Langevin, ii., 319. (Note. — See Amending Acts.) 144. Motion to quash — Parliamentary^ elec- tion — N judge in chambers granting a motion to have prelimin- ary objections to an election petition struck out for not being filed in time. Such deci- sion was not one on preliminary objections within s. 50 of the Controverted Elections Act, and if it were no judgment on the motion could put an end to the petition. West Assiniboia Election Case, xxvii., 215. 152. Appeal — Preliminary objections — R. 8. C. c. 9, ss. 12 and 50 — Order dismissing peti- tion — Affidavit of petitioner.'] — The appeal given to the supreme court of Canada by The Controverted Elections Act (R. S. C. c. 9, s. 50), from a decision on preliminary objections to an election petition can only be taken in respect to objections filed under s. 12 of the Act. No appeal lies from a judgment grant- ing a motion to dismiss a petition on the ground that the affidavit of the petitioner was untrue, ilarquette Election Case, xxvii., 219. 153. Jurisdiction — Preliminary objections — 42 'Vict. c. 39, s. 10 — Rule to extend time for service of election petition — Controverted Dominion election. See Election Law, 9. 154. Jurisdiction - — Controverted election — Rule in banc — Preliminarii objections — .^8 Vict. c. 39, s. 10. See Election Law, 10. 155. Election petition — Dissolution of Par- liament — Abatement of proceedings — Return of deposits — Payment out of court below — Practice. See Election Law, 63. 13. Final Judgments. 156. Final judgment — Demurrer — Supreme and Exchequer Courts Act, s. 11 — R. S. N. 8. (If ser.) c. 9Jf, s. 12Jt.] — An order setting aside a demurrer as frivolcjus and irregular under the Nova Scotia Practice Act is an order on a matter of practice and not a final judgment appealable under the 11th section of the Supreme and Exchequer Courts Act. Kandicic v. Morrison, ii., 12. 157. Jurisdiction — Question raised by court — Rule setting aside judgment and execution — " Final judgment " — Supreme and Exche- quer Courts Act, s. n — Construction of s. 2 ■\d).] — The Supreme Court of Canada may, of its own motion, entertain a question of jurisdiction. — ^An order vacating a final judg- ment and setting aside an execution issued thereunder is a " final judgment " within the meaning of the Supreme and Exchequer Courts Act, and subject to appeal under the provisions of that Act. (Strong, J., dis- sented.) 'Wallace v. Bossom, ii., 488. 158. Summary jurisdiction — Order upon^ immediate officers — Application by third party on rule nisi — Final order — Interest on deposit.] — An order by a Superior Court exer- cising its summary jurisdiction over its own immediate officers, on an application by a third party to obtain an order for the pay- ment over of interest received 'by such officer on moneys held by him on deposit as an officer of the court, is a final order from which an appeal will lie to the Supreme Court of Canada, under 38 Vict. c. 11, s. 11. (Pournier, J., dissenting; Taschereau, J., dubitante.) Wilkins v. Geddes, iii., 203. 159. Mandamus — Final judgment — Decision — Supreme and Exchequer Courts Act, 38 'Vict. c. 11. ss. 11, 17 and 23 — Costt — Motion to quash — Constitutional law.] — Appeals to the Supreme Court of Canada in cases of manda- mus, under 38 ^'ict. c. 11, s. 23, were re- stricted to decisions of the " highest court of final resort " in the province ; and an appeal would not lie from any court in the Province of Quebec but the Court of Queen's Bench. (Fournier and Henry, JJ., dissenting.) Quwre, Can the Dominion Parliament give an appeal in a case in which the Legislature of a province has expressly denied it? Semble, per Strong, J., that under the above Act, an appeal would lie from an Exchequer Court decision which was not final. (Note. — See amendment by 53 Vict. c. 35.)— The appeal was quashed with Costs, which included general costs of the appeal up to hearing of motion to quash. The registrar taxed the full fee of $25 on argument of motion. This was increased to $75 by Henry, J. The objection to the jurisdiction was taken by motion, and also in respondent's factum. Danjou v. Mar- quis, ill., 251. 160. Final judgment — Order making rule absolute — Jurisdiction.] — A judgment of the Supreme Court of Nova Scotia making abso- lute a rule nisi to grant rank and precedence to a Queen's Counsel is one from which an 81 APPEALS TO THE SUPREME COUET. 82 appeal would lie to tlie Supreme Court of Canada, Fouruier, J., dissenting. Lenoir v. Ritchie, iii., 575. 161. Jurisdiction — Demurrer sustained in provincial Court of Appeal — Final judgment — Judicial proceedings — ^2 Vict. c. 39, ss. 3 & 9.] — The Superior Court sustained a de- murrer, and, on appeal, the Court of Queen's Bench affirmed, the judgment. On appeal to the Supreme Court, respondent moved to quash on the ground of want of jurisdiction : UeU, that as the judgment of the Court of Queen's Bench (the highest c'ourt of last resort having jurisdiction in the Province of ■ Quebec) , finally determined and put an end to the appeal, which was a judicial proceeding within the meaning of s. 9 of " The Supreme Court Amendment Act of 1879," such judg- ment was one from which an appeal would lie to the Supreme Court of Canada ; and though an appeal cannot be taken from a court of first instance directly to the Supreme Court until there is a final judgment, yet, whenever a provincial Court of Appeal has jurisdiction, the Supreme Court can entertain aji appeal from its judgment finally disposing of the appeal, the case being in other respects a proper subject of appeal. Chevalier v. Cuvilliar, iv., 605. 162. Final judgment partly interlocutory — Effect — References to experts — Res judicata — Right of appeal — Waiver.'] — In an action for balance due on a building contract, defend- ant denied the claim, and, by incidental de- mand, claimed damages from defective work. The Superior Court gave judgment in favour of the plaintiff for the amount of his claim, and dismissed the incidental demand. This judgment was reversed in review and, on ap- peal, the Court of Queen's Bench held plaintiff entitled to the balance claimed, from which should be deducted the cost of rebuilding the defectively constructed work, and in order to ascertain such cost, the case was remitted to the Superior Court, by which experts were appointed to ascertain the damage, and, on their report, the Superior Court held that it was bound by the judgment of the Court of Queen's Bench, and, deducting the amount awarded by the experts from the balance claimed , gave judgment for the difference. This judgment was affirmed by the Court of Queen's Bench on a second appeal. Held, that the judgment of the Court of Queen's Bench on the first appeal was a final judgment on the merits, that the Superior Court, when the case was remitted, rightly held that it was bound by the judgment, and that plaintiff was entitled to the balance thereby found due to him. 2. That although on an appeal from a final judgment an appellant may have the right to impugn an interlocutory judgment rendered in the cause, yet he loses this right if he voluntarily and without reserve acts upon such interlocutory judgment. Per Pournier, J., that the judgment of the Court of Queen's Bench on the first appeal, though interlocutory on that part of it which directed the reference to experts, was final on the other, points in liti- gation, and could therefore have properly been appealed from as a final judgment. Shaw v. 8t. Louis, viii., 385. 163. Final judgment — Demurrer — Plead- ing — Equal division of opinion — Dismissal of appeal without costs.] — Although a judgment, may be a decision on a demurrer to part of the action only, it is a final judgment in a judicial proceeding within the meaning of the Supreme Court Act and an appeal will he. (Taschereau and Gwynne, J J., dissented.) — The opinion of the judges who heard this appea'l being equally divided, the appeal was dismissed without costs. Shields v. Peak, viii., 579. 104. Demurrer to plea — Entry of judg- ment — Appeal from judgment on merits — Final judgment — Supreme and Exchequer Courts Acts, 1815, s. 25, 18~9, s. 9.]— In an action by the indorsee of a note the defendant pleaded that the amount of the note had been attached in their hands by one of the payee's judgment creditors and paid, under a judge's order. To this plea plaintiff demurred on the ground that the debt was not one which could properly be attached, and the Supreme Court (P. E. I.) sustained the demurrer. No rule for judgment on the demurrer was taken out by the plain- tiff, and three months later judgment was signed for the plaintiff. On motion to quash an appeal for want of jurisdiction, on the ground that the appeal should have been taken from the judgment on the demurrer, and with- in thirty days from the date when it was rendered : Held, that the latter judgment was the " final judgment " in the case from which an appeal would lie to the Supreme Court. Rohlee v. Rankin, xi., 137. 165. Capias — Petition for discharge -— R. S G.135, s. 2S—Arts. 819-8.11, C. C. P.—Fmal judgment — Judicial proceedwiff.]— A writ ot capias having been issued against JIcK. under the provisions of art. 798 ot C. <^. i . 'i--^-'' he petitioned to be discharged under art. 819, OOP and issue having been joined on me pleadings under art. 820, O. C, P., the petition was dismissed by the Superior Court, that judgment being affirmed by the Queen s Bench (15 R L 34). HeJd, that the judgment was a final" judgment in a judicial Proceeding with- in the meaning of R. S. C. c. 13o, s. 2? and therefore appealable— Taschereau J., dissent- in2 manton v. Canada Atlantic Kv- ^o- (Cass. Dig. 2 ed. 249) reviewed. AlacRm- non V. Keroack, xv.. 111. 166 Rule of court — Contempt — R- ^. C. c 1-lJ s 21t (a)— Pinal judgment— Practice. i —By 'a rule nisi, E. was called upon to shew cause why an attachment should not issue against him, or he be committed for contempt of court, in publishing certain articles m a newspaper. The rule was made absolute, and a writ issued commanding the sheriff to have the body of E. before the court on a day named. By the practice in such -cases m the Supreme Court (N. B.)' the attachment issued merely to bring the party into court, where he might, by answering interrogatories, purge his contempt. If unable to do this the court would pronounce sentence. E. appealed from the , judgment making the rule absolute. On mo- tion to quash appeal : Held, that the judg- ment appealed from was not a final judgment from which an appeal would lie under s. 24 (a) of the Supreme and Exchequer Couits Act. Ellis V. Baird, xvi., 147. 167. Contempt of court — Constructive con- tempt — Discretion of court — Final judg- ment — Sentence — Fine — R. S. G. c. 135, s. 24. s.-s. (a), s. 26, s.-s. {!) , s. 27.]— The decision of a provincial court in a case of con- structive contempt is not a matter of discre- tion in which an appeal is prohibited by s. 27 of the Supreme and Exchequer Courts Act. Taschereau, J., dubitante — The Supreme Court I has jurisdiction to entertain such an appeal S3 APPEALS TO THE SUPEEMB COUET. 84 from the judgment of the Court of Appeal of the province, not only under s. 24, s.-s. (a) of Supreme and Exchequer Courts Act as fin- al judgment in an action or suit, but also under s.-s. (1) of s. 26 of the same Act, as a final judgment " in a matter or other judicial pro- ceeding " within the meaning of said s. 26. — The adjudication that the appellant, a solicitor and officer of the court and moved against in that quality, had been guilty of a contempt, is by itself an appealable judgment, although no sentence for the contempt has been pronounced by the court. — When the party in contempt has been ordered to pay the costs of the appli- cation to commit the court in effect inflicts a fine for the contempt. In re O'Brien, xvi., 197. 168. Juisdiction — Final judgment — De- murrer to replication — Disposal of issues.'\ — A judgment alloyving demurrer to plaintiff's replication to one of several pleas (5 Man. L. R. 334), which does not put an end to the whole or any part of the action or defence is not a final judgment from which an appeal will lie. Shaw v. Canadian Pacific Ry. Co., xvi., 703. 169. Jurisdiction — Petitioner let in to de- fend — Non-compliance with terms — Final judgment — Discretion — ■ R. 8. C. c. 135, s, 24 (a) 27.] — Judgment was recovered in Virtue v. Hayes, to realize mechanics' liens, and C., the owner of the land on which the work was done, petitioned to hav§. judgment set aside as a cloud upon his title. On this petition an order was made allowing C. to come in and defend the ' action for lien on terms, which not being complied with, the pe- tition was dismissed, and the judgment dis- missing it was affirmed by the Divisional Court and the Court of Appeal. Held, that the judg- ment appealed from was not a final judgment within the meaning of s. 24 (a) of the Su- preme and Exchequer Courts Act or, if it was, it was a matter in the judicial discretion of the court, from which by s. 27 no appeal lies to the Supreme Court of Canada. Virtue v. Hayes, In re Clarlc, xvi., 721. 170. Jurisdiction — " Final judgment " — Interlocutory order — Matters of procedure — ■ Special leave — Art. 1116 G.G.P- — Amount in controversy^R. 8.G. c. 135, ss. 28 d 29 — Re- fusal of iond J)y court appealed from — Leave granted iy Supreme Court judge.'] — The defen- dant's application to a judge of the court ap- pealed from for an order settling the case and approval of an appeal bond, on appeal from a judgment quashing an appeal for want of regular procedure was refused, but on a sub- sequent application to a judge of the Supreme Court of Canada in chambers, the application was granted. — A judgment quashing a writ of appeal on the ground that it had issued con- trary to the provisions of art. 1116. C. C. P., as to appeals from interlocutory judgments, is not " a final judgment " within the meaning of s. 28 of the Supreme and Exchequer Courts Act. Shaw V. St. Louis, (8 Can. S. C. R. 387) distinguished. — The Supreme Court has no jurisdiction under s. 29 of the Supreme and Exchequer Courts Act, to hear an appeal by the defendant where the amount in contro- versy has not been established by the judg- ment appealed from. Gwynne, J., reserved his opinion on this question. Ontario & Que- bec Ry. Co. V. Marcheterre, xvii., 141. See 54 & 55 Vict. c. 25, s. 3. 171. Jurisdiction ■ — Final judgment — Man- damus — Judgment on demurrer — Supreme and Exchequer Courts Act, s. 24 (g) 28, 29 c£ 30.] — Interlocutory judgments upon proceed- ings for and upon a writ of mandamus are not appealable to the Supreme Court under s. 24 (g) of the Supreme and Exchequer Courts Act. The word " judgment " in that sub- section means the final judgment in the case, Strong and Patterson, JJ.. dissented. Lange- vin V. Commissaires d'Ecole de St. Marc, xviii., 599. 172. Jurisdiction — Final judgment — Or- der for new trial — Supreme and Exchequer Courts Act, ss. 24 (g) , 30, 6i.]— Where a new trial has been ordered upon the ground that the answer given by the jury to one of the questions is insufficient to enable the court to dispose of the interest of the parties on the findings of the jury as a whole, no appeal will lie from such order which is not a final judg- ment and cannot be held to come within the exceptions provided for by the Supreme and Exchequer Courts Act in relation to appeals in cases of new trials. Barrington v. Scottish Union & Nat. Ins. Co., xviii., 615. 173. Jurisdiction ■ — Interlocutory judgment — Saisie conservatoire — Contestation — R. 8. C. c. 135, ss. 24, 28.] — A judgment of the Court of Queen's Bench, on appeal, reversing a Superior Court judgment, which had quash- ed a seizure before judgment, and ordering that the hearing, in contestation of the seizure should be proceeded with in the Superior Court at the same time as the trial of the merits, is not a final judgment appealable to the Supreme Court. Strong, J., dissenting. Molson v. Barnard, xviii., 622. 174. Jurisdiction — Mis-trial — Insufficient answers hy jury — New trial — Final judg- ment — Supreme and Exchequer Courts Act ss. 24, 21, 28, 29, SO, 6i— Costs.]— The Court of Review dismissed plaintiffs' motion for judgment on the findings by a jury and on defendant's motion dismissed the action. On appeal this judgment was reversed and the Court of Queen's Bench set aside the assign- ment of facts to the jury and all subsequent proceedings and suo moti ordered a venire de novo on the ground that the assignment of facts was defective and insufficient and the answers of the jury were insufficient and con- tradictory. Held, that the order was not a final judgment and did not come within the exceptions allowing an appeal in cases of new trials, and appeal would not lie. — ^As the ob- jection to the jurisdiction was not made by respondent the appeal was quashed without costs. Accident Ins. Co. of N. A. v. McLach- lan, xviii., 627. 175. Jurisdiction — Application to set aside a writ of summons — Final judgment.] — An application to a judge to set aside a writ of summons served out of jurisdiction on the grounds that the cause of action arose in Eng- land and the defendant was not subject to the process of the court, and if this court had jurisdiction that the writ was not in proper form was refused and this decision was af- firmed by the full court. Held, Gwynne, J., hesitante, that the decision of the full court was not a final judgment in an action, suit, matter or any other judicial proceeding with-' in the meaning of the Supreme Court Act, and no appeal would lie from such decision to the Supreme Court of Canada. Martin v. Moore, xviii., 634. 85 APPEALS TO THE SUPEEME COURT. 86 176. Jurisdiction — Final judgment — Ju- dicial discretion — Summons and order for signing jtidgment.'] — An appeal does not lie from a decision of the Court of Queen's Bench (7 Man. L. R. 128) affirming the order of a judge, made on the return of a summons to shew cause, allowing judgment to be entered on a specially indorsed writ, which is not a " final judgment," within the meaning of the Supreiie Court Act. — Per Patterson, J. Such decision is a " final judgment," but the order which it affirmed was one made in the exer- cise of judicial discretion as to which s. 27 of the Act does not allow an appeal. Muni- cipality of Morris v. London cG Canada Loan & Agency Co., xix., 434. 177. Jurisdiction — Final judgment — Ju- dicial discretion — R. 8. C. c. 135, ss. 2 (e), 27.] — Defendants in the High Court of Jus- tice of Ontario were made bankrupt in Eng- land, and plaintiffs filed a claim with the as- signee in bankruptcy. The High Court of Justice in England made an order restraining plaintiffs from proceeding with their action and a like order was made by a Divisional Court judge in Ontario perpetually restrain- ing plaintiffs from proceeding but reserving liberty to apply. TThis latter order was af- firmed by the Divisional Court and the Court of Appeal, and plaintiffs sought an appeal to the Supreme Court of Canada. Held, that the judgment from Tyhich appeal was sought was not a final judgment within the meaning of the Supreme Court Act. — Held, per Patterson, J., that if it were a final judgment the order plaintiffs wished to get .rid of was made in the exercise, of judicial discretion as to which s. 27 of the Supreme Court Act does not allow an appeal. Maritime Bank of Canada v. Stew- art, XX., 105. 178. Jurisdiction — Security for costs — R. 8. C. c. JS5, s. i6 — Final judgment — Ad- mission of attorney.'] — Appeal from the refusal of the Supreme Court (N. S.) to admit ap- pellant as an attorney of the court. There be- ing no person interested in opposing the ap- plication or the appeal, no security for costs was given. Held, Gwynne, J., dissenting, that the court had no jurisdiction to hear the appeal. — Per Ritchie, C.J., and Taschereau, J. Except in cases specially provided for, no appeal can be heard by this court unless the security for costs has been given as provided by s. 46 of the Supreme Court Act. — Per Strong and Taschereau, JJ. It was never in- tended that this court should interfere in mat- ters respecting the' admission of attornies and barristers in the several provinces. — Per Tashereau and Patterson, JJ. The judgment sought to be appealed from is not a final judg- ment within the meaning of the Supreme Court Act. In re Cahan, xxi., 100. 179. Taxation of Costs — Application hy ratepayer — R. 8. O. (1887) c. Un. s. 43— Jurisdiction — Discretion — Proceeding orig- inating in Superior Court — Final judgment.] —By R. S. 0. (1887) c. 147, s. 42. any per- son not chargeable as the principal party who is liable to pay or has paid a solicitor's bill of, costs may apply to a judge of the High Court, or of the County Court for an order of taxation. In an action against school trustees, a ratepayer of the district applied to a judge of the High Court for an order under this section to tax the bill of the soli- citor of the plaintiff, who had recovered judg- ment. The application was refused, but on appeal to the Divisional Court this judgment was reversed (21 O. R. 289). There was no appeal as of right from the latter decision, but on leave to appeal being granted it was reversed and the original judgment restored (19 Ont. App. R. 56). SeW. per Ritchie, C. J., and Strong and Gwynne, JJ., that assuming the court had jurisdiction to entertain the ap- peal, the subject matter being one of taxation of costs, this court should not interfere with the decision of the provincial courts which are the most competent tribunals to deal with such matters. — Per Ritchie, C.J., and Patter- son, J., that a ratepayer is not entitled to an order for taxation under said section. — Held, per 'Taschereau, .J., that the court "had no jurisdiction to entertain the appeal, as the judgment appealed from was not a final judgment within the meaning of the Supreme Court Act; the matter was one in the discre- tion of the courts below, and the proceedings did not originate in a Superior Court. — Per Patterson. J. The making or refusing to make the order applied for is a matter of discretion and the case therefore not appealable. Mc- Gugan v. McGugan, xxi., 267. 180. Report of referee — Judgment in affir- mation — Trial judgment — Jurisdiction.] — A judgment of the Court of Appeal affirming that of the Divisional Court which affirmed the report ,of the referee refusing a set-off to plaintiff's claim is not a final judgment from which an appeal lies to the Supreme Court of Canada. McDougall v. Cameron; Bickford v. Cameron, xxi., 379. 181. Jurisdiction — Final judgment — Reprise d'instance — Res judicata — Art. 4S9, G. C. P.—R. 8. G. c. 135, ss. 2, U & 28.] — In an action to set aside a deed of assign- ment the plaintiff died before the ease was ready for judgment, and respondent petitioned to continue the suit as legatee under a will dated the 17th November, 1869. Appellant contested the reprise d'instance on the ground that this will had been revoked by a later will which was contested by respondent as null and void. Upon that issue the Court of Queen's Bench reversing the Superior Court declared the later will null and void and main- tained the reprise d'instance. On motion to quash anpeal on the ground that the judgment appealed from was interlocutory ; Held, that the judgment was res judicata between the parties and final on the petition for continu- ance of the suit, and therefore appealable. 8Jiaw V. 8t. Louis, (8 Can. S. C. R. 385) followed. Baptist v. Baptist, xxi., 425. 182. Practice — Judgment of court — Withdraioal of opinion — Master's report — CredibiMty of witnesses — Apportionment of damages — Irrelevent evidence — Severance of damages — Reasons for report ■ — Equal di- vision of judges in appeal — Final judgment."] — The Court of Appeal for Ontario, composed of four judges, pronounced judgment, two be- ing in favour of dismissing an appeal, the other two pronouncing no judgment. In the Supreme Court it was 'objected that in the judgment appealed from no decision had been arrived at. Held, that the appellate court could not go behind the formal judgment which stated that the appeal had been dis- missed : further the proposition was the same as if the four judges had been equally divided in opinion in which ease the appeal would have been properly dismissed. — In an action 87 APPEALS TO THE SUPEEME COUET. against several mill-owners for obstructing the Ottawa river by throwing sawdust and refuse into it from their mills a reference was made to the master to ascertain the amount of dam- ages. Held, affirming the judgment appealed from, that the master rightly treated the de- fendants as Joint tort-feasors ; that he was not called upon to apportion the damages accord- ing to the injury inflicted by each defendant, and that he was not obliged to apportion them according to the different grounds of injury claimed by the plaintiff. — 'held, further, that the master was the final judge of the credibil- ity of the witnesses and his report should not be sent back because some irrelevant evidence may have been given of a character not like- ly to have affected his judgment, especially as no appeal was taken from his ruling on the evidence. — On a reference to a master, the lat- ter, provided he sufficiently follows the direc- tions of the decree, is not obliged to give his reasons for, or enter into a detailed explana- tion of his report to- the court. (Compare, 11 O. R. 491 ; 14 Ont. App. R. 419 ; 15 App. Oas. 188.) Booth V. Ratte, xxi., 637. 183. Exchequer Court reference — Judgment ore report — Limitation of time — Final judg- ment.] — ^On trial in 1887 of an action against the Crown for breach of contract, the case was referred to ascertain the damages. In 1891 the referees reported and judgment was enitered for the amount found due. The Crown appealed, obtained an extension of the time for appeal limited by statute (3 Ex. C. R. 1,) and sought to impugn the judgment pro- nounced in 1887. Held, Gwynne and Patter- son, JJ., dissenting, that the appeal must be restricted to the final ji^dgment pronounced in 1891 ; that an appeal from the judgment of 1887 could only be brought -within 30 days •thereafter unless the time was Extended as provided by the statute and the extension of time granted on its face only referred to an appeal from the judgment pronounced in 1891. — Held, per Gwynne and Patterson, JJ., that the judgment of 1891 was the only judgment in the suit in respect to the matters put in issue by the pleadings and on appeal there- from all matters in issue were necessarily open. The Queen v. Clarke, xxi., 656. 184. Jurisdiction — Final judgment — De- murrer — ■ Practice — Case defective — Formal judgment — Ohjection in factum — Costs.'] — In an action (Sup. Ct.. P. E. I.), for assault and false imprisonment, defendants justified by ca. sa. issued against plaintiff under a judg- ment against him. By replication plaintiff alleged that the capias issued in blank and was filled up with the necessary particulars after the sealing and delivery, and also that it was sealed, issued and delivered without a prwcipe. To these replications the defend- ants demurred, and to the latter rep'lication pleaded a rejoinder that after the issue of the ^ writ their attorney transmitted a prwcvpe to the prothonotary. To this re- joinder the plaintiff demurred. Judgment was for the plaintiff on all the demurrers and defendants appealed to the Supreme Court of Canada. The printed case contained the de- murrer book, and reasons for judgment, and a certified extract from the minutes of the prothonotary as follows : — " Demurrers argued 30th October last, when the court took time to consider. The Chief Justice now gives judgment for the plaintiff on all the demurrers Mr. Justice Peters, concurs ; Mr. Justice Hen- sley, conmrs."— Held, 1. The case was de- fective m not shewing that a judgment had been entered up on the demurrers. 2. Even if judgment had been entered up such judg- ment would not be a final judgment from which an appeal would lie within the mean- ing of the Supreme and Exchequer Courts Act, 1875, or the Supreme Court Amendment Act of 1879. — Appeal quashed with costs of a motion to quash. The objection to the juris- diction was taken by the respondent in his factum. Reid v. Ramsay, Cass. Dig. (2 ed.) 420; Cass. Prac. (2 ed.). 30, 64, 81. 185. Jurisdiction — Final judgment.] — In 1877 an order was made by the Chief Justice of Nova Scotia, on the petition of a number of property owners whose lands would be affected directing the prothonotary of the county to draw and strike a jury, under the provisions of R. S. N. S. (3 ser.) c. 70. to appraise the lands and property taken for the purpose of the Eastern Extension Railway. In 1878 a rule nisi was taken to set the whole proceedings aside, but a year later it was discharged on motion of the party who had obtained it. A question having been raised as to the validity of the incorporation of the rail- way company under 39 Vict. c. 4 (N. S.), and legislation being about to be passed to remove such doubts, another rule was obtained in 1879, on the ground that the H. & C. B. R. & G. Co., had no legal existence. After the argument of this rule, and before judgment, 41 Vict. cc. 66 and 70 (N. S.) were passed, the Supreme Court (N. S.) held that the- County of Pictou was estopped by these sta- tutes last mentioned from disputing the ap- praisement of lands taken, and by its act in issuing debentures to parties to whom damages had been awarded for the lands appropriated to the railway, some of which had been in- dorsed to third parties. (1 Russ. & Geld., 448; s«6 nom. Re Pictou Railway Danvages). Held, that the judgment M'as not one from which an appeal would lie. there being no finality about the order made by the Chief Justice in 1877, which was what this appeal sought to set aside. Hochin v. Halifax & G. B. Ry. & Coal Co.. Cass. Dig. (2 ed.i, 423. 186. Jurisdiction — Final judgment — Judg- ments on demurrers and on verdict rendered — Appeal per saltum after quashing appeal on demurrers.] — On appeal brought from a judg- ment overruling demurrers to some 9f the counts of a declaration only, while rehearing was pending upon an order to enter final judg- ment on the whole case upon the verdict ren- dered ; Held, that as the judgment on the demurrers was not a final judgment the appeal must be quashed for want of jurisdiction, but on the application of the appellant, made at the same time as the motion to quash, leave was given to appeal per saltum (after the expiration of the 30 days limited by the Act) on whole case upon terms, and the deposit already made in court was ordered to remain on deposit to avail as security for this appeal. Bank B. N. A. v. Walker, Cass. Dig. (2 ed.), 214, 425, 670. 187. Jurisdiction — Final judgment — R. S. (ff. 8.), 4th series, c. 94. ss. 56. 75 — Re- fusing leave to defend — Discretionary order — Matter of procedure — Practice.] — Action of replevin to recover 125 barrels of flour. Plain- tiffs were indorsees of a bill of lading of the goods, which were held by the defendant as freight agent of thb I. 0. R. at Truro. The action was begun and the goods were replevied and the writ was served on 9th April, 1881. A default was marked on 25th April, 1881. 89 APPEALS TO THE SUPREME COURT. 90 On 10th Sept., 1881, plaintiffs' attorney issued a writ of inquiry, under whicli damages were assessed under R. S. N. S. (4 ser.) c. 94, s. 56. An order nisi to remove the default and let in defendant to- defend, was taken out on 11th Oct., 1881, and discharged with costs. The judgment being affirmed on appeal (4 Russ. & Geld. 168). ll. S. N. S. (4 ser.) c. 94, s. 75, enacts that it shall be lawful for the court or a judge, at any time within one year after final judgment, to let in defendant to defend upon application supported by satisfac- tory affidavits accounting for his non-appear- ance, and disclosing a defence upon the merits, etc. — Held, that the judgment appealed from was not a final judgment within the meaning of s. 3 of the Supreme Court Amendment Act of 1879, and was not appealable. Held, also, that if the court could entertain the appeal, the matter was one of procedure and entire- ly within the discretion of the court below, and this court would not interfere. Appeal dismissed with costs. Gladwin v. Cummmgs, Cass. Dig. (2 ed.), 426; Cas^. Prac. (2 ed.), 31. 188. Final judgment — Order on appeal — Quashing interim injunction.'] — ^On motion to quash an interim. in junction. Mathieu, J., sus- pended its operation until final adjudication on the merits. Both parties appealed to the Queen's Bench, which quashed the injunc- tion absolutely. An application to one of the judges of Queen's Bench for leave to appeal was refused on the ground that the judgment quashing the writ was not a final judgment, and, " notwithstanding the offer and sufficiency of the security." Appellants served notice of further application to a judge of the Supreme Court Co be allowed to give prop- er security to the satisfaction of that court, or of a judge thereof, for the prosecution of an appeal to that court, notwithstanding the refusal in the court below, and the lapse of thirty days from the rendering of the judgment from which they desired to appeal, and further to obtain an extension of time for settling the case in appeal. Henry. J., in chambers en- larged the motion for hearing in court where it was argued at length, and it was Held, that the judgment of the Court of Queen's Bench (21 C. L. J. 355), quashing the interim injunction, was not a final judgment from which an appeal would lie. Motion refused. Stanton v. Canada Atlantic Ry. Co.. Cass. Dig. (2 ed.), 430; Cass. S. C. Prac. (2 ed.) 31. 189. Jurisdiction — Contempt of court — Criminal proceeding — R. S. C. c. 135, s. 68 — Final judgment.'] — Contempt of court is a criminal matter and an appeal to the Supreme Court from a judgment in proceedings- there- for, cannot be brought unless it comes within s. 68 of the Supreme and Exchequer Courts Act, O'Shea v. O'Shea (15 P. D. 59). follow- ed. In re O'Brien (16 C. S. C. R. 197), re- ferred to. — The Supreme Court (N.B.) ad- judged E. guilty of contempt but deferred sentence. Held, that this was not a final judg- ment from which an appeal would lie to the . Supreme Court of Canada. Aijpeal quashed. Ellis V. The Queen, Cass. Dig. (2 ed. ), 133; Cass. S. C. Prac. (2 ed.), 31, 104. 190. School corporation — Decision of super- intendent of puhlic instruction — Final judg- ment — Mandamus — R. 8. Q. Arts. 2055, 2056 —55 & 56 Vict., c. 24. ss. 18 and 19 (Que.) Practice.] — Under the provisions of art. 2055 of the Revised Statutes of Quebec, as amended by 55 and 56 Vict. c. 24, ss. 18 and 19, cer- tain ratepayers of a school district appealed to the Superintendent of Public Instruction for the Provinc'e of Quebec, who thereupon rendered a decision, and gave orders and direc- tions respecting the erection of a school- house, which, however, the School Commis- sioners neglected to perform. Held, affirming the judgment appealed from, that in such cases, the decision of the Superintendent of Public Instruction was final ; that no appeal therefrom would lie to the Superior Court, and that the proper remedy to enforce the execution of the orders and directions of the Superintendent was by mandamus. Commis- saires d'Ecole de St. Charles v. Cordeau, 9th December, 1895. 191. Jurisdiction — Criminal proceeding — Contempt of court — Final judgment. R. S. C. c. 135, s. 68.] — Contempt of Court is a crim- inal proceeding and unless it comes within s. 69 of the Supreme Court Act an appeal does not lie to this court from a judgment in pro- ceedings therefor. O'Shea v. O'Shea (15 P. D. 59), followed; In re O'Brien (16 Can. S. C. R. 197). referred to. In proceedings for contempt of court by attachment until sen- tence is pronounced there is no " final judg- ment " from which an appeal could be brought. Ellis v. The Queen, xxii., 7. 192. Order for new trjM. — Jurisdiction — Final judgment.] — An ^^SS&'for a new trial is^not a final judgment, and is not appealable to the Supreme Court of Canada. Canadian Poo. Ry. Go. V. Cohhan Mfg. Co., xxii., 132. 193. Sheriff's sale of immovaile — Action to vacate — Appeal from judgment in.] — An ap- peal will lie to the Supreme Court under s. 29 (b) of the Supreme Court ^ict from the judg- ment in an action to vacate the sheriff's sale of an immovable. Dufresne v. Dixon (16 Can. S. C. R. 596) followed. Lefeuntun v. Veronneau, xxii., 203. 194. Final judgment — Petition for leave to intervene — Judgment on — Interlocutory proceedings.] — No appeal lies to the Su- preme Court from the judgment of the Court of Queen's Bench on a petition for leave to intervene in a cause, the proceedings being interlocutory only. Hamel v. Hamel, xxvi., 17. 195. Interlocutory ordei Trial hy jury — Final judgment.] — A judgment of the Court of Queen's Bench for Lower Canada, affirmed a judgment of the Superior Court, by which the defendant's application to have the issues tried by a jurv under the provisions of arts. 348-350 C. C. P., was refused. The defendant took an appeal to the Supreme Court of Can- ada, whereupon the nlaintiff moved to quash. Held, that the decision complained of was an interlocutory judgment only, and that no ap- peal could lie under the provisions of " The Supreme and Exchequer Courts Act," and amendments thereto. (The appeal was quash- ed with costs.) Demers v. Bank of Montreal, xxvii., 197. 196. Jurisdiction — Final judgment — Discre- tionary order — Default to plead — R. S. C c. 135. ss. 2Jf (a). 27— R. S. O. c. J,lf. s. 46— Ontario Judicature Act, Rule 796.] — After judgment has been entered by default in an action in the High Court of Justice it is in the discretion of a master in chambers to 91 APPEALS TO THE SUPREME COURT. 93 grant or refuse an application by the defen- dant to have the proceedings re-opened to allow him to defend, and an appeal to the Supreme Court from the decision of the court of last resort on such an application is pro- hibited by s. 27 of " The Supreme and Exche- quer Courts Acts." Quwre, Is the judgment on such application a " final judgment " with- in the meaning of s. 24 (a) of the Act? O'Donohue v. Bourne, xxvii., 654. 197. Court of Review — Right of appeal to Privy Council — Construction of statute — Final judgment — R. S. C. c. 133, ss. 24 (}), 2S & Sy— 54 & 55 Vict. c. 25, s. 3 (Z>).]— Cer- tain ratepayers of the City of Montreal having objections to one of the commissioners named in proceedings taken for the expropriation of land required for the improvement of a public street, in which they were interested, presented a petition to the Superior Court demanding his recusation. The petition was dismissed ; on an appeal to the Court of Review, the judg- ment dismissing the petition was affirmed, and further appeal was then taken to the. Supreme Court of Canada. On motion to quash the appeal for want of jurisdiction. Held, that no appeal de piano would lie from the judg- ment of the Court of Review to Her Majesty's Privy Council, and consequently there was no appeal therefrom to the Supreme Court of Canada under the provisions of the Act, 54 & 55 Vict. C. 25, s. 3, amending the Supreme and Exchequer Courts Act. Held, further, that the judgment of the Court of Review was not a final judgment within the meaning of s. 29 of the Supreme and Exchequer Courts Act. Ethier v. Swing, xxix., 446. 198. Jurisdiction — Final judgment — Plea of prescription — Judgment dismissing plea — Costs— B. 8. C. c. 135, s. 21f—Art. 2267 0. C] — ^A judgment affirming dismissal of a plea of prescription when other pleas remain on the record is not a final judgment from which an appeal lies to the Supreme Court of Canada. Hamel v. Hamel (26 Can. S. C. R. 17) ap- proved and followed. — ^An objection to the jurisdiction of the court should be taken at the earliest moment. If left until the Case comes on for hearing and the appeal is quash- ed the respondent may be allowed costs of a motion only. Griffith v. Hanoood, xxx., 315. 199. Vendor and Purchaser Act — Reference to mastei Admission of evidence — Appeal from certificate — Final judgment — R. 8. G. c. 135, s. 24 (e).] — ^Where a master, on a refer- ence under the Vendor and Purchaser Act to settle the title under a written agreement for a lease, ruled that evidence might be given to shew what covenants the lease should con- tain, an appeal does not lie to the Supreme Court from the judgment affirming such ruling it not being a final judgment and the case not coming within the provisions of s. 24 (e) of the Supreme and Exchequer Courts Act, re- lating to proceedings in Equity. Gwynne, J., dissented. Canadian Pacific Ry. Co. v. City of Toronto, xxx., 337. 200. Jurisdiction — Interlocutory proceeding — Final judgment.'] — An order requiring oppo- sants d fin de charge to furnish security that lands seized in execution, if sold by the sheriff subject to the charge claimed, should realize sufficient to satisfy the claim of the execu- tion creditor, is merely an interlocutory judg- ment from which no appeal lies to the Supreme Court of Canada. Lacroix v. Moreau (16 L. C. R. 180), referred to. ti) ^ Desaulniers v. Payette, xxxiii., 340. 201. Appeal from Court of Review — Cori- struction of statute — Final judgment — Appel- late jurisdiction. 8ee No. 289, infra. 14. Findings in Coukts below. 202. Questions of fact — Conflicting evidence ^Findings of court Jjelow.l — Held, where a disputed fact, involving nautical questions, is raised by an appeal from the judgment of the Maritime Court of Ontario, as in the case of a collision, the Supreme Court will not on appeal reverse the decree of the judge of the court below, merely upon a balance of testi- mony. The Picton, iv., 648. 203. Question of jurisdiction of court Mow — Directions given on appeal — Second decision of court below — Powers of Supreme Court on first appeal — Jurisdiction to hear second appeal — Findings of fact.'] — Where an appeal is limited to a question of the jurisdiction of the court appealed from, the Supreme Court of Canada cannot decide upon the merits of the case, and where, in such a case, further adjudication is ordered, a second judgment therein deciding upon the merits is appeal- able under the Supreme Court Act. — On ap- peal the findings of fact by the trial judge ought not to be reversed unless his conclusions appear, beyond a doubt, to be erroneous. Jiellechasse Election Case, v., 91. 204. Findings of trial judge — Reversal on appeal.] — Where there was evidence which, in the opinion of the Supreme Court of Canada, established the creation of a new tenancy at will within ten years, the court reversed the holding of the Court of Appeal for Ontario, which had reversed the findings of fact by the trial judge. — Per Gwynne, J. A court of appeal should not reverse the finding upon matters of fact of the judge who tried the cause and had the opportunity of observing the demeanor of the witnesses unless the evidence be of such a character as to convey to the mind of the judges sitting on the appellate tribunal the irresistible conviction that the findings are erroneous. Ryan v. RyatC, v., 387, 406. 205. Special vindictive damages — Slander- Quantum of damages — Effect of findings on an appeal.] — If the amount of damages award- ed at the trial is not such as to shock the sense of justice and shew error or partiality in the discretion exercised by the judge under the circumstances of the case, an appellate court ought not to interfere with such dis- cretion in determining the amount of damages. Levi v. Reed, vi., 482. 206. Conflicting evidence — Findings of trial judge.] — ^Where there is a direct conflict of testimony, the finding of the judge at the trial must be regarded as decisive, and should not be overturned in appeal by a court which has not had the advantage. of seeing the witnesses and observing their demeanor while under ex- amination. Grassett v. Carter, x., 105. 207. Findings by jury — Interference on appeal.] — Where a jury has made findings of fact and the verdict has been affirmed by the judgment appealed from, the Supreme Court of Canada will not disturb the decision. Cos- V. Burns, xiv., 256. 93 APPEALS TO THE SUPEEME COUET. 94 208. Jurisdictioh — Findings of fact — Peti- tion of right— Jf6 Vict. o. 27 (Que.)'i — Where a judgment appealed from is founded wholly upon questions of fact the Supreme Court of Canada will not reverse it unless convinced, beyond all reasonable doubt, that such judg- ment is clearly erroneous. — ^The provisions of the Supreme and Exchequer Courts Act re- lating to appeals from the Province of Quebec apply to cases instituted under the Quebec Petition of Right Act. McGreevy v. The Queen (14 Can. S. C. R. 735), followed. Arpin v. The Queen, xiv., 736. 209. Question of fact — Finding of courts lelow.'i — ^M. assigned for the benefit of credi- tors. His wife preferred a claim against the estate for money lent to M. and used in his business, which the assignee refused to acknow- ledge, contending that it was not a loan but a gift to M. It was not disputed that the wife had money of her own and that M. had re^ eeived it. The trial judge found against the assignee, holding that M. did not receive the money as a gift. This judgment was affirmed on appeal. Held, affirming the Court of Ap- peal for Ontario, that as the whole case was one of fact, namely, whether the money was given to M. as a loan by, or gift from, his wife, who in the present state of the law of Ontario, is in the same position, considered as a creditor of her husband, as a stranger, and as this fact was found on the hearing in favour of the wife and confirmed by the Court of Appeal, the second appellate court would not interfere with such finding. Warner v Murray, xvi., 720. 210. Findings ly trial judge — Appreciation of evidence — Jury trials — Non-jury cases. '\ An appeal court exercises different functions in dealing with a case tried by a judge from those exercised in jury cases. In the former case the court has the same jurisdiction over the facts as the trial judge, and can deal with them as it chooses. In the latter the court cannot be substituted for the jury to whom theparties have agreed to assign the facts for decasion Per Strong, J. Phcenix Insurance Co. v. McGhee, xviii., 61. . 211. Question of fact — Finding of trial judge — Interference on appeal — Retainer 'i A solicitor brought action against the officers ot a Liiberal-Oonservative Association for ser- vices alleged to have been rendered as their solicitor and counsel in a controverted elec- tion. Plaintiff swore that he was duly ap- pointed solicitor to carry on the election peti- tion by resolution passed at a meeting of the association, and that in consequence of such resolution he acted as such solicitor in the conduct of the petition. The defence was that no such appointment was made, or if it was that plaintiff agreed to render his services gratuitously, and the evidence given for de- fendants was that plaintiff offered his services free of charge, and it was decided to protest the election in consequence of such offer. The trial judge held that no retainer of plaintiff was proved and dismissed the action. His de- cision was reversed by the Queen's Bench Di- vision, and their decision in its turn was re- versed by the Court of Appeal for Ontario, and the judgment of the trial judge restored. Held, affirming the Court of Appeal, that the question being purely one of fact which the trial judge was the person most competent to determine from seeing and hearing the wit- nesses, and it not being clear beyond all rea- sonable doubt that his decision was erroneous, but, on the contrary, the weight of evidence being in its favour, his judgment should not be interfered with on appeal. Titus v. Col- ville, xviii., 709. 212. Findings of fact — Receipt — Error — Parol evidence — Prohibitive law — Nullity — Arts. U, 12S4, 0. C]— S. brought action to compel V. to account for $2,500 alleged to have been paid on 6th Oct., 1885, to be applied to S.'s first promissory notes maturing and in acknowledgment of which V.'s Ijookkeeper gave the following receipt : " Montreal, October 6th, 1885.— Received from S. the sum of $2,500 to be applied to his first notes maturing. M. V., per F. L." and which V. failed and neglected to apply. V. pleaded that he never got the $2,500 and that the receipt was given in error and by mistake by his clerk. After document- ary and parol evidence had been given the Su- perior Court (affirmed by the Queen's Bench [M. L. R. 7 Q. B. 137] ) , dismissed the action. Held, that the finding of the two courts on the question of fact as to whether the receipt had been given through error should not be inter- fered with. — That the prohibition of art. 1234 C. C. against the admission of parol evidence to contradict or vary a written instrument, is not d'ordre public, and that if such evidence is admitted without ■objection at the trial it cannot subsequently be set aside' in a court of appeal. — That parol evidence in commercial matters is admissible against a written docu- ment to prove error. .Sltna Insurance Co. v. Brodie (5 Can. S. C. R. 1), followed. Schwersenski v. Vineierg, six., 243. 213. Questions of fact — Finding of trial — Concurrence of lower appellate court.] — Findings upon matters of fact by the trial judge who saw and heard the witnesses, affirmed by a Court of Appeal should not be in- terfered with on appeal to the Supreme Court of Canada. Strong. J., dissented. Bichford V. Hawkins, xix., 362. 214. Jurisdiction — Amount in controversy — Adding interest — Costs — Finding of fact — As- suming jurisdiction on dismissal on m.erits.'i — Apneal from judgment affirming an award for $1,974.75 damages on expropriation of lands, with interest from date of award and costs. On hearing the appeal. Strong and Taschereau, JJ., doubted the court's jurisdiction, but con- curred in the decision of the court dismissing the appeal on the merits, assuming, without deciding, that there was jurisdiction to enter- tain it. — Per Taschereau, J. The court will not, on appeal, interfere with concurrent find- ings of fact in the courts below, fully sUjp- ported by evidence. [Note. — (See Cass. Big. 2 ed. p. 451) . On appjioation by appellant in the Court of Queen's Bench, Tessier, J., being of opinion that no appeal lay, refused to allow the security. The Registrar of the Su- preme Court held that the controversy was as to the amount at the time of the judgment appealed from, i.e., the principal awarded with interest to that date making an amount in ex- cess of $2,500 ; as to costs he considered them incidental to the award and not in controversy within the meaning of the Supreme Court Act. On appeal to Fournier, J., the judgment of the registrar was affirmed. 24th November, 1890.] Quebec, Montmorency, and Charlevoix Ry. Go. V. Mathieu, xix., 426. 215. Concurrent findings of fact — Interfer- ence on appeal.} — At the trial parol evidence 95 APPEALS TO THE SUPEEME COVET. 96 was given to establish an alleged trust affect- ing lands and its existence was found as a fact by the trial judge who made a decree ordering the property to be sold and the pro- ceeds applied according to the contention of the plaintiff and the evidence. The Supreme Court (B.C.) affirmed this decree. Held, that the fact of the existence of the trust having been found by the trial judge, and such find- ing having been affirmed by the full court, it should not be disturbed on this further appeal. Bowlcer v. Laumeister, xx., 175. 216. Questions of fact — We«' trial — Duty of appellate court.] — Action to recover from the bank a special deposit by plaintiff. Defence that the amount had been already paid to an agent of plaintiff who had indorsed plaintiff's name upon and given up the deposit receipt. It was contended that no such authority was given to the agent and that plaintiff's name had been forged on the receipt. The jury found the facts in favour of this contention, and plaintiff obtained a verdict which was set aside by the full court and a new trial ordered. Beld, that a new trial having been ordered to try questions of fact, such order should not be interfered with by an appellate court. Scott V. Bank of New Brunswick, xxi., 30. 217. Finding of fact — Value of land taken — Award hy Exchequer Court.'] — The Supreme Court will not interfere with the award of the Exchequer Court as to value of land expro- priated for railway purposes where there is evidence to support the finding and it is not clearly erroneous. Toivn of Levis v. The Queen, xxi., 31. 218. Vindictive damages for serious personal injuries — Ahuse of authority — Injury to feel- ings, reputation, and health — Discretion of trial judge — Measure, of damages.] — In allow- ing the appeal with costs, Levi v. Beed (6 Can. S. C. R. 482), was approved and the Su- preme Court Held, Taschereau, J., dissenting, that in view of very serious injuries sustained by the plaintiff and of the misconduct of the defendant in abusing his position of a justice of the peace, $3,000 awarded by the trial judge was not so clearly excessive as to justify a re- versal of his judgment. — Taschereau, .T., while holding that the amount to which the Court of Queen's Bench had reduced the damages ($600) was not sufficient, considered that, tak- ing into consideration the position of the plain- tiff and the nature of the injuries. $3,000 was excessive. — Fournier, , J., considered that the abuse of the defendant of his position of jus- tice of the peace was an import;ant element to be taken into consideration in fixing the amount of damages. — Per Gwynne, J. The sound rule to adopt is that in mere matters of fact, or in the estimation of damages not sus- ceptible of precise calculation or not ascer- tainable by the application of any rUle pre- scribing a measure of damages, the appeal court should sustain the judgment of the trial judge unless satisfied that his conclusions are clearly erroneous. Oingras v. Desilets, Cass. Dig. (2 ed.) 212. 219. Findings of courts helow — Verdict af- firmed by two courts.] — Appeal from two judgments of the Court of Appeal for Ontario, affirming judgments recovered in actions on contracts on trials by a judge without a jury. The verdicts had been sustained by the Queen's Bench and Common Pleas, respectively. 'The appeal was dismissed with costs. — Per Gwynne, J. — When a judge has tried a case without a jury and found a verdict, which verdict has been affirmed by two courts, this court, sitting in appeal, should not reverse the conclusion arrived at by the lower courts on the weight of evidence, unless convinced beyond all rea- sonable doubt that all the judges before whom the case came have clearly erre^. [Note. — Compare Bellechasse Election Case 5 Can. S C. R. dl.]—Bickford v. Howard, 18 C. L. j' 422; Cass. Dig. (2 ed.) 286. 220. Questions of fact — Findings of trial judge — Negligence — Improper construction of street car track.] ' — The plaintiff who was thrown out of a waggon sustaining injuries, brought action for negligence owing to impror per construction and bad order of the com- pany's track. Torrance, J., found that the track was in bad order, the switch three inches above the level of the road, contrary to law, and that this caused the accident without any fault on the part of the plaintiff, whose dam- ages he assessed at $2,500. The Queen's Bench reversed this judgment, being of opinion that the rails, as well as the part of the road- way the company was bound to maintain, were lawful and sufficient ; that the company was not at fault, and that the plaintiff had not ex- ercised neces.sarj- caution and prudence and might, by reasonable caution and prudence, have avoided the accident. Held, that as the questions to be decided were purely .matters of fact, the judgment of the court of first in- stance should not have been disturbed. Strong, J., dissented, on the ground that the judgment of the Court of Queen's Bench on the facts was correct. Parker v. Montreal City Pass. Ry. Go., Cass. Dig. (2 ed.) 731.' ^ [The Privy Council refused leave to appeal, as the findings of fact should not have been disturbed ; see 6 Can. Gaz. 174.] 221. Contract — Collateral agreement — Ques- tions for jury — Verdict — New trial — Duty of appellate court.] — Whether or not a memo- randum of agreement set up by the defendant as containing the only contract .between the parties was intended to settle the contract in whole or in part is a question for the jury. The onus of shewing that it contained all the terms of the contract is upon the party pro- ducing "it. In such a case oral testimony is admissible on behalf of both parties. A ver- dict based upon the appreciation of the evi- dence in such a case ought not to be interfered with bv an appellate court. Peters v. Hamil- ton, Cass. Dig, (2 ed.) 763. 222. Questions of fact — Concurrent findings in courts ieloiv.] — Per Taschereau, J. — Con- current findings on a question of fact in two courts below ought not to be reversed on ap- peal except under very unusual circumstances. Hays V. Gordon, (L. R. 4 P. C. 337) : Gray V. Turnhull, (L. R. 2 H. L. 53) ; Bell v. City of Quebec, (5 App. Gas. 94) ; Smith v. Law- rence, (L. R. 5 P. C. 308), referred to. BUch V. Walker, Cass. Dig. (2 ed.) 768. 223. Award on expropriation — Questions of fact — Findings of court appealed from.] — On 3rd February, 1882, the Minister of Railways and Canals, requiring part of a lot for con- struction of the I. C. Ry. deposited, in accord- ance with the Government Railway Act. 1881, a plan of the land, and gave notice under s. 15 tendering compensation. The lot had been 97 APPEALS TO THE SUPREME COURT. 98 used as a cove, and a profitable lumber busi- ness bad been conducted tbereon by means of a wharf running into deep water, at which vessels of large size could load. The portion of the lot taken was 25 feet wide through the middle of it and across the wharf by 211 feet, in all 5,150 square feet : the portion of the wharf expropriated being 1,000 square feet. Respondents refused the sum tendered, aftd the question of compensation was submitted by the Minister, under the Act, to the oflBcial arbitra- tors who, after hearing evidence of the claim- ants and the Crown, awarded the amount ten- dered and refused as full compensation for the land expropriated and all damages, and im- posed the costs of arbitration upon the claim- ants. An appeal to the Exchequer Court was heard by Pournier. J., one witness on either side being examined, the award of the arbitra- tors was set aside, the claimants allowed .?11, 073 ($8,500 damages and $2,573 value of land expropriated), costs of appeal (save of wit- nesses in the Exchequer Court) and before the arbitrators. On further appeal to the Su- preme Court, respondents gave notice of inten- tion upon the hearing to contend that the de- cision should be varied and respondent allowed a larger sum as compensation and damages. The questions were entirely of fact, and it was Held, that the judgment of the court below should be afiBrmcd and the appeal dismissed with costs. The Queen v. Murphy, Cass. Dig. (2 ed.) 314. 224. Collusive judgment entered Sy default — Chamier order to set aside — Recitals in or- der — Findings of fact.'\ — Where an order in chambers setting aside a judgment entered by default as^fraudulently obtained and allowing executprs in to defend, was affirmed by the C P. division and by the judgment appealed from (11 Ont. App. R. 673) : Held, that it is doubt- ful if an appeal would lie in such a case to the Supreme Court of Canada, and in any event the statement in the order as to what took place in chambers and as to the matter which was submitted to and argued, must be taken to be conclusive. Schroeder v. Rooney, Cass. Dig. (2 ed.) 403, 434; Cass. S. C. Prac. (2 ed.) 29. 225. Trial iy jury — Withdrawal from jury ■ — Reference to court — Consent of parties — Railway company — Negligence.] — On the trial of an action against a railway company for injuries alleged to have been caused by negli- gence of the servants of the company in not giving proper notice of the approach of a train at a crossing, whereby plaintifE was struck by the engine and hurt, the case was withdrawn from the jury by consent of counsel for both parties and referred to the full court, with power to draw inferences of fact and on the law and facts either to assess damages to the plaintiff or enter a judgment of nonsuit. On appeal from the decision of the full court as- sessing damages to plaintiff : Held, Gwynne and Patterson, JJ., dissenting, that ,as by the practice in the Supreme Court of New Bruns- wick all matters of fact must be decided by the jury, and can only be entertained by the court by consent of parties, the full court in considering the case pursuant to the agree- ment at the trial acted as a quasi-arbitrator and its decision was not open to review on ap- peal as it would have been if the judgment had been given in the regular course of judi- cial procedure in the court. — Held, further, that if the merits of the case could be enter- ed on appeal the judgment appealed from s. c. D. — 4 should be affirmed. — Held, per Gwynne and Patterson, J.T., that the case was properly be- fore the court and as the evidence shewed that the servants of the company had com- plied with the statutory requirement as to giving notice of the approach of the train the company was not liable. Canadian Pacific Ry. Co. v. Fleming, xxii., 33. 226. Collision at sea — Negligence — De- fective steering gear — Question of fact — Interference with decision of local judge in admiralty.] — In an action against the owners of the " Santanderino " for damages for col- lision with respondent's barque, the " .Tuno," through the breaking down of the steering ap- paratus, the local judge in Admiralty District of Nova Scotia, who was assisted on the trial by a nautical assessor, found that the steering gear was constructed on an approved patent, and was in good order when the " Santan- derino " started on her voyage, but that the collision was due to want of prompt action by the master and officers when the wheel refused to work (3 Ex. C. R. 378). On appeal to' the Supreme Court of Canada, it was Held, Sedgewick and King, JJ., dissenting, that only a question of fact w^s involved, and though it was doubtful it the evidence was sufficient to warrant the finding, the decision was not so clearly wrong as to justify an appellate court in reversing it S.S. " Santanderino " V. Vanvcrt et al., xxiii., 145. 227. Expropriation — Award of arhitraiors — ■ Interference on appeal.] — In a matter of ex- propriation, the decision of the majority of the arbitrators, men of more than ordinary busi- ness experience, upon a question merely of value, should not be interfered with on appeal. Lemoine v. C'iti/ of Montreal; Allan v. City of Montreal, xxiii., 390. 228. Questions of fact — Unsatisfactory findings of jury — Interference with — Second appellate court.] — Held, per Pournier, Tas- •chereau, Gwynne. and Sedgewick, JJ., that, though the findings of the jury were not satis- factory upon the evidence, yet, where they had been upheld on a first appeal, a second appel- late court could not interfere — King. .T.. held that the findings of the jury had to be accept- ed by the appellate court. Grand Trunk Ry. Go. V. Weegar, xxiii., 422. 229. Evidence — Questions of fact.] — Held, per Strong, C.J., that although the case might properly have been left to the jury, the judg- ment of nonsuit, having been affirmed by two courts, should not be interfered with. Head- ford v. McOlary Mfg. Co., xxiv., 291. 230. Master and servant — Negligence of servant — Deviation from employment — Re- sumption — Contributory negligence — Infa n I — Evidence.] — If in a case tried without a jury, evidence has been improperly admitted, a court of appeal may reject it and maintain the verdict if the remaining evidence warrants it. Merritt v. Hepenstal, xxv., 150. 231. Questions of fact — Reversal on.] — If a sufficiently clear case is made out. the court will allow au appeal on mere questions of fact against the concurrent findings of two courts. Arpin v. 2'he Queen (14 Can. S. 0. R. 736) ; Schwersenski v. Vineherg (19 Can. S. C. R. 243) distinguished. North British and Mer- oanlilc Ins. Co. v. Tourville et al., xxv., 177. 99 APPEALS TO THE SUPEEME COUET. 100 232. Assessment of damages — Questions of fact.] — The Supreme Court of Canada will not interfere with, the amount of damages assessed by a judgment appealed from if there is evi- dence to support it. Montreal Gas Co. v. St. Laurent; City of St. Henri v. St. Laurent, xxvi., 176. 2.S3. Questions of fact — Reversal in Court of Appeal.] — The Supreme Court of Canada Avill take questions of fact into consideration on appeal, and if it clearly appears that there has been an error in the admission or appreci- ation of evidence by the courts below, their de- cisions may be reversed or varied. North Brit- ish and Mercantile Ins. Go. v. Tourville (25 Can. S. C. R. 177) followed. Lefeunteum v. Beaudoin, xxviii., 89. 234. Evidence taken hy commission — Re- versal on questions of fact.] — Where the wit- nesses have not been heard in the presence of the judge, but their depositions were taken be- fore a commissioner, a court of appeal may deal Tvith the evidence more fully than if the trial judge had heard it or there had been a finding of fact by a jury, and may reverse the finding of the trial court if such evidence war- rants it. Malzard v. Hart, xxvii., 510. 235. Questions of fact — Second appellate coMrt.]— Where a judgment upon questions of fact rendered in a court of first Instance has been reversed upon a first appeal, a second court of appeal should not interfere to re- store the original judgment, unless it clearly appears that the reversal was erroneous. De- mers v. Montreal Steam Laundry Go., xxvii., 537. 236. Finding of courts ielow — Questions of fact.] — Where there does not appear to have been manifest error in the findings of the courts below they will not be disturbed on appeal. Paradis v. Municipality of Limoilou, XXX., 405. 237. Evidence ■ — Concurrent findings on questions of fact — Reversal on appeal.] — Although there may be concurrent findings on questions of fact in both courts below, the Supreme Court of Canada will, upon appeal, interfere with their decision where it clearly appears that a gross injustice has been oc- casioned to the appellant, and there is evi- dence sufiicient to justify findings to the con- trary. Taschereau, J., dissented, holding that as there had been concurrent findings in both courts below supported by the evidence, an appellate court ought not to interfere. City of Montreal v. Gadieux, xxix., U16. 238. Negligence — Trial ly judge without a jury — Findings of fact — Evidence — Re- versal hy appellate court.] — In an action for damages for personal injuries, the trial judge, who heard the case without a jury, and be- fore whom the witnesses were examined, held that the evidence of the witnesses for the de- fence was best entitled to credit and dis- missed the action. The judgment was reversed in the Court of Beview and its decision af- firmed on further appeal by the Court of Queen's Bench. On appeal to the Supreme Court, Held, that as the judgment at the trial was supported by evidence, it should not have been disturbed. Judgment appealed from re- versed and judgment of the trial judge re- stored. Tillage of Graniy v. Minard, xxxi., 14. 239. Negligence — Proximate cause of acci- dent — Injuries to workman — Employer's liability — Presumptions — Findings of jury sustained iy courts ielow.] — As there can be no responsibility on the part of an employer for injuries sustained by an employee in the course of his employment, unless there be posi- tive testimony, or presumptions weighty, pre- cise and consistent, that the employer is chargeable with negligence which was the im- mediate, necessary and direct cause of the ac- cident which led to the injuries suffered, it is the duty of an appellate court to relieve the employer of liability, on a case where there is no evidence as to the immediate cause of an explosion of dangerous material which caused the injuries, notwithstanding that the findings of a jury in favour of the plaintiff, not assent- ed to by the trial judges, have been sustained by two courts below. Taschereau, J., dis- sented, taking a different view of the evidence, and being of opinion that the findings of the jury, concurred in by both courts below, were based upon reasonable presumptions drawn from the evidence, and that, fol- lowing The George Matthews Co. v. Bou- ohard (28 S. C. R. 580), and The Metro- politan Ry. Go. V. Wright (11 App. Cas. 152) those findings ought not to be reversed on ap- peal. The Ashestos and Astestic Co. v. Du- rand (30 S. C. R. 285) discussed and approved. Dominion Cartridge Go. v. MoArthiur, xxxi., 392. (Leave to appeal to Privy Council granted, 2nd Aug. 1902.) 240. Nuisance — Operation of electric rail- way — Poiverhouse machinery — Vibration, smoke and noise — Injury to adjoining pro- perty — Evidence — Assessment of damages — Reversal on questions of fact.] — In an ac- tion of the owner of adjoining property .for damages caused by the vibrations of machin- ery in an electric powerhouse, the evidence was contradictory and the courts below gave effect to the testimony of scientific witnesses in preference to that of persons acquainted with the locality. Held, Taschereau, J., dis- senting that, notwithstanding the concurrent findings of the courts below, as the witnesses were equally credible the evidence of those who spoke from personal knowledge of the facts ought to have been preferred to that of per- sons giving opinions based merely upon scien- tific observations. Gareau v. Montreal Street Railway Co., xxxi., 463. 241. Exchequer appeal — Assessment of damages — Interference with findings of Ex- chequer Court judge.] — The Exchequer Court judge heard witnesses and upon his apprecia- tion of contradictory testimony awarded dam- ages to the respondents. The Crown appealed on the ground that the damages were excessive. Held, Gwynne and Girouard, JJ., dissenting, that as it did not appear from the evidence that there was error in the judgment appealed from the Supreme Court would not interfere with the decision of the Exchequer Court judge. The Queen v. Armour, xxxi., 499. 242. Arbitration — Condition precedent — New grounds taken on appeal — Assessment of damages — Interference by appellate court.] — An objection as to arbitration and award being a condition precedent to an action for damages which had been waived or abandoned in the Court of Queen's Bench cannot be in- voken on an appeal to the Supreme Court. — On a cross-appeal the Supreme Court refused to 101 APPEALS TO THE SUPEEME.COUET. 103 interfere with the amount awarded for dam- ages in the court below upon its appreciation 01: contradictory evidence. Hamelin v. Banner- man, xxxi.. 534. 243. Facts found ly courts lelow — Weight of evidence — ■ Verdict.'] — The court refused to disturb. the verdict on the ground that it was against the weight of evidence after it had been affirmed by the trial judge and the Court of Appeal. Toronto Railway Co. v. Balfour, xxxii.. 239. 244. Admiralty law — Collision — Ship at anchor — Anchor light — Lookout — Weight of evidence — Creditility — Findings of trial judge — Negligence.] — The S. S. " Lake On- tario " was proceeding in charge of a pilot to her dock in Halifax harbour, N. S., on a blustery night in January, 1900, came in col- lision with and sank appellant's coal barge, " A. L. Taylor," lying at anchor north of George's Island. The steamship had signalled by guns and whistles for a medical oflBcer at the quarantine grounds before the collision, and her officers and crew testified that they were alert, and anxiously working the steam- ship through anchored vessels in the darkness and blustery weather and came suddenly upon the " Taylor," and that no lights were seen on her. The barge caretaker, who was not on deck at the time, swore that a proper anchor light was burning on the barge, his statement being corroljorated by the captain of a schooner lying close by and by several boatmen and lab- ourers on the wharves. The trial judge ac- cepted the evidence of the defence as correct and found that the collision and loss were wholly attributable to negligence of the " Taylor " in failing to have an anchor light and to keep a sharp lookout, and dismissed the action. On appeal the Supreme Court af- firmed the decision at the trial (7 Ex. C. R. 403). Dominion Coal Co. v. S. S. " Lake On- tario," xxxii., 507. 245. Concurrent findings of fact — Duty of appellate court — Evidence.] — A judgment based upon concurrent findings of fact in the courts below ought not to be disturbed on ap- peal to the Supreme Court of Canada if the evidence be contradictory. D' Avignon v. Jones et al., xxxii., 650. 246. Evidence — Findings by jury — Ver- dict.] — An appellate court should not disre- gard the verdict of a jury which is supported by evidence. McKelvey v. Le Roi Mining Co., xxxii., 664. 247. Concurrent findings of courts ielow.]- — The Supreme Court of Canada affirmed the concurrent findings of three courts below on a question of fact, as they were supported by the evidence. Bank of Montreal v. Demers, 7th November, 1899. [Note. — This decision was given on hearing upon the merits of the appeal in which pro- ceedings were stayed till after the. judgment on an appeal to the Privy Council. See 29 Can. S. C. E. 435.1 248. Questions of fact — Concurrent find- ings of courts 'below — Duty of Appellate ' Court.] — During the argument of counsel for respondent, he was stopped, the Chief Justice announcing that the majority of the court considered that there should be no interference with the judgment appealed from, he said, " I am clearly of opinion that we should dismiss the appeal as it is upon questions of fact al- ready passed upon by two courts below and, if we should reverse, it would be in the teeth of decided cases in this court. As to sufficiency of the proofs of loss, that is ans- wered in the printed judgments of Meredith, C.J., apd Moss, J., and, as to the question of increase of risk, I cannot see that there was an increase. We are not prepared to interfere with the judgment appealed from." (TasChe- reau, Sedgewick, and King, JJ., concurred. Gwynne, J., said, " I cannot acceed, at pres- ent, to the views of the majority of the court. I am not in a position to express an opinion as I have not yet had an opportunity of examin- ing the evidence and opinions of the judges below ; •! would like to do so before coming to a conclusion as to whether the action was right or wrong.") The appeal was dismissed with costs. Quebec Fire Ins. Co. v. Banlc of Toronto, 27th April, 1900. 249. Questions of fact — Findings of trial court — Reversal on appeal — Interference on further appeal.] — On the merits in this case (see 31 Can. S. C. R. 175), the controversy rested upon the fact whether or not a ship had been acquired by some of the partners in a commercial firm for the purposes of the firm's business or merely as a private venture.' The Court of Queen's Bench had reversed the trial court judg- ment, and held that it belonged to the firm. As it was not made clear that there was error in the judgment appealed from, the Su- preme Court of Canada dismissed the appeal with costs. Bell v. Vipond, 29th Oct. 1901. 250. Findings of courts appealed from — Evi- dence — Questions of fact — Reversal on ap- peal.] — There is no rule of law or of procedure which prevents the Supreme Court or an in- termediate court of appeal from reversing the decision at the trial on the facts. — Held, per Girouard, .T., following Village of Gran'by v. Menard (31 Can. S. C. R. 14) that the evi"- dence being contradictory and the trial judge having found for the defendant, which finding the evidence warranted, his judgment should not have been reversed on appeal. Dempster v. Lewis, xxxiii., 292. 251. Concurrent findings of courts below ■ — Reversal on questions of fact — Improper rul- ings — Reversal on a matter of procedure.] — Where the findings of the trial courts were manifestly erroneous and the trial appeared to have been irregularly conducted, the Su- preme Court of Canada reversed the concurrent findings of the courts below, and also reversed the concurrent rulings of those courts refusing leave to amend the statement of claim by al- leging an account stated^ Belcher v. McDon- ald, xxxiii., 321p«iiGui«><;S * C aJ>^M*^ X; /*-i«j - 387. Special reference — Affreement at Hear- ing — Further appeal to Privy Council. See Contract, 14. 388. Cross-appeal to Privy Council — Stay of proceedings — Costs. See No. 422, infra. 389. Inscription pending Privy Council ap- peal — Stay of proceedings — Costs. See No. 423, infra. 29. Procedtjee in Courts below. 390. Quashing appeal — Irregular security bond — Interested parties — flatter of practice in court telow.'] — Where the appeal bond fails to inure to the benefit of parties interested in the result of the appeal, there can be no at- tention paid to the appeal. — A question simply of practice in the discretion of the court below will not be entertained on appeal. Scammell V. J-ames, xvi., 598. 391. Final judgment entered after notice of appeal from interlocutory judgment — Matter of procedure — Court of Appeal — Adding of pleas — Insufficient cause shewn — Stay of proceedings— Art. 1120 C. G. P.; C. 8. L. C. c. 77, s. 26.] — Defendant applied by motion for permission to file new pleas, which was re- fused by the Superior Court on account of insufficiency of the affidavit in support thereof, and, therefore, defendant served notice of in- tention to appeal from this interlocutory judg- ment to the Court of Queen's Bench. Not- withstanding this notice, plaintiff moved for and obtained judgment in the Superior Court, and this judgment was affirmed by the Court of Queen's Bench. — On appeal to the Supreme Court of Canada, Held, per Eitchie, C.J., and Strong and Taschereau, JJ., that on a question of procedure an appellate court should not interfere. — Per Fournier and Henry, JJ., that the affidavit filed by the appellant in support of his amended plea was insufficient, not be- ing sufficiently positive and precise. — Per Taschereau, J'. Only a rule for leave to ap- peal would have the effect of staying proceed- ings, not a mere service of a motion for leave to appeal. Appeal dismissed with costs. Dawson v. Union Bank, Cass. Dig. (2 ed.) 428; Cass. S. O. I»rac. (2 ed.) 31, 85. 392. Matters of procedure — Interference with, on appeal.} — Decisions of provincial courts resting upon mere questions of pro- cedure will not be interfered with on appeal to the Supreme Court of Canada except under special circumstances. Ferrier v. Trepannier, xxiv., 86. 393. Appeal in matters of procedure — Art. 188 C. C. P.] — A judgment of the Court of Queen's Bench for Lower Canada (appeal side) held that a venditioni exponas issued by the Superior Court at Montreal, to which court the record in contestation of an opposi- tion had been removed from the Superior Court of the District of Iberville under art. 188 C. C. P., was regular. — On an appeal to the Su- preme Court of Canada, Held, that on a question of practice such as this the court would not interfere. Mayor of Montreal v. Brown (2 App. Cas. 184) followed. Arpin y. Merchants Bank of Canada, xxiv., 142. 394. Questions of practice — Duty of Ap- pellate Court.'} — The Supreme Court of Can- ada will take into consideration questions of practice when they involve substantial rights, or the decision appealed from may cause grave injustice. — Part of lands seized by the sherifE had been withdrawn before sale, but on pro- ceedings for folic enchere it was ordered that the property described in the prods-verbal of seizure should be resold, no reference being made to the part withdrawn. On appeal the Court of Queen's Bench reversed the order on the ground that it directed a resale of pro- perty which had not been sold, and further, because an apparently regular sheriff's deed of the lands actually sold had been duly reg- istered, and had not been annulled by the or- der for resale, or prior to the proceedings for folic encMre. — Held, that the Court of Queen's Bench should not have set aside the order, but should have reformed it by rectifying the error. Lambe v. Armstrong, xxvii., 309. 395. Question of local practice — Inscrip- tion for proof and hearing — Peremptory lint — Xotice — Siirpriie — Artifice — Requete civile — Arts. 234, 235, 505, C. C. P. {old text} —R. of P. (S. C.) Ly.]— Where a grave in- justice has been inflicted upon a party to a suit, the Supreme Court of Canada will inter- fere for the purpose of granting appropriate relief although the question involved upon the appeal may be one of local practice only. Lambe v. Armstrong (27 Can. S. C. R. 390) followed. Eastern Townships Bank v. Swan, xxix., 193. 396. Acquiescement — Estoppel — Question of costs — Practice — Motion to quash.'] — In order to avoid expense the Supreme Court of Canada will, when possible, quash an ap- peal involving a question of costs only, though there may be jurisdiction to entertain it. Schlomann v. Dowker, xxx., 323. 397. Title to land — Troubles de droit — Eviction — Legal warranty — Issues on ap- peal — Parties.} — A party called into a peti- tory action to take. up the fait et cause of the defendant therein, as warrantor of the title, may take up the defence for the purpose of appealing from judgments maintaining both the principal action and the action in war- ranty although he may have refused to do so in the court of first instance, but, should the appellate court decide that the action in war- ranty was unfounded, it is ipso facto ousted of jurisdiction to entertain or decide upon the merits of the principal action. Monarque v. Banque J aoques-G artier, xxxi., 474. 127 APPEALS TO THE SUPREME COURT. 128 398. Question of procedure — Verdict — Weight of evidence.'] — The Supreme Court of Canada refused to interfere with a decision of the Court of Appeal for Ontario in a matter of procedure, namely, whether a verdict of a jury was a general or special verdict. Toronto By. Co. V. Balfour, xsxii., 239. 399. Irregular procedure — Issues in courts below — Practice on appeal.'i^-T'b.e Supreme Court of Canada will not, on appeal, interfere with the action of the courts below in matters of mere procedure where no injustice appears to have been suffered in consequence, although there might be irregularities in the issues as joined which brought before the trial court a demande almost different for the matter actu- ally in controversy, t'innie v. City of Mon- treal, xxxii., 335. 400. Drainage — Qualification of petitioner — " Last revised assessment roll " — R. S. O. (189T) c. 226 — Costs of non-appealing party.} — The judgments appealed from (1 Out. L. R. 156, 292) reversed the trial court judgment (32 O. R. 247) and held that the " last revised assessment roll " governing the status of petitioners in proceedings under the Drainage Act, was the roll in force at the time the petition was adopted by the municipal council and referred to the engineer for report, and not the roll in force at the time that the by-law was finally passed. The contractor had been made party in the Court of Appeal for Ontario and appeared at the hearing, but did not himself appeal. The judgment appealed from held that the effect of allowing the appeal did not give him any costs on the appeal. The Supreme Court affirmed the judgments ap- pealed from. Challoner v. The Township of 'Lobo, xxxii., 505. 401. Appeal — Order on matter of procedure in court below.'i — The Supreme Court of Can- ada will not entertain an appeal from an order made upon a motion in a practice matter in the appellate court below. Dueber Watch Case Co. V. Taggart, 24th April, 1900. 402. Appeal — Question of procedure in court below.J — The Supreme Court of Canada refused to interfere with the decision of the provincial court on matters of procedure, but, under the special circumstances of the case, the appeal was dismissed without costs. Gib- son V. 'Nelson, 9th December, 1902. 403. Stamps on election petition — Technical objection to form, — PrSte-nom. — Preliminary objections — Abandonment of proceedings — Reinstatement — Costs — Matter of procedure. See Election Law, 118. 404. Concurrent findings of courts below — Reversal on questions of fact — Improper rul- ings — Reversal on matter of procedure. See No. 251, ante. 30. QuoRtTM OF Supreme Court. 405. Jurisdiction — Quorum — Judge absent at hearing — Criminal conviction — 38 Vict. 0. 11, s. 49 — Unanimous judgment.] — In Michaelmas term, 1877, certain questions of law reserved, which arose on the trial of the appellants, were argued before the Court of Queen's Bench for Ontario, composed of Har- rison, C.J., and Wilson, J., (the third judge necessary to constitute the full court being absent), and in February, 1878. the court composed of the same judges, affirmed the con- viction. — Held, that the conviction of the Court 9f Queen's Bench, although affirmed by but two judges, was unanimous, and therefore not appealable to the Supreme Court of Can- ada. Amer v. The Queen, ii., 592. 406. Equal division, in court below — Judges withholding opinions — Final judgment Formal minutes appealed from — Evidence Master's report.] — An appellate court shoaid not look behind the formal judgment appealed from to ascertain whether judges there with- held opinions or left the court equally divided by dissenting. — On a reference to assess dam- ages the master is the final judge of credi- bility of witnesses and his report should not be interfered with on appeal because irrelevant evidence, not likely to affect his judgment, may have been admitted, especially where there has been no appeal from his ruling as to the reception of such evidence. Booth v. Ratte xxi.. 637. 407. Disqualification of judge — Quorum in such case — Resignation of judge — • Re- hearing of appeal. See Quorum, 1. 31. Quo Warranto. 408. Writ of quo warranto — Appeal from Queen's Bench — Jurisdiction.] — ^An appeal from a decision of the Court of Queen's Bench for Lower Canada, (M. L. R. 2 Q. B. 482) was quashed on motion for want of jurisdic- tion, the proceedings being by quo warranto as to which there is no appeal by the statute. Walsh V. Heffernan, xiv., 738. 32. Right of Appeal. 409. Quashing appeal — Irregular security bond — Interested parties — Matter of prac- tice in court, below.] — Where the appeal bond fails to inure to the benefit of parties inter- ested in the result of the appeal, there can be no attention paid to the appeal. — ^A question simply of practice in the discretion of the court below will not be entertained on appeal. Seammell v. James, xvi.^ 593. 410. Appeals from Exchequer Court — 50 £ 51 Vict. c. 16, s. 51^53 Vict. c. 35— Juris- diction.] — Quarc. A question was raised as to whether an appeal to the Supreme Court would lie under s. 51 of c. 16, 50 & 51 Vict, as originally enacted. (But see 53 Vict. e. 35 which amended that section.) Carter, Macey & Go. V. The Queen. Audette Ex. Ct. Prac. p. 115. 411. Right of appeal — Acquiescence — Abandonment of appeal] — The constitution- ality of 36 Vict. c. 81 (Que.) being raised by defendant the Attorney-General of Quebec in- tervened. The judgment of the Superior Court maintained the action and intervention. De- fendant abandoned an appeal from the judg- ment on the intervention. On appeal from the judgment of the Court of Queen's Bench on the principal action, defendant claimed he should ia9 ArrjliAijiS lU IJlJi DUirxiJi MB COUET. 130 have the judgment of the Superior Court on the intervention reviewed. — Meld, that the ap- peal to the Court of Queen's Bench from the judgment of the Superior Court on the inter- vention having been abandoned the judgment on the intervention of the Attorney-General could not be the subject of an appeal to this court. Ball v. McOaftrey, xx., 319. 412. Acquiescence in judgment — Attorney ' at litem — Bight of appeal — Estoppel.'i — By a judgment of the Court of Queen's Bench defendant was ordered to deliver up a number of its shares upon payment of a certain sum. Before the time for appealing expired the at- torney ad litem for defendant delivered the shares to plaintiff's attorney and stated he would not appeal if the society were paid the amount directed to be paid. An appeal was subsequently taken before plaintiff's attorney complied with the terms of the offer. On mo- tion to quash the appeal on the ground of acquiescence in the judgment, Held, that the appeal would lie. — Per Taschereau, J. An at- torney ad litem has no authority to bind his client not to appeal by an agreement with the opposing attorney that no appeal would be taken. Sooietd Canadierme-Franeaise de Con- struction de Montreal v. Daveluy, xx., 449. 413. Appeal — Collocation and distribu- tion — Arts. 161, W & m G. C. P.— Action to annul deed — Parties in interest — In- cidental proceedings.'] — The appeal from judg- ments of distribution under art. 761 of the Code of Civil Procedure is not restricted to the parties to the suit, but extends to every jrerson having an interest in the distribution of the moneys levied under the execution. — The provision of art. 144 of the Code of Civil Pro- cedure that every fact of which the existence or truth is not expressly denied or declared to be unktiown by the pleadings filed shall be held to be admitted, applies to incidental pro- ceedings upon an appeal in the Court of Queen's Bench. Quertin v. Q-osselin, xxvii., 514. 414. Acquiescence in judgment — Reception of costs by appellant — Loss of right to ap- peal.] — The judgment appealed from gave cer- tain costs to appellant which were taxed and paid to him out of moneys in court to the credit of the cause. A motion to quash was made on the ground that by accepting these costs the appellant had acquiesced in the judg- ment appealed from by taking a Denefit there- under. Held, that the reception of the costs in question was in no way inconsistent with the appeal against the construction the judg- met had placed upon the will in dispute. In re Ferguson, Turner v. Bennett, Turner v. Carson, xxviii., 38. 415. Right in Ontario cases — 60 £ 61 Vict. c. 34 — Application to pending cases.] —-The Act 60 & 61 Vict. c. 34, which restricts the right of appeal to the Supreme Court in cases from Ontario as therein specified, does not apply to a case in which the action was pending when the Act came into force although the judgment directly appealed from may not have been pronounced until afterwards. Hyde V. Lindsay, xxix., 99. ' 416. Controverted election — Trial of peti- tion — Extension of time — Appeal — Juris- dic*ion.]— On 25th May, 1901. an order was made by Mr. Justice Belanger for the trial of the petition against the appellant's return s. c. D. — 5 as a member of the House of Commons for Beauharuois thirty days after judgment should be given by the Supreme Court on an appeal then pending from the decision on preliminary objections to the petition. Such judgment was given on 29th October and on 19th November, on application of the petitioner for instruc- tions, another order was made by the said judge which decided that juridical days only should be counted in coroputing the said thirty days, stating that such was the meaning of the order of 25th May, and that 6th Decem- ber would be the date of trial. On the peti- tion coming on for trial on 6th December ap- pellant moved for peremption on the ground that the six months' limit for hearing had ex- pired. The jnotion was refused and on the merits the election was declared void. On ap- peal to the Supreme Court, Held, Davies, J., dissenting, that an appeal would not lie from the order of 19th November ; that the judge had power to make such order, and its effect was to extend the time for trial to 6th De- cember, and the order for peremption was, therefore, rightly refused. Beauharnois Elec- tion Case, xxxii.. 111. 417. Appeal — Controverted election — Judg- ment dismissing petition.] — An appeal does not lie to the Supreme Court of Canada from a judgment dismissing an election petition for want of prosecution withn the six months prescribed by s. 32 of The Dominion Contro- verted Elections Act (R. S. C. c. 9). Riche- lieu Election Case, xxxii., 118. 418. Jurisdiction ■ — ■ Amount in controversy — Interest before action — 60 & 61 Vict. c. SJt. s. 1 (c).l— A judgment for §1,000 damages with interest from a da'te before action brought is appealable under 60 & 61 Vict. c. 34, s. 1 (c). Canadian Railway Accident Ins. Go. V. McNevin, xxxii., 194. 419. Ontario appeals — Application for leave to appeal refused by provincial court — 60 & 61 Vict. c. 34 (D.) — Quashing by-law — Appeal de piano — • Special leave.] — The ap- peals to the Supreme Court from judgments of the Court of Appeal for Ontario are exclusive- ly governed by the provisions of 60 & 61 Vict. c. 34 (D.J and no appeal lies as of right unless given b.v that Act. Town of Aurora V. Village of Marhham, xxxii., 457. 420. Appeal from Court of Review — Judg- ment of trial court varied — Construction of statute. See No. 289, ante. 421. Jurisdiction — Matter in controversy- Right of appeal — Personal condemnation — Action possessoire. See No. 96, ante. 33. Stat of Proceedings. 422. Privy Council — Cross-appeal — Stay of proceedings — Practice — Costs.] — Where the respondent has taken an appeal, from the same judgment as is complained of in the ap- peal to the Supreme Court of Canada, to the Judicial Committee of Her Majesty's Privy Council, the hearing of the appeal to the Su- preme Court win be stayed until the Privy Council appeal has been decided, upon the re- spondent undertaking to proceed with dili- gence in the appeal so taken by him. — In the APPEALS TO THE SUPEBME COUET. 131 ■ 1 ?,n\;mtho'J '■ - • ' ''cdS^'iB-^^TOsSli'on the costs were ordered to be -feb^ts'ltftog Cause. Eddy v. Eddy, 4th October, 1898; '"':*■ 423. Inscription pending appeal to Privy Council — ' Stay of proceedings — Costs.] — Where an appeal had been inscribed for hear- ing in the Supreme Court of Canada after notice of an appeal in the same matter by the respondent to the Privy Council, upon motion on behalf of the respondent the proceedings in the Supreme Court were stayed with costs against the appellant pending the decision of the Privy Council upon the respondent's ap- peal. (Eddy V. Eddy [No. 422, ante] fol- lowed.) Bank of Montreal v. Demers, xxix., 435. 424. Election appeal — Peremptory order for hearing — Stay of proceedings refused. See Election' Law, 67. 34. Time foe Appealing. 425. Time for appealing — Delay in settling minutes — Vacation — Formal entry of judg- ment — ■ Special rule for Quelec cases.] — Where any substantial matter remains to be 'determined on the settlement of the minutes, the time for appealing to the Supreme Court of Canada will run from the entry of the judgment, otherwise it will run from the date on which the judgment is pronounced. — In the Province of Quebec the time runs in every case from the pronouncing of the judgment. O'Sul- livan v. Harty, xiii., 481. 426. Time for appealing — Supreme and Exchequer Courts Act, s. 25 — Pronouncing of judgment.] — Where the Court of Appeal for Ontario reversed the judgment of the Vice- Chancellor in favour of the plaintiff, and dis- missed the action. — Beld, that in such case no substantial question could remain to be settled before the entry of the judgment, and the time for appealing to the Supreme Court of Canada would therefore run from the pronouncing of the judgment. O'Sullivan v. Sarty (13 S. C. R 431) distinguished. Walmsley v. Griffith, liii., 434; Cass. S. C. Prac. (2 ed.) 63. 427. Time for appealing — Entry of judg- ment — Varying minutes — Settlement of sub- stantial questions.] — After the minutes were settled, they were varied upon motion by the respondents, before the full court in British • Columbia, by striking out certain declarations -respecting the rights of parties on both sides and also with respect to costs. Held, that there being substantial questions to be de- cided before the judgment could be entered, the time for appealing to the Supreme Court of Canada would run from the date of the entry of judgment. O'Sullivan v. Harty (13 Can. S. C. R. 431), followed. Hartley v. Carson, xiii., 439. 428. Haleas corpus — Time for appealing — Commencement of proceedings in appeal.]^- On appeal to the Supreme Court of Canada in matters of habeas corpus the first step is the filing of the case in appeal with the regis- trar. — ^Judgment of the Court of Appeal (12 Ont. P. R. 635) in a habeas corpus proceed- ing was pronounced 13th November, 1888 ; no- tice of appeal was immediately given but the case in appeal was not filed in the Supreme 132 Court until 18th February. 1889. — Held, that the appeal was not brought within 60 days from the date on which the judgment' sought to be appealed from was prononnceJd and there was no jurisdiction to hear it. £n re Smart, xvi., 396. 429. Practice — Reference — Report of re. feree — • Time for moving against — Notice of appeal — ■ Cons, rules 8Ji8, 849 — Ewtension of time — Confirmation of report by lapse of time.] — In an action by V. against a muni- cipality for damages from injury to property by the negligent construction of a drain, a re- ference was ordered to an official referee " for inquiry and report pursuant to s. 101 of the Judicature Act and rule 552 of the High Court of Justice." The referee reported that the drain was improperly constructed, and that V. was entitled to $600 damages. The municipal- ity appealed to the Divisional Court from the report, and the court held that the appeal was too late, no notice having been given within the time required by cons, rule 848. and re- fused to extend the time for appealing. A motion for judgment on the report was also made by V. to the court on which it was claimed on behalf of the municipality fiat the whole case should be gone into upon the evidence, which the court refused to do. Held, affirming the decision of the Court of Appeal, that the appeal not having been brought with- in one month from the date of the report,' as required by cons, rule 848, it was too late; that the report had to be filed by the party appealing before the appeal could be brought, but the time could not be enlarged by .his de- lay in filing it ; and that the refusal to ex- tend the time was an exercise of judicial dis- cretion with which the Supreme Court would not interfere. Township of Colchester South V. Valad, xxiv., 622. 430. Time limit — Commencement of — Pronouncing or entry of judgment — Security ■ — Extension of time — • Order of judge — Va- cation — R. S. C. c. 135, ss. 40, 42, 46.]— On the trial of an action the plaintiffs obtained a verdict which the Divisional Court set aside, the Court of Appeal allowed an appeal, and restored the judgment at the trial, reducing the amount of damages by a certain specified sum. — Held, that nothing substantial remained to be settled by the minutes on entering the formal judgment of the Court of Appeal, and the time for appealing therefrom to the Su- preme Court ran from the pronouncing and not from the entry of such judgment. O'Sul- livan V. Harty (13 Can. S. C. R. 431) ; Walmsley v. Griffith (13 Can. S. C. R. 434) ; Martley v. Carson (13 Can. S. C. R. 439) fol- lowed. — By s. 42 of the Supreme and Ex- chequer Courts Act (R. S. C. c. 135), a court proposed to be appealed from, or a judge thereof may allow an appeal after the time prescribed therefor by s. 40 has expired, but an order by the court below or a judge thereof, extending the time, will not authorize the Su- preme Court or a judge thereof to accept se- curity after the 60 days have elapsed. — The 60 days for appealing to the Supreme Court prescribed by s. 40 of the Act. is not sus- pended during the vacation of that court es- tablished by its rules. News Printing Co. v. Macrae, xxvi., 695. 431. 1 rime Limit — Commencement of — Pro- nouncing or entry of judgment — Security — Extension of time — R. S. C o. 135, ss. 40, 133 AEBITEATIONS. 134 i2, i6.1 — On the trial of an action to set aside a chattel mortgage, the plaintiff obtained a de- claration that the mortgage was void, and an order setting it aside without costs. The de- cision was reversed on appeal, and the action dismissed with costs, both in the Court of Ap- peal and in the court below, by a judgment pronounced on the 7th November, 1895. The minutes had not been settled until some days afterwards, and at the time of the settlement the draft minutes were altered by the Regis- trar of the Court of Appeal by refusing costs to one of the respondents, and also by chang- ing a direction therein as to the payment over of funds on deposit abiding the decision of the suit. On an application made more than 60 days from the pronouncing of the judgment, for the approval of security under s. 46 of the Supreme and Exchequer Courts Acts ; Held, that nothing substantial remained to be set- tled by the minutes so as to take the case out of the general rule that the time for appeal- ing runs from the pronouncing of the judg- ment, and that the application was too late. Martin v.. Sampson, xxvi., 707. 432. Arts. 1020, 1209, 1220 G. P. Q.— Ex- piration of time limit — Forfeiture of right — ■ Condition precedent — Ouster of jurisdiction — Oljection taken by court — Waiver.] — The provisions of arts. 1020 & 1209 C. P. Q., limit- ing the time for inscription and prosecution of appeals to the Court of Queen's Bench, are not conditions precedent to the jurisdiction of the court to hear the appeal and they may therefore be waived by the respondent. Cimon V. The Queen (23 Can. S. C. K. 62) referred to. — [Compare Fark Iron Uate Co. v. Coates (L. R. 5 C. P. 634)]. Lord v. The Queen, xyxi, 165. 433. Appeal ly the Crown — Special grounds — Extension of time.] — Where an application was made by the Crown for an extension of time for leave to appeal after the time pre- scribed by 50 & 51 Vict. c. 16, s. 51, as amended by 53 Vict. c. 35, and special grounds were not disclosed in the material read on the application as reasons for such extension, the application was refused. MaeLean v. The Queen, 4 Ex. C. R. 257. 434. Exchequer Court judgment — Lapse of time for appealing — Ex post facto rule — Set- ting down for hearing — Costs. See Peaotice of Supreme Coukt, 114. 435. Appeal per saltum — Jurisdiction of Yukon Territorial Judges — Extension of time for appealing. See No. 337a, ante. 436. [Note of an Ontario decision.] (On- tario practice as to granting leave — Extension of time — Appeal from order.] — The Court of Appeal for Ontario has held that no appeal lies to that court from an order of a judge of that court extending time for appealing, under s. 26, Supreme and Exchequer Courts Act. NeUl V. Travellers' Ins. Go. (9 Ont. App. R. 54). Re Central Bank of Canada (17 Ont. P. R, 395). APPROPRIATION OF PAYMENTS. See Payment. ARBITRATIONS. 1. Appeals, 1-4. 2. Aebiteatoes, Appobsttmeht and Quali- fication, 5-9. 3. Assessment of Damages, 10-17. 4. boundaeies, 18. 5. Condition Precedent, 19-27. 6. Costs, 28, 29. 7. County Buildings, 30. 8. Dominion Aebiteatoes, 31, 32. 9. Drainage, 33-37. 10. Execution of Awaed, 38-41. 11. Poems, 42-45. 12. Mistake, 46. 13. Setting Aside Awaed, 48-56. 1. Appeals. 1. Appeal — Jurisdiction — Award — B. G. Arbitration Act — Judgment on motion — En- forcing award.] — The full court in British Columbia affirmed an award in favour of the respondent for compensation for the opening of a highway through his lands by the Town- ship of Langley under a by-law passed in June, 1896. The Supreme Court quashed the appeal for want of jurisdiction on a motion to that effect based on grounds (1) that the judgment appealed from was not one on a motion to set aside the award nor by way of appeal from the award, within R. S. C. c. 135, s. 24, s.-s. if). (2) That no appeal could lie. (3) That the judgment merely permitted the enforcement of the award by allowing re- spondent's appeal from the order of a County Court judge refusing an application to enforce the award and referring the matter back to the arbitrators for further consideration and that no appeal could lie. (4) That no appeal lies to the Supreme Court of Canada from a judgment on a motion under s. 13 of R. S. B. C. (1897) c. 9, to enforce an award or from a judgment in appeal from such an order. Township of Langley v. Duffy, 30th May, 1899. 2. Appeal from award — Increase of dam- ages — Cross-appeal. See Appeal, 123. 3. Appellate court increasing award — Hear- ing additional testimony — Appreciation of evidence. See Appeal, 12. 4. Reference by consent — R. 8. 0. (1877) e. 50, s. 189 — Appeal. See Appeal, 11. 2. Aebitrators, Appointment and Qualifi- cation. 5. Railways — Prohibiti4jn — Expropriation — • Death of arbitrator pending award — ol Vict. c. 29, ss. 156. 157 — Lapse of time for making award — Statute, construction of — Art. 12 G. C] — In relation to expropriation for railway purposes, ss. 156 and 157 of " The Railway Act," (51 Vict. c. 29, (D.)), pro- vide : — " 156. A majority of the arbitrators at the first iheeting after their appointment or 135 AKBITEATIONS. 136 the sole arbitrator, shall fix a day on or be- fore which the award shall be made ; and, if the same is not made on or before such day, or some other day to which the time for making it has been prolonged, either by con- sent of the parties or by resolution of the arbi- trators, then the sum offered by the company as aforesaid, shall be the compensation to be paid by the company." " 157. If the sole arbi- trator appointed by the judge, or any arbi- trator appointed by the two arbitrators dies before the award has been made, or is dis- qualified, or refuses or fails to act within a reasonable time, then, in the case of the sole arbitrator, the judge, upon the application of either party, and upon being satisfied by affi- davit or otherwise of such death, disqualifica- tion, refusal or failure, may appoint another arbitrator in the place of such sole arbitra- tor ; and in the case of any arbitrator appoint- ed by one of the parties, the company anji party respectively may each appoint an arbi- trator in the place of its or his arbitrator so deceased, or not acting ; and in the case of the third arbitrator appointed by the two arbitra- tors, the provisions of section one hundred and fifty-one shall apply ; but no recommence- ment or repetition of the previous proceedings shall be required in any case." (Section 151 provides for the appointment of a third arbi- trator either by the two arbitrators or by a judge.) — Held, that the provisions of s. 157 apply to a case where the arbitrator appointed by the proprietor died before the award had been made, and four days prior to the date fixed for making the same ; that in such a case the proprietor was entitled to a reason- able time for appointment of an arbitrator to fill the vacancy, and to. have the arbitration proceedings continued although the time so fixed had expired without any award having been made, or the time for making it pro- longed. Shannon v. Montreal Park d Island Ry. Co., xxviii., 374. 6. Expropriation — Street railway — Muni- cipal ownership — Notice — Refusal to name arbitrator. QB^jUr^iirwft; See Municipal iI ed.), 36. ^ ^" 3. Assessment of Damages. 10. Award of official arbitrators — Past and future damages — Appeal — 4^ Vict. c. 8 (D ) — Review of award.^ — On a reference being made to the official arbitrators of certain claims made by H. against the government for damages to land arising out of the enlarge- ment of the Lachine Canal, the arbitrators awarded $9,216 in full and final settlement of all claims. On appeal to the Exchequer Court by H., Taschereau, J., increased the amount to $15,990, including $5,600 for damages to the land from 1877 to 1884 by leakage from the canal since its enlargement, and reserved to H. the right to claim future damages from that date. Meld, reversing the judgment of the Exchequer Court affirming the~ award of the arbitrators, that it must be taken that the arbitrators dealt with every item of H.'s claim submitted to them and included in their award all past, present and future damages, and that the evidence did not justify any increase of the amount awarded. — Gwynne, J., was of opinion that under 42 Vict. c. 8, s. 38, the Supreme Court had power (although the Crown did not appeal to the Exchequer Court) to review the award of the arbitrators, and that in this case $1,000 would be an ample compensation for any injury that the claim- ant's land can be said to have sustained, which upon the evidence can be attributed to the work of the enlargement of the canal. The Queen v. Hubert, xiv., 737. 11. Expropriation — I. C. Ry. Co. — Awfri of official arbitrators — Compensation for land — Speculative values — Appellate Court.]— On appeal from a judgment of the Exchequer Court increasing the award of the official arbi- trators for expropriation of land for the Inter- colonial Railway. Held, reversing the judg- ment appealed from (1 Ex. C. R. 191), and restoring the award, that to warrant an interference with an award of value neces- sarily largely speculative an appellate court must be satisfied beyond all reasonable doubt that some wrong principle has been acted on or something overlooked which ought to have been considered by the arbitrators, and upon the evidence in this case the court refused to interfere with the amount of compensation awarded. The Queen v. Par- adis; The Queen v. Beaulieu, 1 Ex. C. R. 191. 12. Sub-contract — Part performance — Re- scission — Quantum meruit — Reconsideration of award.] — P. was a contractor with the government of Canada for building a post office and K. was sub-contractor to do the mason and brick work for a lump sum, the sub-contract consisting simply of an offer to give the work for the sum named and an acceptance by K. P.. being dissatisfied with the work done by K., took the contract out of his hands before it was completed and finish- ed it himself. K. brought action for the value of work done by him and on reference by the court to arbitration an award was made in K.'s favour. The Court of Appeal set aside the award and remitted the case to the arbi- trator for further consideration, holding that though the contract did not authorize P. to take over the work and finish it at K.'s ex- pense, and the latter was, therefore, entitled to recover on the quantum meruit, yet the cost 137 ARBITRATIONS. 138 of completing the work was considerably in excess of the contract price. — Held, reversing the judgment appealed from, that as it appear- ed from the evidence that the arbitrator fully understood the matter and got all the infor- mation that could be obtained on the subject, and as no impropriety or mistake was shewn to have been committed by him, no benefit could result from sending the award back for reconsideration, and the decree of the Court of Appeal was not justified. Kennedy v. Pigott, xviii., 699. 13. Expropriation — R. S. Q. art. 516-i, ss. 12, 16, 17, 18, 2Jf — Award — Arbitrators' juris- diction — Lands injuriously affected — 4St d Ifl^ Vict. c. 43 {F.Q.) — Appeof— Amount in con- troversy.'] — On an expropriation respondent, naming his arbitrator, declared he only ap- pointed him to watch over the arbitrator of the company, but the company recognized him officially and subsequently an award of $1,974.25 damages and costs for land expro- priated was made under art. 5164, R. S. Q. The demand for expropriation as formulated in the notice to arbitrate was for the width of the track, but the award granted damages for 3 feet outside of the fences on each side as being valueless. In an action by the company to set aside the award — Held, aflBrming the judgment appealed from (following 15 0. L. R. 300), that the appointment of respondent's arbitrator was valid under the statute and bound both parties, and that in awarding damages for land injuriously affected on each side of the track the arbitrators had not ex- ceeded their jurisdiction. — Strong and Tas- chereau, JJ., doubted if the matter in contro- versy was sufficient to give the court juris- diction to hear the appeal, the award being under $2,000, but, assuming, without deciding that there was jurisdiction, they concurred in the judgment on the merits. Quebec, Mont- morency & Gharlevoix R. Go. v. Mathieu, xis., 426. 14. Expropriation under Railway Act — R. S. a. c. 109, s. 8, ss. 20-21— Discretion of arbitrators — Award — Inadequate compensa- tion.'] — An award in expropriation proceedings under the Railway Act, R. S. C. c. 109, where the arbitrators acted in good faith and fair- ness in considering the value of the property before the railway passed through it, and its value after the railway had been constructed, and the sum awarded was not so grossly and scandalously inadequate as to shock one's sense of justice, should not be interfered with. Judgment appealed from (M. L. R. 6 Q. B. 385) affirmed. Benning v. Atlantic & N. 'W. Ry. Go., sx., 177. 15. Railways — Eminent domain — Expro- priation of Lands — Evidence — Findings of fad — Uuty of appellate court — 51 Vict, c- 29 (D.)] — On an arbitration in a matter of the expropriation of land under the provi- sions of " The Railway Act," the majority of the arbitrators appeared to have made their computation of the amount of the indemnity awarded to the owner of the land by taking an average of the different estimates made on • behalf of both parties according to the evi- dence before them. — Held, reversing the deci- sion of the Court of Queen's Bench, and re- storing the judgment of the Superior Court (Taschereau and Girouard, JJ., dissenting), that the award was properly set aside on the appeal to the Superior Court, as the arbitra- tors appeared to have proceeded upon a wrong nrinciple in the estimation of the indemnity thereby awarded. Grand Trunk Ry. Co. v. Coupal, xxviii.. 531. 16. Expropriation by railway — Description of land — Setting aside award — Compensation for riparian rights. See BxPBOPEiATioisr, 21. 17. Damages — Award-^Interest. See Expropriation, 10. 4. Boundaries. 18. Agreement respecting lands — Bound- aries — Referee's decision — Bornage — Arts. 941-9^5 hnd 1341 et seq. G. G. P.]— The owners of contiguous farms executed a deed for the purpose of settling a boundary line between their lands, thereby naming a third person to ascertain and fix the true division line upon the ground, and agreeing further to abide by his decision, and accept the line which he might establish as correct. On the conclusion of the referee's operations one of the parties refused to accept or act upon his decision, and action was brought by the other party to have the line so established declared to be the true boundary, and to revendicate the strip of land lying upon his side of it. — Held, re- versing the judgment of the Court of Queen's Bench, that the agreement thus entered into was a contract binding upon the parties to be executed between them according to the terms therein expressed, and was not subject to the formalities prescribed by the Code of Civil Procedure relating to arbitrations. McGoey V. Leamy, xxvii., 545. 5. Condition Precedent. 19< Policy of insurance — Condition prece- dent — Matters in difference.] — ^A question as to payment of premiums was held to be a difference " relating to the insurance " within the meaning of the arbitration clause of the policy. Anchor Marine Ins. Go. v, Corbett, ix., 73. 20. Reference by Crown — Costs disallowed — 'Waiver of strict rights.] — A claim against the Crown, for the value of work alleged to have been done in the construction of a bridge contracted for, such value not having been in- cluded in the final certificate of the engineer, having been referred to arbitration under 31 Vict. c. 12. — Held, that the certificate of the engineer was under the contract a condition precedent to recovery, but if the Crown had intended to rely on its strict rights it should not have referred the claim to arbitration and it should, therefore, not be allowed the costs in any of the courts. The Queen v. Starrs, xvii., 118. 21. Policy of fire insurance — Condition pre- cedent to action — Award.] — A condition in a policy of fire insurance provided that no action should be maintainable against the com- pany for any claim thereunder until after an award obtained in the manner provided, fixing the amount of the claim. Held, that the making of such award was a condition prece- dent to any right of action to recover for a loss under the policy. Guerin v. Manchester Fire Assur. Go., xxix., 139. 139 AKBITRATIONS. 140 22. Rivers and streams — Floatable waters — Construction of statute — " The Saw-logs Driving Act"—B. S. O. (1887) c. 121— Arbi- tration — Action upon award — River improve- ments — Detention of logs — Damages.'] — When logs being floated down a stream are unrea- sonably detained by reason of others being massed in front of them the owner is entitled to an arbitration under the Saw-logs Driving Act to determine the amount of his damages for such detention and is not restricted to the remedy provided by s. 3 of that Act, namely, removing the obstruction. Judgment of the Qourt of Appeal (26 Ont. App. R. 19) re- versed. Goclcburn & Sons v. Imperial Lumler Co., XXX., 80. %j. Vse and occupation of land — Booming and storing logs — G. 8. L. G. c. 51 — Necessity of award — Right of action.] — The provisions of C. S. L. C. c. 51 do not take away from the parties the right of proceeding by action (see 7 Q. L. R. 286; 15 R. L. 514). Breahey V. Carter, 12th May, 1885. (Jass. Dig. (2 ed.) 463. 24. Street Railway Co. — A.greement with municipality — Repair of roadway — Termin- ation of franchise. See CoNTKACT, 86. 25. Contract — Agreement for arbitration in ■ — Suspension of right of action. See CONTEACT, 62. 26. Contract for construction of railway — Condition precedent to payment — Certificate of engineer as sole ariiter. See Contract, 69. 27. Riparian rights — Building dams — Pen- ning back water — Improvement of water- courses — Art. 5535 R. S. Q. — Arbitration — Condition precedent — New grounds on appeal — Assessment of damages — Interference by appellate court. See Rivers an0 Streams, 6. 6. Costs. 28. Expropriation of land — Raihcay — Mat- ters considered by arbitrators — Estimation of indemnity — Costs.] — A railway company, hav- ing taken lands for the pvirposes of their rail- way, made an offer which was not accepted and the matter was referred to arbitration under the Cons. Railway Act, 1879. On the day that the arbitrators met the company executed an agreement for a crossing over the land, in addition to the money payment, and it appeared that the arbitrators took the mat- ter of the crossing into consideration in mak- ing their award. The amount of the award was less than the sum offered by the company, and both parties claimed to be entitled to the costs of the arbitration, the company because the award was less than their offer, and the owner because the value of the crossing was included in the sum awarded which would make it greater than the offer. Held, affirm- ing the Court of Appeal for Ontario, Gwynne, J., dissenting, that under the circumstances neither party was entitled to costs — ^Appeal dismissed with costs. (See 5 O. R. 674'). Ontario & Quebec R. Co. v. Philbriclc, xii., 288. 29. Reference by Crown to arbitrators — Waiver of strict rights — Disallowance of Costs.] — Where the Crown intended to rely only on strict rights, it ought not to have referred a matter to arbitration and, there- fore, no costs were allowed. The Queen v. Starrs, xvii., 118. 7. County Buildings. 30. Municipal Corporation — Construction of Statute— 55 Viet., c. 1,%, ss. 391, m. 467, JfJS (Ont.) — City separated from county — Main- tenance of court house and gaol — Care and maintenance of prisoners.] — No compensation can be awarded by arbitrators to a County Council in respect of the use, by a city separ- ated from that county, of the court house and gaol unless the question is specifically referred to them by a by-law of each municipality. A claim for compensation for the care and main- tenance of prisoners' stands, as far as the meaning to be given to the word " city " is concerned, upon the same basis as a claim for the use of the court house and gaol. Judg- ment of the Court of Appeal for Ontario (24 Ont. App. R. 409), affirmed. County of Carle- ton V. City of Ottawa, xxviii., 606. 8. Dominion Abbiteatoes. 31. Appeal — Jurisdiction — Award of arbi- trators — 5Jf d 55 Vict. c. 6 (D) — 54 Vict, c. 2 (Ont.)— 54 Vict. c. Jf (Que.)]— In an award made under the provisions of the Acts, 54 & 55 Vict. c. 6, s. 16 (D.), 54 Vict. c. 2, s. 6, (Ont.) and 54 Vict, c 4, s. 6 (Que.), there can be no appeal to the Supreme Court of Canada, unless the arbitrators in making the award set forth therein a statement that in rendering the award they have proceeded on their view of a disputed question of law. In re Common School Funds and Lands, xxx., 306. 32. Debts of Province of Canada — Deferred liabilities — Toll bridge — Reversion to Grown — Indemnity — Condition precedent — Petition of right— B. N. A. Act, 1867, s. Ill — LiabUity of Province of Canada — Jiemedial process. See Constitutional Law, 8. And see Dominion Abbiteatoes. 9. Deainagb. 33. Ditches and Watercourses Act, 1894 (Ont.) — Owner of land — Declaration of own- ership — Defects — Validating award— 57 Vict. c. 55—58 Vict. c. 54 (Ont.)] — A lessee of land with an option to purchase the fee is not an owner who can initiate proceedings for con- struction of a ditch under the Ditches and Watercourses Act, 1894, of Ontario. Town- ship of Osgoode v. York (24 Can. S. C. K. 282), followed. — If the initiating party is not really an owner the filing of a declaration of ownership under the Act will not confer jur- isdiction. — Section 24 of the Act, which pro- vides that an award thereunder, after expira- tion of the time for appealing to the judge, or after it is affirmed on appeal, shall be bind-: ing notwithstanding any defects in form or substance either in the award or any of the proceedings, does not invalidate an award or proceedings where the party initiating the 141 AEBITEATIONS. 142 latter is not an owner. Township of MoKil- lop V. il'ownship of Logan, xxix., 702. 34. Drainage — Defective award — Evidence ■ — Failure to adjudicate — Reference to Court of Revision — Irregular assessment — Survey- or's report. See Dkainaqe, 1. 35. Intermunicipal works — Sewer — Entry into adjoining municipality — R. S. O. (1887) c. 184, «. 4iy, s.-s. 15—51 Vict. c. 28, s. 20 {Ont.). See Municipal Coepobation, 85. 36. Arbitration and Award — Drainage — In- juring liability — Cases arising under R. S. 0. (1887) c. 18k — Neglect to repair drains. See Deainaqe, 2. 37. Award by Drainage Refercf — 5| Yict. e. 51 (Ont.) — Appeal — Jurisdiction — R. S. C. a. 135, s. 24 — Costs. See Appeal, 52. 10. Execution of Awaed. 38. Expropriation of lands — Compensation — Recovery — Money deposited.'] — The proper mode of enforcing an award of compensation for lands expropriated under the Railway Act is by an order of a judge in chambers. Cana- dian Pac. Ry. Co. v. Little Seminary of Ste. TUrise, xvi., 606. 39. Award — Lessor and lessee — Covenant in lease — Breach — Payment of 'compensation — Condition precedent to action. See Lessor and Lessee, 1. 40. Railway expropriation — Award on — Additional Interest — Confirmation of Title — RaUway Act, 1888, ss. 162, 170. 172. See ExPKOPKiATioN, 23. 41. Expropriation proceedings — Recourse for indemnity — Montreal City charter — 59 Vict. c. 49, s. 17. See Action, 48. 11. FOEMS. 42. ExpropriaMon — 43 & Ji4 Vict. c. IfS. s. 9 (Que.) — Award — Description of land — Pro- cedure — Fails et articles — Order pro confessis —Art. 225. C. C. P.]— On 12th March, 1885, B. instituted an action against the company, based on an award, under 43 & 44 Vict. c. 43, s. 9, for land appropriated for the North Shore Railway. The company not having pleaded foreclosure was granted, and process for interrogatories on faits et articles was issued, returnable on 26th April ; the company made default ; on 18th June the faits et articles were declared taken pro confessis; on 16th May. B. consented that defendant be allowed to plead ; on 7th July a plea was filed, alleging that the arbitration had been irregular and was against the weight of evid- ence. On 2nd September. B. inscribed for hearing on merits, on which day the company moved for leave to answer faits et articles and the motion was refused. The notice of expropriation and the award both described the land expropriated as No. 1, on the plan of the railway, but in another part of the notice it was described as part of cadastral lot 2345, and in the award as forming part of lots 2344r2345. On 5th December judgment was rendered in favour of B. for the aipount , of the award, but the Court of Queen's Bench reversed the judgment, holding the award bad for uncertainty and that the case should be sent back to the Superior Court to allow de- fendants to answer the faits et articles. — Held, (1) reversing the judgment appealed from, Tasehereau, J., dissenting, that there was no uncei'tainty in the award as the words of the award and notice were sufficient of themselves to describe the property intended to be expro- priated and which was valued by arbitrators. (2) That the motion for leave to answer faits et articles had been properly refused by the Superior Court. Beaudet v. North Shore Ry. Co., xy., 44. [The Privy Council refused leave to ap- peal.] 43. Form of award — Specifito finding on each of the matters in difference.] — Plaintiffs brought ejectment to recover possession of cer- tain lands in the parish of P. After cause was at issue, under a rule, all matters in difference were referred to arbitration, and the arbitrators were to have power to make an award concerning the glebe and church lands at P., and to make a separate award con- cerning the school lands at P. The powers of the arbitrators were to extend to all ac- counts and differences between the parish and the late rector, and the defendant as his ex- ecutrix, and also between the defendant in- dividually and the parish. The arbitrators made two awards ; — First, as to the school lands, that defendant was indebted to plain- tiffs, as such executrix, on the school moneys, in the sum of $1,400 ; that defendant should pay that sum to plaintiffs ; and that judg- ment should be entered for plaintiffs for that amount ; — Secondly, as to the glebe and church lands, that plaintiffs were entitled to recover the lands claimed, and that judgment in ejectment be entered for plaintiffs with costs ; and, after reciting that all accounts re- specting the receipt and disbursement of all moneys received from interest, rent and sale of these lands by the late rector, or his agents, or by defendant as his executrix, were also referred to them; as well as all accounts and differences between the parish and the defend- ant individually, they further awarded that defendant should " pay to the plaintiffs the sum of $1 in full of the same," saving and excepting the matters in controversy respect- ing the school lands, on which they had made a separate award ; and that judgment should be entered for the plaintiffs for the said sum of $1. They also awarded that the defendant should pay all costs of the reference and award. On appeal from the judgment of the Supreme Court of Nova Scotia setting aside the awards ; Held, that the awards sufficiently specified the claims submitted, and the various capacities in which such claims arose. That the first award, being against the defendant in her representative capacity, could not be considered against her personally, and nega- tived any claim of that kind, and also was an adjudication against the defendant that she had assets ; and that the finding in the second award, that the defendant should pay $1, could be considered a finding as against her in her individual capacity for that sum, and, as to the claims of the plaintiffs against heri for moneys received by her husband, or by her 143 AEBITEATIONS. 144 as his executrix, as a finding against the plaintiffs on their claim. That the part of the second award, directing payment of the costs of the reference and award was bad, but might be abandoned. St. George's Parish v. King, ii., 143. 44. Submission — Special directions as to in- quiry — Mediators — Award — Finality — Art. 1346, G. G. P.]— M. claiming money from the Government of Quebec under a contract for construction oT a railway, agreed to submit to 3 mediators {amiables compositeurs) all controversies and difficulties between the Gov- ernment and himself. The submission stated that these mediators should inquire into the intent of the obligation of the contract be- tween the government and M. ; the alterations and modifications made in the plans, particu- lars and specifications mentioned in the con- tract ; what influence the alterations and modifications may have had on the obliga- tions of M. and on those of the government ; the delays caused by reasons irrelevant to the action of the contractor ; the pecuniary value, whether for more or for less, of the alterations or any increase in the works ; and finally, all things connected with the matter and the ex- ecution of the contract, and with regard to the charges and obligations of both the govern- ment and the contractor, according to the terms of the contract. It also provided that the award was to be executed as a final and conclusive judgment of the highest court of justice. ^ The award, after reciting the matters in controversy, found that the government was indebted to M. in $147,473, and annexed there- to an affidavit stating they had inquired into all matters and difficulties submitted to them as appeared in the deed of submission. This being much less than the claim, M. filed a peti- tion of right, asking that the award be set aside on the ground that it did not cover the matters so referred and decided matters not men- tioned in the submission. The Superior Court set aside the award. The Queen's Bench re- versed that judgment and dismissed the peti- tion. Held, affirming the Court of Queen's Bench, Strong and Taschereau, JJ., dissent- ing, that the object of the submission was to ascertain what amount the contractor was to receive from the government, and the speci- fication of the several matters referred to in the submission was merely to secure that, in determining the amount, the mediators should fully consider all these matters, and all mat- ters having been so considered the award was valid. — Per Pournier, J. Mediators are not subject to art. 1346, C. 0. P. and their award upon matters under reference can only be set aside by reason of fraud or collusion. Hic- Oreevy v. The Queen, xix., 180. 45. Railway expropriation — Description of lands — Notice. See Expropriation, 24. 12. Mistake. 46. Policy of insurance — Misdescription of risk — Reference of claim to arbitration — Waiver.] — Where an insurance has been treated as existing by the reference of a claim for loss to arbitration under a clause in the policy, the insurer is estopped from setting up the defence of no contract on the ground of mistake made on the nart of the insured in describing the risk. Gity of London Ins. Go. v. Smith, XV., 69. 47. Award final by submission — Setting - Wrong principle — Mistake.^ — An award will not be set aside on the ground that a memo., furnished by the arbitrator to the losing party after its publication, shewed that the accounts between the parties were adjusted upon a wrong principle, the defect, if any, not being a mistake on the face of the award or in some paper forming part of, and incorporated with, the award, and there being no admission by the arbitrator himself that he had made a mistake. McRae v. Lemay, xviii., 280. 13. Setting Aside Awabd. 48. Award remitted bach — The P. E. Island Land Purchase Act of 1875, s. 45.] — The Prince Edward Island legislature had author- ity to enact the " Land Purchase Act of 1875," and an award thereunder of the commissioners could not be quashed and set aside, or de- clared invalid and void, on an application made to the Supreme Court of the province; but it could have been remitted back to the commissioners in the manner prescribed by s. 45 of the Act. The application for the rule in the court below not having been made with- in the proper time, nor according to the pro- visions of that section, the decision of that court is against the express words of the statute, and cannot be allowed to stand. Kelly V. Sulivan, i., 1. 49. Procedure — Enlarging time for making award — New ground on appeal.] — In an ac- tion on contract, the differences were, by rule of court, and consent of parties, submitted to arbitration. The award was to be made on or before 1st May, 1877, or such further or ulterior day as the arbitrators might in- dorse from time to time on the order. The time for making the award was extended by the arbitrators till 1st September. 1877." On 31st August, 1877, the attorneys for plain- tiff and defendants, by consent indorsed on the rule, extended the time till the 8th Septem- ber. On 7th September the arbitrators made their award in favour of plaintiff for $5,001.42 in full settlement of all matters in difference. Held, reversing the judgment appealed from (13 N. S. Rep. 98), that where the parties, through their attorneys, consent to extend the time for making an award under a rule of re- ference, such consent does not operate as a new submission, but is an enlargement of the time under the rule and a continuation to the extended period of the authority of the arbi- trators, and therefore an award made within the extended period is an award made under the rule of reference, and is valid and binding on the parties. 2. That the fact of one of the parties being a municipal corporation made no difference. 3. That in Nova Scotia, where the rule nisi to set aside an award specifies certain grounds of objection, and no new grounds are added by way of amendment in thfe court below, no other ground of objection to the award can be raised on appeal. Oakes V. Gity of Halifax, iv., 640. 50. Misconduct of arbiirators — Bill to rec- tify award — Prayer for general relief— Juris- diction — Practice — Scandalous factum — Dis- cipline — Costs.] — The bill was to rectify an award under an arbitration, because the arbi- trators had considered matters not included in the submission, and divided the sums re- ceived by the defendant from the plaintiffs, on the ground that defendant's brother and 145 AEBITEATIONS. 146 partner was a party to such receipt, although the partnership affairs of the defendant and his brother were excluded from the submission. The bill prayed that the award might be amended, and the defendant decreed, to pay the amount due the plaintiffs on the award being rectified, and that, in other respects, the award should stand and be binding on the parties. There was also a prayer for general relief. Held, affirming the judgment appealed from (23 N. B. Rep. 392), that to grant the decree prayed for would be to make a new award, which the court had no ju»isdictiou to do, but (reversing the court below), that under the prayer for general relief the plain- tiff was entitled to have the award set aside. The plaintiff's factum containing reflections on the conduct of the judges of the court be- low, was ordered to be taken off the files as scandalous and impertinent, and the appeal was allowed without costs. Vernon v. Oliver, xi., 156. 51. Reconsideration — Setting aside award — Time for application — 9 & 10 Wm. III. a. 15, s. 2—R. 8. 0. {1887) c. 53, s. 37— Reference iach to arbitrators — Concealment — New evid- ence.'] — In Ontario, the law regulating the time for applying to set aside an award made under rule of court or to remit it to the ar- bitrators for re-consideration and re-determin- ation, is R. S. O. (1887) c. 53, s. 37, and it is not necessary that the application should be made before the last day of the term next after the making of the award, as provided by 9 & 10 Wm. III. c. 15. s. 2. Gwynne, J., dis- senting. — An award may be remitted to arbi- trators for re-consideration and re-determin- ation under the Ontario statute though the re- sult of the re-consideration may be to have the award virtually set aside by a different, or even contrary, decision of the arbitrators. — The court is justified in remitting an award to the arbitrators if fraud or fraudulent con- cealment on the part of the persons in whose favour it is made is established, or if new evid- ence is discovered whicn. by the exercise of reasonable diligence, could not have been dis- covered before the award was made. Green V. Citizens Ins. Co., xviii., 838. 52. Amiailes compositeurs — Art. 1346 G. C. P. — Fraud.] — Per Pournier, J. — Mediators are not subject to art. 1346 C. 0. P., and their award on the matters under reference can only be set aside for fraud or collusion. Mc- Greevy v. The Queen, xix., 180. 53. Setting aside award — Expiration of time fixed by 9 dc 10 Wm. III. y holder — Identity of payee — Evidence of intention.'] — A promissory note made payable to J. S. & Son was sued on by J. S. & Co. — Held, it being clear by the evi- dence that the plaintiffs were the persons de- signated as payees, that they could recover. — Judgment appealed from, (20 N. S. Rep. 509), affirmed. Wallace v. Souther, xvi., 717. 17. Payment. 39. Promissory notes — Acceptance held ty hank as indorsee — Payment to cashier — Pre- sumption.] — Where an acceptance had been in- dorsed to a bank, and the cashier of the bank had put it in suit, in his own name, and the acceptor subsequently paid the amount thereof to the cashier ; it was held by the Supreme Court of Nova Scotia, that it was a fair in- ference that payment to the cashier was pay- ment to the bank of which he was cashier (28 N. S. Rep. 210).— On appeal to the Su- preme Court of Canada the judgment was affirmed. Gox v. Seeley, 6th May. 1896. 18. Patent Rights. 40. Consideration — Transfer of patent right — Bills of Exchange Act, 53 Vict. c. 33, s. 30, s.-s. Jf (D.)] — C. & F. were partners in the manufacture of certain articles under a patent owned by F. A creditor of F. for a debt due prior to the partnership induced C. to pur- chase a half interest in the patent for $700, and join with F. in a promissory note for $1,- 000 in favour of said creditor who also, as an inducement to F. to sell the half interest, gave the latter $200 for his personal use. In an action against C. on this note : — Held, re- versing the decision of the Court of Appeal, Taschereau, J., dissenting, that the note was given by C. in purchase of the interest in the patent and not having the words " given for a patent right " printed across its face it was void under the Bills of Exchange Act, 53 Vict. c. 83, s. 30, s.-s. 4 (D.). Craig v. Samuel xxiv., 278. 19. Stamp Duties. 41. Unstamped 'bill — 42 Vict. c. 16, s. IS— " Knowledge " — Double stamping — Question for judge — Pleading.] — The draft suea ou when made and when received by plaintiffs had no stamps ; they knew then that bills re- quired to be stamped, but never gave it a thought, and their first knowledge that the bill was not stamped was when thy gave it to their attorney for collection, and they im- mediately put on double stamps. The bill was received in evidence, leave being reserved to the defendant to move for a nonsuit, the judge stating his opinion that though plain- tiffs knew the bill was not stamped when they received it, and that stamps were neces- sary, they accidentally and not intentionally omitted to affix them till their attention was called to the omission. Held, affirming the Su- preme Court of New Brunswick, (22 N. B. Rep. 199), that the question as to whether or not the holder of a bill or draft has affixed double stamps upon an unpaid bill or draft so soon as the state of the bill was brought to his knowledge within the terms of 42 Vict. c. 17, s. 13, is a question for the judge at the trial and not for the jury. (Gwynne, J., dis- senting, ) ; that the " knowledge " referred to in the Act is actual knowledge and not im- puted or presumed knowledge, and that the evidence in this case shewed that plaintiffs acquired this knowledge for the 'first time on the day they affixed stamps for the amount of the double duty ; that the want of proper stamping in due time is not a defence which need be pleaded. (Gwynne, J., dissenting.) Chapman v. Tufts, viii., 543. 42. Bill of exchange — Not stamped ly drawer — Stamps affixed by drawee before dis- count — Double duty affixed at trial— Knowl- edge of law — ^2 Vict. 0. 11/ — Pleading — G. S. (N. B.) 0. 37, s. 83, s.-ss. 4, 5— Evidence— Special plea — Non fecit — Issue.] — R. re- mitted by mail to V. a draft in payment of an account which, when received by V., was unstamped. V. affixed stamps required by the amount of the draft, and initialed them as of the date the draft was drawn, which was at least two days prior to the date on which they were actually affixed. In an action on the draft R. pleaded " that he did not make the draft," according to provisions of C. S. (N. B.), c. 37, s. 83, s.-s. 4. On the trial the draft was offered in evidence and objected to as not sufficiently stamped, the plaintiff hav- ing previously testified as to the affixing of the stamps, and that he knew the law relating to stamps at the time. The draft was admitted, leave reserved to defendant to move for a non- suit, and at a later stage of the trial, it was again offered with the double duty affixed, counsel agreeing that a nonsuit should be en- tered, with leave reserved to plaintiffs to move for verdict, court to have power to draw in- ferences of fact. — On motion pursuant to such leave reserved, the Supreme Court (23 SOI BILL OF LADING- SOS N. B. Rep. 343) set aside the non-suit and ordered a verdict to be entered for the plain- tiffs on the ground that th« defect in the draft of want of stamp should have been specially pleaded. Held, 1. Reversing the judgment ap- pealed from, Strong and Gwynne. JJ., dis- senting, that double duty should have been placed on the note as soon as it came into the hands of the drawee unstamped, and that it was too late at the trial to affix such double duty, the plaintiff having sworn that he knew the law relating to stamps, which precluded the possibility of holding that it was a mere error or mistake. — 2. That under the plea that defendant did not make the draft, he was entitled to take advantage of the defect for want of stamps. — Per Strong, J. That the note was sufficiently stamped and plaintiffs were entitled to recover. — Per Gwynne. J. That if the note was not suffi- ciently stamped the defence should have been specially pleaded. Roberts v. Vaughan, xi., 273. 43. Insufficient stamps — Actual notice — Knowledge of holder — Double stamping.] — If a note is insufficiently stamped, the double duty may be affixed as soon as the defect comes to the actual knowledge of the holder. The statute does not intend, that implied knowl- edge should govern it. — (Judgment appealed from 20 N. S. Rep. 509) , affirmed. Wallace v. Souther, xvi., 717. 20. StfEETTSHIP. 44. Note indorsed as security — Discharge of surety — Giving time to principal.'] — The appellant claimed that he was only surety for his co-defendant, and was discharged by time being given to the principal to pay the note. Held, that the fact of time being so given being negatived by the evidence, it was im- material whether appellant was principal or surety. — Judgment appealed from (20 N. S. Rep. 509 ) , affirmed. Wallace v. Souther, xvi., 717. 45. Promissory note — Maker or indorser — Evidence.'] — W. agreed to become security for a debt, and wrote his name across the back of a promissory note in favour of the credit- ors signed by the debtor. The note was not indorsed by the payees, and no notice of dis- honour was given to W. when it matured and was not paid. Action was brought against' W. as maker jointly with the debtor, and non- suit was entered with leave reserved to plain- tiffs to move for a judgment if there was any evidence to go to the jury as to W.'s liability. — Held, affirming the Supreme Court (N. B.) that there was no evidence to go to the jury that W. intended to be liable as a maker of the note, and plaintiffs were rightly nonsuited. Ayr American Plough Co. v. Wallace, xxi„ 256. 46. Indorsement of note — Release of maker —Reservation of rights — Satisfaction of prin- cipal debt — Release of debtor — Release of surety. See Principal and Surett, 1. 47. Substitution of debtor on note — Dis- charge of maker — Reservation of righits against indorser — Surety. See Surety, 3. 48. Joint and several — Semfiify for ntort- gage debt ■ — ■ Release of co-mali^^'\ See Mortgage, 62. Action on note 49. Qualified indorsement given as security. See No. 24, ante. 21. Transfer. 50. Transfer — Overdue note — Equities at- taching — • Agreement between vendor and payee — Holder for value without notice — Evidence.] — An agreement between the maker and payee of a promissory note that it shall only be used for a particular purpose, consti- tutes an equity which, if the note is used in violation of that agreement, attaches to it in the hands of a bond fide holder for value who takes it after dishonour. — Strong, C.J., and Taschereau, J., dissenting. MacArthur v. MacDowell, xxiii., 571. 22. Theft of Note. 51. Larceny — 32 <& SS Vict. c. 21 (D.) — Unstamped note — 'Valuable security — Form of indictment. See Criminal Law, 1. BILI. OF liADING. 1. Rights of assignee — Instructions to hold until payment of bill of exchange — Evidence — Consignee obtaining goods without bill of lading and without paying for goods — Liability of auctioneers to assignees of bill of lading for selling the goods on consignee's account — • Trover — Interest.] — The plaintiffs doing business in Charleston, S. C, were assignees of a bill of lading for 100 casks of spirits of turpentine and 501 barrels of rosin, for which they had discounted the shipper's draft on R., of St. .John. N. B., the consignee. They for- warded the draft to their agents with instruc- tions to deliver the bill of lading to R. when the draft was paid. The draft was dated 2nd August, 1875, and payable twenty days after date. R. accepted the draft, but did not pay it, and the bill of lading was retained by plaintiffs' agents. The invoice was sent from Charleston to R., to whom the captain of the vessel delivered the goods without production of the bill of lading. Subsequently R. deliv- ered 90 barrels of the turpentine to the defend- ants, who were auctioneers for sale on ac- count of R., upon which they advanced R. $1,- 000. "The defendants advertised the sale, sold the turpentine at public auction and paid bal- ance of net proceeds to R. on 24th September, 1875. The turpentine had been taken out of the vessel and landed and warehoused several days before delivery to defendants, and they did not know that R. had not possession of the bill of lading until 21st October. 1875, when plaintiffs demanded the turpentine of them. Held, affirming the Supreme Court (N. B.) ( 3 Pugs. & Bur. 268), that the plaintiffs were entitled in an action of trover to recover from defendants the value of the turpentine, and interest from the date demand was made, and that the instructions from plaintiffs to their agents to deliver the bill of lading upon 203 BILL OF SALE. 204 payment of the draft, was admissible evidence in an action by plaintiffs against the defend- ants. Stewart v. People's National Bank of Charleston; Cass. Dig. (2 ed.) 81. 2. Contract — Correspondence — Carriage of goods — Transportation company — Carriage over connecting lines.'] — Where a shipper ac- cepts what purports to be a bill of lading, under circumstances which would lead him to infer that it forms a record of the contract of shipment, he cannot usually, in the absence of fraud or mistake, escape from its binding oper- ation merely upon the ground that he did not read it, but that conclusion does not follow where the document is given out of the usual course of business, and seeks to vary terms of i prior mutual assent. Taschereau, J., dis- sented on the facts. N. W. Transportation Co. V. McKensie, xxv., 38. 3. Transshipment of grain in iransit — Cus- tom of trade — Original hills of lading con- tinued — Bulk of cargo delivered and freight exacted from transferee — Transfer ty indorse- ment—The Bank Act, 53 Vict. c. SI — Estop- pel.] — Grain was shipped from Chicago to Montreal, the bills of lading being made only from Chicago to Kingston, where it was, ac- cording to the usual custom of trade, trans- shipped into barges belonging to the defend- ants, and thence conveyed by them to Mon- treal, without the issue of new bills of lading. It appeared, however, to have been the custom that such bills of lading were in cases of the kind, treated as continuing. The bills had been transferred by indorsement, and de- livery to the plaintiff, upon whose order the defendant had delivered the greater part of the cargo, after exacting payment of full freight upon the shipment. The defendant had also recognized the custom of the grain trade as to the bills of lading continuing. — In an action to recover an undelivered balance of the grain so shipped : Seld, affirming the decision of ttie Superior Court, sitting in Review, at Mon- treal, that under the circumstances, the defend- ant was estopped from questioning the validity of the transfer of the bills -oi lading under the provisions of " The Bank Act," or objecting that they had become extinct ujion delivery of the cargoes at Kingston. The St. Lawrence and Chicago Forivarding Co. v. The MoUnns Bank (28 L. C. Jur. 127). referred to. Kitig- •ston Fortcarding Go. v. Union Bank of Can- ada, 9th December, 1895. 4. Railway company — Carriage of goods — Connecting lines — Special contracts — Loss 6?/ fire in ica rehouse — Negligence — Pleading.'] — In an action by S.. a merchant at Merlin, Out., against the Lake Erie and Detmit River Ry. Co.. the statement of claim alleged that S. had purchased goods from parties in Toronto and elsewhere to be delivered, some to the G. T. R. Co.. and the rest to the C. P. R. and other companies, by the said several companies to be, and the same were, transferred to the Lake Erie, etc., Co.. for carriage to Merlin, and that on receipt by the Lake Erie Co. of the goods it became their duty to carry thera safely to Merlin, and deliver them to S. There was also an allegation of a contract by the Lake Erie Co. for storage of the goods and delivery to S., when requested, and of lack of proper care whereby the goods were lost. The goods were destroyed by fire while stored in a building owned by the Lake Erie Co.. at Merlin. Held, reversing the decision of the Court of Appeal, that as to the goods delivered to the G. T. R. Co. to be transferred to the Lake Erie Co. as alleged, if the cause of action stated was one arising eo) delicto, it must fail, as the evidence shewed that the goods were received from the G. T. R. Co. for carriage under the terms of a special contract contained in the bill of lading and shipping note given by the G. T. R. Co. to the consignors, and if it was a cause of action founded on contract, it must also fail as the contract under which the goods were received by the G. T. R. Co. provided among other things, that the company, would not be liable for the loss of goods by fire; that goods stored should be at sole risk of the owners ; and that the provisions should apply to and for the benefit of every carrier. — Held, further, that as to the goods delivered to the companies, other than the G. T. R. Co., to be delivered to the Lake Erie Co.. the latter company was liable under the contract for storage; that the goods were in its possession as warehousemen, and the bills of lading con- tained no clause, as did those of the G. T.. R. Co., giving subsequent carriers the benefit of their provisions ; and that the two courts be- low had held that the loss was caused by the negligence of servants of the Lake Erie Co., and such finding should not be interfered with. — Held, also, that as to goods carried on a bill of lading issued by the Lake Erie Co., there was an express provision therein that owners should incur all risk of loss of goods in charge of the company, as warehousemen ; and that such condition was a reasonable one, as the company only undertakes to warehouse goods of necessity and for convenience of shippers. Lake Erie and Detroit River Ry. Co. v. Sales, xxvi., 663. 5. Shipping — Ship's agent — Mandate — Cus- tom of port — Delivery — Carriers.] — A trade custom, in order to be binding upon the public generally, must be shewn to be known to all persons whose interests required them to have knowledge of its existence, and, in any case, the terms of a bill of lading, inconsistent with and repugnant to the custom of a port, must prevail against such custom. Judgment ap- pealed from reversed, the Chief Justice dis- senting. Parsons v. Hart, xxx., 473. 6. Fraud 'by raihcag agent — False bills is- sued when no goods shipped — Draft with liUs attached — Advances on consignment. See Principal and Agent, 2. 7. Commission merchant — Shipment of grain — Condition of prepayment — Principal and agent — Delivery — Vesting of ownership — Loss on damaged cargo. See Contract, 210. ' 8. Goods consigned for sale — Assignment of hill of lading — Replevin — -. Tnterest of trans- feree — Stoppage in transitu. See Sale, 34. 9. Option to re-weigh goods — Notice to sel- ler — Acceptance of hill — Delivery — Estoppel. See Action. 128. And see Carriers. BILI. OF SALE. 1. R. S. N. S. (5 ser.) c. 92— Registration -Defectvoe jurat — Evidence — Assignment for 205 BOND. 206 ienefit of creditors — Chattel mortgage.'] — An assignment of personal property in trust to sell same and apply the proceeds to the payment of debts due certain named creditors of the as- signor is a bill of sale within s. 4 of the Nova Scotia Bills of Sale Act. not being an as- signment for the general benefit of creditors and so excepted from the operation of the Act by s. 10. — The omission of the date and words " Ijefore me " from the jurat of an affidavit accompanying a bill of sale under s. 4 of the said Act makes such afiidavit void and the de- fect cannot be supplied by parol evidence in proceedings by a creditor of the assignor against the mortgaged goods. GwjTine, J., dissenting. — Per Gwynne, J. Section 4 of the Act only applies to bills of sale by way of chattel mortgage and not to an assignment absolute in its terms and upon trust to sell the property assigned. Archil}ald v. Bubley, xviii., llJS. 2. Affldaint of hona fides — Adherence to statutory form — Proof of execution — Attesting mtness.] — Where an affidavit of tana fides to a bill of sale stated that the sale was not made for the purpose of holding or enabling the bar- gainee to hold the goods mentioned therein against ifte creditors of the bargainor, while the form given in the statute uses the words " against any creditors of the bargainor," such violation did not avoid the bill of sale as against execution creditors, tne iwo expres- sions being substantially the same. Gwynne, J., dissenting. — The statute requires the affi- davit to be made by a witness to the execution of the bill of sale but as attestation is not essential to the validity of the instrument its execution can be proved by any competent wit- ness. — Judgment appealed from (1 N. W. Terr. Rep. No. 2, p. 30) , affirmed. Emerson v. Ban- nerman, xix., 1. 3. Chattel mortgage — Description — Bills of Sale Act— Z?. S. O. {1S8~) c. 125— Appeal— Order to amend pleadings — Interference with — Debtor and creditor — Purchaser iy creditor — Consideration — Existing deit.l — In a chattel mortgage the goods conveyed were described as follows : " All of which said goods and chat- tels are now the property of the said mort- gagor, and are situate in and upon the premises of the London Machine Tool Co. (describing the premises), on the north side of King street, in the City of London ;" and in a schedule re- ferred to in the mortgage was this additional description : " And all machines ... in course of construction or which shall hereafter be in course of construction or completed while any of the moneys hereby secured are unpaid, being in or upon the premises now occupied by the mortgagor ... or which are now or shall be on any other premises in the said City of London." Held, affirming the decision of the Court of Appeal, that the description in the schedule could not extend to goods wholly manufactured on premises other than those de- scribed in the mortgage, and if it could the de- scription was not sufficient within the meaning of the Bills of Sale Act (R. S. O. [1887] c. 125), to cover machines so manufactured. — The Supreme Court will not interfere on ap- peal with an order made by a provincial court granting leave to amend the pleadings, such orders being a matter of procedure within the discretion of the court below. — A purchaser of goods from the maker of a chattel mortgage in consideration of the discharge of a pre-existing debt is a purchaser for valuable consideration within s. 5 of the Bills of Sale Act. Williams V. Leonard & Sons, xxvi., 406. 4. Affidavit of bona fides — Statutory form — Description of grantor — R. S. N. S. (5 ser.) c. 92, ss. 4 and 11,] — The Act relating to bills of sale, R. S. N. S. (5 ser.) c. 92. requires by s. 4, that every such instrument shall be ac- companied by an affidavit by the grantor, and s. 11 provides that the affidavit shall be, as nearly as may be, in the form given in a form prescribed, beginning: "I, A. B., of . in the county of . . . (occupation) make oath and say," etc. An affidavit omitted to state the occupation of the grantor. Held, per Strong, Gwynne, and Patterson, JJ.. reversing the Supreme Court (N. S.), that as the affi- davit referred in terms to the instrument itself, in which the occupation of the deponent was stated, the statute was complied with. — Per Taschereau, J. The onus was upon the per- sons attacking the bill of sale to prove, by direct evidence, that the grantor had no occu- pation, which they had failed to do. Smith V. McLean, xxi., 355. 5. Chattel mortgage — Affidavit of bona fides — Compliance with statutory forms — Change of possession — Levy under execution — Aban- donment. See Chattel Moetgage, 6. 6. Mortgage — Mining machinery — Registra- tion — Fixtures — Interpretation of terms — Personal chattels — Delivery — 7?. S. N. 8. (5 ser.) c. 92, ss- 1, 4. 10 (Bills of Sale)— 3-5 Vict. (N. S.) c. 1, s. US (The Mines Act)—J,l cC- 42 Vict. (.N.S.), c SI, s. If. See Registry Laws, 25. BOND. 1. Action on bail bond — Alteration of after execution — Proof of — Form of bond — Objec- tion first taken on appeal.] — In an action on a bail bond the defence was that it had been altered after execution, and that it was not in the form required by the statute. Held, af- firming the judgment appealed from (19 X. S. Rep. 96), that the defendant having refused to call the attesting witness to the bond, who was their counsel in the case, the uefence as to the alteration, alleged to be in the attestation clause, could not succeed. — Held, also, that the objection as to the form of the bond being merely technical and unmeritorious, could not be taken for the first time before this court. Woodworth v. Dickie, xiv., 734. 2. Appeal — Security for costs — Prosecution — Practice — Objection to form — Waiver.] — The bond as security for costs of appeal to the Supreme Court should provide for prosecution of the appeal. Objection to the form of the bond should be taken by application in cham- bers to dismiss and will be considered waived if this procedure is not adopted. Whitman v. Union Bank, xvi., 410. 3. Execution — Seal — Onus probandi — De- fects. See Evidence, 152. 4. By Government official — Signature in blank — Certificate of magistrate — Execution — Weight of evidence — Proximate cause of ac- ceptance — Estoppel. See Evidence, 153. 207- BOUNDAEY. 208 5. Railway aid — Municipal bonus — Condi- tion in tondr— Breach. See Railwat, 90. 6. Security to sheriff — Price of adjudication — Nullity — ^raud — BequHe civile. See SHEKnr, 10. 7. Municipal tond — Form of contract — Sta- tute authority — Construction of statute. See MtrisriciPAL Corporation, 84. BOOKS OF REFERENCE. Expropriation of land — Tenants in common — Propriitaires par indimis — Construction of agreement — Misdescription — Plans and boohs of reference — Surveys — Registry laws — Satis- faction of condition as to indemnity. See Railways, 32. BOBNAGE. See Boundary. " BOSTON CtAUSE." Marine insurance — Abandonment — Repairs -Findings of jury — Setting aside verdict. See Insurance, Marine, 4. BOUNDARY. • 1. Surveyed line — Standing by without ob- jection — Trespass — Conventional boundary — Licensed use — Estoppel in pais — Mistake — Valuable consideration^Specifio performance — Description of land — Reference to plan — Courses and distances — Computed area — Con- struction of deed — Evidence of boundaries — Parol testimony — Statute of Frauds-']- — G. was owner of lot 9, and 0. the owner of lot 8 ad- joining 'it on the south. Both lots had form- erly belonged to one person, and there was no exact indication of the true boundary line be- tween them. T. employed a surveyor to ascer- tain the boundary, who asked 0. where he claimed his northern boundary was. C. point- ed out the line of a fence produced to a post as his boundary line. The surveyor then staked the average line of the fence produced till it met the post, C. not objecting. T., v^ith his architect and builder, went on the ground, and, in the presence of 0., the builder again marked out the boundary by a line connecting the stakes, C. not objecting, and a house was built according to the line on the extreme verge of T.'s land. C. first raised objection to this boundary when the walls were up and con- siderable money had been expended in building. Held, that C. was estopped from disputing that the line run by the surveyor was the true line. — When lands are described by reference to a plan, the plan is considered as incorpor- ated with the deed, and the boundaries of the lands conveyed as defined by the plan are to be taken as part of the description. — In constru- ing a deed of land not subject to special sta- tutory regulations, extrinsic evidence of monu- ments and actual boundary marks is inadmis- sible to control the deed, but if reference is made by the deed to such monuments and boundaries, they control, though they may call for courses, distances, or computed contents, which do not agree with those in the deed. — ^An agreement to establish a conventional boundary line between con- tiguous lands is not within the Statute of Frauds and such mutual agreements con- stitute valuable consideration to support a decree in the nature of one for specific per- formance, although such a decree might be withheld in such a case on the ground of mis- take in regard to the direction of the line or in properly laying it out upon the ground. — In the absence of measurements on a level street to shew that the true boundary as laid out formerly on the ground when in a rough state coincided with the limits as measured from a defined point in existence when the plan was made, that point cannot be accepted as the true point of commencem,ent of the description of the actual boundary. — ^A second plan of sub- division of land cannot be invoked as evidence of the limits of lands conveyed by description according to a first plan. — Where there is a di- rect conflict of testimony the finding of the- judge at the trial must be regarded as decisive and should not be overturned in appeal by a court which has not had the advantage of see- ing the witnesses and observing their demean- our while under examination. Orassett v. Carter, x., 305. 2. Agreement — Whether executed or execu- etory — Plan, signed by proprietors — Statute of Frauds — Purchaser for value without no- tice — Discretionary jurisdiction of Court of Equity.] — Plaintiff alleged that in March, 1844, the Crown granted in fee to S. the east part and the south-west part of lot F., he went into and remained in possession there- of until his death ; one K. was then in posses- sion of part of lot G., immediately adjacent on the south to the land granted to Stewart; disputes having arisen respecting the bound- ary, it was agreed to have it surveyed and de- fined on the ground by a provincial land sur- veyor, whose survey was to be the settled and permanent boundary, and who accordingly in Sept., 1854, made a survey, and prepared a map shewing the boundary line ; thereupon, about 20th Oct., 1854. the boundary line having been so defined, it was mutually agreed to by them, and memorandum written upon the map signed by them : " We, the under- signed, interested in this survey, agree to it as shewn by this plau, as witness our hands. Thereupon the parties shifted their occupation so as to accord with the line surveyed and so agreed to. K. afterwards applied for the pa- tent of lot G., which was issued to P. as trus- tee for him. The survey commenced from the west side of G. at a point then mutually agreed upon between S. and K. and the other persons interested, as the north-west angle of the lot ; S. and K. then removed to and thence continued in possession of their respective lands as aforesaid, as so separated and de- fined ; S. died in 1856 ; plaintiff, to whom he devised lot F., did not attain his majority until 1870; in 1862, defendant obtained possession of a strip of the land in possession of plaintiff and S. under the agreement, being about 70 feet in width, to the north of the boundary, which had been agreed upon, and refused to restore possession, or to recognize the agreement ; plaintiff was unable to recover 209 BOUNDAEY. 310 possession at law, inasmuch as the legal title of plaintiff under the patent would be deter- mined by the mode of survey which prevailed according to the general law ; the defendant had notice of the agreement and settlement of the boundary ; that the true boundary line was difficult to ascertain in 1854. and that the agreement was a compromise and settlement of disputed and doubtful rights. The prayer was that the agreement might be specifically enforced, and the boundary established accord- ingly, and that defendant might execute a deed to confirm the strip of land to plaintiff, and be ordered to deliver up possession. — ^The de- fendant denied that S. ever had actual posses- sion of the disputed strip, which he alleged was in a state of nature at the time of his purchase from K. ; he alleged that he had had the line run by SparJss, P.L.S., and erected an expensive fence along the line and a dwell- ing house, the whole or greater part of which was on the land claimed by plaintiff ; that he had made other valuable improvements ; that K. was an illiterate man, and if his name was procured to the agreement it was through fraud. He also set up the registry laws, the Statute of Frauds, laches, that he was a bona fide purchaser for value without no- tice, and that the agreement was not one which the court in its discretion would enforce against him- — Spragge, C, made a decree in accordance with the plaintiff's contentions ; (reported on a point which arose with refer- ence to the proof of S.'s will : 24 Grant, 433) ; the Court of Appeal reversed this decree, from a view that plaintiff was appealing to the dis- cretionary jurisdiction of the court, and that the ordinary principles upon which it was ad- ministered were applicable ; that the court had seen no case in which a mere verbal agree- ment, unattended by acts, had been sufficient under the Statute of Frauds, although it had been held in a number of cases in the courts of the United States that where two adjoin- ing proprietors employ a surveyor to define their boundary line, and possession is taken and held in accordance therewith, the objec- tion of the want of a writing shall not be allowed to prevail. That the plaintiff had failed to shew anything done on the faith of the agreement, or a change of position in reliance upon the boundary line settled. That the proof of the agreement was not of that clear and unambiguous kind the court requires when asked to exercise its discretionary juris- diction. That there was no sufficient evidence to countervail the defendant's oath denying that he had actual notice of the alleged agree- ment, and that it was a case in which specific performance would inflict a grievous hardship upon the defendant without any benefit to the plaintiff which he had a right to expect, and without the plaintiff having any equity which the court was bound to respect. — Held, that plaintiff had failed to establish ^he agreement alleged in his bill, of which he sought specific performance, and upon which he rested his application for the interference in his favour of the equitable jurisdiction which -he invoked. That if plaintiff contended that the evidence established that S. and K. agreed upon and adopted as the boundary line between them the line surveyed, and that for this purpose and to give effect to this agreement they signed the map, and that in pursuance of such agreement and in adoption of this line as the boundary line between them they moved their fences to conform to the agreement and occupied up to such fences until after S.'s death when defen- dant entered upon the possession then held by the devisee, then, the case assuming the com- pletion of the agreement and presenting a purely legal claim, and the bill having been filed before the Administration of Justice Act, the Court of Chancery would have no jurisdic- tion. Appeal dismissed with costs. Stewart V. Lees, Cass. Dig. (2 ed.), 98. 3. Action en tornage — R. 8. Q. arts. 4153, 4154, 4155 — Straight line.'] — Where there is a dispute as to the boundary line between two lots granted by patents from the Crown, and it has been found impossible to identify the original line, but two certain points have been recorded in the Crown lands department, tfie proper course is to run a straight line between the two certain points. R. S. Q. art. 4155. Bell's Asbestos Co. v. Johnson's Co., xxiii., 225. 4. Encroachment — Mistake of title — Good faith — Common erroi Res judicata — Arts. 4U, 413, 429 et seq., 1041, 124I G. G.~In- demnity — Demolition of works.] — Where, as the result of a mutual error respecting the division line, a proprietor had in good faith, and with the knowledge and consent of the owner of the adjoining lot, erected valuable buildings upon his own property, and it after- wards appeared that his walls encroached slightly upon his neighbour's land, he cannot be compelled to demolish the walls which ex- tend beyond the true boundary or be evicted from the strip of land they occupy, but should be allowed to retain it upon payment of a reasonable indemnity. — In an action for re- vendication under such circumstances the judgment previously rendered in an action en homage between the same parties cannot be. set up as res judicata against the defendant's claim to be allowed to retain the ground en- croached upon by paying reasonable indem- nity, as the objects and causes of the two actions were different. — An owner of land need not have the division lines between his property and contiguous lots of land estab- lished by regular homage before commencing to build thereon when there is an existing line of separation which has been recognized as the boundary. Delorme v. Cusson, xxviii., 66. 5. Concession line — Survey — Evidence.] — In an action en homage between E. the owner of lots 7, 8 and 9, in the tenth concession of the Township of Bardley, Que., and S., the owner of like numbered lots, in the ninth con- cession, the question to be decided Was the location of the line between the two conces- sions, B. claiming that it should be one straight line, to be traced from the south- easterly angle of lot 14, in the tenth conces- sion easterly on a course S. 87° 30' E. to the town line between Eardley and Hull, while S. claimed that as to the lots in question it was about a quarter of a mile north of where the straight line would place it. A survey of part of the line was made in 1828 and the remain- der in 1850, and in 1892 the whole line was surveyed again, and the result was held by the court below to establish it in accordance with the claim of E. In 1867 there was a private survey which established the line further north as claimed by S., who contended that it, and not the survey in 1892, was a retracing of the original line. Held, aiBrming the judg- ment of the Court of Queen's Bench, Strong, C.J., dissenting, that the original surveys were made in accordance with the instructions to the surveyors and established the straight line as the true concession line ; that the survey in 1892 was the only one which retraced, the 211 BREACH OF PEIVILEGE. 212 original line in an efficient and legal manner ; and that the evidence failed to support the contention that it was retraced in 1867, such contention depending on assumptions as to the manner in which the original surveys were made which the courts would not be justified in acting upon. Spratt v. E. B. Eddy Co., xxix., 411. 6. Title to land — Trespass — Overhanging roof — Bight of view — Evidence — Boundary line — Servitude.'] — In 1844 the defendants constructed a toll-house close to or on the boundary of their land with windows over- looking an adjoining vacant lot, and a roof projecting over it by about three feet. This wa-s done with the knowledge and consent of persons who were then proprietors, and was not objected to by them or any subsequent owner till after the purchase of the lot by the plaintiff in 1895. when he complained that the overhanging roof interfered with the gable of a house he was building upon it. He cut the roof to permit of the construction of the gable and defendants paid the costs of the necessary alteration. In 1900 the plaintiff in- stituted the present action against defendants to have the remaining projection of the roof demolished and the windows closed up. There was no evidence that there had ever been a division line establisned between the proper- ties and the actual width of the land pur- chased and taken possession of by the plain- tiff in 1895 was left in uncertainty. Held, affirming the judgment appealed from. Strong, C.J., dissenting, that the plaintiff had not /Satisfied the onus that was upon him of proving title to the strip of land in dispute and consequently that his action could not be maintained. Parent v. Quehec North Shore Turnpike Road Trustees, xxxi., 556. 7. Railways — Construction of deed — Loca- tion of permanent way — Laying out bounda- ries — Fencing — Riparian rights — Notice of prior title — Registry laivs — Possession — Ac- quisitive prescription.'] — In the conveyance of lands for the permanent way the deed de- scribed lands sold to the railway company as bounded by an uu-navigable stream, as " selected and laid out " for the railway. Stakes were planted to shew the side lines, but the railway fences were placed inside the states above the water's edge and the vendor was allowed to remain in possession of the strip of land between the fence and the middle of the bed of the stream. The deed was duly registered, and subsequently, the vendor sold the rest of his property including water rights, mills, and dams constructed in the stream to defendant's auteur, described as " including that part of the river which is not included in the right of way, etc." Held, 1. that the description in the deed included, ex jure na- tures, the river ad medium filum aqua;, and that the company's title thereto could not be defeated by the subsequent conveyance, not- withstanding that they had not taken physical possession of all the lands described in the prior conveyance to them ; 2. that the failure of the vendor to deliver the full quantity of land sold by him to the company, and their abstention from troubling him and his gran- tees in possession of the same could not be construed as conduct placing a construction upon. the deed different from its clear and un- ambiguous terms or as limiting the area of the property conveyed so as to exclude the strip outside the fences, or the bed of the stream ad medium filum j and 3. that such possession bv the vendor and his assigns was not possession which could ripen into a title by acquisitive prescription of the property in question, Massawippi 'Valley By. Co. v. Reed, xxxiii. 457. 8. Riparian rights — Plan of subdivision — Specific description — Evidence to explain plan. See Title to Land, 129. 9. Title to land — Old grant — Metes and bounds — Starting point. ' See Stjbvbt, 1. 10. Trespass — Title to land — Easement — Agreement at trial — Estoppel. See User, 1. 11. Reference to surveyors — Formal pro- ceedings — Old line. See Sttevet, 2. 12. Matter in controversy — Injunction — Jurisdiction. See Appeal, 46. 13. Sale of land — Representation as to boundaries — Description — Executed con- tract — Deficiency — Fraud — Compensation. See Vendor and Purchaser, 21. 14. Title to land — Boundaries — Road al- lowance — Evidence — Appreciation of testi- mony. See Title to Land, 101. 15. Agreement respecting lands — Bound- aries — Referee's decision — Arbitration — Arts. 941-945 and 1341 et seq. C. C. P. See Arbitrations, 18. 16. Title to land — Action en bornage — Sur- veyor's report — Judgment on — Acquiescence in judgment — Chose jugee. See Title to Land, 135. 17. Appeal — Action en bornage — Future rights — Title to lands — R. S. C. c. 135 s. 29 (6)— 54 <& 55 Vict. c. 25, s. 9—56 Viet. e. 29, s. 1. See Appeal, 72. 18. Boundary marks — Possessory action — Delivery of possession — Vacant lands. See Evidence, 172. 19. Description of lands — Construction of deed — Cadastral plans — Metes and bounds- Possession. See,TiTLE to Land, 87. 20. Municipal corporation — Construction of sidewalk — Trespass — Action en bornage — Petitory action — Amendment of pleadings — Practice — Ceasing litigation — R. S. 0. c. 135, s. 65. See Action, 171. BREACH OF PRIVILEGE. Trespass — Assault — Legislative assembly — Powers — Punishment for contempt — Removal of member from his seat — Action against speaker and members ■ — Damages.] — W., a member of the Legislative Assembly of 313 BEOKER. 214 Nova Scotia, on the 16th April, 1874, charged the provincial secretary, without being called to order for doing so, with having falsified a record. The charge was subsequently investigated by a committee of the House, who reported that it was un- founded. Two days after the House resolved, that, in preferring the charge without suffi- cient evidence to sustain it, W. was guilty of a breach of privilege. On the 30th April. W. was ordered to make an apology dictated by the hovise, and, having refused to do so, was declared, by another resolution, guilty of a contempt of the House, and requested forth- with to withdraw until such apology should be made. W. declined to withdraw, and there- upon another resolution was passed ordering the removal of W. from the House by the sergeant-at-arms, who, with his assistant, en- forced such order and removed W. W. brought an action of trespass for assault against the speaker and certain members of the House, and obtained a verdict of $500 damages. Held, affirming the judgment of the Supreme Court of Nova Scotia, that the Legislative Assembly of the Province of Nova Scotia has, in the absence of express grant, no power to remove one of its members for contempt, unless he is actually obstructing the business of the House ; and W. having been removed from his seat, not because he was obstructing the busi- ness of the House, but because he would not repeat the apology required, the defendants were liable. Kielley v. Carson (4 Moo. P. C. 63), and Doyle v. Falconer (L. R. 1 P. C. 328), commented on and followed. Landers V. Vt oodicorth, ii., 158. BREAVEBS. See Liquor Laws. BRIBERY. Fraudulent preference — Illegal iconsidera- Hon — Assignment hy insolvent — Payment hy inspector.'] — ^An agreement for a payment to an inspector of an insolvent estate to in- fluence his consent to an arrangement which is not for the general benefit of the creditors is a bribe which is, in itself, sufficient reason to adjudge the transaction, to induce which it was given, corrupt, fraudulent and void. Brigham v. Banque J acques-C artier, xxx. 429. BRIDGES. 1. Jurisdiction of county council — Streams over one hundred feet wide — Ontario 2Iuni- rApal Act—R. S. O. (1887) c. 184, ««■ 532, 534. See Municipal Cobpobations, 109. 2. Toll lridge~8 Vict. e. 90 (Can.)—Lia- lility of Province of Canada — Indemnity — Remedial process. See Statute, 154. BRITISH COLUMBIA COUNTY COURTS. See Constitutional Law, 22. BROKER. 1. Sale of land — Refusal to carry out ver- bal agreement — Defective title — Instructions to agent — Contract in writing — Commission on sale.] — About 1st Jan., 1882, appellants, real estate agents in Winnipeff. received verbal instructions from respondents to sell land. On 13th Jan., the appellants sold the land at the price named, receiving from the pur- chasers $5,000 as deposit on account of pur- chase money. On the day the appellants sold the land, C. one of respondents, was informed of the sale, and demanded and received from appellants the $5,000. On 14th Jan., ap- pellants received instructions from the re- spondents to sell another 10 acres, which on 15th Jan., appellants, as agents sold at the price authorized, but the formal agreement was closed by B. with C, to whom $1,500 on account of the purchase was paid. Prior to the expiration of 20 days, within which the balance was to be paid, the purchasers discov- ered that the patent for a portion of the land had not been issued and, on account of want of title in respondents, purchasers refused to complete their nurchase and from the absence of a writing signed by them they could not be compelled to do so. Appellants brought ac- tion for $1,365, commission upon the entire purchase money. Respondents pleaded that appellants promised to sell the lands, and complete such sale by preparing the necessary agreement in writing to make a binding con- tract with purchasers. The jury, following the charge of the Chief Justice, found for plaintiffs for the full claim, 2%% upon the entire purchase money of both parcels. This verdict was reduced to $125, commission at 2%% on the $5,000 actually paid or, alterna- tively, a new trial was ordered without costs. Held, (Strong, J., dissenting) that there had been a mis-trial, and that therefore the order for a new trial should be affirmed. — Per Henry, J. It was the duty of the appellants to take from the purchasers a binding agree- ment under the statute : and having neglected to do so, they were not entitled to any com- pensation. — Per Strong. J., dissenting. The appellants did all they were bound to do, and earned their commission by finding the pur- chasers, and did nothing and omitted nothing which amounted to misfeasance or nonfeas- ance disentitling them to the commission which they had earned. McKenzie v. Cham- pion, xii., 649. 2. Principal and agent — Speculating in stocks — Instructions to iroker — Honey paid for margins — Action.] — S., a speculator in stocks, instructed F., a stock broker, to pur- chase shares, expecting a profit out of a rise in the value of the stock. Held, affirming the judament appealed from (15 Out. App. R. 541), that the relation between S. and P. was that of principal and agent, and F. was bound to purchase the stock and hold it as the prop- erty of S. He could not rely- on his ability to procure a like number of shares when re- quired, as his interest would be to depreciate their value so as to obtain them cheaply, which would conflict with his duty to S. — F. being about to retire from business as a stock- broker, handed over his stock transactions, including that with S. to C, to which S. consented. C. acknowledged to S. having re- ceived from F. the amount paid for margins on the stock which F. was instructed to ' buy, neither F. nor C. having purchased the stock and set it apart as the property of S. Held, affirming the judgment appealed from, that 215 BUILDING SOCIETY. 216 C. was liable in an action for money had and received, to refund to S. the amount so paid for margins. Cox v. Sutherland, 18th Nov., 1887, 24 C. L. J. 55 ; Cass. Dig. (2 ed.) , 9. 3. Principal and agent — Stock exchange custom — Sale of shiires — Marginal transfer — Undisclosed principal— Acceptance — " Settle- ment " — Obligation of purchaser — Construc- tion of contract — " The Bank Act," R. S. C. ■c. 120, ss. 70-77 — Liability of shareholders.'] — The defendant, a broker doing business on the Toronto Stock Exchange, bought from 0., an- other broker, certain bank shares that had been sold and transferred to C. by the plaintiff. At the time of the sale C. was not aware that the defendant was acting for an undisclosed prin- cipal and the name of a principal was not disclosed within the time limited for " settle- ment " of transactions by the custom of the exchange. The transferee's name ,was left blank in the transfer book in the bank, but it w^s noted in the margin that the shares were subiect to the order of the defendant who, three days after settlement was due ac- cording to the custom of the exchange, made a further marginal memorandum that the shares were subject to the order of H. The affairs of the bank were placed in liquidation within a month after these transactions and, the plaintiff's name being put upon the list of contributories, he was obliged to pay double liability upon the shares so transferred under the provisions of " The Bank Act," for which he afterwards recovered judgment against C. and then, taking an assignment of C.'s right of indemnity against the defendant, insti- tuted the present action. Held, that as the defendant had not disclosed the name of any principal within the time limited for settle- ment by the custom of the Exchange and the shares had been placed at his order and dis- position by the seller, he became legal owner thereof without the necessity of any formal acceptance upon the transfer books, and that he was obliged to indemnify the seller against all consequences in respect of the ownership of the shares, and the double liability imposed under the provisions of " The Bank Act." Boultoee v. Qzowski, xxix., 54. BUILDER'S lilEN. See Lien. BUILDINGS AND ERECTIONS. Lessor and Lessee — Water lots — Filling in — " Buildings and erections " — " Improve- ments." See Lessor and Lessee, 2. BUILDING SOCIETY. 1. Objects and purposes — Powers — Loan transaction — By-law — C. S. L. 0. c. 69 — Pur- chase of landr-rVltra vires.!, — A building so- ciety incorporated under C. S. L. C. c. 69, by by-law, declared that its principal object was to purchase building lots, and build on such lots cottages costing about $1,000 each for every one of its members. The society on 7th Oct.. 1874, purchased the lots described and contracted for the cottages at $1,250 each, the amount that each of the shareholders had agreed to pay. A year elapsed during which the cottages were built and drawn by lot for distribution among the members. On 11th Oct., 1875, the vendors of the lots and contractors for the building of the cottages, being shareholders in the Dominion Building Society, borrowed money from the latter so- ciety, and transferred to the same, as col- lateral security, the moneys due them by the appellants in virtue of the deeds of purchase and building contract. The appellant com- pany accepted the transfer and paid some moneys on account, and finally a deed of settle- ment, (acte d? reglement de comte) , was ex- ecuted between the two companies, upon which was based the suit against the appellants, brought by H., as assignee of the Dominion Building Society. Reld, affirming the judg- le mdg-, • 175), ment appealed from ( 3 Dor. Q. B Strong and Gwynne, JJ., dissenting, that the transaction in question was within tte ob- jects and purposes for which the society was incorporated, and was therefore not ultra vires. Compagnie de Villas du Cap Gibraltar V. Hughes, xi.. 537. 2. Pledge — Redemptionr— Transfer of shares — Indebtedness of transferrer — Right of so- ciety to hold shares — C. S. L. G. •c. 69 — Arts. 1970, 1981, C. 0.]— A by-law of a build- ing society required that a shareholder should satisfy all his obligations to the society before he should be at liberty to transfer his shares. P., a director, in contravention of the by-law, induced the secretary to countersign a trans- fer of his shares to a bank as collateral se- curity for money borrowed, and it was not till P.'s assignment for benefit of creditors that the other directors knew of the trans- fer., At the time of his assignment P. was indebted to the society in $3,744, for which, under the by-law, his shares were charged as between him and the society. The society immediately paid the bank and took an as- signment of the shares and of P.'s debt. The shares being worth more than the amount due to the bank, the curator to the insolvent estate of P. claimed the shares as part of the estate, and with action tendered the amount due by P. to the bank. The society claimed the shares were pledged to them for the whole amount of P.'s indebtedness to them under the by-laws. Held, reversing the judgment ap- pealed from, (M. L. R. 7 Q. B. 417), Four- nier and Taschereau, JJ., dissenting, that the shares had always remained charged under the by-laws with P.'s debt to the society, and that his creditors had only the same rights in respect of these shares as P. himself had when he assigned, viz., to get the shares upon payment of P.'s debt to the society. SocUU Canadienne Francaise de Construction de Montreal v, Daveluy, xx., 449. 3. Participating borrowers — Shareholders — C. S. L. G. c. 69— m & iS Vict. -c. S2 (Q.) — Liquidation — • Expiration of classes — As- sessments on loans — Notice of — Interest and bonus — Usury laws — C. S. C. c. 58 — Art. 1785 C. C. — Administrators and trustees-- Sales to — Prete-nom — Art. 1484 G. 0.1— S- applied to a building society for a loan of $3,500, which was subsequently advanced to him upon signing a deed of obligation and hypothec submitting to the conditions and rules applicable to the society's method or carrying on its loaning business and declar- ing that he had become a subscriber for shares in the company's stock for an amount corres- ponding to the amount of tt^e loan, namely 217 BY-LAW. 218 70 shares of the nominal value of $50 each in a class to expire after 72 monthly payments, or in six years from the date of its commence- ment (July, 1878), this term corresponding with the term fixed for the repayment of the loan. He thereby also agreed to make monthly payments of one per cent, each upon the stock, and that the loan should be repaid at the expiration of the class, when, upon the liquidation of the business of that class, mem- bers would be entitled to the allotment of their shares subscribed as paid up, partly by monthly Instalments, and partly by ac- cumulated profits to be derived from whatever moneys had been paid in and invested for the benefit of that class, at which time whatever he might be so entitled to receive in shares of stock should be credited towards the re- imbursement of the loan. He further obliged himself to pay. as interest and bonus, the additional sum of one per cent, upon the loan by similar ihonthly instalments during the time it remained unpaid. S. paid all the instalments by semi-annual payments of $420 each until 1st May, 1884, making a total of seventy monthly instalments of $70 each, leav- ing two more instalments of each kind still to become due before the date originally fixed for the termination of his class. The society went into liquidation under the provisions of 42 & 43 Vict. c. 32 (Que.), in January, 1884, nrior to A.'s last payment and about six months before the date fixed for the expira- tion of his loan. In October, 1884, the liquid- ators of the society, in the exercise of the powers vested in the directors under the deed and the society's regulations, passed a resolu- tion declaring a deficit in the business of the class to which A. belonged, and, in order to provide the necessary funds to meet the pro- portion of deficit attributed as his share, they thereby exacted from him a further series of twenty-eight monthly payments in addition to the seventy-two instalments contemplated at the time of the execution of the deed. Subsequently (in 1892), the plaintiff, as transferee of the society, brought action for the two original instalments remaining un- paid, and also for the amount of the twenty- eight additional monthly payments upon the loarK and the subscription of shares. Held, reversing the judgment of the Court of Queen's Bench, that the subscription for shares and the obligation undertaken in the deed constituted, upon the part of the bor- rower, merely one transaction involving a loan and an agreement to repay the amount advanced with interest and bonuses thereon amounting together to a rate equivalent to interest at twelve per centum per annumy on the amount of his loan ; that the contract made by the building society stipulating that they were to receive such rate of interest and bonus, equivalent to rate of twelve per centum per annum on the amount so loaned by the society, was not a violation of any laws respecting usury in force in the Province of Quebec ; that the fact of the building so- ciety going into liquidation had the effect of causing all classes of loans then current to expire at the date when the society was placed in liquidation, notwithstanding that the var- ious terms for which such classes may have been established had not been fuUv completed ; that under the provisions of the statute, 42 & 43 Vict. c. 32, liquidators have the same powers in regard to the determination of the affairs of expired classes, and to declare de- ficits therein, and to call for further payments to meet the same, as the directors of the society had while it continued in operation ; that the notice required by the twenty-first section of the Act, 42 & 43 Vict. c. 32, does not apply to cases where liquidators have determined a loss upon the expiration of a class, and required the full amount exigible upon loans to be paid by borrowers ; that, notwithstanding that the liquidation proceed- ines deprived the directors of the exercise of their powers as to the determination of the condition of the affairs of a class, and the ex- action of further payments when exigible in such cases on the expiration of a class, the resolution of the liquidators determining a deficit in the borrower's class and requiring full payment of all sums exigible under his deed of obligation was suflBcient to constitute a valid right of action against the borrower for the amount of the balance of principal money loaned together with the interest and bonus instalments remaining due thereon ac- cording to the terms and conditions of his deed of obligation. Held, further, affirming the decisions of both courts below that, in an action where no special demand to that effect has been made, the court cannot de- clare the nullity of a. deed of transfer alleged to have been made in contravention of the provisions of article 1484 of the Civil Code. Guertin v. Sansterre, xxvii., 522. BY-LAW. 1. Appeal, 1, 2. 2. Assent, 3-5. 3. Assessments, Rating and Taxation, 6-12. 4. Bonuses and FsANCHisE'fe, 13-18. 5. Drainage, 19-21. 6. Joint Stock Companies, 22, 23. 7. Local Impeovements, 24-26. 8. By-laws Generally, 27-34. 1. Appeal. 1. Petition to quash — R. 8. Q. art. Right of appeal — R. S. G. c. 135, s. 2^ (g). See Appeal, 60. 2. Petition to quash hy-law — Appeal to Court of Queen's Bench — Judgment quashing ■ — Appeal to Supreme Court — R. 8. C. c. 135, s. 24 (g). See Appeal, 66. 2. Assent. 3. Vote on by-law — Construction of statute — Special Act — Repeal by general Act — Re- peal by implication.'] — A general later statute (and a fortiori a statute passed at the same time) does not abrogate an earlier special Act by mere implication. The law does not allow an interpretation that would have the effect of revoking or altering a special enactment by the construction of general words, where the terms of the special enactment may have their proper operation without such in- terpretation. City of Vancouver v. Bailey, XXV., 62. 4. Municipal corporation — By-law — Con- struction of statute — Art. 4529, R. 8. Q. — 219 BY-LAW. 220 Approval of electors^— Appeal as to casts.} — Under the provisions of art. 4529 R. S'. Q. money by-laws for loans by town corpor- ations require the approval of the majority both in number and in value of the munici- pal electors who are proprietors of real estate within the municipality, as ascertained from the municipal rolls. Town of Chicoutimi v. frice, xxix., ISa^ 5. Casting vote—R. S. 0. (1887) c. 174, ss. 132, 199. See Municipal Corporation, 54. 3.. Assessments, Rating and Taxation. 6. Assessment and taxes — Exemption from municipal rates — School rates.} — By-law No. 148 of the City of Winnipeg, passed in 1881, exempted forever the C. P. R. Co., from " all municipal taxes, rates and levies and assessments of every nature and kind." Held,, reversing the judgment of the Court of Queen's Bench (12 Man. L. R. 581) that the exemption included school taxes. — The by-law also provided for the issue of debentures to the company, and by an Act of the Legisla- ture, 4ti & 47 Vict. c. 04, it was provided that by-law 148 authorizing the issue of de- bentures granting by way of bonus to the C. I^. R. Co., the sum of $200,000 in consid- eration of certain undertakings on the part of the said company ; and by-law 195 amend- ing by-law No. 148 and extending the time for the completion of the undertaking . . . be and the safhe are hereby declared legal, binding and valid . . . Held, that not- withstanding the description of the by-law in the Act was confined to the portion relat- ing to the issue of debentures the whole by- law including the exemption from taxation, was validated. Canadian Pacific Ry. Co. v. City of Winnipeg, xxs., 558. 7. Ultra vires — License tax — Discrimina- tion between residents and non-residents — 33 Vict. c. 4 {N. B.). See Municipal Corporation, 1. 8. ilunicipal council — Power to license, re- gulate and govern trade — Partial prohibition — Repugnant provisions — Ontario Municipal Act, B. S. 0. (,1887) c. ISJf. See Municipal Corporation, 47. 9. City of Toronto — Water supply — Rates to consumers — Discrimination in rates — Gov- ernment buildings. See JIUNiciPAL Corporation, 199. 10. Sale of liquoi — Cumulative taxes — Spe- cial tax. See Municipal Cokporation, 4. 11. Railway aid — Debentures — jSo^c of shares at discount — Trustee — Debtor and cre- ditor — Division of county — Erection of new municipalities — Assessment — Artian en rrddi- tion de comptes — .irts. 78. 164, 939 Mun Code, Que.— 24 Met. c. 30 (Que.)— 39 Viet. c. 50 (Que.). See Municipal Corporation, 62, 12- Municipal corporortian — Railways Taxation. See Assessment and Taxes, 14, 4. Bonuses and Franchises, 13. Bonus — By-law — Conditions of — Con- ditional mortgage.} — By a by-law passed by the City of Three Rivers on the 3rd March 1886, granting a bonus of $20,000 to a firm for establishing a sawmill and a box factory within the city limits, and a mortgage for a like amount of $20,000 granted by the firm to the corporation on the 26th of November, 1886, it was provided that the entire estab- lishment of a value equivalent to not less than $75,000 should be kept in operation for the space of four consecutive years from the beginning of said operation, and that 150 people at least should be kept employed dur- ing the space of five months of each of the four years. The mill was in operation in June, 1886, and the box factory on the 2nd November, 1886. They were kept in oper- ation, and at least six hundred men were em- ployed in both establishments during that time. On a contestation, by subsequent hypo- thecary claimants, of an opposition afin de conserver, filed by the corporation for the amount of their conditional mortgage on the proceeds of sale o;^ the property. Held, re- versing the judgments of the courts below, that even if the words " four consecutive years " meant four consecudve seasons, there was ample evidence that the whole establish- ment was not in operation as required until November, 1886, when the mortgage was granted, the mill only being completed and in operation during that season, and therefore there had been a breach of the conditions. Pournier, J., dissenting. City of Three Rivers V. Banque du Peuple, xxii., 352. 14. Municipal corporation — Railway aid — Subscription for shares — Debentures — Divi- sion of county — ilrection of new separate municipalities — 34 Vict. c. SO (Que.) — Arts. 78, 164, 639 Que. Man. Code— 39 Vict. c. 50 (Quc.\ — Assessment — Sale of shares at dis- count — Action en reddition de comptes — Tns- tee — Debtor and creditor.] — The relation ex- isting between a county corporation and the local municipalities of which it is composed, in respect to money by-laws, is not that of an agent or trustee,v but the county corpor- ation is the creditor and the several local corporations are its debtors for the amount of taxes to be assessed upon their ratepayers respectively. — "Where several local municipali- ties formerly constituting part of a county municipality have been detached therefrom and erected into separate corporations they remain in the same position in regard to sub- sisting money by-laws as they were before the division, having no further rights or obliga- tions than if they had ne\er been separated, and they cannot, either conjointly or individu- ally, institute actions against such county cor- poration to compel the rendering of special ac- counts of the administration of funds realized upon the sale of county debentures issued be- fore the separation, their proper method of obtaining necessary information being that provided by article 164 of the JIunicipal Code and through the other facilities afforded local municipalities by the Code. Township of Ascot V. County of Compton. Village of Len- noxville v. County of Compton, xxix., 228. 231 CANADA, PROVINCE OF. 233 15. Railway bonus — ^'alidating statute — Remedy at law — Mandamus. See Municipal Corporation, 37. IG. Municipal corporation — Street railway — Construction beyond limits of municipality — Validating Act. See Municipal Coeporation, 42. 17. Construction of statute — By-law — Ex- clusive rights — Statute confirming — Extension of privilege — C. f policy — Assignment — Consent in writing. See Insueance, Fire, 19. 24. Mortgage of goods insured — Condition against assigning policy — Breach. See iNSUEAJsrcE, Fiee, 24. 25. Mortgage on goods insured — Condition against sale, transfer or change of title- Breach. See iNstrKAJsrcE, Pibe, 25. CHEMISTS. ySee Pharmacy. CHEQUES. See Banks and Banking. CHOSE IN ACTION. 1. Assignment — Action iy assignee — Statutory notice — R. S. N. S. (i ser.) c. 9J,. ss. 355. 357.]— R. S. N. S. (4 ser.) c. 94, s. 355, authorizes the assignee of a chose in action in certain cases to sue thereon in the Supreme Court as his assignor ' might have done, and s. 857 provides that before such ac- tion is brought a notice in writing, signed by the assignee, his agent or attorney, stating the right of the assignee and specifying his de- maud thereunder, shall be served on the party 245 CIVIL SEEVICB. 346 to be sued. Pursuant to this section the as- signee o£ a debt served the following notice: "Pictou, November 21st, 1878, Alex. Grant, Esq. : Admin. Estate of Alexander McDonald, deceased. Dear Sir, — You are hereby notified in accordance with c. 94 of the revised sta- tutes, s. 357. that the debt due by the above estate of Pinlay Thompson has been assigned by him to Alexander D. Cameron, who here- by claims payment of twelve hundred dollars, the amount of the said debt so assigned to him. S. H. Holmes, attorney for Alex. D. Cameron." — Seld, aSirming the judgment ap- pealed from (23 N. S. Rep. 50). that the no- tice was a sufficient compliance with the sta- tute. Grant v. Cameron, xviii., 716. 2. Will — Devise of all testator's property — Deit due 'by devisee/] — A devise of all " my real estate and property whatsoever and. of what nature and kind soever " at a place named does not include a debt due by the de- visee, who resided and carried on business at such place, to the testator, — (4 Ont. L. B. 682 affirmed.) Thome v. Thome, xxxiii., 309. 3. Assignment — Indorsement of order for money — Absolute transfer — Account. See Pbactice and Peooedtjee, 4. 4. Chattel mortgage — Mortgagee in posses- sion — ■ negligence — Wilful default — Sale under powers — " Slaughter sale " — Assign- ment for benefit of creditors — Revocation. See Sale. 40. 5. Revocation of assignment — Suit by as- Re-transfer of chose in action. See Chattel Moetgage, 22. CHOSE JUGEE. See Res Judicata. CHURCHES. 1. Rights of pew-holder — Disturbance in possession — Action for tort — Measure of damages. See Action, 41. _ 2. Lien for church rates — Hypothecary ac- tion — Future rights — Charge on lands. See AppbaLi 21.' 3. Presbyterian Church in Canada — Trustees — " Union Act of 1875 " — Recovery of church property. See AcTioisr, 119. 4. Decision of domestic tribunal — Confer- ence of Methodist Church — Chiurch discipline. See Appeal, 138. _ 5. Will ■ — ■ Condition of legacy — Religious liberty — Restriction as to marriage ■ — Edu- cation — Exclusion from succession — Public poUcy. See Public Policy, 1. CHURCH FUND. Diocesan society — Support of clergymen — Participation. See Benefit Society, 1. CHURCH LANDS. Interest of vestry — Rector and wardens — Rectory endowments — Rectory lands — 29, 30 Vict. c. 16 — Construction,'] — Held, affirming the judgment of the courts below, that the lands in question in this case were rectory lands within the meaning of the Act, 29 & 30 Vict c. 16, entitled " An Act to provide for the sale of rectory lands in this province." — Held, also, that the lands were held by the rector of the Church of St. James, in the City of Toronto, as a corporation sole for his own use, and not in trust for the vestry and church wardens or parishioners of the rectory or parish of St. James, and such vestry and church wardens had therefore no locus standi in curia with re- spect to said lands. Du Moulin v. Langtry, xiii., 258. (Appeal to the Privy Council was refused— 57 L. T. (N. S.) 17.) CHURCH SOCIETY. See Clergy. CIRCUIT COURT. Appellate jurisdiction causes of Supreme Court. See Appeal, 109 CIVIIi PROCEDURE. See Practice and Peoceduee- Peoceduee — Peactice COUET. -Code of Civil OF Supreme CIVIL RIGHTS. B. N. A. Act, 1867 — Powers of legislation — Provincial courts — Procedure — Dominion Controverted Elections Act, 1874 — Dominion courts. See Constitutional Law, 12. , CIVIL SERVICE. 1. Construction of statute — R. S. C. c. 18 — Abolition of office — Discretionary power — Jurisdiction.] — Employees in the civil service of Canada who may be retired or removed from office under the provisions of the eleventh section of "The Civil Service Superannuation Act" (R. S. C. c. 18), have no absolute right to any superannuation allowance under that section, such allowance being by the terms of the Act entirely in the discretion of the exe- cutive authority. Balderson v. The Queen, xxviii., 261. 2. Extra salary — Additional remuneration — Permanent employees — 51 'Vict. c. 12, s. 51. See Statute, 63. And see Pension de Retraite. 347 COMMISSION. 348 CLERGY. Stipend — Commutation fund — Member of Synod — Trust — Vested rights — By-law — Chiurch society.'] — The sum received for com- mutation under tlie Clergy Reserve Act was paid to the Church Society of the Diocese of Huron, upon trust to pay to the commuting clergy their stipends for life, and when such payment should cease then " for the support and maintenance of the clergy of the Diocese of Huron in such manner as should from time to time be declared by any by-law or by-laws of the synod to be from time to time passed for that purpose." In 1860, a Dy-Iaw was passed providing that out of the surplus of the commutation fund, clergymen of eight years and upwards active service should receive each $200, with a provision for increase in certain events. In 1873, the plaintiff became entitled under this by-law, and in 1876 the synod (the successors of the Church Society) repealed all previous by-laws respecting the fund, and made a different appropriation of it. — Held, afiBrm- ing the Court of Appeal for Ontario ( 9 App. R. 411), (Pournier and Henry, JJ., dissenting), that under the terms of the trust there was no contract between the plaintiff and defendants ; the trustees had power, from time to time, to pass by-laws regulating the fund in question and making a different appropriation of it for the support and maintenance of the clergy of the diocese, and the plaintiff must be assumed to have accepted his stipend with that know- ledge and on that condition. Wright v. Synod of the Diocese of Huron, xi., 95. CODICIL. 1. Will — Revocation — Revival — Intention to revive — Reference to date — Removal of exe- cutor — Statute of Mortmain — Will executed under mistake — Ontario Wills Act, R. S. O. (1887) c. 199—9 Geo. II. c. 36 (Imp.)]— A will which has been revoked cannot, since the passing of the Ontario Wills Act (R. S. O. [1887] c. 109), be revived by a codicil unless the intention to revive it appears on the face of the codicil either by express words referring to the will as revoked and importing such in- tention, or by a disposition of the testator's property inconsistent with any other intention, or by other expressions conveying to the mind of the court, with reasonable certainty, the ex- istence of the intention in question. — A refer- ence in the codicil to a date of the revoked will, and the removal of the executor named therein, and substitution of another in his place will not revive it. — Held, per King, J., dissenting, that a codicil referring to the re- voked will by date and removing an executor named therein is sufficient indication of an in- tention to revive such will, more especially when the several instruments are executed un- der circumstances shewing such intention. Macdonald Y. Purcell: Cleary v. PurcelLxxiu., 101. 2. Will — Devise to two sons — Devise over of one share — Condition — Context — Codicil.] — A testator devised property " equally " to his two sons J. S. and T. G., with a provision that " in the event of the death of my said son T. G., unmarried, or without leaving is- sue," his interest should go to J. S. By a codicil a third son was given an equal interest with his brothers in the property, on a condi- tion, which was not complied with, and the de- vise to him became of no effect. — Held, revers- ing the decision of the Supreme Court of Nova Scotia, that the codicil did not affect the con- struction to be put on the devise in the will; that J. S. and T. G. took as tenants in com- mon in equal moieties the estate of J. S. being absolute, and that of T. G. subject to an ex- ecutory devise over in case of death at any time, and not merely during the lifetime of the testator. Cowan v. .Allen (26 Can. S. C. R. 292) followed. — Held, also, that the word " equal " indicated the respective shares which the two devisees were to take in the area of the property devised, and not the character of the estates given in those shares. Fraser v. Fraser, xxvi., 316. COGNOVIT ACTIONEM. Judgment in default of appearance — R. S. 0. (1817) c. 118. See Fraudulent Prefebence, 1. COLLISION. See Admiralty Law — Negligence — Ships AND Shipping. COLLOCATION. Contestations of report — Appeal — Amount in controversy — Pecuniary interest of appeU Unt—Arts. 7^6, 7Jt7 C. C. P. See Appeal, 68. COMITY. 1. International law — Puhlic policy — For- eign corporation — Contract in Canada — ODef- ating telegraph line — Exclusive privilege — Re- straint of trade.] — A foreign telegraph com- pany has a right to enter into a contract with a railway company in Canada for the exclusive privilege of constructing and operating a line of telegraph over the road of such railway company provided the contract is consistent with the purposes for which the foreign com- pany is incorporated and not prohibited by its charter nor by the laws of the Province of Canada in which the contract is made. The right of a foreign corporation to enter into such a contract, and carry on the business provided for thereby, is a right recognized by the comity of nations. Canadian Pacific By- Co. V. Western Union Telegraph Co., xvii., 151. 2. Foreign corporation — Carrying on i«s>- ness in Canada. See COMPANT Law, 2. COMMISSION. 3. Appeal — Evidence taken ly commission — Reversal on questions of fact.] — Where the witnesses have not been heard in the presence of the judge, but their depositions were taken before a commissioner, a Court of Appeal may deal with the evidence more fully than if the 249 COMMUNITY. 250 trial judge had heard it, or there had been a finding of fact by a jury, and may reverse the finding of the trial court if such evidence ■warrants it. Malzard v. Hart, xxvii., 510. 2. Examination of witnesses — Execution — ttirectory provisions — Defective return — Fail- ure to administer interrogatories- See Evidence, 7. 3. Security for financial assistance — Re- muneration for indorsement of note not dis- counted. See CoNTBACT, 254. 4. Receiving affidavits — Presumption of au- thority — Manitoba Newspaper Act. See AiTlDAViT, 1. COMMITMENT. Form of — Jurisdiction — Judicial notice — B. S. G. c. 135, s. 32. See Habeas Corpus, 7. COMMON EMPLOYMENT. 1. Injury to employee — Art. 1056 G. G. — Lialility.^ — ^The doctrine of common employ- ment does not prevail in the Province of Que- bec. The Queen v. Filion (24 Can. S. C. R. 482) followed. The Queen v. Grenier, xxx., 42. 2. Employers' liability — Arts. 1053, 1056, C. G. — Cause of accident.'] — As the doctrine of common employment does not prevail in the Province of Quebec, acts or omissions by fel- low servants of the deceased do not exonerate employers from liability for the negligence of a servant which may have led to injury. The Queen v. Filion (24 Can. S. C. R. 482) ; and The Queen v. Grenier (30 Can. S. C. R. 42) followed. Asbestos and Asbestic Go. v. Dur- and, XXX., 285. And see Master and Servant — Negli- gence. COMMON FAULT. See Negligence. COMMON WALL. See Partt Wall. COMMON SCHOOL FUND. Accounts of the Province of Ganada — Com- mon school fund and lands — Administration by Onta,rio — Remitting price of land sold — Default in collections — Withholding lands from sale — Uncollected balances — Jurisdiction of Dominion arbitrators.] — By the submission of 10th April, 1890, amongst other matters submitted to the Dominion arbitrators were the following: "(h) The ascertainment and determination of the principal of the common school fund, the rate of interest which would be allowed on such fund, and the method of computing suqh interest, (i) In the ascer- tainment of the amount of the principal of the said common school fund, the arbitrators are to take into consideration not only the sum now held by the Government of the Dominion of Canada, but also the amount for which Ontario is liable, and also the value of the school lands which have not yet been sold." The Province of Quebec claimed that Ontario was liable (1) for the purchase money of lands sold which may have been remitted by the Province of Ontario to the purchasers ; (2) for purchase moneys which might, if due diligence had been used, have been collected from the purchasers by Ontario, but which, owing to the neglect and default of the pro- vincial officers, have not been collected but have been lost ; (3) for lands which might have been sold but have not been sold ; and (4) for all uncollected balance of purchase money. Held, Gwynne, J., dissenting, that the Dominion arbitrators have jurisdiction, under the submission, to hear and adjudicate upon the claims so made by the Province of Quebec. The Province of Quebec v. The Pro- vince of Ontario and the Dominion of Gan- ada; In re Common School Fund and Lands, xxxi., 516. COMMUNITY. 1. Renunciation — Estoppel — Marchande publique — Prescription — Arts. 1319, 2191 C. G. —Art. 632 C. G. P. See Title to Land, 75. 2. Assets — Second community — Edit de secondes noces—Arts. 279, 282, 283 G. de P.— Arts. 77Jt. 1265, 1760 C. G. — Transfer to descendants. See Husband and Wife, 1. 3. Husband and wife — Liquidation of insol- vent estate — Action by heirs of deceased wife — Deposits in bank — Parties. See Principal and Agent, 20. 4. Continuation — Tripartite inventory — Prods-verbal de carence. See Husband and Wife, 6. 5. Husband and wife — Judicial separation as to property — Debts incurred by husband before dissolution of community — Obligation by wife— Art. 1301 G. G. — Nullity — Public policy. See Husband and Wife, 8. 6. Construction of deed — Propre de com- munaute — Sale of land to married woman without authorization. See Title to Land, 87. 7. Marriage contract — Universal community — Don mutuel — Registry laws — Construction of contract — Divisibility — Arts. 807, 819, 1411 C. C. See IMarriage Laws, 2. And see Husband and Wife. 251 COMPANY LAW. 253 COMPANY liAW. 1. Business, Objects, etc., 1-9. 2. Criminal Indictment, 10. 3. Deceit and Feaud, 11-12. 4. DiEEOTOES, ETC., 13-17. 5. Foreign Corporations, 18-20. 6. Forfeiture of Charter, 21-22. 7. incoepoeation and promotion, 23-27. 8. Seal, 28-31. 9. Shares and Shareholders, 32-52. 10. WiNDiNG-irp, 53-60. 1. Business, Objects, etc. 1. Limited liability — Towage contract — Saw- mill company — Collision — Merchant shipping.'] — Where there is nothing in the charter of a company incorporated for the purposes of a sawmill manufacturing business which would prevent it purchasing and owning a steam tug for use incidental to such business, the com- pany can validly enter into contracts for tow- age to be done by the tug and hire it for such purposes. Sewell v. B. C. Towing Co. and Moodyville Sawmill Co., ix., 527. 2. Foreign corporation — Telegraph company — Business in Canada — Contract foi — Exclu- sive right — Restraint of trade — Railway tele- graph — Puilic policy — Comity of nations.] — In 1869. E. & N. A. Ry. Co. owning a railway from St. John, N.B., to XJ. S. boundary, agreed with the W. U. Tel. Co. giving it the exclu- sive right for 99 years to construct and operate a line of telegraph over its road. In 1876 a mortgage on the road was foreclosed and the road itself sold under decree in equity to the St. J. and M. Ey. Co., which, in 1883, leased it to the N. B. Ry. Co. for 999 years. The telegraph line was constructed by the W. U. Tel. Co. under the agreement, and has been continued ever since without any new agree- ment being made with the St. J. and M. Ry. Co. or the N. B. Ry. Co. The W. U. Tel. Co. is incorporated by the State of New York for constructing and operating telegraph lines in the state. Its charter neither allows nor prohibits it engaging in business outside the state. In 1888 the C. P. Ry. Co. completed a road from Montreal to St. John, a portion of it having running powers over 'the N. B. Ry., on which the W. tJ. Tel. Co. had constructed its telegraph line. The N. B. Ry. Co. having given permission to the C. P. Ry. Co. to con- struct another telegraph line over the same road, the W. U. Tel. Co. obtained an injunc- tion. On appeal the Supreme Court of Can- ada — Held, 1. That the agreement of 1869 was binding on the present owners of the road. 2. That the contract made with the W. U. Tel. Co. was consistent with the purposes of its incorporation, not prohibited by its charter nor by the local laws of New Brunswick, and its right to enter into such a contract and carry on the business provided for thereby is a right recognized by the comity pf nations, 3. The exclusive right granted to the W. U. Tel. Co. does not avoid the contract as being against public policy, nor as being a contract in restraint of trade. — Per Gwynne, J., dis- senting. The comity of nations does not require the courts of the country to enforce, in favour of a foreign corporation, a contract depriving a railway company in Canada of the right to permit a domestic corporation, cre- ated for the purpose of erecting telegraph lines in the Dominion, to erect such a line upon its land, and depriving it of the right to construct a telegraph line upon its own land. Can. Pac. By. Go. v. Western Union Tel. Co., xvii., 151. 3. Joint stock company — Ultra vires con- tract — Consent judgment — Action to set aside.] — A company incorporated for definite purposes has no power to pursue objects other than those expressed in its charter, or such as are reasonably incidental thereto, nor to exercise their powers in the attainment of au- thorized objects in a manner not authorized by the charter. The assent of every share- holder makes no difference. — If a company en- ters into a transaction which is ultra vires and litigation ensues, in the course of which a judgment is entered by consent, such judg- ment is as binding upon the parties as one obtained after a contest, and will not be set aside because the transaction was beyond the power of the company. Charleiois v. Delap, xxvi., 221. 4. Banking — Bills of exchange and promissory notes — Discount iy president — Credit to com- pany's account — Payments out to company's creditors — Liability of company upon note given without authority — Bona fides.] — ^Where the president of an incorporated company made a promissory note in the company's name, without authority, and discounted it with the company's bankers, the proceeds be- ing credited to the company's account, and paid out by cheques in the company's name to its creditors, whose claims should have been paid by the president out of funds which he had previously misappropriated, the bankers, who had taken the notes in good faith, are en- titled to charge the amount thereof at ma- turity against the company's account. — ^Judg- ment of the Court of Appeal for Ontario (23 Ont. App. R. 66) affirmed. Bridgewater Cheese Factory Go. v. Murphy, xxvi., 443. 5. Incorporated company — Action against— Forfeiture of charter — Estoppel — Compliance with statute — Res judicata.] — In an action against a river improvement company for re- payment of tolls alleged to havu been unlaw- fully collected, it was alleged that the dams, slides, etc., for which tolls were claimed, were not placed on the properties mentioned in the letters patent of the company ; that the com- pany did not comply with the satutory re- quirement that the works should be completed within two years from the date of incorpora- tion whereby the corporate powers were for- feited ; that false returns were made to the Commissioner of Crown Lands upon which the schedule of tolls was fixed ; that the company by its works and improvements obstructed navigable waters contrary to the provisions of the Timber Slide Companies Act, and could not exact toll in respect of such works. By a consent judgment in a former action between the same parties it had been agreed that a valuator should be appointed by the Commis- sioner of Crown Lands, whose report was to be accepted in place of that provided for by the Timber Slide Companies Act, and to be acted upon by the commissioner in fixing the sche- dule of tolls. Held, affirming the judgment of the Court of Appeal for Ontario, that the 253 COMPANY LAW. 254 above grounds of impeacliment were covered by the consent judgment and were res judi- cata. Held, further, that the plaintiffs having treated the company as a corporation, using the works and paying the tolls fixed by the commissioner, and having in the present action sued the company as a corporation, were pre- cluded from impugning its legal existence by claiming that its corporate powers were for- feited.— By E. S. O. [1887] c. 160, s. 54, it was provided that if a company such as this did not complete its works within two years from the date of incorporation it should for- feit all its corporate and other powers " un- less further time is granted by the county or counties, district or districts, in or adjoining which the work is situate, or by the Commis- sioner of Public Works." SemMe, the non- completion of the work within two years would not, ipso facto, forfeit the charter, but only afford grounds for proceedings by the Attorney-General to have a forfeiture de- clared. — ^Another ground of objection to the imposition of tolls was that the commissioner, in acting on the report of the valuator ap- pointed under the consent judgment, errone- ously based the schedule 'of tolls upon the re- port as to expenditure instead of as to actual value, and the statement of claim asked that the schedule be set aside and a scale of tolls fixed. Held, that under the statute the sche- dule could only be allowed or varied by the commissioner and the court could not inter- fere, especially as no application for relief had been made to the commissioner. Hardy Lum- ier Go. v. Pickerel River Improvement Co., xxix., 211. 6. Powers — Erection of hooms — Impeding navigation — JfS Vict. c. 100 {N.B.) See CONSTITTJTIONAI, LAW, 66. 7. Building society — Oijects and purposes — By-law — Loan transaction — Powers — Ultra vires. See BtnLDiTTG Society, 1. 8. Manitoba Newspaper Act — Affidavit for corporate owner — Affirmation. See Libel, 4. 9. Constitutional law — Municipal corpora- tion — Potvers of legislature — License — Mon- opoly — Highways and ferries — Tolls — Navi- gable streams — By-laws and resolutions— ^In- termunicipal ferry — Disturbance of licensee — Club associations, companies and partnerships — North-West Territories Act, R. 8. C. c. 50, ss. 13 and 24— B. N. A. Act (1867). c. 92. ss. 8. 10, and 16— Rev. Ord. N. W. T. (1888) c. 28— N. W. T. Ord. No. 7 of 1891-2, s. 4. See CoN-STlTUTiONAi, Law, 27. 2. CBiMiisrAi, Indictment. 10. Criminal law — - Manslaughtet — Indict- ment against body corporate — Criminal Code, 8. 21S—Fine.] — Under s. 213 of the Criminal Code a corporation may be indicted for omit- ting, without lawful excuse, to perform the duty of avoiding danger to human life from anything in its charge or under its control. — The fact that the consequence of the omission to perform such duty might have justified an indictment for manslaughter in the case of an individual is not a ground for quashing the indictment. — As s. 213 provides no punishment for the offence the common law punishment of a fine may be imposed on a corporation in- dicted under it. — .Judgment appealed from (7 B. C. Rep. 247) affirmed. Union Colliery Co. V. The Queen, xxxi., 81. 3. Deceit and Fraud. 11. Promoters of company — Bond fide statement — Misrepresentation — Conceal- ment — Action ex delicto for deceit — Waiver — Prospectus — Misstatements — Rescission of contract.] — A suit brought against a joint stock company and four shareholders who had been the promoters, alleged that the defend- ants, other than the company, had been carry- ing on a lumber business as partners and had become embarrassed ; that they then concocted the scheme of forming a joint stuck company ; that the sole object of the proposed joint stock company was to relieve the members of the firm from personal liability for debts incurred in the business and induce the public to advance money to carry it on ; that application was made for a charter, and, at the same time, a prospectus issued which was set out in full in the bill ; that such prospectus contained the following paragraphs among others, which the plaintiffs alleged to be false : 1. The -timber limits of the company, inclusive of the recent purchase, consist of 222% square miles, or 142,400 acres, and are estimated to yield 200 million feet of lumber. 2. The interest of the proprietors of the old company in its as- sets, estimated at about $140,000 over liabili- ties, has been transferred to the new company at $105,000, all taken in paid up stock, and the whole of the proceeds of the preferential stock will be used for the purposes of the new company. 3. Preference stock not to ex- ceed $75,000 will be issued by the company to guarantee 8 per cent, yearly thereon to the year 1880, .and over that amount the net pro- fits will be divided amongst all the share- holders pro rata. 4. Should the holders of preference stock so desire the company binds itself to take that stock back during the year 1880 at par, with 8 per cent, per annum, on receiving six months' notice in writing. 5. Even with present low prices the company, owing to their superior facilities, will be able to pay a handsome dividend on the ordinary, as well as on the preference stock, and when the lumber market improves, as it must soon do, the profits will be correspondingly increased. — The bill further alleged that the plaintiffs subscribed for stock in the company on the faith of the statements in the prospectus ; that the assets of the old company were not trans- ferred to the new in the condition that they were in at the time of issuing the prospectus ; that the embarrassed condition of the old com- pany was not made known to the persons taking stock in the new company, nor that a mortgage on the assets of the old company had been given, after the prospectus issued, but before the stock certificates were granted ; that the assets of the old company were not worth $140,000, or any sum, over liabilities, but were worthless ; and prayed for a rescis- sion for the contract for taking stock, for re- payment of the amount of such stock, and for damages against the directors and promoters for misrepresentation, — There was evidence that the promoters had reason to believe the prospects for the new company to be good, 355 COMPANY LAW. 356 and that thcv had honestly valued their assets. — ^Three grounds of relief were put forward : — 1. Rescission of the contract to subscribe for preference stock, 2. Specific performance of the contract to take back the preference stock during the year 1880 at par. 3. Damages against the directors and promoters for mis- representation. — The company having become insolvent, the plaintiffs put their case princi- pally on the third ground. — Held, affirming the judgment appealed from ( 11 Ont. App.R. 336 ) , that the plaintiffs could claim no relief against the company by way of rescission of the con- tract, because it appeared that they had acted as shareholders and affirmed their contract as owners of shares after becoming aware of the grounds of misrepresentation. — That, as to the defendants, other than the company, the evi- dence failed to establish such a case of fraudu- lent misrepresentation as to entitle plaintiffs to succeed as for deceit. — That as to the alleged concealment of the mortgage it was given after the prospectus issued and could not have been mentioned in the prospectus, and moreover that the shareholders were in no way damnified thereby, as the new company would have been equally liable for the debt if the mortgage had not been given ; and as to the concealment of the embarrassed condition of the old company, the evidence shewed that the old firm did not believe themselves to be insolvent; and in neither case were they liable in an action of this kind. Petrie v. Guelph Lumber Co., xi., 450. 12. Stock subscription — Deceit by agent — Filling up blank — Oral proof — Receipt of dividend — Estoppel. See No. 85, infra. 4. DIEECTOBS, ETC. 13. By-law — Sale iy director to company — Ratification by shareholders — Vote of owner.] — A director personally owned a ves- sel which he wished to sell to the company ; he possessed a majority of the shares of the company, some of which he assigned to per- sons to qualify as directors, positions they ac- cordingly 'filled. Upon a proposed sale the board of directors, including the owner of the vessel, passed a by-law approving the purchase of thft vessel by the company, and subsequent- ly at a general meeting of shareholders, a re- solution confirming the by-law was passed by a small majority obtained by the votes con- trolled by the interested director. — Held, re- versing the judgment appealed from (11 Ont. App. R. 205), that the by-law was Illegal and the resolution invalid. Beatty v. Northicest- ern Transportation Co., sii., 598. [Reversed by the Privy Council, 12 App. Cas. 589.] 14. Powers of directors — Assignment for ienefit of creditors — Assent of shareholders -2 — The directors of a joint stock company have power to assign all the company's property for the benefit of creditors without special statu- tory authority or formal assent by the share- holders. Judgment appealed from (13 Ont. App. R. 7) affirmed. Hovey v. Whiting, xiv., 515. 15. Winding-up Act — Sale by liquidator — Purchase by director of insolvent company — Fiduciary relationship — R. 8. C. c. 129 s. 34-2 — Upon the appointment of a liquidator for a company being wound up under R S 0. c. 129 (The Winding-up Act), if the pow- ers of the directors are not continued, as pro- vided by s. 34 of the Act, their fiduciary re- lations to the company or its shareholders are at an end, and a sale of them by the liquidator of the company is valid. Chatham Motional Bank v. McKeen, xxiv.. 348. 16. Directors — By-law — Ultra vires Discount shares — Galls for unpaid balances — Gontributories ■ — Trustees — Powers Gontrcct — Fraud — Breach of trust — Sta- tute, construction of — G. 8. .M. c. 9 Div 7—R. 8. M. c. 25, ss. SO, 33.]— The directors of a joint stock company incorporated in Manitoba have no powers under the provis- ions of "The Manitoba Joint Stock Com- panies Incorporation Act " to make allotments of the capital stock of the company at a rate per share below the face value, and any by- law or resolution of the directors assuming to make such allotment without the sanction of a general meeting of the shareholders of the company is invalid. — ^A by-law or resolution of a joint stock company which operates un- equally towards the interests ot any class of the shareholders is invalid and ultra vires of the company's powers. — ^Where shares in the capital stock of a joint stock company have been illegally issued below par, the holder of the shares is not thereby relieved from liabil- ity for calls for the unpaid balances of their par value. Judgment of the Court of Queen's Bench for Manitoba (11 Man. L. R. 629) re- versed, Taschereau, J., dissenting, lilorth- west Electric Go. v. Walsh, xxix., 33. 17. Debtor and creditor — Preference — Gollusion — Pressure — R. S. B. C. cc. 86, 81 — The Bank Act, s. 80 — Company lam — Mortgage by directors — Ratification — B. G. Companies Acts 1890, ISn, 1894-] — The action was to set aside a mortgage by an incorporated company to the bank, an assignment of book debts and judgment by the bank against the company on grounds: (1) That the mortgage was vol- untary, fraudulent and void under the Statute of Elizabeth; (2) void as a fraudulent re- ference; (3) not executed in accordance with the Companies Act; (4) that the assignment was void for same reasons and contrary to the Bank Act; and (5) the judgment voluntary, fraudulent and void under the Statute of Elizabeth. It was contended that moneys re- ceived by the bank were exigible under plain- tiffs' executions and an order asked accord- ingly. 'The judgment appealed from (8 B. C. Rep. 314) affirmed the trial judgmeut and held that there was good consideration lor the mortgage, that it was given under pifs- sure and should not be set aside althouel comprising the whole of the debtor's pronerK and given under insolvent circumstances to the knowledge of the mortgagee and d«P"™ the other creditors of their remedy ; also, th« the mortgage given by the company's Qir^^^ore without proper authority had been legal" ratified by subsequent resolution of the snar^ holders. The Supreme Court affirmed tn« judgment appealed from, Gwynne, J'-.P^^Z no part in the decision, and, subsequently, t" Privy Council refused leave for an appe" (8 B. C. Rep. 337). Adams d Burns v. •i'" Bank of Montreal, xxxii., 719. 257 COMPANY LAW. 358 5. FOBEIGN CORPOBATIONS. 18. Foreign corporation — Winding-up order — Conflict of laws — 28 d 29 Vict. c. 63 (Imp.)— is Vict. o. 23 (D.)— Insolvent trading corporations — Oiiter dictum.'] — Un- der a proper construction of the Act, 45 Vict. c. 23 (D.) it was not the intention of the Parliament of Canada to make it applicable to foreign corporations doing business in the Dominion. — (This decision was by Sir Wil- liam Ritchie, O.J., specially expressed as not involving consideration of lie question of jur- isdiction in respect to insolvent trading cor- porations, and Strong, J., stated that it did not impugn the authority of the Parliament of Canada to make provisions in respect to in- solvent foreign corporations, not in conflict with imperial legislation.) Merchants Bank of SaUfax V. Gillespie, x., 312. 19. Constitutional law — Winding-up Act — R. S. C. c. 129, s. 3 — Foreign corporations.} — Section 3 of the Winding-up Act (B. S. C. c. 129) which provides that the Act applies to incorporated trading companies doing business in Canada wheresoever incorporated is intra vires of the Parliament of Canada. Judgment appealed from (16 Q. L. R. 79) affirmed. Al- len V. Hanson; In re Scottish Canadian As- bestos Co; sviii., 667. 20. Foreign telegraph company — Exclus- ive privileges — Public policy — Restraint of trade — National comity. See No. 2, ante. 6. FOEFEITUEE OF CHAKTEK. 21. Condition precedent — Subscription of shares — -i-Ct of incorporation — Forfeiture — 4^ Vict. c. 61 (D.) — Information — ^. S. C. c. 21, s. ^ — Scire facias — Form of proceed- ings — Arts. 997 et seq. G. C. P.] — ^Tbe com- pany by its Act of incorporation was auth- orized to carry on business provided $100,000 of its capital stock was subscribed, and 30% paid thereon, within six months after the passing of the Act. On information that only $60,500 had been bond fide subscribed prior to commencing operations, the balance having been subscribed for by G. in trust, who subsequently surrendered a portion of it to the company, and that the 30% had not been truly and in. fact paid thereon, the Attorney-General sought by proceedings in the Superior Court to have the company's charter set aside and declared forfeited. — Held, affirming the judgment appealed from, Gwynne, J., dissenting, 1. That this being a Dominion statutory charter proceedings to set it aside were properly taken by the Attorney- General of Canada. 2. That such proceedings taken by the Attorney-General of Canada un- der arts. 997 et seq. C. C. P.. in the form authorized by those articles, are sufficient and valid though erroneously designated in the pleadings as a scire facias. 3. That the bond fide subscription of $100,000 within six months from the passing of the Act of incorpora- tion, and the payment of 30% thereon were conditions precedent to the legal organization of the company with power to carry on busi- ness, and as these conditions had not been bond fide and in fact complied with within such six months the Attorney-General was entitled to have the charter declared forfeited. Dominion s. c. D. — 9 Salvage and Wreckii of Canada, xxi.. 72. Co. V. Attorney-General 22. Forfeiture ' of charter — Estoppel — . OompUance with statute — A.ction — Res judicata.'] — In an action against a river im- provement company for reTJayment of tolls al- leged to have been unlawfully collected, it was stated that the dams , slides, etc., for which tolls were claimed were not placed on the properties mentioned in the letters patent for the company ; that the company did not comply with the statutory requirements that the works should be completed within two years from the date of incorporation whereby the corporate powers were forfeited ; that false returns were made to the Commissioner of Crown Lands upon which the schedule of tolls was fixed ; that the company by its works and improvements obstructed navigable waters contrary to the provisions of the Timber Slide Company's Act, and could not exact tolls in respect of such works. By a consent judg- ment in a former action between the same parties, it had been agreed that a valuator should be appointed by the Commissioner of Crown Lands whose report was to be ac- cepted in place of that provided for by the Timber Slide Company's Act, and to be acted upon by the ' commissioner in fixing the schedule of tolls. — Held, affirming the judg- ment of the Court of Appeal for Ontario, that the above grounds of impeachment were cov- ered by the consent judgment and were res judicata. — Held, further, that plaintiffs hav- ing treated the company as a corporation, using the works and paying the tolls fixed by the commissioner, and having in the present action sued the company as a corporation, were precluded from impugning its legal ex- istence by claiming that its corporate powers were forfeited.— By R. S. O. (1887) c. 160, s. 54, it was provided that if a company such as this did not complete its works within two years from the date of incorporation it should forfeit all its corporate and other powers, unless further time were granted by the county or counties, district or districts, in or adjoining which the work is situate, or by the Commissioner of Public Works. — Semble, the non-completion of the works within two years would not ipso facto forfeit the charter, but only afford grounds for proceedings by the Attorney-General to have a forfeiture declar- ed. — Another grOund of objection to the im- position of tolls was that the commissioner, in acting on the report of j:he valuator ap- pointed under the consent judgment erroneous- ly based the schedule of tolls upon the report as to expenditure instead of as to actual value, and the statement of claim asked that the schedule be set aside and a new scale of tolls fixed. — Held, that under the statute the schedule could only be altered or varied by the commissioner and the court could not inter- fere. Especially as no application for relief had been made to the commissioner. Hardy Lumber Co. v. Pickerel River Improvement Co., xxix., 211. 7. IlSrCOEPOEATION AND PROMOTIOST. 23. Loan to promoter — Personal liability — Guarantee.'] — A promoter of a joint stock company borrowed money for the purposes of the company giving his own note as security. The lender was informed at the time of the 259 COMPA^^Y LAW. 260 manner in which the loan was to be. and was, applied.— ffeW, that as the company did not exist at the time of the loan it could not be the principal debtor nor the borrower a meri> guarantor. The latter was, therefore, pnm.- arily liable for re-payment of the loan. Judg- ment appealed from, siih nom. Buffbee v. Clergue (27 Ont. App. R. 96) affirmed. Clergue v. Humphrey, xxxi., 66. 24. Principal and agent — Promoters of company — Agent to solicit subscriptions — False representations — Ratification — Bene- fit.'] — Promoters of a company employed an agent to solicit subscriptions for stock and W. was induced to subscribe on false repre- sentations by the agent of the number of siares already taken up. In an action by ■\^'. to recover the amount of his subscription •from the promoters: Held, affirming the judgm'ent of the Court of Appeal (2 Ont. L. R. 261) that the latter, having benefited by the sum paid by W. were liable to repay it though they did not authorize it and had no knowledge of the false representations of their agent. Held, per Strong, C.J., that neither express authority to make the representations nor subsequent ratification or participation in benefit were necessary to make the pro- moters liable ; the rule respondeat superior applies as in other cases of agency. Milhurn V, Wilson, xxxi., 481. 25. Island of Anticosti Co. — Constitution- ality of incorporating Act — Res judicata. See Estoppel, 62. 26. Unincorporated association — Note Tjy manager — Liability of members. See Bills aud Notes, 5. 27. Paid up shares — Transfer of property to company — Fiduciary relationship — Con- sideration. See No. 41, infra. 8. Seal. 28. Special charter — 37 Vict. c. 85 (Ont.) ■ — Binding contract — Policy of life insurance — Absence of corporate seal — Fraud — Plead- ings — Equitable relief.] — The statute incor- porating the company enacted that " no con- tract shall be valid unless made under the seal of the company, and signed by the presi- dent or vice-president, or one of the directors, and countersigned by the manager, except the interim receipt." In an action for a death claim, to the plea that the policy sued on was not sealed, and, therefore, not binding on the company, the plaintiff replied, on equitable grounds, that the defendant accepted the ap- plication for insurance, and that the policy issued was acted upon by all as a valid policy, but the seal was inadvertently omitted, and claimed that defendant should be es- topped from setting up the absence of the seal, or ordered to affix it. — Held, affirming the judgment appealed from (5 Ont. App. R. 218), Ritchie, C.J., and Taschereau. J., dis- senting, that setting up " the want of a seal " a.s a defence was. under the circumstances of the case, a fraud which a court of equity should interfere to prevent in virtue of it's functions and duty of repressing all fraud whenever and in whatever shape it appears ; and therefore the plaintiff was entitled to relief as prayed in her equitable replication. London Life Insurance Co. v. Wri{ilit, v., 466. 29. Corporate seal — Executed contract.] — A corporation is liable on an executed con- tract for the performance of work, within the purposes for which it was created, which it has adopted and of which it has received the benefit, though the contract was not executed under its corporate seal, and this applies to municipal as well as other corporations. Ritchie, C.J., and Strong, J., dissenting. Bernardin v. Xorth Dufferin, xix., 581. 30. Agent of foreign corporation — Use of corporate seal — Sale of goods — Evidence — Mesne process — Conversion. See Sheeiff, 1. 31. Agreement by agent — Executed con- tract — Corporate seal — Ratification. See CONIEACT, 117. 9. Shakes and Shareholdbks. 32. Allotment of shares below par — Subse- quent transfer — Transferee holding in good faith and without notice — 27 & Z8 Vict. c. 23 (Can.) — Shareholders' liability towards cre- ditors.] — Certain shares in a company incor- porated by letters patent under 27 & 28 Vict, c. 23, were allotted, by resolution at a special general meeting of the shareholders, to them- selves, in proportion to the number of shares held by them at that time, at 40 per cent, below their nominal value, and scrip issued for them as fully paid up. G., under this ar- rangement, was allotted nine shares, which were subsequently assigned to the appellant for value as fully paid up. Appellant in- quired of the secretary of the company, who also informed him that they were fully paid up shares, and he accepted them in good faith as such, and about a year afterwards became a director in the company. The shares ap- peared as fully paid up on the certificates of transfer, whilst on each counterfoil in the share-book the amount mentioned was "shares, two, at $300— $600." — Held, (Richards, C.J., and Ritchie, J., dissenting), reversing the judgment of the Court of Appeal for Ontario (37 U. C. Q. B. 422; 1 Ont. App. R. 1), that a person purchasing shares in good faith, without notice, from an original shareholder under 27 & 28 Vict. c. 23, as shares fully paid up, is not liable to an execution creditor of the company whose execution has been re- turned nulla bona, for the amount unpaid upon the shares. McCry .)]— Per Ritchie. CJ., and Strong, J., That although the provisions of the Winding- up Act do not apply to foreign corporations, yet, in this decision, there is nothing which might impugn the powers of the Parliament of Canada in respect to insolvent foreign cor- porations by express provisions not in conflict with any imperial legislation. Merchants Batik of Halifax v. Gillespie, x., 312. 18. Legislative jurisdiction — Vice-Admir- alty Courts — Penalties — Illegal distilling — 31 Vict. c. 8, s. 156 — Inland Revenue Act, 1867.] — So much of s. 156 of the Inland .Revenue Act, 1867, as gives the Court of Vice-Admiralty jurisdiction in prosecutions for penalties and forfeitures incurred there- under, is intra vires, notwithstanding such court is established in Canada by Imperial authority. Valin v. Langlois (3 Can. S. 0. R. 1, 5 App. Cas. 115) discussed and fol- lowed. Attorney-General of Canada v. Flint. xvi., 707. 19. Appeal to Supreme Court of Canada — Constitutional law — 42 Vict. c. 39 s. 6 (D.)} — Per Taschereau, J. The provision for an appeal to the Supreme Court of Canada by s. 6 of c. 39 of the statutes of Canada, 42 Vict., is ultra vires of the Parliament of Can- ada. Grand Trunk Ry. Co. v. Credit Valley Ry. Co. et al. Doutre, Constitution of Can- ada, p. 337. 20. Winding-up Act — B. S. C. c. 129, s. S — Foreign corporations.] — Section 3 of " The Winding-up Act," R. S. C. c. 129, which pro- vides that the Act applies 1o ijirorporated trading companies doing business m Canada wheresoever incorporated is intra vires of the Parliament of Canada. Judgment appealed 283 CONSTITUTIONAL LAW. 284 from (16 Q. L. R. 79) affirmed. Allen v. Hanson; In re Scottish Canadian Asbestos Co., xviii., 667. 21. Leghlatlvc jurhiliction — Winding up insolvent hank — Banking and incorporation of banks — Bankruptcy and insolvency — 31 Vict, c. 17 (O.)— 33 Vict. c. Ifi (D.)—B. N. A. Act, s. 91 — Grown lands — Exemption from tai-ation^R. S. 0. ISST, c. 193, s. 7, s.-s. 1.1 — In 1866 the Bank of Upper Canada be- came insolvent and assigned all its property and assets to trustees. By 31 Vict. c. 17. the Dominion Parliament incorporated said trus- tees giving them authority to carry on the business of the bank so far as was necessary for winding up the same. By 33 Vict. c. 40 all the property of the bank vested in the trustees was transferred to the Dominion Government which became seized of all the powers of the trustees. — Beld, affirming the judgment appealed from (sub nom. The Queen V. County of Wellington, 17 Ont. App. R. 421) that these Acts were intra vires of the Dominion Parliament. — Per Ritchie, C.J., that the legislative authority of Parliament over " banking and the incorporation of banks " and over " bankruptcy and insolv- ency " empowered it to pass said Acts. — Per Strong, Taschereau, and Patterson, JJ., the authority to pass said Acts cannot be refer- red to the legislative jurisdiction of Parlia- ment over " banking and incorporation of banks " but to that over " bankruptcy and in- solvency " only. — After the property of the bank became vested in the Dominion Govern- ment a piece of land included therein was sold and a mortgage taken for the purchase money, the mortgagor covenanting to pay the taxes. Not having done so, the land was sold for non-payment. In an action to set aside the tax sale. — Held, affirming the judgment appealed from, that the Crowii having a beneficial interest in the land it was exempt from taxation as Crown lands. Quirt v. The Queen, xix., 510. 22. Legislative jurisdiction — Administra- tion of justice — Provincial courts — Ap- pointment of judges — Criminal procedure — B. N. A.. Act. 1867, s. 92, s.-s. 14 — References under 5.) d- 56 Met. c. 2.5 (D.)] — The power given to the Provincial Governments by the B. N. A. Act, 1867, s. 92, s.-s. 14. to legislate regarding the constitution, maintenance and organization of provincial courts includes the power to define the jurisdiction of such courts territorially as well as in other respects and also to define the jurisdiction of the judges who constitute such courts. — C. S. B. C. c. 25, s. 14, enacts that " any County Court judge appointed under this Act may act as County Court judge in any other district upon the death, illness, or unavoidable absence of, or at the request of the judge of that district, and while so acting the said first mentioned judge shall possess all the powers and auth- orities of a County Court judge in the said district ; provided, however, the said judge so acting out of his district shall immediately thereafter report in writing to the Provincial Secretary the fact of his so doing and the cause thereof," and by 53 Vict. c. 8, s. 9 (B. C), it is enacted that "until a County Court judge of Kootenay is appointed, the judge of the County Court of Yale shall act as and perform the duties of the County Court judge of Kootenay. and shall, while so acting, whether sitting in the County Court District of Kootenay or not, have, in respect of all actions, suits, matters, or proceedings being carried on in the County Court of Kootenay, all the powers and authorities that the judge of the County Court of Kootenay, if appointed and acting in the said district, would have possessed in respect of such ac- tions, suits, matters, and proceedings ; and for the purpose of this Act, but not further, or otherwise, the several districts as defined by ss. 5 & 7 of the County Courts Act. over which the County Court of Tale and the County Court of Kootenay, respectively, have jurisdiction shall be united." — Held, that these statutes were intra vires of the Legis- lature of British Columbia under said section of the B. N. A. Act, 1867. — By the Dominion statute, 51 Vict. c. 47, •' The Speedy Trials Act," jurisdiction is given to " any judge of the County Court," to try certain criminal of- fences. — Held, that the expression, " any judge of the County Court," in such Act means any judge having by force of the pro- vincial law regulating the constitution and organization of County Courts, jurisdiction in the particular locality in which he may hold a " speedy trial." The statute would not authorize a County Court judge to hold a " speedy trial " beyond the limits of his ter- ritorial jurisdiction without authority from the Provincial Legislature to uo so. — " The Speedy Trials Act " is not a statute confer- ring jurisdiction, but is an exercise of the power of Parliament to regulate criminal pro- cedure. — Per Taschereau, J. It is doubtful if Parliament had power to pass those sections of 54 & 55 Vict. c. 25, which empower the Governor-General-in-Council to refer certain matters to the Supreme Court of Canada for an opinion. Be County Court Judges {B. a.) xxi.. 446. 23. Territorial rights — Exercise of — Ter- ritorial or prerogative rights — Beneficial in- terest — Great seal — Suits by Dominion Government — Exchequer Court — Jurudic- tion.l — The Crown, in right of the Dominion, has a right to take proceedings to restrain an individual from making use of a provincial grant in a way to embarrass the Dominion in the exercise of its territorial rights. — The rights of the Crown, territorial or prerogative, are to be passed under the Great Seal of the Dominion or province (as the case may be), in which is vested the beneficial interest there- in. — The Parliament of Canada has the right to enact that all actions and suits of a civil nature at common law or equity, in which the Crown in right of the Dominion is plain- tiff or petitioner, may be brought in the Ex- chequer Court. Taschereau, J., duUtante. Fancell v. The Queen, xxii., 553. 24. Foreshore of harbour — Property i» — a Vict. c. 1, s. 18 (D.) — Authority to rtd- way company to use foreshore — Jus pifiliciiii' — Access to public harbour.^ — The Dominion statute, 44 Vict. c. 1, s. 18. gave the C. P- Ry. Co. the right to take and use the \m below high water mark in any stream, lake, etc., so far as i;equired for the purposes of the railway. — Held, that the right of the pu"- lie to have access to a harbour, the fore- shore of which had been taken by the com- pany under this Act, was subordinate to the rights given to the company thereby, ana the latter could prevent by injunction an interference with the use of the foreshore so taken. City of Vancouver v. Canadian rfl«' fie Ry. Co., xxiii., 1. 285 CONSTITUTIONAL LAW. 286 25. Dominion Government — Liability to fiction for tort — Injury to property on piih- lic work — Non-feasance — 39 Vict. c. 27 (,D.) —B. S. G. c. Jfi, s. 6^-50 & 51 Vict. c. 16 (Z)).]— .50 & 51 Vict. e. 16. ss. Ifi and .'i8 con- fers upon the subject a new or enlarged right to maintain a petition of riglit against the Crown for damages in respect of a tort (Tas- chereau, J., expressing no opinion on this point).— By 50 & 51 Vict. c. 16, s. 16 (D.), the Exchequer Court is given jurisdiction to hear and determine inter alia: " (c) Every claim against the Crown arising out of any death or injury to the person, or to the pro- perty, on any public work, resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment : (d) Every claim against the Crown arising under any law of Canada." ... In 1877 the Dominion Gov- ernment became possessed of the property in the City of Quebec, on which the Citadel is situated. Many years before that a drain had been constructed through this property by the Imperial authorities, the existence of which was not known to the officers of the Dominion Government, and it was not dis- covered at an examination of the premises in 1880 by the city engineer of Quebec and others. Before 1877 this drain had become choked up, and the water escaping gradually loosened the earth, until, in 1889, a large portion of the rock fell from the cliff into a street of the city below, causing great dam- age, for which compensation was claimed from the Government. — Held, per Taschereau, G^^■.vnne and King, .JJ., affirming the decision of the Exchequer Court, that as the injury to the property of the city did not occur upon a public work, s.-s. (c) of the above Act did not make the Crown liable, and, moreover, there was no evidence that the injury was caused by the negligence of any officer or ser- vant of the Crown while acting within the scope of his duties or employment. — held, per Strong, C.J., and Fournier, J., that while s.-s. (c) of the Act did not appiy to the case, the city was entitled to relief under s.-s. (.d^ ; that the words " any claim against the Crown " in that sub-section, without the ad- ditional words, would include a claim for a tort ; that the added words " arising under any law of Canada," do not necessarily mean any prior existing law or statute law of the ' Dominion, but might be interpreted as mean- ing the general law of any province of Can- ada, and even if the meaning be restricted to the statute law of the Dominion, the effect of s. 58 of 50 & 51 Vict. c. 16 is to reinstate the provision contained in s. 6 of the repealed Act R. S. C. c. 40, which gives a remedy for in- jury to property in a case like the present ; that this case should be decided according to the law of Quebec, regulating the rights and duties of proprietors of land situated on dif- ferent levels ; and that under such law the Crown, as proprietor of land on the higher level, was bound to keep the drain thereon in good repair, and was not relieved from lia- bility for damage caused by neglect to do so by the ignorance of its officers of the existence of the drain. — Held, also, per Strong, C.J., and Fournier, .1., that, independently of the enlarged jurisdiction conferred by 50 & 51 "\'ict. r. 16. the Crown would be liable to dam- ages for the injury complained of not as for tort but for a breach of its duty as owner of the superior heritage, by altering its natural state to the injury, of the inferior proprietor. City of Queh.ee v. The Queen, xxiv.. 420. 26. Powers of executive councillors — " Let- ter of credit " — Ratification hy Legislature — Obligations binding on the province — Discre- tion of the Oovcrnment as to the c.tpcnditures — Petition of right — Negotiable instrument — " Bills of Exchange Act, 1890 " — " The Bank Act," B. H. C. c. ISO.'i — The Pro- vincial Secretary of Quebec wrote the following letter to D., with the assent of his colleagues, but not being authorized by order- iu-council : — "J'ai I'honneur de vous informer que le gouvernement fera voter, dans le budget supplgmentaire de 1891-92, un intem de six mille piastres qui vous seront jiayees immedi- atemeut apres la session, et cela ^ titre d'acompte sur I'impression de la ' Liste des terres de la Couronne, concedges depuis 1763 jusqu'au 31 decembre, 1890.' dont je vous ai config I'impression dans une lettre en date du 14 Janvier, 1891. Cette somme de sis mille piastres sera payee an porteur de la prgsente lettre, revetue de votre endossement." D. in- dorsed the letter to a bank as security for ad- vances to enable him to do the work. — Held, affirming the judgment of the Court of Queen's Bench, that the letter constituted no contract between I), and the Government ; that the Provincial Secretary had no power to bind the Crown by his signature to such a document ; and that a subsequent vote of the Legislature of a sum of money for jirinting " liste des terres de la Couronne," etc., was not a ratifi- cation of the agreement with D., the Govern- ment not being obliged to expend the money though authorized to do so, and the vote con- taining no reference to the contract with D., nor to the said letter of credit. — Held, "also, that a bank cannot deal in such securities as the said letter of credit which is dependent on the vote of the Legislature, and therefore not a negotiable instrument within the Bills of Exchange Act of 1890, or the Bank Act, R. S. C. c. 120, ss. 45 and 60. Jacques-Car- tier Bank v. The Queen, xxv., 84. 27. Municipal corporation — Poicers of legis- lature — License — Monopoly — Highways and ferries — Navigable streams — By-laws and re- solutions — Intermunieipal ferry — Tolls — Dis- turbance of licensee — North-West Territor%es Act, B. 8. 0. e. 50, ss. 13 and 24— B. N. A. Act .?. ;i2 s.-ss. S. 10 and IG—Bev. Ord. N. W. T. (18S8) c. 28— N. W. Ter. Ord. No. 7 of 1891-92, s. 4.] — The authority given to the Legislative Assembly of the North- West Ter- ritories, by B. S. C. c. 50, and orders-in- council thereunder, to legislate as to " muni- cipal institutions " and " matters of a local and private nature " (and perhaps as to license for revenue), within the 'Territories includes the right to legislate as to ferries. — The Town of Edmonton, by its charter, and by "The Ferries Ordinance" (Rev. Ord. N. W. T. (1888) c. 28), can grant the exclusive right to maintain a ferry across a navigable river which is not within the territorial limits of the municipality ; and as under the charter the powers vested in the Lieutenant-Goveruor- iii-Council by the Ferries Ordinance are transferred to the municipality, such right may be conferred by license and a by-law is not necessary. — A " club " or partnership styled " The Edmonton Ferry Company " was formed for the purpose of building, establish- ing, and operating a ferry within the limits assigned in the license by the municipality granting exclusive rights to ferry across the river in question, the conditions being that any person could become a member of the club by signing the list of membership, and 387 CONSTITUTIONAL LAW. 288 taking at least one share of $5 therein, which share entitled the signer to 100 tickets that were to be received in payment of ferry ser- vice according to a prescribed tariff, and when expended could be renewed by further sub- scriptions for shares ad infinitum. The club supplied their ferryman with a list of member- shiTi, and established ard operated their ferry, without any license, within a short distance of one of the licensed ferries, thereby, as was claimed, disturbing the licensee in his exclu- sive rights. — Held, that the establishment of the club ferry and the use thereof by members and others under their club regulations was an infringement of the rights under the license, and that the licensee could recover damages by reason of such infringement. Dinner v. Hitmierstonc, xxvi., 252. 28. Criminal Code. ss. 275, 276 — Bigamy- Canadian suiject marrying ahroad — Jurisdic- tion of Parliament.'] — Sections 27.5 and 276 of the Criminal Code. 1892. respecting the offence of bigamy, are intra vires of the Par- liament of Canada. Strong, CI., contra. Criminal Code, 1892; Bigamy, xxvii.. 461. 29. Government railway — R. S. C. c. 38. s. 50 — Liability for negligence hy employee of the Grown.] — In s. 50 of the Government Railways Act (R. S. C. c. 38) providing that " Her Majesty shall not be relieved from lia- bility by any notice, condition, or declaration in the event of any damage arising from any negligence, omission, or default of any officer, employee, or servant of the Minister," the words " notice, condition, or declaration " do not include a contract or agreement by which an employee has renounced his right to claim damages from the Crown for injury from negligence of his fellow servants. Grand Trunk Railway Co. v. Vogel (11 Can. S. C. R. 612) disapproved. The Queen v. Grenier, XXX., 42. 30. Constitutional law — Powers of Can- adian Parliament — Prohibited contract — Con- solidated Railway Act, 1879.] — For the rea- sons given by the court below the Supreme Court of Canada affirmed the judgment ap- pealed from (Q. R. 8 Q. B. 555). which held, that the "Consolidated Railway Act, 1879," s. 19, s.-s. 16, was within the legislative jurisdic- tion of the Parliament of Canada, which, hav- ing power to legislate on railway matters, could also legislate on all incidents required to carry out the objects it had in view connected with and primarily intended to assist in carrying out such principal object ; that the capacity of directors was such an object essentially con- nected with the internal economy of a railway company ; that a contract prohibited by sta- tute is void although not specially stated to be so in the statute, which merely provides a penalty against an offender, and that, where the president of a railway company, subject to that Act, entered secretly into partnership with contractors for the construction of tbe railway, no action could be maintained upon the partnership contract by him against his partners. Macdonald v. Riordon, xxx., 619. 31. Appeal — Jurisdiction ■ — Legislative powers — Appeals from the Court of Review — 5j & 55 Vict. c. 25, s. 3 {D.)—B. iV. A. Act. 1867, s. 101 — Illegal consideration of contract — Lottery — Co-relative agreements.] — The power of the Parliament of Canada under s. 101 of the British North America Act, 1867, respecting a general court of appeal for Can- ada is not restricted to the establishment of a court for the administration of laws of Canada and. consequently, there was consti- tutional authority to enact the provisions of s. 3 of the Dominion statute 54 & 55 Vict, c. 25, authorizing appeals from the Superior Court, sitting in review, in the Province of Quebec. — On the merits, this appeal was al- lowed with costs, Girouard. J., dissenting, the decision in L' Association St. Jean-Baptiste de Montreal v. Branlt (30 Can. S. C. R. 598), respecting lotteries and contracts for illegal' consideration being followed. L' Association St. Jean-Baptiste de Montreal v. Brault xxxi., 172. 32. Grown lands — Mining licenses — Royal- ties — Dominion Lands Act.] — The Dominion Government, by regulations made under The Dominion Lauds Act, may validly reserve a royalty on gold produced by placer mining in the Yukon though the miner, by his license, has the exclusive right to all the gold mined. Taschereau and Sedgewick, JJ.. dissenting. The King v. Chappelle, etc., xxxii., 586. [Leave to appeal and for a cross-appeal to the Privy Council granted, 4th March, 1903; (40 Can. Gaz. 569.)] 33. Protection and regulation of fisheries — Fishery licenses — 31 Vict. c. 80 (D.) — B. N. A. Act, 1867, ss. 91. 92, 109. See FiSHEEiES, 2. 34. Jurisdiction of Parliament — Insolvent Act of 1875, s. 136 — Fraudulent purchases on credit iy person in insolvent circumstances. See Insolvency, 88. 35. Supreme and Exchequer Courts Act, s. 51 — Legislative jurisdiction. See Habeas Cokpus, 1. 36. Validity of by-law — Matter in contro- versy — Jurisdiction of Supreme Court. See Appeal, 33. 37. Action against Grown — Payment wiih departmental sanction — Appointment under unconstitutional statute. See LiQUOE Laws, 6. 38. Liquor License Act, 1883 — Legislative jurisdiction. See LiQTJOE Laws, 7. » 39. Canadian waters — Property in beds- Public harbours — Erections in navigaile waters — Interference xcith navigation — Biphti of fishing — Power to grant — Riparian rights ■ — Great lakes and navigable rivers — pperor Hon of Magna Charta — Provincial legislation —R. S. 0. (1887) c. 2i, s. 47—55 Vict. c. 10, ss. 5-13, 19, 21— R. S. Q. arts. 1375-W8. See No. 5, ante. 40. Convention of 1818 — Construction of treaty — Construction of statute — Fisheries- Three mile limit — Foreign fishing vessels--- " Fishing "—59 Geo. III. c. 38 (Imp.)—R- S. G. cc. 91f, 95. See No. 6, ante. 41. Indian lands — Treaties with Indians- Surrender of Indian rights — Mines ^ni minerals — Crown grant — 43 Vict. c. 28 (D.) See Title to Land, 141. 389 CONSTITUTIONAL LAW. 290 3. Ontaeio Acts. 42. B. W. A. Act, 1867, ss. 91, 92~Sale of liquor — Brewers' licenses — " Other licenses " — Regulation of trade and commerce — Local and municipal matters — Police regulations — Powers of Parliament of Canada — Provincial legislative jurisdiction — 31 Vict. c. 8 (D.) — S7 Vict. 0. 32 (On*.)]— The Act 37 Vict. c. 32 (Ont.), is ultra vires of the Legislature of Ontario. — Taxation and regulation of the brewer's trade is in restraint of trade and commerce and within the exclusive jurisdic- tion of the Parliament of Canada under s. 91 B. N. A. Act. It is not in the exercise of police regulations, nor a matter of a local or municipal character within the authority con- ferred upon Provincial Legislatures by s.-s. 9, s. 92, B. N. A. Act, and the expression "other licenses " therein does not extend to brewers' licenses or other licenses which are not of a local or municipal character. Reg. v. Taylor (36 TJ. C. Q. B. 218) overruled. Ritchie and Strong, JJ.,' dissenting. Severn v. The Queen, ii., 70. 43. Legislative jurisdiction — Ont. Jud. Act, 1881, s. 43 — Appeal to Supreme Court — Limi- tation of — Gonditions.'i — Section 43 of the Ont. Jud. Act, 1881, providing that where the amount in controversy is under $1,000 no ap- peal shall lie from the decision of the Court of Appeal for Ontario to the Supreme Court of Canada, except by leave of a judge of the former court, is ultra vires of the Legislature of Ontario and not binding on this court. (Remarks on an order granting such leave on appellant undertaking to ask no costs of appeal.) Clarkson'y. Ryan, xvii.. 251. 44. British North America Act, ss. 65, 92 — Pardoning power of Lieutenant-Governors — 51 Vict. c. 5 (0.) — Act respecting the executive administration of the laws of the province — Provincial penal legislation.] — The local Legislatures have the right and power to impose punishments by fine and imprisonment as sanction for laws which they have power to enact. — The Lieutenant-Governor of a province is as much the representative of Her Majesty the Queen for all purposes of provincial gov- ernment as the Governor-General himself is for all purposes of the Dominion Government. ■ — Inasmuch as the Act 51 Yict. c. 5 (O.) de- clares that in matters within the jurisdiction of the Legislature of the province all powers, etc., which were vested in or exercisable by the Governors or Lieutenant-Governors of the several provinces before Confederation shall be vested in and exercisable by the Lieuten- ant-Governor of that province, if there is no proceeding in dispute which has been attempt- ed to be justified under 51 Vict. c. 5 (O.), it is impossible to say that the powers to be exercised by the said Act by the Lieutenant- Governor are unconstitutional. — Quwre. Is the power of conferring by legislation upon the representative of the Crown, such as a Colonial Governor, the prerogative of pardon- ing in the Imperial Parliament only or, if not, in what legislature does it reside? — Gwynne, J., dissenting, was of opinion that 51 Vict. c. 5 (O.), is ultra vires of the Provin- cial Legislature. Attorney-General of Canada V. Attorney-General of Ontario, xxiii., 458. 45. Lccal Option Act — 53 Vict. c. 56, s. 18 (O.) — 5Jf Vict. 0. 46 (0.) — Constitutionality — Prohibition — ■ Sales iy retail — Legislative powers.] — The statute 53 Vict. c. 56, s. 18 s. c. D. — 10 (O.) allowing, under Certain conditions, muni- cipalities to pass by-laws for prohibiting the sai« of, spirituous liquors is intra vires the Ontario Legislature, as is also s. 1 of 54 Vict, c. 46, which explains it, but the prohibition can only extend to sale by retail. In re Local Option Act (18 Ont. App. R, 572) approved. Gwynne and Sedgewick, JJ., dissenting. Huson V. Council of South Norwich, xxiv., 145. See [1896] A. C. 348, and No. 46 infra. 46. Reference by Governor-iii-Council — Con- stitutional law — Prohibitory laws — Intoxi- cating liquors — British North America Act, ss. 91 and 92 — Provincial jurisdiction — 53 Viet. c. 56, s. 18 (0.)—54 Vict. c. 46 (0.) — Local option — Canada Temperance Act, 1878.] — A provincial legislature has not jurisdiction to prohibit the sale, either by wholesale or retail, within the province, of spirituous, fer- mented or other intoxicating liquors. — Per Strong, C.J., and Fournier, J,, dissenting. A provincial legislature has jurisdiction to prohibit the sale within the province of such liquors by retail, but not by wholesale; andl if any statutory definition of the, terms whole- sale and retail be required, legislation for such purpose is vested in the Dominion as apper- taining to the regulation of trade and com- merce. — A provincial legislature has not juris- diction to prohibit the manufacture of such liquors within, or their importation into, the province.— The Ontario Legislature had not jurisdiction to enact the 18th section of the Act 53 Vict. c. 56, as explained by 54 Vict c. 46. The Chief Justice and Fournier, J., dissenting. In re Prohibitory Liquor Laws xxiv., 170. Memo.— -See (1896) A. C. 348. .AI- Legislative jurisdiction — B. N. A Act {867 ss. 91^ S2~R. S. O. (1877) c. 162— statutory conditions — Fire insurance — Valid- ity of provincial statute — Regulation of trade and commerce. See Instirance, Fire, 68. 48. Legislative jurisdiction — Escheats for want of heirs — B. N. A. Act (1867) ss 91 92 102, 109~R. S. 0. (1877) c. 94 See Ceown, 56. 49. Ont. Jud. Act, s. 43— Leave to appeal. See JuDicATXJEE Acts, 1. 50. Canadian waters — Property in beds — Public harbours — Erections in navigable waters— Interference with navigation— Rights of fishmg—Power to grant— Riparian rights ^Great lakes and navigable rivers— Operation of ^o-ff^aOharta— Provincial legislation— R. 5-13, 19, 21— R. S. 0. arts. 1375-1378. See No. 5, ante. 4. Quebec Acts. rf.^ii ^p"' n!7A<« — S-iamp duties — Consoli- dated Revenue Fund— Filings in court— In fZ lr7^fTi'^H''°''n"f Provincial Leg^lt Ture — 43 d 44 Vict. c. 9 s 9 (Oiip 1 R w fi«*.(/S67). »^- 65, 90,91. W6"-\^]^i & 44 Vict. c. 9, s. 9 (Que.), enacted that "A duty of ten cents shall be imposed, levied and collected on each promissory note, receip?, bm of particulars and exhibit whatsoever pro- duced and filed before the Superior Court the 291 CONSTITUTIONAL LAW. 292 Circuit Court, or the Magistrates' Court, such duties payable in stamps." The Act is de- clared to be an amendment and extension ot 27 & 28 Vict. c. 5, by s. 3, s.-s. 2, of which, the duties are to be " deemed to be payable to the Crown." The appellant obtained a rule nisi against the prothonotaries of the Superior Court at Montreal for contempt in refusing to receive and file an exhibit unaccompanied by a stamp, as required by the Act. Upon the return of the rule the Attorney-General for the province intervened. — Held, reversing the Court of Queen's Bench, Strong and Taschereau, JJ., dissenting, that the Act im- posing the tax in question was ultra vires, the tax being an indirect tax and the proceeds to form part of the Consolidated Revenue Fund of the province for general purposes. — Per Strong and Taschereau, JJ., dissenting. Al- though the duty is an indirect tax, yet, under ss. 65, 126, 129, B. N. A. Act, 1867, the Pro- vincial Legislature had power to impose it. Reed v. Atty.-Gen. of Quebec, viii., 408. [This judgment was affirmed by the Privy Council, 10 App. Cas. 141.1 52. Legislative jurisdiction — ^avigable river — Municipal limits — IfS & JfJf Vict. c. 62 (Que.)] — The Legislature of Quebec has power to include public navigable waters within the territorial limits of a municipality. Ventral Vermont liy. Vo. v. Town of St. Johns, xiv., 288. 53. Legislative jurisdiction — Navigation — Municipal corporation — By-law — Double tax — Taxation of ferry boats — -Jurisdiction of har- bour commissioners — 39 Vict. c. 52 {Qae.)'\ — Under 39 Vict. c. 52, s. 1, s.-s. 3, authorizing the City of Montreal to impose an annual tax on "ferrymen or steamboat ferries;" the city council passed a by-law imposing an annual tax of $200 on proprietors of each and every steamboat ferry conveying to Montreal for hire travellers from any place not more than nine miles distant, and obtained from the Re- corder's Court a warrant of distress to levy upon the appellant such tax of $200 for each steamboat employed by the company during the year as ferry-boats between Longueuil and Montreal. The action by the company, ' claimed that the statute was ultra vires of the Legislature ; and that the by-law was ultra vires of the corporation, and asked for an in- junction. — Held, affirming the judgment ap- pealed from (M. L. R. 3 Q. B. 172), that the legislation was intra vires.-^2. Reversing that judgment, that the by-law was ultra vires, as the statute only authorized a single tax on the owner of each ferry, irrespective of the num- ber of boats or vessels by means of which the ferry should be worked. — 3. Affirming the judgment, that the jurisdiction of the Har- bour Commissioners of Montreal within cer^ tain limits does not exclude the right of the city to tax and control ferries within such limits. Longueuil Navigation Co. v. City of Montreal, xv., 566. 54. Legislative jurisdiction — 2Iunicipal by- law — Licenses — Prohibitory fee — Restraint of trade — Sale of meat in private stalls — 37 Vict c. 51, s. 123, s.-s. 27, 31 (Que.)—B. N. A. Act, s.-s. 9 of s. 92, — " Other licenses."'^ — By 37 Vict. c. 51, s. 123, ss. 27. 31 (Que.) the coun- cil of the City of Montreal is authorized to reg- ulate and license the sale, in any private stall or shop in the city outside of the public meat markets, of any meat, fish, vegetables or pro- visions usually sold in markets. — Held, affirm- ing the judgment appealed from (33 L. C. Jur. 221), that the provisions in question are intra vires of the Provincial Legislature, and a by-law may validly be passed under their authority imposing a fee of $200 for a license to sell in a private stall in addition to the business tax, levied upon all traders under another by-law. — Per Strong, J. The words " other licenses " in s. 92, s-s. 9, B. N. A. Act, 1867, include such a license as the Pro- vincial Legislature have empowered the City of Montreal to impose by the terms of the above statute. Lamb v. Bank of Toronto (12 App. Cas. 575), and Severn v. The Queen (2 Can. S. C. R. 70) -iistinguished. In re Pigeon, xvii., 495. 55. 51 & 52 Vict. c. 91, ss. 9, IJ, (Q.)— In- terpretation Act, s. 19 R. S. Q. — Railway sub- sidy — Discretionary power of Lieutenant- Governor-in-Oouncil — Petition of right— Mis- appropriation of subsidy moneys by.order4n- eouncil.] — Where money is granted by the Legislature and its application is prescribed in such a way as to confer a discretion upon the Crown, no trust is imposed enforceable against the Crown by petition of right. — The appel- lant railway company alleged by petition of right that by virtue of 51 & 52 Vict. c. 91 ( Que. ) , the Lieutenant-Governor-in-Couneil was authorized to grant 4,000 acres of land per mile for 30 miles of the Hereford Railway ; that by an order-in-council dated 6th August, 1888, the land subsidy was converted into a money subsidy, the 9th section, of said c. 91 of 51 & 52 Vict., enacting that " it shall be law- ful," etc., to convert the land subsidy into a money subsidy ; that the company com- pleted the construction of . their line of rail- way, relying upon the said subsidy and brder- in-council, and built the railway in accordance with the Act 51 & 52 Vict. c. 91. and the pro- visions of the Railway Act of Canada, 51 Vict. c. 29, and they claimed to be entitled to the sum of $49,000, balance due on said sub- sidy. The Crown demurred on the ground that the statute was permissive only, and by exception pleaded inter alia, that the money had been paid by order-in-council to the sub- contractors for work necessary for the con- struction of the road; that the president had by letter agreed to accept an additional sub- sidy on an extension of their line of railway to settle difficulties, and signed a receipt for the balance of $6,500 due on account of the first subsidy. The petition of right was dis- missed. Held, that the statute and docu- ments relied on did not create a liability on the part of the Crown to pay the money voted to the appellant company enforceable by peti- tion of right (Taschereau 'and Sedgewick, JJ., dissenting) , but assuming it did, the letter and receipt signed by the president of the company did not discharge the Crown from such obligation to pay the subsidy, and pay- ment by the Crown of the sub-contractors' claim out of the subsidy money, without the consent of the company, was a misappropria- tion of the subsidy. Hereford Ry. Co. v. The Queen, xxiv., 1. 56. Powers of Provincial Legislatures — Direct taxation — Manufacturing and trading licensqs — Distribution of taxes — Uniformity of taxation — 55 d 56 Vict. c. 10 and 56 Vict. c. 15 (Q.) ■ — British North America Act, 1867.'\ — The provisions of the Quebec statute, 55 & 56 Vict. c. 10, as amended by 56 Vict. c. 15, do not involve a regulation of trade and commerce, and the license fee thereby imposed 293 COISrSTITrTIONAL LAW. 394 is a direct tax, and intra vires of the Legis- lature. Tlie license required to be taken out by tbe statute is merely an incident to the collection of the tax, and does not alter its character. — ^Where a tax has been imposed by competent legislative authority, the want of uniformity or equality in the apportionment of the tax is not a ground sufficient to justify the courts in declaring it unconstitutional. Bank of Toronto x. Lamhe (12 App. Cas. 575) followed. Attorney-General v. 2'he Queen Insurance Co. (3 App. Cas. 1090) dis- tinguished. Fortier v. Lamhe, xxv., 422. 57. Railways — Farm crossings — Legislative powers.] — The provincial legislatures in Can- ada have no jurisdiction to make regulations in respect to crossings or the structural con- dition of the roadbed of railways subject to the provisions of " The Railway Act of Can- ada." The Canadian Pacific Railway Co. v. The Corporation of Notre-Dame de Bonse- cours ([18901 A. C. 407) followed. Grand Trunk Ry. Co. v. Thcrrien, xxx., 485. 58. Legislative powers — B. N. A. Act, 1867 ■ — Criminal code, 1892 — R. S. V. c. 159 — R. 8. Q. art. 2920—53 Vict. c. 36 (Que.) — Lottery — Indictaile offences ■ — Contract — Illegal consideration — Co-relative agreements — ■ Nullity — Invalidity judicially noticed — Arts. IS, U, 989, 990 CO.]— The Provincial Legislatures have no jurisdiction to permit the operation of lotteries forbidden by the criminal statutes of Canada. — ^A contract in connection with a scheme for the oi>eration of a lottery forbidden by the criminal statutes of Canada is unlawful and cannot be enforced in a court of justice. — The illegality which vitiates such a contract cannot be waived or condoned by the conduct or pleas of the party against whom it is asserted and it is the duty of the courts, ex mcro motu, to notice the nullity of such contracts at any stage of the case and without pleading. — Per Girouard, J., (dissenting). In Canada before the Criminal Code, 1892, lotteries were mere offences or contraventions and not crimes, and conse- quently the Act of the Quebec Legislature was constitutional. L' Association St. Jean-Bap- tiste V. Brault, xxx., 598. 59. Sale of liquors — Prohibited hours — Police regulations — 42 & JiS Vict. c. 4 (.Que.). See LiQuoH Laws, 2. 60. Legislative jurisdiction — Liquor licenses —B. N. A. Act (1867) s. 91—20 Vict. c. 129 (Can.)— 38 Vict. c. 76 (Que.)—J,3 Vict. c. 3 (Que.). See LiQTJOK Laws, 3. 61. Licensed brewers — Quebec License Act —41 Vict. c. S (Que.)— 43 Vict, c 19 (D.) — Jurisdiction of Court of Sessions — Prohibi- tion. See LiQUOB Laws, 4. 62. Incorporation of. Island of Anticosti Co. — Validity of incorporating Act — Licitation — Res judicata. Sec Estoppel, 62. 63. Canadian waters — Property in beds — Public harbours — Erections in navigable ivaters — Interference with navigation — Rights of fishing — Power to grant — Riparian rights ■ — Great lakes ■ and navigable rivers — Opera- tion of Magna Charta — Provincial legislation —R. S. O. (1887) c. 24, s. 47—55 Vict. c. R. S. O. arts. 1375- 10, ss. 5-13, 19, 1387. See ■ No. 5, ante. 5. Nova Scotia Acts. 64. Queen's Counsel — Power of appointment — 37 Vict. cc. 20 & 21 (N.S.) — Legislative auth- ority — Precedence — Retrospective Act — Great seal of Nova Scotia — 40 Vict. e. 3 (D.) — 40 Vict. c. 2 (N.S.) — Appeal — Jurisdiction — Prerogative.\—By 37 Vict. c. 20 (N.S.), the Lieutenant-Governor was authorized to ap- point Queen's Counsel for the province, and by 37 Vict. c. 21 (N.S.), to grant to any member of the bar a patent of precedence in the courts of the province. R. was ap- pointed on the 27th December, 1872, under the great seal of Canada, a Queen's Counsel, and by the uniform practice of the court he had precedence over all members of the bar not holding patents prior to his own. By let- ters patent, dated 26th May, 1876, under the great seal of the province, several members of the bar were appointed Queen's Counsel for Nova Scotia, and precedence was granted to them, as well as to other Queen's Counsel ap- pointed by the Governor-General after the 1st July, 1867. A list of Queen's Counsel to whom precedence had been thus given by the Lieutenant-Governor, was published in the Royal Gazette, and the name of R. was in- cluded, but it gave precedence and pre-aud- ience before him to several persons, including appellants, who did not enjoy it before. R. obtained a rule nisi to grant him rank and precedence over all Queen's Counsel appointed in and for the Province of Nova Scotia since the 26th December, 1872, and to set aside, so far as they affected R.'s precedence' the let- ters patent, dated the 26th May, 1876. This rule was made absolute by the Supreme Court of Nova Scotia, which held. — 1. That the let- ters patent of precedence, issued by the Lieu- tenant-Governor of Nova Scotia, were not is- sued under the great seal of the Province of Nova Scotia; 2. That 37 Vict., c. 20, 21 (N.S.), were not ultra vires; 3. That s. 2, c. 21, 37 Vict., was not retrospective, and that the letters patent of the 26th May, 1876, is- sued under ' that Act could not affect the precedence. — A preliminary objection was raised to the jurisdiction of the court to hear the appeal. — On the argument in appeal before the Supreme Court of Canada the question of the validity of the great seal of Nova Scotia was declared to have been settled by 40 Vict, c. 3 (D.) and 40 Vict. c. 2 (N.S.) and it was Beld, 1. That the judgment of the court below was one from which an appeal would lie to the Supreme Court of Canada; (Fournier, J., dissenting). 2. Per Strong, Fournier and Taschereau, JJ. That 37 Vict. c. 21 (N.S.), has no retrospective effect, and letters patent issued under it could not affect the prece- dence of the Queen's Counsel appointed by the Crown. 3. Per Henry, Taschereau and Gwynne, JJ. That the B. N. A. Act, 1867, has not invested the Legislatures of the pro- vinces with any control over the appointment of Queen's Counsel ; that Her Majesty forms no part of the Provincial Legislatures, as she does of the Dominion Parliament, and there- fore no provincial Act can affect her pre- rogative right to appoint Queen's counsel in Canada directly, or through her representa- tive the Governor-General, or vest such pre- rogative right in the Lieutenant-Governors of the provinces; and that 37 Vict. cc. 20 & 21 295 CONSTITUTIONAL LAW. S96 (N.S.), are ultj--a vires and void. [Note. — Keversed in Atty.-Oen. of Can. v. Atty-Oen. of Ont. (23 Can. S. C. R. 458. ) ]— 4. Per Strong and Fournier, JJ. That tliis court ought never, except in cases when such adjudication is indispensable to the decision of a cause, to pronounce upon the constitutional power of a Legislature to pass a statute, and that there was no necessity in this case to express an opinion upon the validity of the Acts in ques- tion. Lenoir v. Ritchie, iii., 575. See' No. 80, infra. 65. Nova Scotia Liquor License Act, 1S95 — Conviction — Jurisdiction — Affidavit on cer- tiorari — Powers of Provincial Legislature — Matter of procedure. See Cebtiobaki, 4. 6. New Bkunswick Acts. 66. Boom company — Jurisdiction of Provin- cial Legislatures — Ohstructions to navigation —Tidal and navigaMe rivers — ^5 Vict. c. 100 (N.B.)—B. N. A. Act, 1861, s. yi.l— Although a Provincial Legislature may incorporate a boom company, it can not give it power to ob- struct a tidal navigable river, and therefore the Act 45 Vict. c. 100 (N.B.), so far as it authorized erecting booms and other works in the Queddy River, obstructing its navigation, was ultra vires of the New Brunswick Legis- lature. Queddy River Driving Boom Go. v. Davidson, x., 222. -67. N. B. Liquor License Act, 1887 — Pro- hibition of sale of liquor — Granting licenses — Disgualifyihg liquor sellers — Restraint of trade.] — Applications for licenses under the New Brunswick Liquor License Act, 1888, must be endorsed by the certificate of one- third of the ratepayers of the district for which the license is asked. No holder of a license can be a member of the municipal coun- cil, a justice of the peace, or a teacher in the public schools. Held, that the legislature could properly impose these conditions to the obtaining of a license, and the provision is not ultra vires as being a prohibitory measure by reason of the ratepayers being able to prevent any licenses being issued ; nor is it a measure in restraint of trade by affixing a stigma to the business of selling liquor. Danaher v. Peters ; O'Regan v. Peters, xvii., 44. 7. MAmTOBA Acts. 68. B. N. A. Act {1867) ss. 91, 92—Mani- toha Municipal Aict, 1886 — 50 Vict. c. 10, s. 4S (Man.) — Percentage addition to delinquent taxes — " Interest " — Legislative powers.'] — The Mun. Act of Manitoba provides that per- sons paying taxes shall be allowed 10 per cent, discount ; and after a certain time 10 per cent, on the original amount shall be added to delinquent taxes. Held, reversing the court below, Gwynne, J., dissenting, that the 10 per cent, added is only an additional rate or tax imposed as a penalty for non-pay- ment which the local legislature, under its authority to legislate with respect to munici- pal institutions, had power to impose, and it was not " interest " within the meaning of s 91 of the B. N. A. Act. Ross v. Torrance (2 Legal News 186) overruled. Lynch v Can- ada N. W. Land Co.; South Dufferin v Mor- den; OibUns v. Barber, xix., 204. 69. Manitoba Act — Education — Legislative jurisdiction — Denominational aiehooU — Rights acquired " by practice " — 53 Vict. c. S8 (Man.)— 33 Vict. a. 3 (Z).)l— The exclusive right to make laws with respect to education in Manitoba is assigned to the Provincial Legislature by 33 Vict. c. 3 (D.), provided that nothing in any such law " shall preju- dicially affect the rights or privileges with re- spect to denominational schools which any class of persons had by law or practice in the province at the union." The words "or practice " are an addition to the terms of the B. N. A. Act, 1867, s. 91, s.-s. 1, under which the N. B. Public School Act was up- held. — ^Prior to the union the Roman Catholics of Manitoba had no schools established by law, but there were schools under the control of the church for the education of Roman Catholic children. — In 1890 the Legislature of Manitoba passed 53 Vict. c. 38, by which con- trol of all matter's relating to education and schools was vested in a department of educa- tion consisting of a committee of the Execu- tive Council and advisory boards established as provided by the Act; the schools of the province were to be free and non-sectarian and no religious exercises were to be had ex- cept as prescribed by the advisory boards; and the ratepayers of each municipality were to be indiscriminately taxed for tieir support. A Roman Catholic ratepayer moved to quash a by-law of the City of Winnipeg for collect- ing these school rates shewing by affidavit the position of Roman Catholic schools before the union, the practice of the church to control and regulate the education of Roman Catho- lics and to have the doctrines of their church taught in the schools, and that Roman Catho- lic children would not be allowed to attend the public schools. Held, reversing the judgment appealed from (7 Man. L. R. 273), that the Act (53 Vict. c. 38), by depriving Koman Catholics of the right to have their children taught according to the rules of their ehurell^ and by compelling them to contribute to the support of schools to which they could not conscientiously send their children, prejudi- cially affected rights and privileges with re- spect to their schools which they had by prao- tice in the province at the union, and was ultra vires of the Legislature of the provinqe. Ex parte Renaud [1 Pugs. (N.B.) 273] dis- tinguished. Barrett v. City of Winnipeg, xix., 374. The Privy Council reversed this judgment [(1892) A. C. 445 ; 61 L. J. P. C. cases 58; 67 L. T. 429.1 70. Legislative jurisdiction — Portage ewten- sion R. R. Y. Railway. See Railway, 147. 71. Manitoba Constitutional Act — S3 Vict, c. 3, s. 22, s.-s. 2 — Powers of Provirveial Legis- lature in matters of education — Rights and privileges — Legislative power to repeal pre- vious statutes — Right of appeal to Govenor- General-in-Council—B. N. A. Act. 1861, s. 93, s.-s. 3. Sec No. 2, ante. 8. British Columbia Acts. 72. Title to lands in railway belt in British Columbia — Vnsurveyed lands held under pre- emption — Record prior to statutory convey- ance to Dominion Gbvernment — Federal onif 297 CONSTITtTTIONAL LAW. 898 provinoial rights — British Columbia Lands Acts of 187S and .1H19—I,1 Vict. c. 6 (£>.)] —On 10th September, 1883, D. et al. obtained a certificate of pre emption aa&ee the British ColumDia Land Act, 1875, and Land Amend- ment Act, 1879. of 6^:0 acres of unsurveyed lauds within the 20 mile belt south of the Canadian Pacific Railway, reserved 29th Nov., 1883, under agreement between the Governments of the Dominion and of the Province of British Columbia, and which was ratified by 47 Yict. c. 14 (B.C.). On 29th August, 1885, this certificate was cancelled, and on the same day a like certificate was issued to respondents, and on the 31st July, 1889, letters patent under the great seal of British Columbia were issued to respondents. By the agreement ratified by 47 Vict. c. 6 (I).), it was also agreed that three and a half million additional acres in Peace River District should be conveyed to 1;he Dominion Government in satisfaction of the vight of the Dominion under the terras 6f union to have made good to it, from public lands contiguous to the railway belt, the quantity of land that might at the date of the conveyance be held under pre-emption right or by Crown grant. On an information by the Attorney-General for Canada to recover possession of the 640 acres : Meld, affirming the Exchequer Court, (3 Ex. C. R. 293) that the land in question was exempt from the statutory conveyance to the Dominion Government, and that upon the pre-emption right granted to D. et al. being subsequently abandoned or cancelled, the land became the property of the Crown in right of the province, and not in right of the Dom- inion. The Queen v. JJepers', xxii., 482. 73. Powers of Provincial Legislatures — Pro- cedure — Residence of jndges — P. N. A. Act, 1861, s. 92, s.-s. IJf — Delegation of powers to Lieutenant-Governor-in-Covncil — " Judicial District Act, 1819" (B.C.)— ■' Better Admin- istration of Justice Act, 1878 " — ^2 Vict. c. 12 (B.C.). See No. 1, ante. 74. Legislative jurisdiction — Administration of justice — Provincial courts — Appointment of judges- — Criminal procedure — B. N. A. Act, 1867, s. 92, s.-s. li-^Beference under SJi & 55 Vict. c. 25 (D.). See Np. 22, ante. 9. Pkince Edwaed Island Acts. 75. Land Purchase Act, 1875 (P. E. I.) — Court of last resort — Setting aside award — ■ Remedy.] — By the Prince Edward Island " Land Purchase Act, 1875," an award of the commissioners cannot be quashed and set aside and declared invalid and void on application to the Supreme Court of that province, but can be remitted back to the commissioners in the manner prescribed by the 45th section of that Act. Kelly v. Sullivan, i., 1. 10. Noeth-West Tbebitoeial Okdinancbs, 76. Marital rights — Married woman — Sep- arate estflte — Jurisdiction of North-West Ter- ritorial 'Legislature — Statute— In terpretation of — 40 Vict. c. 7, s. 3, and amendments — R. 8. G. 0. 50— N. W. Ter. Ord. No. 16 of 1889.1 ■ — The provisions of ordinance No. 16 of 1889. nespecting the personal property of married women, are intra vires of the Legislature of the North- West Territories of Canada, as be- ing legislation within the definition of prop- erty and civil rights, a subject upon which the Lieutenant-Governor-in-Council was author- ized to legislate by the order of the Governor- General-iu-Council passed under the provi- sions of " The North-West Territories Act." — The provisions of said ordinance No. 16 are not inconsistent with ss. 36 to 40 ineltisively of " The North- West Territories Act," which exempt from liability for her husband's debts the personal earning and business profits of a married woman.— The words " her personal property " used in the said ordinance No. 16, are uneonfined by any context, and must be interpreted not as having reference 'only to the " personal earnings " mentioned in s. 36, but to all the personal property belonging to a woman, married subsequently to the ordin- ance, as well as to all the personal property acquired since then by women married before it was enacted. Brittlehank v. Gray-Jones (5 Man. L. R. 33) distinguished. Conger v. Kennedy, xxvi., 397. 77. Municipal corporation— Powers of legis- lature — License — Monopolies — Highways and ferries — Navigahle streams — By-laws and re- solutions — Intermunicipal ferry — Tolls — Dis- turbance of licensee — North-West Territories Act. R. 8. C. c. 50, ss. 8. 10 and 16— Rev. Ord. N. W. T. (1888) -) re- fused a new trial (5 Russ. &,Geld. 381) .— it was contended on behalf of plaintiff that the judgment appealed from was correct, because there was suflScient evidence to warrant the finding that the agreement in question had been rescinded, and that defendant agreed to pay the plaintiff for the work done by the lat- ter up to the time of the rescission.— On ap- peal to the Supreme Court of Canada, Meld, that for the reasons given by Rigby, J., m the court below, the judgment should be affirmed (Ritchie CJ., and Strong, .T., dis- senting.) — • Appeal dismissed with costs. Young v. Tracey, Cass. Dig. (2 ed.) Ii7. 28. Construction of contract — Construction of statute— 12 Vict. c. 18^, s. 20— Notice to cancel contract — Gas aupiilf shut off for non- payment of gas nil on other premises — Man- damus.^ — An agreement to furnish gas con- tained an express provision that either of the contracting parties should have the right to cancel the contract by giving twenty-four hours' notice in writing. Notices were sent in writing to the consumer that his gas would be shut off at a certain number on a_ street named, unless he paid arrears of gas bills due upon another property. Held, that such no- tices could not be considered as notices given under the contract for the purpose of cancel- ling it. Cadieux v. Montreal Gas Co., xxviii., 382. Note. — Leave to appeal to the Privy Coun- cil was granted (1898) A. C. 718, and subse- quently the Sup. Ct. decision was reversed [(1899) A. C. 589.] 29. Municipal corporation — Waterworks — Rescission of contract — Notice — Mise en de- meure — Long user — Waiver — Art. 1061 C. C] — ^A contract for the construction and main- tenance of a system of waterworks required them to be completed in a manner satisfactory to the corporation and allowed the contractors thirty days after notice, to put the works in satisfactory working order. On the expiration of the time for the completion of the works the corporation' served a protest upon the contractors complaining in general terms of the insufficiency and unsatisfactory construc- tion of the works, without specifying particu- lar defects, but made use of the works com- plained of for about nine years when, without further notice, action was brought for the re- scission of the contract and forfeiture of the works under conditions in the contract. Held, that after the long delay, when the contractors could not be replaced in the original position, the complaint must be deemed to have been waived by acceptance and use of the water- works, and it would, under the circumstances, be inequitable to rescind the contract. Held, further, that a notice specifying the particular defects to be remedied was a condition prece- dent to action and that the protest in gener terms was not a sufficient compliance thei with to place the contractors in default. Toii of Richmond v. Lafontaine, xxx., 155. 30. Contract — Duration — Right to cancel Repugnant clauses.] — A contract for suppl ing light to a hotel contained the foUowii provisions : " This contract is to continue force for not less than 36 consecutive calendj months from date ,of first burning, and ther after until cancelled (in writing) by one i the parties hereto. . . . Special conditio] if any. This contract to remain in fori after the expiration of the said 36 months f( the term that the party of the second pa: feuews his lease for the Russell House." A ter the expiration of the 36 months the lea; was renewed for five years longer. Held, r versing the judgment of the Court of Appei (1 Ont. L. R. 73), that neither of the partii to the contract had a right to cancel it againi the will of the othef during the renewed tera Ottawa Electric Co. v. St. Jacques, xxxi., 63i 31. Construction of works — Deductions fc portions omitted — Partial cancellation of cm travt—Arts. 1065, 1691 C. C.J — The prov sions of article 1691 of the Civil Code o Lower Canada do not give the owner of worl being constructed under a contract at a fixe price the power of cancelling the contract i part, and maintaining it as to another part the contract must, under that article, be i either cancelled in toto or not at all. TUle d Maisonneuve v. Banque Provinciate, xxiiii 418. 32. StooJe suiscription — Deceit — Blanlt filled in without consent — Oral testimony- Error. See Company Law, 35. 33. Subscription for shares — False prospei tus — Misrepresentation — ■ Concealment — Bon fide statements — Action for rescission waivei See Company Law, 11. 34. Prornoter of company— Sale of propert hy — Fiduciary relationship — Non-independen directors — Rescission. See Company Law, 41. 35. Rescission of sale of land — Fraudulen misrepresentation — • Evidence — Executed cm tract. See No. 119, infra. 36. Sale by auction — Agreement as to titl — Breach — Rescission. See Vendok and Pukchasee, 22. 37. Joint stock company — Ultra vires — Con sent judgment — Action to set aside. See Judgment, 22. 38. Resicission of contract — Innocent misre presentation — Common error — Failure of con sideration. See Vendor and Purchaser, 24. 39. Misrepresentation — ■ Artifice — Consid eration — Rescissioiif — Error — Ratification- Laches — Waiver. See Vendor and Purchaser, 26. 40. Cancellation of insurance policy — Frm( — Misrepresentation — Wagering policy — En dowment — Return of premiums paid. See Insurance, Life, 22. 317 CONTRACT. 318 41. PwUio work — Breach of contract — Part performance — Appropriation of plant — Dam- ages — Interest. See No. 21, ante. 3. Oakriees. 42. Carriers of goods — Bill of lading — Con- ditions — ■ Bailment — Warehousemen — Liaiil- ity for negligence — Transit — Connecting lines.] — One of the conditions in a contract to carry goods to P., a place beyond the ter- minus of the company's line, provided that the company " should not be responsible for any loss, mis-delivery, damage or detention that might happen to goods sent by them, if such loss, mis-delivery, damage or detention oc- curred after said goods arrived at the stations or places on their line nearest to the points or places which they were consigned to, or beyond their said limits." Held, that this condition would not relieve the company from liability for loss or damage occurring during transit, even if such loss dccurred beyond the limits of the company's own line. Held, per Strong and Taschereau, JJ., that the loss having occurred after the transit was over, and the goods de- livered at P., and the liability of the car- riers having ceased, this condition reduced the contract to one of mere bailment as soon as the goods were delivered, and also exempted the company from liability as warehousemen, and the goods were from that time in custody of the company on whose line P. was situate, as bailees for the shipper. (Fournier and Gwynne, JJ,, dissenting.) (?. T. Ry. Co. v. MacMillan, xvi., 543. 43. Railway — Carriage of goods — Carriage over connecting lines — Authority of agent.] — B., in British Columbia, being about to pur- chase goods from G. in Ontario, signed, on request of the freight agent of the Northern Pacific Railway Company in British Colum- bia, a letter to G. asking him to ship goods via Grand Trunk Railway and Chicago & N. W. care Northern Pacific Railway at St. Paul. This letter was forwarded to the freight agent of the Northern Pacific Railway Company at Toronto, who sent it to G., and wrote to him " I enclose you card of advice and if you will kindly fill it up when you make the ship- ment send it to me, I will trace and hurry them through, and advise you of delivery to consignee." G. shipped the goods as suggested in this letter, deliverable to his own order in British Columbia. Held, affirming the judg- ment appealed from (21 Out. App. R. 322), that on arrival of the goods at St. Paul the Northern Pacific Railway Company was bound to accept delivery of them for carriage to British Columbia and to expedite such car- riage ; that they were in the care of said company from St. Paul to British Columbia ; that the freight agent at Toronto had auth- ority so to bind the company ; and that the company was liable to G. for the value of the goods which were delivered to B. at British Columbia without an order from G., and not paid for. Northern Pacific Ry. Go. v. Grant, xxiv., 546. 4:4. Railway — Carriage of goods — Connect- ing lines — Special contract — Fire in warehouse — Negligemce — Pleading.] — Action by S.. against appellants. S. purchased goods to be delivered, some to G. T. R. Co., and the C. P. R. Co., and other companies, to be, and the same were, transferred to appellants, for carriage to Merlin, Ont-, and delivered to S. There was also alleged a contract by the ap- pellants for storap-e and delivery to S. when requested, and lack of proper care whereby the goods were lost. The goods were de- stroyed by fire while stored in a building owned by the appellants at Merlin. Held, re- versing the Court of Appeal, that as to the goods delivered to the G. T. R. Co. to be trans- ferred to the appellants, if the cause of action was one arising ex delicto it must fail, as the evidence shewed that the goods were received from the G. T. R. Co. for carriage under the terms of a special contract in the bill and shipping note given by the G. T. R. Co. to the consignors, and if it was an action on con- tract it must also fail as the contract under which the goods were received by the G. T. R. Co. provided that the company would not be liable for loss of goods by fire ; that goods stored should be at sole risk of the owners ; and that the provisions should apply to and for the benefit of every carrier. held, further, that as to the goods delivered to the companies other than the G. T. R. Co. to be transferred to the appellants, the latter company was liable under the contract for storage ; that the goods were in their posses- sion as warehousemen, and the bills of lading contained no clause, as did those of the G. T. R. Co., giving subsequent carriers the bene- fit of their provisions ; and that as the two courts below had held that the loss was caused by the negligence of servants of the appellants, such finding should not be inter- fered with. Held, also, that as to goods car- ried on a bill of lading issued by the appel- lants, there was an express provision that owners should incur all risk of loss of goods in charge of the company as warehousemen and that such a condition was reasonable as the company only undertakes to warehouse goods of necessity and for convenience of ship- pers. Lake Erie & D. R. Ry. Co. v. Sales, xxvi., 663. 45. Shipping receipt — Carriers — Limitation of liability — Damages — Negligence — Connect- ing lines — Wrongful conversion — Sale of goods for non-payment of freight — Principal and agent — Varying terms of contra'Ot.] — Condi- tions in a shipping receipt relieving the car- rier from liability for loss or damages arising out of " the safe keeping and carriage of the goods " even though caused by the negligence, carelessness or want of skill of the carrier's officers, servants or workmen, without the ac- tual fault or privity of the carrier, and re- stricting claims to the cash value of the goods at the port of shipment do not apply to cases where the goods have been wrongfully sold or converted by the carrier. — A shipping receipt with terms as above was for carriage by the defendants' and other connecting lines of transportation and made the freight payable on delivery ,of the goods at the point of destin- ation. The defendants had previously made a special contract with the plaintiff but delivered the receipt to his agent at the point of ship- ment with a variation of the special terms made with him in respect to all shipments to him as consignee during the shipping season of 1899, the variation being shewn by a clause stamped across the receipt of which the plain- tiff had no knowledge. One of the shipments was sold at an intermediate point on the line of transportation on account of non-payment of freight by one of the companies in control of a connecting line to which the goods had 319 CONTRACT. been delivered by tbe defendants. Held, that the plaintifE's agent at the shipping point had no authority, as such, to consent to a varia- tion of the special contract, nor could the car- rier do so by inserting the clause in the re- ceipt without the concurrence of the plaintift ; that the sale, so made at the intermediate point amounted to a wrongful conversion of the goods by the defendants and that they were not exempted from liability in respect thereof at their full value, under the terms of the shipping receipt.— As the evidence shewed definitely what damages had been sustained, and there being no good reason for remitting the case back for a new trial, the Supreme Court of Canada, in reversing the judgment appealed from, ordered that the damages should be reduced to those proved in respect of the goods sold and converted. Armour, J., however, was of opinion that the judgment ot Craig, J., at the trial should be restored. Wilson V. Canadian Development Co., xxxiii. [Leave to appeal to Privy Council^ July, 1903.] 46. Bill of lading — Printed conditions — Con- dition vertally stated — Authority of agent — Duty of carriers — Providing fit and proper transportation for perishable freight — " At owner's risk " — Estoppel. See Cakiuees, 15. 47. Carriage of goods — Forwarding iy con- necting lines — Custody of goods — Negligence — BUI of lading. See Carriebs, 6. 48. Carriage of baggage — " Owner's rish " — " Against all casualties " — Exemption from liability. See Carriers^ 11. 49. Raihvays — Condition in shipping bill — Limitation of liability. See Railways, 5. 50. Chartered ship — Perishable goods — Ship disabled by excepted perils — Transshipment — : Repairs — Reasonable time — Carrier — Bailee. See Shipping, 6. 51. Railway — Carriage of goods — Connect- ing lines — Special contract — Loss by fire in warehouse — Negligence — Pleading. See Railway, 6. 52. Contract — Against liability for fault of servants — Charter party — Bill of lading — Conditions of carriage — Stowage — Fragile goods — Negligence — Affreightment. See Oaeribes, 16. 53. Carriage of goods — Bill of lading — Limitation of time for suit — Damages from unseaworthiness — Construction of contract. See Carriers, 13. 4. Conditions. 54. Construction of railway — Condition precedent — Certificate of engineer — Want of diligence — Laches.'\- — McO. entered into a contract with McG., the contractor for the construction of the North Shore Railway be- tween Montreal and Quebec, to perform works of construction on a portion of the road, agreed " to keep open at certain times' hours at his own cost and expense the r line for the passage of traffic or exj trains run by McG. without any cflargi the latter ; " but there was a proviso " any time occupied on the road over above what may be required by the h( hereinbefore mentioned, or any expense cai thereby shall be paid by the contractor M on a certificate to that effect signed by superintendent of the contractor." — On ae for damages caused by the interruption of work by the passing of respondent's tra Held, affirming the judgment appealed f (14 Rev. de Leg. 422; 12 Q. L. R. 373), it was the duty of the plaintifE to get superintendent's certificate withm a reai able time, and not having taken any step get it until six years after the superinti ent had left defendant's employment, the 1 ure to produce such certificate was sufiic: ground for dismissing the appellant's act McCarron v. McQreevy, xiii., 378. 55. Bonus by-law — Conditions preeec to granting aid — Railway company — Ag ment with municipal corporation — Perfo ance of conditions — Damages.} — ^A munic; corporation entered into an agreement wit railway company by which the latter was receive a bonus on certain conditions, one which, was that the company " should ( struct at or near the corner of Colbome William streets (in Toronto) a freight : passenger station with all necessary aco modation, connected by switches, sidings, otherwise with said road " upon the coui of the town passing a by-law granting a cessary right of way. — Held, 1. That s condition was not complied with by erection of a station building not used, intended to be used, and for which pro officers, s»ch as station master, ticket ag( etc., were not appointed. Strong, J., dissf ing. — 2. Per Strong, J., that the condit only called for the construction of a bu ing with the required accommodation i connections, and did not amount to a cc nant to run the trains to such station or mi any other use of it. — 3. The words "all cessary accommodation," in the condition, quired that grounds and yards sufficient freight and passenger traffic in case the s tion were used should be provided. — On eq division of opinion, the judgment appea from (14 Ont. App. R. 32) stood afiBrin Bickford v. Town of Chatham, xvi., 235. 56. Construction of railway — Enginet certificate — Condition precedent.] — ^A s contract for the construction of part of railway provided that, " The said work shi in all particulars, be made to conform to plans, specifications and directions of party of the second part, and of his engine by whose classifications, measurements a calculations, the quantities and amounts the several kinds of work performed uni this contract shall be determined, and ^ shall have full power to reject and conde] all work or materials which, in his opini do not conform to the spirit of this agi ment, and who shall decide every questi which may or can arise between the pa" relative to the execution thereof, and nis cision shall be conclusive and binding nj both .parties hereto. The party of t'bej^'X part hereby agrees, and binds himself, t upon the certificates of his engineer that 331 CONTEACT. 323 work contemplated to be done under this con- tract has been fully completed by the party of the first part, he will pay said party of the first part for the performance of the same in full for materials and workmanship. It is further agreed by the party of the sec- ond part, that estimates shall be made dur- ing the progress of the work on or about the first of each month, and that payments shall be made by the second party upon the esti- mate and certificate of his engineer, to the party of the first part, on or before the 20th day of each month, for the amount and value of work done, and materials furnished dur- ing the previous month, 10% being de- ducted and retained by the party of the second part until the final completion of the work embraced in this contract, when all sums due the party of the first part shall be fully paid, and this contract considered can- celled." — Upon completion of the contract the engineer made a final estimate fixing the value of the work done by the sub-contractor at $79,142.65, and after deducting the money paid to and received by the sub-contractor, and a clerical error appearing on the face of the certificate, a sum of $4,187.32 remained due to the sub-contractor.- — In an action by the sub-contractor to recover $36,312.12, the Su- perior Court, (affirmed by the Queen's Bench), granted the plaintiff $4,187.32 with interest and costs. Beld, aflirming the judg- ment appealed from, that the estimate as given by the engineer was substantially such a certificate as the contract contemplated, but if not the plaintiff must fail as a final certi- ficate of the engineer was a condition prece- dent to his right to recover. Giiinault v. McGreevy, xviii., 609. 57. Quebec hariour works — Engineer's certifioate — Errors in calculation — Finality — Bulk sum contract — Extras — Deductions- — Engineer's powers — Interest.'] — In a bulk sum contract for various works and materials executed, performed and furnished on the Quebec harbour works, the contractors were allowed by the final certificate of the en- gineers a balance of $52,011. The contract contained the ordinary powers given in such contracts to the engineers to determine all points in dispute by their final certificate. The work was completed and accepted by the com- missioners on the 11th October, 1882; but the certificate was only granted on 4th February, 1886. In an action by the contractors for $181,241 for alleged balance of contract price and extra work ; Held, 1. That the certi- ficate of the engineers was binding on the parties and could not be set aside as regards any matter coming within, the jurisdiction of the engineers, but that the engineers had no right to deduct any sum from the bulk sum contract price on account of an alleged er- ror in the calculation of the quajitities of dredging to be done stated in the specifica- tions and the quantities actually done, and therefore the certificate in this case should be corrected in that respect. — 2. That in- terest should not be computed from an earlier date than from the date of the final certifi- cate fixing the amount due to the contractors under the contract, viz., 4th February,1886. — Strong and Gwyrme, JJ., were of opinion that the certificate could have been reformed as regards an item for the removal of sand er- roneously paid for to other contractors by the commissioners and charged to the plaintiffs. Peters v. Quebec Harbour Commissioners, xlx.. 685. s. c. D. — 11 58. Condition precedent — Certificate of engineer — -Statement of claim — Pleading — ■ 31 Vict. c. 13, s. 18 (D.) — Leave to amend.] — The petition alleged that suppliants were contractors for the building of section No. 4, Intercolonial Railway, and duly entered upon and completed their contract under the Act intituled " An Act respecting the construc- tion of the Intercolonial Railway," within the time, and according to its terms, covenants and conditions. That in follow- ing the directions and instructions of the commissioners and engineers employed and placed in charge ' of the works, which _ directions and instructions given from time to time, as provided by the con- tract, the suppliants were bound to follow, and did follow, they performed a large amount of extra vrork not comprised in the contract, nor in the data furnished to them at the time the contract was entered into, nor in the schedules and specifications referred to in the contract and connected therewith, and not in- tended to be covered by the lump sum, which formed the consideration money of the con- tract. That they were put to great expense by delays in preparations by the commission- ers and engineers, and to great loss and damage by reason of changes and alterations- necessitated by the unskilful manner in which the works had been laid out by the engineers- That the suppliants were deceived and mis- led in making their estimates by insufficient and erroneous data in the schedule of works and quantities prepared and published by the chief engineer. That it had not been the usage, nor was it the intention of the parties, to be held to the strict letter of the contract when the schedule gave erroneous or insuffi- cient information, entailing extra work which could be performed only with ruinous conse- quences, but they were entitled to be paid for such extra work. They set out at length the various kinds of extra work done and changes made, and prayed for a settlement of ac- counts, that they might be allowed their claim for extra work done, for the materials pro- vided by them, for damages resulting from de- fects of plans, specifications and surveys, from changes made in location, grade, etc., from the negligence and want of skill of the gov- ernment engineers, and for breach of the con- tract in being prevented from proceeding with the work, and that they might be reimbursed sums advanced during the progress of the work with interest. — The Attornev-General demurred on grounds: That it did not ap- pear by the petition that the chief engineer of the Intercolonial Railway had certified that the work for or on account of which the sup- pliants claimed had been duly execnted, or that the suppliants were entitled to be paid therefor or for any part thereof, nor that such certificate had been approved of by the commissioners of said railway as required by s. 18 of the Act respecting the construction of the Intercolonial Railway ; that the Crown was not responsible for the damages and in- juries mentioned; that it did not appear by the terms of the contract that the commis- sioners or their engineers were under any ob- ligation to lay out work or furnish specifi- cations therefor ; that it appeared by the pe- tition that the extra work claimed for was done in pursuance of directions given by the engineers as provided by the contract and it was not alleged any extra payment was to be made therefor ; that it was immaterial that the schedules of works were defective or er- roneous, because such schedules were not al- leged to have been warranted as accurate, but 323 COISTTKACT. 32 only of probable quantities, ana the demur- rer denied liability for any of the other mat- ters mentioned in the petition on the ground that the contract provided for them, or that the work, if done, was not in any way war- ranted by the Crown, or had been done un- der the directions of the engineers acting within the contract. — In the Exchequer Court, Henry, J., overruled the demurrer with costs. Held, that the applicant's petition was too indefinite in form, and was insufficient in not setting out the contract, and a compliance with the requirements of s. 18 of 31 Vict. c. 13 (D.), or satisfactory ground of non-com- pliance with the condition precedent requir- ed by that section. — Appeal allowed. Judg- ment of the Exchequer Court reversed, with leave to suppliant (the Crown assenting) to amend his petition, on payment of costs of appeal and demurrer, by setting out the con- tract and such averments as he might be ad- vised. 27^e Queen v. Smith, Cass. Dig. (2 ed.) 634. 59. Condition precedent — Direction to jury • — Implied promise — Part performance — Bene- fit from works done.'] — In ApriJ, 1872, M. gave W. an order by letter for mill machinery, to be put in complete operation to M.'s sai- isfaction in a building to be provided by him. All the machinery, with the exception of a slab saw, was supplied, and the mill was put in operation in the summer of 1872. JI. found fault with the machinery, and after altera- tions and repairs made by W. in 1873, M. put additional machinery into the mill and worked it until 1875. when it was destroyed by fire. M. had insured the whole machinery, including that supplied by W. for $7,700. the additional machinery put in by himself being valued at $2,500, and received the benefit of the insurance 'to the full amount of the loss. The contract price was $4,250. with freight and expenses, making in all $4,790. Some payments were made, but M. refusing to pay a balance of $1,900, W. brought an action on assumpsit, adding the common counts. — At the close of plaintiffs' case a nonsuit was moved for on the ground that It was a condi- tion precedent to M.'s liability that the work should be done to his satisfaction, and plain- tiffs' evidence shewed that M. never was satis- fied, but was always complaining. This being overruled, M. undertook to shew that the machinery was not as represented, but defec- tive and in many parts had to be repaired, and that he had already paid what it was worth. Evidence was given on this issue, and W. en- deavoured to shew that any defect in the working of the mill was attributable to the shifting of the foundation erected by M., and to the want of skill of the men employed by him. The trial judge left it to the jury to say whether the machinery was reasonably fit and proper for the purpose for which it was Intended, and if not. directed them that M. was only bound to pay as much as it was worth. The jury returned a verdict for W. for $1,850, having deducted $200 for defects and $80 for machinery not supplied. — A rule nisi to set aside the verdict and grant a new trial was made absolute by the Supreme Court (N. B.) (2 Pugs. & Bur. 11), on the ground that the learned judge should nave directed the jury that " the length of time that the de- fendant used the machinery, the complaints he made about it from time to time, and all the circumstances connected with it. should hate been left to the jury, with a direction for them to consider whether from the defend- ant's dealings with it they could infer a ne implied contract on his part to keep the m chinery and pay what it was worth, thouj less than the contract price." Held, that i suing upon this contract it was not necessai for the plaintiffs to have averred, as a cond tion precedent to their right to recover, thi the work, besides having been skilfully, prope: ly, sufficiently and in a workmanlike manne executed, was completed to the satisfaction % the defendant. — In cases in which somethin has been done under a special contract, bi not in strict accordance with the terms of tl contract, although the party cannot recovf the remuneration stipulated for in the contrac because he has not done that which was t be the consideration of it, still, if the othe party has derived any benefit from the wor done, as it would be unjust to allow him t retain that without paying for it, the lai implies a promise upon his part to pay such remuneration as the benefit conferred upo: him is reasonably worth. The jury in thi case having decided upon the evidence tha the defendant had derived a greater benefi from the work done than was compensate) by the amount he had already paid, the plain tififs were entitled to retain the benefit of th verdict, and the rule granting a new tria should be discharged with costs. Wateron V. Morrow, Cass. Dig. (2 ed.) 138. 60. Condition — Final certificate of engines — Amended estimate,'] — McG. in the writtei agreement for construction of several bridge reserved the option of altering the works anc terminating the contract at any time upoi notice and payment for work and material up to the time of notice " oh production o the certificate of the engineer of the sai( McG. establishing amount due." McG. acte( on his option and on the date of his notlo his engineer certified $14,872.13 to be due including the cost of two turn-tables, an( after deducting a payment on account of 8 note for $8,000. "The engineer made anothei estimate, apparently in amendment on sami date, establishing the amount at $22,131.9; without reference to the amount of the note Defendant contended the estimates did no establish correctly either the amount of worl done or value of materials furnished, bu' were merely progress estimates and that plain tiffs had been fully paid all they were entitlec to. Plaintiffs recovered $15,042.44, the tria judge deducting the cost of turn-tables, aii( on appeal the Queen's Bench made a furthe) reduction of $2,006.03 for which no estimati was given. — Held, affirming the judgment ap pealed from that the certificate in questioi was delivered as a final estimate to shew th( correct debt due on materials prepared foi the works on which work was stopped by de fendant. McG-reevy v. Boomer, Cass. Dig (2 ed.) 139. 61. Petition of right— 46 Vict. c. 27 (Q.)- Final certificate of engineer — Extras — Prac tice as to plea in tar not set «p.] — A contract entered into between Her Majesty the Queen in right of the Province of Quebec, and S. X Cimon for the construction of three depart mental buildings at Quebec, contained th( usual clauses that the balance of the contraci price was not payable until a final certificatf by the engineer in charge was delivered. sheW' ing the total amount of work done, and ma; terials furnished, and the cost of extras anc the reduction in the contract price upon anj 335 COJSn^EACT. 326 alterations. There was a clause providing for the final decision by the Commissioner of Pub- lic Works, in matters in dispute upon the tak- ing over or settling for the works. The Com- missioner of Public Works, after hearing the parties, gave his decision that nothing was due to the contractors, and the engineer in charge, by his final certificate, declared that a balance of $31.36 was due upt>n the contract price, and $42.84 on extras. The suppliants by their petition of right claimed inter alia $70,000 due on extras. The Crown pleaded general denial and payment. The Superior Court granted the suppliants $74.20, the amount declared to be due under the final cer- tificate of the engineer. On appeal the Queen's Bench increased the amount to $13,- 198.7'7, with interest and costs. — Held, revers- ing the judgment appealed from, and restor- ing the judgment of the Superior Court, that the suppliants were bound by the final certifi- cate given by the engineer under the terms of the contract. — Per Fournier and Taschereau, JJ., dissenting, that as the final certificate had not been set up in the pleadings as a bar to the action, and there was an admission of record by the Crown that the contractor was entitled to 20 per cent, commission on extras ordered and received, the evidence fully justi- fied the finding of the Court of Queen's Bench that the commission of 20 per cent, was still due and unpaid on $65,837.09 of said extra work. The Queen v, Cimon, xxiii., 02. 62. Electric plant — Reference to experts iy court — Adoption of report hy tioo court/: — Appeal on question of fact — Arbitration clause in contract — Right of action.^ — ' The Royal Electric Company having sued the City of Three Rivers for the contract price of the in- stallation of a complete electric plant, which, under the terms of the contract, was to be put in operation for at least six weeks before payment of the price could be claimed, the court referred the case to experts on the ques- tion whether the contract had been substan- tially fulfilled, and they found that owing to certain defects the contract had not been sat- isfactorily completed. The Superior Court adopted the finding of fact of the experts, and dismissed the . action. The Court of Queen's Bench for Lower Canada (appeal side ) . on an appeal afiirmed the judgment of the Superior Court. — On an appeal to the Supreme Court of Canada : Held, afiirming the judgments of the courts below, that it being found that the appellants had not fulfilled their contracts within the time specified, they could not recover. — Held, also, that when a contract provides that no payment shall be due until the work has been satisfactorily completed a claim for extras, made under the contract, will not be exigible prior to the com- pletion of the main coDtva.ct.^Quwre. Whe- ther a right of action exists although a con- tract contains a clause that all matters in dis- pute between the parties shall be referred to arbitration. Quebec Street Railway Com- panij V. City of Quebec (ifi Q. L. R. ap.:>) referred to. Royal Electric Co. v. City of Three Rivers, xxiii., 289. 63. Construction of contract — Inconsistent conditions — Dismissal of contractor — Archi- tect's powers — Arbitrator — Disqualification — Probable bias — Rejection of evidence — Judge's discretion- as to order of ecic/eiice.j^A con- tract for the construction of a public work contained the following clause : " In ca.=!e the works are not carried on with such expedi- tion and with such materials and workman- ship as the architect or clerk of the works may deem proper the architect shall be at libert.v to give the contractors ten days' notice In writing to supply such additional force or material as in the opinion of the said archi- tect is necessary, and if the contractors fail to supply the same it shall then be lawful for the said architect to dismiss the said con- tractors and to employ other persons to finish the work." The contract also provided that " the general conditions are made part of this contract (except so far as inconsistent here- with), in which case the terms of this con- tract shall govern." The first clause in the " general conditions " was as follows : In case the works from the want of sufiBcient or pro- per workmen or materials are not proceeding with all the necessary (despatch, then the architect may give ten days' notice to do what is necessary, and upon the contractor's fail- ure to do so, the architect shall have the power at his disci-etion (with the consent in writing of the court house committee, or commission as the case may be) , without process or suit at law, to take the work or any part thereof mentioned in such notice out of the hands of the contractors. Held, Sedgewick and Gir- ouard, JJ., dissenting, that this last clause was inconsistent with the above clause of the contract, and that the latter must govern. The, architect thgrefore had power to dismiss the contractor without the consent in writing of the committee. — At the trial, the plaintiff tendered evidence to shew that the architect had acted maliciously in the rejection of ma- terials, but the trial judge required proof to be first adduced tending to shew that the ma- terials had been wrongfully rejected, reserving until that fact should be established the con- sideration of the question whether malice was necessary -to be proved, and if necessary what evidence wrould be sufficient to establish it. Upon this ruling plaintiff declined to offer any further evidence, and thereupon judgment was entered for the defendants. — Held, that this ruling did not constitute a rejection, but was merely a direction as to the marshalling of evidence within the discretion of the trial judge. Neelon v. City of Toronto, xxv., 579. 64. Bailees — Common earners — Express company — Receipt for money parcel — Condi- tions precedent — Formal notice of claim — Pleading — Money had and received — Special pleas.] — Where an express company gave a receipt for money to be forwarded with the condition endorsed that the company should not be liable for any claim in respect of the package, unless within sixty. days of loss or damage a claim should be made by written statement, with a copy of the contract an- nexed. — Held, that the consignor was obliged to comply strictly with these terms as a condi- tion precedent to recovery against the express company for failure to deliver the parcel to the consignee. Richardson v. Canada West Farmers' Ins. Co. (IR U. O. C. P. 430) dis- tinguished. — In an action to recover the value of the parcel, on the common count for money had and received, the plea of ." never in- debted," put in issue all material facts. neces- sary to establish the plaintiff's right of action. Judgment appealed from (10 Man. L. R. 595'! reversed. Northern Pacific Express Co. v. Martin et al., xxvi., 135. 65. Contract — Subsequent deed — Inconsis- tent provisions.] — C, by agreement of 6th April, 1891. agreed to sell to the Erie County 327 CONTEACT. 3! Gas Co.. all his gas grants, leases, and fran- chises, the company agreeing among other things, to "reserve gas enough to supply tne plant now operated or to be operated by them on said property." On 20th April, a deed was executed and delivered to the company transferring all the leases and property speci- fied in said agreement, but containing no re- servation in favour of C. such as w^^ .g?,^" tained therein. The Erie Company, "} 1894 assigned the property transferred by said deed to the Provincial Natural Gas and Fuel Go., who immediately cut oJE from the works of O. the supply of gas, and an action was brought to prevent such interference.— ffeW, affirming the decision of the Court of Appeal, that as the contract between the parties was embodied in the deed subsequently executed the rights of the parties were to be determined by tUe latter instrument, and as it contained no re- servation in favour of C. his action could not be maintained. Carroll et al. v. Provincial "Natural Gas and Fuel Co., xxvi., 181. fifi Resolutory condition — Conditional sale —Arts. 379, 2011. 2083, 2085. 2089 C. C— HypotJiecarv creditor — Unpaid vendor — Pro- perty 'real and personal — ImmovaUes by desti- nation — Movables incorporated with the free- hold — Severance from realty. "[ — An action was brought by L. to revendicate an engine and two boilers under a resslutory condition (condition resolutoire) contained in a written agreement providing that, until fully paid for, they should remain the property of L., and that all payments on account of the price should be considered as rent for their use, and further that, upon default, L. should have the right to resume possession and remove the machinery. The machinery in question had previouslv been imbedded in foundations in a sawmill which had been sold separately to the defendants, and at the time of the agree- ment the boilers were still attached to the building, but the engine had been taken out and was lying in the mill-yard, outside of the building. While in this condition the defend- ants hypothecated the mill property to B., and the hypothecs were duly registered. The engine was subsequently replaced in the build- ing and used for some time in connection with the boilers for the purpose of running the mill. The agreement respecting the engine and boilers was not registered. B. in- tervened in the action of revendication and claimed that the machinery formed part of the freehold and was subject to his hypothecs upon the lands. — Held, affirming the judgment appealed from (Q. B. 4 Q. B. 354), that the agreement between L. and the defendants could not be considered a lease, but was rather a sale subject to a resolutory condition with a clause of forfeiture as regards the pay- ments made on account. But whether the agreement was a lease or a sale on condition, L. having, as respects the boilers and their accessories, consented to their incorporation with the immovable, and dealt with them while so incorporated, they became immov- ables by destination within the terms of art. 379 of the Civil Code, and subject to the duly registered hypothecs of the respondent. Wall- Iridge v. Parwell (18 Can. S. C. R. 1), fol- lowed. Laine et al. v. Beland, xxvi., 419. 67. Insurance, life — Conditions and war- rnnties — Indorsements on policy — Inaccurate statements — Misrepresentations — Latent dis- ease — Material facts — Cancellation of policy — Return of premium — Statute, construction of— 55 Vict. c. 39. s. 33 (Ont.)] — The p vision of s.-s. 2 of s. 33 of "The Insurai Corporations Act, 1892," (Ont.), limiting ci ditions and warranties indorsed on polic providing for the avoidance of the contn by reason of untrue statements in the appli tions, to cases where such statements are n terial to the contract, do not require the n teriality of the statements to appear by 1 indorsements, but the contract will be avoic only when such statements may subsequen be judicially found to be material, as provic by s.-s. 3. — Misrepresentations upon an api cation for life insurance so found to be n terial will avoid the policy notwithstandi that they may have been made in good fa and in the conscientious belief that they wi true. Venner v. Sun Life Ins. Go. (17 Ci S. C. R. 364) followed. Jordan v. Provircc Provident Institut^ion, xxviii., 554. 68. Fire insurance — Construction of a tract — " Until " — Condition precedent Waivei Estoppel — Authority of agent.] Certain conditions of a policy of fire insurai required proofs, etc., within fourteen dc after the loss, and provided that no cla should be payable for a specified time af the loss should have been ascertained a proved in accordance with this conditii There were two subsequent clauses providi respectively that until such proofs were p: duced, no money should be payable by the surer and for forfeiture of all rights of 1 insured if the claim should not. for the spi of three months after the occurrence of 1 fire, be in all respects verified in the mam aforesaid. Held, reversing the judgment i pealed from (31 N. S. Rep. 337), that 1 condition as to the production of proofs wi in fourteen days was a condition precedf to the liability of the insurer ; that the fo: of the word " until " in the subsequent clai could not give to the omission to prodi such proofs, within the time specified. 1 effect of postponing recovery merely ut after their production ; and that the clause to forfeiture after three months did not api to the conditions specially required to be f filled within any lesser period. Commerc Union Assur. Co. v. Margeson, xxix., 601. 69. Construction of railway — Certificate engineer — Condition precedent.] — Where i contract for construction of a railway P vided that the work was to be done to i satisfaction of the, chief engineer of a railw company not a party to such a contract, v was to be the sole and final arbiter of all ( putes between the parties, the contractor t not bound by such condition when the pa named as arbiter proved to be, in fact, engineer of the other party to the contrs Judgment appealed from (26 Ont. App. 133) affirmed. Dominion Construction ' V. Good & Co., XXX., 114. 70. Condition as to inspection — Sale lumier.] — A contract for the sale of lum was made wholly by correspondence, and letter which completed the bargain contaiJ the following provision : " The inspection this lumber to be made after the same is la ed here" (at Windsor) "by a competent spector to be agreed upon between buyer ! seller and his inspection to be final." Si reversing the judgment of the Court of ' peal, that it was not essential for the pari to agree upon an inspector before the insi tion was begun ; and a party chosen by 329 CONTEACT. 330 buyer having inspected tlie lumber and before his work was completed the seller having agreed to accept him as inspector the contract was satisfied and the inspection final and binding on the parties. Thomson v. Mathe- son, XXX., 357. 71. Municipal work — Condition a$ to sub- letting — Consent of council.'] — Where a con- tract with a municipal corporation provides that it shall not be sub-let without the consent of the corporation it is incumbent on the con- tractor to obtain such consent before sub- letting, and if he fails to do so he cannot maintain an action against a proposed sub- contractor for not carrying on the portion of the work he agreed to do. — In a,n action against the sub-contractor the latter pleaded the want of assent by the council whereupon the plaintiff replied that the assent was with- held at the wrongful request and instigation of the defendant and in order wrongfully to benefit said defendant and enable him, if pos- sible, to repudiate and abandon the contract. Issue was joined on this replication. Held, affirming the judgment appealed from (27 Ont. App. R. 135. ) . that the only issue raised by the pleadings was whether or not the de- fendant had wrongfully caused the consent to be withheld and that the plaintiff had failed to prove his case on that issue. Ryan v. WillougKby, xxxi., 33. 72. Insurance against fire — Condition in policy — Interest of insured — « Mortgagor as owner — Further insurance.} — By a condition in a policy of insurance against fire the policy was to become void " if the assured is not the sole and unconditional owner of the property . . . or if the interest of the' assured in the property whether as owner, trustee mortgagee, lessee, or otherwise is not truly stated." Held, that a mortgagor was sole and unconditional owner within the terms of said condition. — ^By another condition the policy would be avoided if the assured should have or obtain other insurance, whether valid or not, on the property. Tlie assured applied for other insurance but before being notified of the acceptance of his application the pre- mises were destroyed by fire. Held, that there was no breach of said condition. Commercial Union Assur. Co. v. Temple (29 Can. S. C. R. 206) followed. ^ Western Assur. Co. Temple, xxxi., 37^'.]lWi»jKj8< P 73. rolicy of insurance — Building and stock separately insured — Indivisibility of contract — Incumbrance on land — Misrepresentation — 36 Vict. c. U, s- 36 (Ont.) — Condition of policy. See Insurance, Fire, 91. 74. Policy of insurance — Conditions — "No- tice of assignment — Loss payable to creditors —Right of action. See Insurance, Fire, 17. 75. Conditions precedent — Memo on margin of policy — Countersignature. See Insurance, Life, 5. 76. Free booms — Possession — Proprietary rights — Conduct of parties. See Estoppel, 7. 77. Condition as to arbitration — Booming and storing logs — Necessity of award — Action. See Arbitrations, 23. 78. Railway company — Carriage of goods — Limitation of liability — Railway Act, 1888, s, ■me (3). See Railway, 5. 79. Debtor and creditor — License to take possession — Bona fide opinion as to debtor's incapacity — Replevin — Conversion. See Debtor and Creditor, 50. 80. Marine insurance — Voyage policy — " At and from " a port — • Construction of policy — Usage. See Insurance, Marine, 24. 81. Contract of insurance — Construction — Marine insurance — Goods shipped and insured in bulk — Loss of portion — Total or partial loss. See Insurance, Marine, 25. 82. Condition in policy of fire insurance — Ship insured " while running " — Variation from statutory conditions — Ontario Insurance Act. See Insurance, Fire, 86. 5. Consideration. 83. Implied agreement — Failure of consid- eration — Impossibility of performance.] — When one contracts to do work for another, the preparation for which involves outlay and expense, a corresponding agreement, in the absence of any express provision, will be im- plied on the part of the person with whom he contracts to furnish the work ; but no such implication will bfe made where, from circum- stances known to, and in the contemplation of, both parties at the date of the agreement to do the work it was, and continued to be beyond, the power of the party to carry out such implied agreement. Henry, J., dissent- ing. Judgment appealed from (14 Ont. App. R. 339) affirmed. McKenna v. McNamee. xv., 311. 84. Condition precedent — Certificate of engineer — Progress estimate — Final estimate — Evidence.] — B. was contractor to build rail- way bridges for M. who reserved the right to substitute iron for the wooden superstructures of_ any of them, and by notice to B. to ter- minate the contract at any time, paying plain- tiffs for work done and materials provided up to the time of giving notice, " on production of the certificate of the engineer of the said " defendant " establishing amount due." M. acted on this provision with respect to three bridges, by notice dated 2nd October, 1875, and his engineer reported and certified under same date $14,872.13 to be due, including $4,100 for iron-work for two turn-tables pur- chased by B. for the work, and deducting pay- ment on account by a note for $8,000. The engineer made another estimate, apparently in amendment of his previous one, dated the same day, establishing the amount at $22,- 131.93, without reference to the note for $8,000. — M. contended that the estimates of the engineer did not establish correctly either the amount of work done or value of mate- rials, but were merely progress estimates to enable work to progress generally under the contract, until a final examination and ac- ceptance of the works, and that, as a matter of fact, the plaintiffs had been fully paid all they were entitled to. The Superior Court 331 CONTEACT. 3; judgment awarding B. $15,042.44. deducting the turn-tables, was affirmed by the Queens Bench with the exception of a further deduc- tion of $2,006.03 for which there appeared to have been no estimate given. Held, affirming the judgment appealed from, that the proper conclusion from the evidence was, that the certificate in question was delivered to B. as a final estimate, intending to represent as cor- rect the debt of JI. to B. for amount due on materials prepared for the bridges, upon which work was stopped by defendant. Mc- Greevy v. Boomer, Cass. Dig. (2 ed.) 139. 85. Construction of agreement — Right of way — Removal of timber — Xccessary rovte.] — The plaintiff was the owner of a farm, of about a mile in breadth and five-sixths of a mile in length. About two-thirds of the farm was heavily wooded, and the rest of it was cleared and cultivated. The defendant became the purchaser of the trees and timber upon the land under an agreement which provided, among other things, that the purchaser should have " full liberty to enter into and upon the said lands for the purpose of removing the trees and timber, at such times and in such manner as he may think proper," but reserved to the plaintifE the full enjoyment of the land " save and in so far as may be necessary for the cutting and removine of the trees and timber." To have removed the timber through the wooded land at the time it was removed, would have involved an expenditure which would have possibly amounted to a sacrifice of the greater portion of the timber. Held, aiErming the judgment appealed from (19 Out. App. E. 176), that the defendants had a right to remove the timber by the most direct and available route, provided they acted in good faith and not unreasonably, and the reservation in favour of the plaintifE did not minimize or modify the defendant's right, un- der the general grant of the trees, to remove the trees across the cleared land. Gwynne, J., dissenting. Stephens v. Gordon, xxii., 61. 86. Construction of contract — Street rail- way — Permanent pavements — Arbitration and award.'] — The Toronto St. Ry. Co. was in- corporated in 1861, and its franchise was to last 30 years, at the expiration of which period the city could assume the ownership of the railway and property of the company on payment of the value thereof, to be deter- mined by arbitration. The company was to keep the roadway between the rails, and for 18 inches outside each rail paved and maca- damized and in good repair, using the same material as that on the remainder of the street, but if a permanent pavement should be adopted by the corporation the company was not bound to construct a like pavement be- tween the rails, etc., but was only to pay the cost price of the same, not to exceed a speci- fied sum per yard. The city laid upon cer- tain streets traversed by the company's rail- way permanent pavements of 'cedar blocks, and issued debentures for the whole cost of such works. A by-law was then passed, charging the company with its portion of such cost in the manner and for the period that adjacent owners were assessed, under the Municipal Act for local improvements. The company paid the several rates assessed up to the year 1886, but refused to pay for subsequent years, on the ground that the cedar block pavement had proved to be by no means permanent, but defective and wholly insufficient for streets upon which the railway was opferated. An action having been broui by the city for these rates, it was held tl the company was only liable to pay for p manent roadways, and a reference was ordei to determine, among other things, whether not the pavements laid by the city were p manent. This reference vras not proceec with, but an agreement was entered into which all matters in dispute to the end of 1 year 1888 were settled, and thereafter 1 company was to pay a specific sum annua per mile in lieu of all claims on account debentures maturing after that date, and " lieu of the company's liability for constn tion, renewal, maintenance, and repair in spect of all- the portions of streets occup by the company's track so long as the frs chise of the company to use the said stre now extends." "The agreement provided tl it was not to affect the rights of either pai in respect to the arbitration to be had if 1 city took over the railway, nor any matti not specifically dealt with therein, and it v. not to have any operation " beyond the peri over which the aforesaid franchise now ( tends." This agreement was ratified by Act of the Legislature passed in 1890, wh: also provided for the holding of the said ar tration which having been entered upon, I city claimed to be paid the rates impoi upon the company for construction of p manent pavements for which debentures li been issued payable after the termination the franchise. The arbitrators having fused to all(vv this claim, an action v brought by the city to recover the si amount. — Held, affirming the decision of 1 Court of Appeal, that the claim of the c could not be allowed ; that the said agreenB discharged the' company from all liability respect to construction, renewal, maintenan and repair of the said streets; and that ( clause providing that the agreement shoi not affect the rights of the parties in respi to the arbitration, etc., must be considered have been inserted ex majori cautela a could not do away with the express contri to relieve the company from liability. — S( further, that by an Act passed in 1877, a a by-law made in pursuance thereof, the co pany was only assessable as for local impro ments, which, by the Municipal Act, constiti a lien upon the property assessed, but not personal liability upon the owners or occupii after they have ceased to be such; therefi after the termination of the franchise 1 company would not be liable for these rat City of Toronto v. Toronto Street By. C xxiii., 198. 87. Ag7-eetnent respecting lands — Bot daries — Referee's decision — Bornage Arbitrations — • Arts. 941-945 and ISJ/l et s C. C. P.] — Tbe owners of contiguous far executed a deed for the purpose of settlinf boundary line between their lands, there naming a third person to ascertain and the true division line upon the ground, a agreeing further to abide by his decision, a accept the line which he might establish correct. On the conclusion of the referc operations one of the parties refused to cept or act upon his decision, and action ' brought by the other party to have the 1 so established declared to be the true boi dary, and to revendicate the strip of la lying upon his side of it. — Held, reversi the judgment of the Court of Queen's Ben that the agreement thus entered into was contract binding upon the parties to be e: 333 CONTEACT. 334 cuted between them according to the terms therein expressed and was not subject to the formalities prescribed by the Code of Civil Procedure relating to arbitrations. McGoey V. Leamy, xxvii., 545. 88.' Co-relative agreements — Illegal con- sideration — Nullity — Judicial notice of invalidity. See No. 163, infra. 6. Ceown Contracts — Public Works. 89. Puilie works — Claim for extras — Certificate of engineer — Condition precedent — SI Vict. c. 12 (D.) — Authority to hind the Crown.] — The suppliant contracted with the Minister of Public Works, to construct, finish, and complete, for $78,000, a deep sea wharf at Richmond. N. S., agreeabl.v to the plans and specifications, and under directions of the engineer in charge. By the seventh clause of contract no extra work could be performed, unless " ordered in writing by the engineer in charge before the execution of the work." By letter of 26th August, 1873, the Minister authorized suppliant to erect a coal floor, for the additional sum of $18,400. and further extra work amounting to $2,781, was per- formed under another letter from the depart- ment. J-he work was completed, and on the final certificate of the engineer in charge $9,681, as the balance due, was paid to sup- pliant, who gave the following receipt, dated 30th April, 1875 : " Received from the In- tercolonial Railway, in full, for all amounts against the Government for works under con- tract as follows : ' Richmond deep water wharf, works for storage of coals, works for bracing wharf, rebuilding two stone cribs the sum of $9,681,' " Suppliant sued for extra work alleged not to be covered by this pay- ment, and for damages caused by deficiency in and irregularity of payments. — Held, af- firming judgment of the Exchequer Court (4 Can. S. C. R. 543) that all work performed by the suppliant for the Government was either contract work within the plans or specifications, or extra work within the mean- ing of the seventh clause of the contract ; that he was paid in full the contract price, and also the price of all extra work for which he could produce written authority, and that the written authority of the engineer and the estimate of the value of the work are condi- tions precedent to the right of the suppliant to recover payment for any other extra work. Henry, J., dissenting. — Per Ritchie, O.J., that neither the engineer, nor the clerk of the works, nor any subordinate officer in charge of any of the works 'of the Dominion of Can- ada has any power or authority express or implied, under the law to bind the Crown to any contract or expenditure not specially au- thorized by the express terms of the contract duly entered into between the Crown and the contractor according to law, and then only in the specific manner provided for by the express terms of the contract. O'Brien v. The Queen, iv., 529. 90. Intercolonial Railway — 31 Vict. c. IS, s. 18 — Certificate of chief engineer — Condition precedent — Extras — Tort against the Crown — Misrepresentation — Fraudulent misconduct of Crown servants — Forfeiture — Liquidated damages — Time limit.] — J. & S. contracted with the Intercolonial Railway Commission- ers to construct and complete section No. 7 of the Intercolonial Railway for a bulk sum of $557,750. During the progress of the work changes were made. The works were suffici- ently completed to allow of rails being laid, and the line opened for traffic on the 11th November, 1870. The total amount paid on the 10th February, 1873. was $557,750, the amount of the contract. The contractors claimed $116,463.83 for extra work, etc., be- yond what was included in their contract. The commissioners, on a report from the chief engineer, recommended that $31,091.85 (less items of $8,300 and $10,354.24) be paid upon full discharge of all claims of every kind or description under the contract. This bal- ance was tendered to suppliants and refused. The petition of right claimed $124,0()3.33 from the Crown for extras outside of and be- yond the written contract, alleging that by orders of the chief engineer additional work and alterations were required, but these orders were carried out only on the understanding that such additional work and alterations should be paid for extra ; and further, that they were put to large expense and com- pelled to do much extra work which they were entitled to be paid' for, in consequence of misrepresentations in plans and bills of works exhibited at the time of letting. — On the pro- file plan it was stated that best information in possession of chief engineer as to probable quantities of the several kinds of work would be found in schedules. " but contractors must understand that these quantities are not guar- anteed;" and in the bill of works an abstract of all information in possession of the com- missioners and chief engineer with regard to the quantities, it was stiated. " the quantities herein given as ascertained from the best data obtained are, as far as known, approximately accurate, but at the same time they are not warranted as accurate, and no claim of any kind will be allowed, though they may prove to be inaccurate." — The contract provided that the price of $557,750 should be held to be full compensation for all works embraced in, or contemplated by the contract, or which might be required in virtue of any of its pro- visions, or by law, and that the contractors should not, upon any pretext whatever, be entitled, by reason of any change, alteration •or addition made in or to such works, or plans and specification or by reason of the exer- cise of any of the powers vested in the Governor-in-Council by the " Act respecting the construction of the Intercolonial Rail- way," or in the commissioners or engineer, by the contract or by. law, to claim or demand any further or additional sum for extra work, or as damages or otherwise, the contractors thereby expressly waiving and abandoning any such claim or pretension except as provided in the 4th section of the contract, relating to alterations in the grade or line of location : and that the contract and specification should be in all respects subject to the provisions of the said Act (31 Vict. c. 13), and also, in so far as they might be applicable, to the provisions of " The Railway Act of 1868." — The Act, 31 Vict. c. 13. s. 91 enacts that no money shall be paid to any contractor until the chief engineer shall have certified that the work, for or on account of which the same shall be claimed, has been duly executed, nor until such certificate shall have been approved of by the commissioners. No certificate was given by the chief engineer of the execution of the work. — Held, by the Exchequer Court of Canada, Ritchie, J., that as the contract required that any work done on the road must be certified to by the chief engineer, until he 335 CONTKACT. 336 so certified and such certificate was approved of by the commissioners, the contractors were not entitled to be paid anything; that if the work in question was extra work, the con- tractors had by the contract waived all claim for payment for any such work ; that if such extra work was of a character so peculiar and unexpected as to be considered dehors the contract, then there was no such contract with the commissioners as would give the contractors any legal claim against the Crown; the commissioners alone being able to bind the Crown, and they only as author- ized by statute ; that there was no guarantee, express or implied, as to the quantities, nor any misrepresentations respecting them; but, even if there had been, a petition of right will not lie against the Crown for tort, or for a claim based on an alleged fraud, im- puting to the Crown fraudulent misconduct of its servants. — In the contract it was also provided that if the contractors failed to per- form the works within the time agreed upon (1st July, 1871), the contractors would for- feit all money then due aud owing to them under the terms of the contract and also the further sum of $2,000 per week for all the time during which said works remained in- complete after that date, by way of liquidated damages for such default. The contract was not completed till the end of August. 1872. Held, that if the Crown insisted on a decree for the penalties, time being declared the es- sence of the contract, the damages attached, and the Crown was entitled to $2,000 per week from the 1st July. 1871. till the end of August, 1872, for liquidated damages. Jones V. The Queen, vii.. 5^0. 91. Liability of the Crown — Quantum, meruit — Petition of right — Public work — Executory contract — SI Vict. c. 12, ss. 7, 15, 20 — TJnaiiihorized expenditure — Appropria- tions.'[ — W., a sculptor, was employed by the Dominion Government to prepare plans, models, specifications and designs, for the lay- ing out, improvement and establishment of the Parliament Square at Ottawa ; he did so. and superintended the work and construction_ of improvements for six months. He claimed $50,- 000 for the value of his work. — 31 Vict. c. 12, ss. 7 and 15 provide certain requisites for exe- cutory contracts in writing as to signing, etc., to be binding : and before any expenditure is incurred for previous sanction of Parliament, except for such repairs and alterations. Sec- tion 20 requires tenders for all works except in emergency, or where ,the work could be more expeditiouslv and economically executed by tjje officers and servants of the department. — Heid. by the Exchequer Court of Canada, Richards, C.J. : That the Crown in this Do- minion cannot be held responsible under a petition of right on an executory contract entered into by the Department of Public Works for the performance of certain works placed by law under the control of the de- partment, when the agreement therefor was not made in conformity with 31 Vict. e. 12, s. 7 ; that under s. 15 of said Act. if Parlia- ment has not sanctioned the expenditure, a petition of right will not lie for work done for and at the request of the Department of Public Works, unless it be for work done in connection with repairs and alterations which the necessities of the public service demand- ed ; and in this case, if Parliament has made appropriations for the works and so sanction- ed the expenditure, and if the work done was of the kind that might properly be executed by the officers and servants of the departmejit under s. 20, then no written contract would be necessary to bind the Crown, and suppli- ant should recover for work so done. Wood V. The Queen, vii., 634. 92. Tender — Acceptance — Breach — Liability of Grown — Parliamentary or de- partmental printing — Form of contract.] — The clerk of the joint committee on printing, advertised for tenders for the printing, fur- nishing the printing papers and the binding required for the Parliament of the Dominion of Canada, and suppliants' tender was ac- cepted by adoption of the committee's report, and a contract was executed between the sup- pliants and the clerk, which was contended to be acceptance, constituting a contract between suppliants and Her Majesty, entitling them to do the whole of the printing required for the Parliament of Canajia, and, not having been given the same, and they claimed com- pensation. — Held, reversing the Exchequer Court, that the Parliamentary printing was a matter connected with the internal economy of the Senate and House of Commons over which the Executive Government had no con- trol ; and that the Crown was no party to the contract with the suppliants and conld not be held responsible for a breach of it. — 32 & 33 Vict. c. 7, provides that printing, binding and other like work for the depart- ments of the Government shall be done un- der contracts to be entered into under auth- ority of the Governor-in-Council after adver- tisement for tenders. The Under Secretary of State advertised for tenders for the print- ing " required by the several departments of the Government." The suppliants tendered with specifications annexed, supplied by the Government, containing provisions as to per- forming the work and giving security. The tenders were accepted by the Governor-in- Council. and an indenture executed between the suppliants and Her Majesty, by which thi'y agreed to perform " all jobs or lots of printing for the several departments of the Government of Canada, of every description coming within the denomination of depart- mental printing, and all the work and ser- vices connected therewith and appertaining thereto, as set forth in the specification an- nexed, in such numbers and quantities as may be specified in requisiticms made from time to time by said departments." Part of the departmental printing having been given to others, the suppliants claimed compensation, contending that they were entitled to the whole of said printing. — Held, affirming the Exchequer Court (1 Ex. C. R. 363). Tas- chereau and Gwynne, JJ., dissenting, that having regard to the whole scope and nature of the transaction, the statute, the advertise ment, the tender, the acceptance, and the con- tract, there was a clear intention shewn that the contractors should have all the printing that should be required by the several de- partments of the Government, and that the contract was not a unilateral contract but a binding mutual agreement. The Queen v. MacLean, viii., 210. 93. Breach — PuUio work — Transfer-;-^!- sent by Croicn — Evidence — Cancellation— Right to recover.] — H. C. & F. contracted with Her Majesty for a public work, MO after commencement of the work, associaw partners with them in the" work, amongsc others S. & R. (respondents), and on im June, 1879, the whole contract was assignco to S. & R. On 25th July. 1879, the contract was cancelled bv order-in-council, on tne 337 CONTEACT. 338 ground that satisfactory progress had not been made. On 5th August, 1879, S. & R. notified the minister of the transfer made to them. On 9th August, the order-in-council was sent to H. C. & P. On 14th August an order- in-council was passed stating tliat as the Government had never assented to the trans- fer and assignment of the contract to S. & R., the contractors should be notified that the contract was taken out of their hands and annulled. In consequence S. & R. ceased work, and with the consent of the minister realized their plant and presented a claim for damages, and finally H. C. & F. and S. & R. filed a petition of right claiming damages for breach of contract. — The defence set up the 17th clause of the contract which provided against assignment of the contract and, in case of assignment without consent, enabled the works to be taken out of the contractor's hands and means employed to complete them ; and that in such case the contractor should have no claim for any further payment in respect of the works performed, but remained liable for loss by reason of non-completion. In the Exchequer Court, Henry, J., found that the minister knew that S. & R. were partners ; that he was satisfied to have them connected with the works; that the depart- ment knew S. & R. were carrying on the works, and that S. & R. had been informed by the deputy minister that all that was neces- sary to be officially recognized as contractors was to send a letter to the Government from H. C. & F. — ^The suppliants were awarded damages. — Held, reversing the judgment ap- pealed from (1 Ex. C. R. 376), Fournier and Henry, JJ., dissenting that there was no evidence of a binding assent on the part of the Crown to an assignment of the contract to S. & R., who, therefore, were not entitled to recover. 2. That H. C. & F., the original contractors, by assigning their contract put it in the power of the Government to rescind the contract absolutely, which was done by the order-in-council of the 14th August, and the contractors under the 17th clause could not recover either for the value of work actu- ally done, the loss of prospective profits, or the reduced value of the plant. Queen v. Smith, X., 1. 94. Intercolonial Railway — 31 Vict. c. IS, s. 18 (D.) — Certificate of engineer — Condition precedent — Extra work — Forfeiture — Penalty.] — Suppliants agreed, by contracts under seal, dated 25th May, 1870, with the Intercolonial Railway Commissioners (au- thorized by 31 Vict. c. 13) to build, construct and complete sections three and six of the railway for a lump sum for section 3 of $462,444, and for section 6 of $456,946.43. In the contract it was distinctly understood, intended, and agreed that the lump sum should be the price of, and be held to be full compensa- tion for, all works embraced in or contemplated by the contract, or which might be required in virtue of any of its provisions or by- laws, and the contractors should not, upon any prttext whatever, be entitled, by reason of any change, alteration, or addition made in or to such works, or in said plans or specifi- cations, or by reason of the exercise of any of the powers vested in the Governor-in-Ooun- cil by the said Act. or in the commissioners or engineers by the said contract or by-law, to claim or demand any further sum for ex- tra work, or as damages or otherwise, the con- tractors thereby expressly waiving and aban- doning all and every such claim or pretension, to all intents and purposes whatsoever, except as provided in the 4th section of the contract relating to alteration in the grade or line of location ; and that the said contract and the said specification should be in all respects subject to the provisions of 31 Vict. c. 13, that the works embraced in the contracts should be fully and entirely complete in every particular and given up under final certificates and to the satisfaction of the engineers, on 1st July, 1871 (time being declared to be material and of the essence of the contract), and in default of such completion contractors should forfeit all right, claim, etc., to money due or percentage agreed to be retained, and to pay as liquidated damages $2,000 for each and every week for the time the work might remain uncompleted; that the commissioners upon giving 7 clear days' notice, if the works were not progressing so as to ensure their completion within the time stipulated or in accordance with the contract, had power to take the works out of the hands of the con- tractors and complete the works at their ex- pense ; in such case the contractors were to forfeit all right to money due on the works and to the percentage retained. The work was taken out of the hands of the contractors for not having been satisfactorily proceeded with. — Held, affirming the judgment of the Exchequer Court (1 Ex. C. R. 346), Fournier and Henry, JJ.,' dissenting, 1st. That by their contracts the suppliants had waived all claim for payment of extra work. 2nd. That the contractors not having previ- ously obtained, or been entitled to, a certifi- cate from the chief engineer, as provided by 31 Vict. c. 13, s. 18, for or on account of the money which they claimed, the petition of the suppliants was properly dismissed. 3rd. Un- der the terms of the contract, the work not having been completed within the time stipu- lated, or in accordance with the contract, the commissioners had the power to take the con- tract out of the hands of the contractors and charge them with the extra cost of -complet- ing the same, but that in making up that amount the court below should have deducted (the amount awarded for the value of the plant and materials taken over from the con- tractors by the commissioners. Berlinguet v. The Queen, xiii., 26. 95. PuUic work — Extras — Certificate of en- gineer — Condition precedent — Arbitration — 31 Vict. c. 12 — Gosts.'\ — S. made a contract with the Minister of Public Works, for the con- struction of a bridge for a lump sum. After the completion of the bridge a final estimate was given by the chief engineer, and payment thereof made, but S. preferred a claim for the value of work, not included in such final es- timate, alleged to have been done in the con- struction of the bridge, and caused by changes and alterations ordered by the chief engineer of so radical a nature as to create, according to the contention of the claimants, a new con- tract between the parties. Held, reversing the judgment appealed from (1 Ex. C. R. 301), Fournier, J., dissenting, that the engineer could not make a new contract binding on the Crown ; that the claim came within the ori- ginal contract and the provisions thereof which made the certificate of the engineer a condition precedent to recovery, and such certificate not having been obtained, the claim must be dismissed. — The Crown having refer- red the claim to arbitration instead of insist- ing throughout on its strict legal rights, no costs were allowed. The Queen v. Starrs xvii 118. 339 CONTEACT. 96. Puhlic work — Extras — X''*fo''°^°?*?^ Railway— SI Vict. c. IS, ss. 16, li.lS and SI Vict c 15— Change of chief engineer— J^ inal closing certificate — Referenoe of claim — Re- port ly chief engineer— Approval by commis- sioner or minister — Condition 2^''eceden*.l— in 1879 M. filed a petition of right for ifbOS.OUU for extra work and damages arising out of his contract for the construction of section Is ot the Intercolonial Railway without having ob- tained a final certificate from F., at the time chief engineer. In 1880, F. having resigned, b. was appointed chief engineer, investigated re- spondent's claim, and reported a balance in his favour of $120,371. Thereupon respondent amended his petition and made a special claim for the $120,371, alleging that S.'s report was a final certificate within the meaning ot the contract, which question was submitted for the opinion of the court by special case. This report was never approved of by the commis- sioners nor by the Minister of Railways and Canals under 31 Vict. c. 13, s. 18. The Ex- chequer Court (Fournier, J.,) held that sup- pliant was entitled to recover on the certi- ficate of S. Held, reversing the judgment ap- pealed from (1 Ex. C. R. 321), 1. per Ritchie, O.J., and Gwynn^, J., that the report of S., assuming him to have been the chief engineer to give the final certificate under the contract, cannot be construed to be a certificate of the chief engineer which does or can entitle the contractor to recover any sum as remaining due and payable to him under the terms of his contract, nor can any legal claim whatever against the Government be founded thereon. 2. Per Ritchie, C.J., that the contractor was not entitled to be paid Anything until the final certificate of the chief engineer was approved of by the commissioners or Minister of Rail- ways and Canals, Jones v. The Queen (7 Can. S. C. R. 570) followed. 3. Per Patterson, J., that although S. was duly appointed chief en- gineer, and his report may be held to be the final and closing certificate to which. suppliant was entitled under clause 11 of the contract, yet as it is provided by clause 4 that any allow- ance for increased work is to be decided by the commissioners and not by the engineer, sup- pliant is not entitled to recover on S.'s cer- tificate. — Per Strong and Taschereau, JJ., (dissenting), that S. was chief engineer and as such had power under clause 11 to deal with the suppliant's claim and his report was " a final closing certificate " entitling the re- spondent to the amount found by the Ex- chequer Court on the case submitted. — Per Strong, Taschereau and Patterson, ,JJ., that the office of commissioners having been abol- ished by 37 Vict. c. 15, and their duties and powers transferred generally to the Minister of Railways and Canals, the approval of the certificate was not a condition precedent to entitle the suppliant to claim the amount awarded to him by the final certificate of the chief engineer. The Queen v. McGreevv. xviii., 371. 97. Contract — Public work — Authority of Government engineer to vary terms — Delay.} — Under a contract with the Dominion Gov- ernment for building a bridge, the specification of which called for timber of a special kind, which the contractor could only procure in North Carolina, the Government was not ob- liged, in the absence of a special provision therefor, to have such timber inspected at that place, and was not bound by the act of the Government engineer in agreeing to such in- spection, the contract containing a clause that no change in its terms would be binding the Crown, unless sanctioned by order council. — ^A provision that the' contra( should have no claim against the Crown reason of delay in the progress of the w arising from the acts of any of Her MajeSi servants, was also an answer to a suit by contractor for damages caused by delay having the timber inspected. Mayes v. j Queen, xxiii., 454. 98. Grown domain — Disputed territory — cense to cut timber — Implied warranty of t — Breach of contract — Damages.] — The cla ant applied to the Government of Canada licenses to cut timber on ten timber bert situated in the territory lately in dispute tween that Government and the Governm of Ontario. The application was granted the condition that the applicant should j certain ground-rents and bonuses, make s veys and build a mill. The claimant kn of the dispute which was at the time oj and public. He paid the rents and bonus made the surveys and enlarged a mill he I previously built, which was accepted as equi lent to building a new one. The dispute v determined adversely to the Government Canada, at the time six leases or licenses wi current, and consequently the Governmi could not renew them. The leases w( granted under ss. 49 and 50 of 46 Vict. c. : and the regulations made under the Act 1879, provided that " the license may be newed for another year subject to such re sion of the annual rental and royalty to paid therefor as m'ay be fixed by the Govern: in-Council." — In a claim for damages by t licensee : Held, 1. orders-in-council issu pursuant to 46 Vict. c. 17, ss. 49 and { authorizing the Minister of the Interior grant licenses to cut timber did not constiti contracts between the Crown and proposed censees, such orders-in-council being revocal by the Crown until acted upon by the granti of licenses under them. 2. The right of i newal of the licenses was optional with t Crown, and the claimant was entitled to i cover from the Government only the mone paid to them for ground rents and bonus: Bulmer v. The Queen, xxiii., 488. 99. Constitutional law — Powers of executi coumcillors — " Letter of credit " — Ratificatii by Legislature-Obligations binding on thep vince — Discretion of the Government as to t expenditure — Petition of right — Negotial instrument — " Bills of Exchange Act, 1891 —"The Bank Act." R. S. C. e. 120.]— T Provincial Secretary of Quebec wrote the fi lowing letter to D., with the assent of 1 colleagues, but not being authorized by ordf in-council : " J'ai I'honneur de voiis inform que le gouvernement f era voter, dans le budg supplgmentaire de 1891-92, un item de s mille piastres qui vous seront payees ii mfidiatement apr6s la session, et cela k tit d'accompte sur I'impression de la 'Liste d terres de la Couronne concgd^es depuis 171 jusqu'au 31 dgcembre 1890,' dont je vous config I'impression dans une lettre en date ( 14 Janvier, 1891." " Cette somnie de s mille piastres sera paySe au porteur de prgsente lettre, revetue de votre endossemenf B. indorsed the letter to a bank as secun for advances to enable him to do the woi' Held, affirming the judgment of the Court Queen's Bench, that the letter constituted i contract between D. and the Government ; to the Provincial Secretary had no power to Dii 341 CONTEACT. 343 the Crown by his signature to such a docu- ment ; and that a subsequent vote of the Legis- lature of a sum of money for printing " liste des terres de la Couronne," etc., was not a ratification of the agreement with D., the Gov- ernment not being obliged to expend the money, thoush authorized to do so, and the vote con- taining no reference to the contract with D., nor to the said letter of credit. Jaoques-Car- tier Bank v. The Queen, xxv., 84. 100. Public work — Progress estimates — En- gineer's certificate — Revision by succeeding en- gineer — Action for payment on monthly certi- ficate.] — A contract with the Crown for build- ing locks and other work on a government canal provided for monthly payments to the contractors of 90 per cent, of the value of I he work done, at the prices named in a schedule annexed to the contract, such . payments to be made on the certificate of the engineer, ap- proved by the Minister of Railways and Canals, that the work certified for had been executed to his satisfaction, the certificate so appi-oved was to be a condition precedent to the right of the contractors to the monthly payments, and the remaining 10 per cent, of the whole of the work was to be retained until its final completion ; the engineer was to be the sole judge of the work and materials, and his decision on all questions with regard thereto, or as to the meaning and intention of the contract, was to be final; and he was to be at liberty to make any changes or alter- ations in the work which he should deem ex- pedient. Held, that though the value of the work certified to by the monthly certificates was only approjjimate and subject to revision on completion of the whole, yet where the engineer in charge had changed the character of a particular class of work, and when com- pleted had classified it and fixedthe value, his decision was final and could not be re-opened and revised by a succeeding engineer. Held, also, that the contractors could proceed by action if payment on a monthly certificate was withheld, and were not obliged to wait the final completion of the work before suing. Judg- ment appealed from (5 Ex. C. R. 19) reversed. Murray v. The Queen, xxvi., 203. 101. Contract, construction of — Public works — Arbitration — Progress estimates — En- gineer's certificate — Approval by head of de- partment — Condition precedent.'] — ^The eighth and twenty-fifth clauses of the appellant's con- tract for the construction of certain public works were as follows : — " 8. That the engin- eer shall be the sole judge of work and mater- ial in respect of both quantity and quality, and his decision on all questions in dispute, with regard to work or material, or as to the meaning or intention of this contract, and the plans, specifications, and drawings shall be final, and no works or extra or additional work or charges shall be deemed to have been executed, nor shall the contractor be entitled to payment for the same, unless the same shall have been executed to the satisfaction of the engineer, as evidenced by his certificate in writing, which certificate shall be a condition precedent to the right of the contractor to be paid therefor;" but before the' contract was signed by the parties the words " as to the meaning or intention of this contract, and the plans, specifications and drawings " were struck out. " 25. Cash payments to about ninety per cent, of the value of the work done, approximately made up from returns of pro- gress measurements and computed at the prices agreed upon or determined under the provisions of the contract, will be made to the contractor monthly on the written certificate of the engineer that the work for, or on ac- count of, which the certificate is granted has been duly executed to his satisfaction, and stating the value of such work computed as above mentioned, and upon approval of such certificate by the minister for the time being, and the said certificate and such approval thereof shall be a condition precedent to the right of the contractor to be paid the said ninety per cent., or any part thereof." . . . A difference of opinion arose between the con- tractor and the engineers as to the quantity of earth in certain embankments which should be paid for at an increased rate as " water- tight " embankment under the provisions of the contract and specifications relating to the works, and the claim of the contractor was rejected by the engineer, who afterwards, how- ever, after the matter had been referred to the Minister of Justice by the Jlinister of Rail- ways and Canals, and an opinion favourable to the contention of' the contractor given by the Minister of Justice, made a certificate up- on a progressive estimate for the amount thus in dispute in the usual form, but added after his signature the following words : — " Certi- fied as regards item o (the item in dispute), in accordance with the letter of Deputy Min- ister of Justice, dated 15th January, 1896." The estimate thus certified was forwarded for payment, but the Auditor-General refused to issue a cheque therefor. Beld, reversing the judgment appealed from (5 Ex. C. R. 293), that under the circumstances of the case the certificate sufiiciently complied with the re- quirements of the twenty-fifth section of the contract ; that the decision by the engineer rejecting the contractor's claim was not a final decision under the eighth clause of the con- tract adjudicating upon a dispute under said eighth section, and did not preclude him from subsequently granting a valid certificate to entitle the contractor to r^eceive payment of his claim, and that the certificate given in this case whereby the engineer adopted the con- struction placed upon the contract in the legal opinion given by the Jlinister of Justice, was properly granted within the meaning of the twenty-fifth clause of the contract. Murray V. The Queen (26 Can. S. C. R. 203) dis- cussed and distinguished. Goodwin v. The Queen, xxviii., 273. 102. Construction of statute — Public works — Railways and icanals — R. 8. C. c. 37, s. 23 — Contracts binding on the Grown — Goods sold and delivered on verbal order of Grown officials — Supplies in excess of tender — Errors and omissions in accounts rendered — Findings of fact— Interest— Arts. 1061 & 1077 C. C— 50 & 51 Vict. c. 16, s. 33-] — The provisions of the twenty- third section of the "Act respecting the Department of Railways and Canals" (R. S. C. c. 37), which require all contracts affecting that department to be signed .by the minister, the deputy minister or some person specially authorized, and countersigned by the secretary, have reference only to contracts in writing- made by that department (Gwynne, J., contra). — Where goods have been bought by and delivered to officers of the Crown for public works, under orders verbally given by them in the performance of their duties, pay- ment for the same may be recovered from the Crown, there being no statute requiring that all contracts by the Crown should be in writing. (Gwynne and King, JJ., contra). 343 CONTEACT. , 344 Judgment appealed from (6 Ex. C. E. 39) affirmed. J'ho Queen v. Henderson, xxviii., 425. 103. Contract binding on the Grown — Pub- lic work — Formation of contract — Ratification —Breach.^— On Nov. 22nd, 1879, the Gpvern- ment of Canada entered into a contract with C, by which the latter undertook to do all the Government binding for five years from said date. The contract was executed under the authority of 32 & 33 Vict. c. 7, s. 6, and on Nov. 25th, 1879, was assigned to W., who per- formed all the work sent to him up to Dec. 5th, 1884, when, the term fixed by the con- tract having expired, he received a letter from the Queen's Printer, as follows : " I am direct- ed by the Honourable, the Secretary of State, to inform you that, pending future arrange- ments, the binding work of the Government will be sent to you for execution, under the same rates and conditions as under the con- tract which has just expired." W. performed the work for two years under authority of this letter, and then broughl an action for the profits he would have had on work given to other parties during the seven years. — Held, that the letter of the Queen's Printer did not constitute a contract binding on the Crown ; that the statute authorizing such contract was not directory, but limited the power of the Queen's Printer to make a contract, except subject to its conditions ; that the contractor was chargeable with notice of all statutory limitations upon the power of the Queen's Printer ; and that he could not recover in re- spect of the work done after the original con- tract had expired. — On Oct. 30th. 1886, an order-in-council was passed which recited the execution and assignment of the original con- tract, the execution of the work by W. after it expired, and the recommendation of the Sec- retary of State that a formal contract should be entered into extending the original con- tract to Dec. 1st, 1887, and then authorized the Secretary of State to enter into such for- mal contract with W., but subject to the con- dition that the Government should waive all claims for damages by reason of non-execu- tion or imperfect execution of the work, and that W. should waive all claims to damages because of the execution of binding work by other parties, up to the date of said extension. W. refused to accept the extension on such terms. — Meld, that W. could not rely on the order-in-council as a ratification of the con- tract formed by the letter of the Queen's Printer ; that the element of consensus en- ters as much into a ratification of a contract as into the contract itself ; and W. could not allege a ratification after expressly repudiating its terms and refusing to be bound by it. — After an appeal from the final judgment of the Exchequer Court was . lodged in the Supreme Court, the Crown obtained leave to appeal from an order of reference to ascertain the amount of the suppliant's damages. — Held that the judge of the Exchequer Court had authority to allow the appeal, and it was properly before the Supreme Court. Judg- ment appealed from (6 Ex. C. R. 12 ) reversed The Queen v. Woodburn, xxix., 112. 104. Inquiry as to public matters — Contract binding on the Crown — Right of action — Quantum meruit — Public officer — Solicitor 'and client — R. S. C. cc. II4, 115.] — The judg- ment appealed from (7 Ex. C. R. 351) held that a person appointed under R. S. O. c. 115, as commissioner to make inquiry and report on conduct in office of an officer or servant of the Crown, could not recover for his ser- vices as such commissioner, there being no provision for such payment ; that such service was not rendered in virtue of any contract but merely by virtue of appointment under the statute and that such appointment par- takes more of the character of a public office than of a mere employment under a contract express or implied. The Supreme Court affirmed the judgment appealed from. Strong, C.J., and Girouard, J., dissenting. Tucker v The King, xxxii., 722. 105. Public work — Abandonment and sub- stitution of work — Implied contract.} — The suppliants contracted with the Crown to do certain work on the Cornwall canal, the con- tract providing that they should provide all labour, plant, etc., for executing and com- pleting all the works set out or referred to in the specifications, namely, " all the dredging and other works connected with the deepen- ing and widening of the Cornwall canal on section No. 8 (not otherwise provided for)" on a date named; "that the several parts of this contract shall be taken together to explain each other and to make the whole consistent; and if it be found that anything has been omitted or misstated which is necessary for the proper performance and completion of any part of the work contemplated the contractors will, at their own expense, execute the same as though it had been properly described;" and that the engineer could, at any time before or during construction, order extra work to be done or changes to be made, either to increase or diminish the work to be done, the con- tractors to comply with his 'written require- ments therefor. By s. 34 it was declared that no contract on the part of the Crown should be implied from anything contained in the sign- ed contract or from the position of the parties at any time. After a portion of the work had been done the Crown abandoned the scheme of constructing dams contemplated by the con- tract and adopted another plan the work on which was given to other contractors. After it was completed the suppliants filed a peti- tion of right for the profits they would have made had it been given to them. — held, affirm- ing the judgment of the Exchequer Court (T Ex. ,C. R. 221 ) , that the contract contained no express covenant by the Crown to give all the work done to the suppliant and s. 34 pro- hibited any implied covenant therefor. There- fore the petition of right was properly dis- missed. Gilbert Blasting I, JtoiSupreme.j^j Court of Nova ScotiK'OW^flSp/v!; dissent-'JL.ai ing, that the Starr Company was not em- ~ ployed to effect the sale actually made; that the Montreal company offered the commis- sion only on the sale of the specific plant mentioned in the answer to the request for quotations ; and that there was no evidence of any course of dealing between the two companies which would entitle the Starr Company to such commission. Starr, Son a Co. V. Royal Electric Co., xxx., 384. 196. Principal and agent — Municipal cor- por-ation — Water commissioners — Statu- tory body — Powers — Action — Parties — 37 yict. c. 79 (0«t.)]— By 37 Vict. c. i9 (Ont.) the waterworks of Windsor are un- der management of a Board of Commissioners who collect the revenue, pay the city any surplus therefrom, and initiate works for im- proving the system, the city supplying tne funds. The total expenditure is not to ex- ceed $300,000 and not more than $20,000 can be expended in any one year without a vote of the ratepapers. — Held, affirming the ]uag- ment appealed from (27 Ont. App. R. 5fab). that the Board is merely the statutory agent of the city in carrying out the purples oi the Act, and a contract for work to be per formed in connection with the waterwoiKs, not authorized by by-law of the council, ano incurring an expenditure which would exceeu the statutoi-y limit was not a binding con- tract.— Heid, also, that if an action couio have been brought on such contract the ciij corporation would have been a necessary party.— QitiEre, Would not the city corpora- tion have been the only party liable to ifsaea- Macdougall v. Water Commissioners of vrinu- sor, xxxi., 326. 365 CONTRACT. 366 197. Authority of agent — Agreement for towage — Quantum meruit. See Pbincipal and Agent, 7. 198. Carriage of goods — Authority of railway agent — Connecting lines. See No. 43, ante. 199. Vendor and purchaser — Principal and agent — Sale of lands — Authority of agent — Prioe of sale — Resulting trust — Con- veyance to agent. See Pkinoipal and Agent, 9. 25. Public Policy. 200. Restraint of trade — Exclusive rights — Public policy — Foreign corporation. See No. 207, infra. 26. Railways. 201. Railway crossings — Parol agreement — Reliance on statutory provisions — Estoppel. See Railways, 41. 202. Breach of contract — Railway ticket — Tort — Crown officers — Negligence. See Railways, 100. 203. Purchase of railway ticket — Implied contract to produce and deliver to conductor. See Railway, 9. 204. Railway company — Railway ticket — Right to stop over. See Railway, 11. 27. Ratification. 205. Public work — Formation of contract — Obligation binding on Crown — Breach. See No. 103, ante. 206. Misrepresentation — Artifice — Consid- eration — Error — Rescission — Laches — Waiver. See Vendok and Puechasee, 26. 28. Restraint of Teade. 207. Company laic — Foreign corporation — Telegraph lines — Exclusive rights — Restraint of trade — Public interest — Comity of nations.^ — In 1869 the E. N. A. Ry. Co., owning the road from St. John, N.B., westward to the United States boundary, made an agreement giving the W. U, Tel. Co., exclusive right for 99 years to construct and operate a line of telegraph over its road. In 1876, a mortgage on the road was foreclosed and the road sold under a decree to the St. J. M. Ry. Co.. which, in 1S83, leased it to the N. B. Ry. Co. for 999 years. The telegraph line was constructed by the W. U. Tel. Co. under the agreement, and continued ever since without any new agreement with the St. J. M. Ry. Co. or the N. B. Ry. Co. The W. U. Tel. Co. is incor- porated by the State of New York, for the purpose of constructing and operating tele- graph lines in the State. Its charter neither allows it to engage, nor prohibits it from en- gaging, in business outside of the State. In 1888, the O. I'. Ry. Co. completed a road from Jlontreal to St. John, a portion of it having running powers over the line of tlie N. B. Ry. Co., on which the W. U. Tel. Co. had con- structed its telegraph line. The X. B. Ry. Co. having given permission to the C. P. K, Co. to construct another telegraph line over the same road, the W. U. Tel. Co. applied for and obtained an injunction to prevent its being built. — Held, 1. That the agreement of 1869 with the E. N. A. Ry. Co. is binding on the present owners of the road. — 2. That the contract with the W. U. Tel. Co. was con- sistent with the purpose of its corporation, and not ijrohibited by its charter nor by the local laws of New Brunswick, and its right to enter into such a contract and carry on the business provided for thereby is a right recognized by the comity of nations. — 3. The exclusive right granted to the W. U. Tel. Co. does not avoid the contract as beiug against public policy, nor as being a contract in re- straint of trade. — J'er Gwynne, J., dissenting. The comity of nations does not require the courts of this country to enforce, in favour of a foreign corporation, a contract depriving a railway company in Canada of the right to permit a domestic corporation, created for the purpose of erecting telegraph lines in the Dominion, to erect such a line upon its land, and depriving it of the right to construct a telegraph line upon its own land. (See Ste- vens' Dig. (X.B.) p. 313.) Canadian Paci- fic Ry. Co. V Western Union Tel. Co., xvii., 151. 208. Foreign corporation — Public policy — Exclusive rights. See Company Law, 2. 29. Retainer. 209. Counsel fee — Retainei Refreshes Quantum meruit — Lex loci contractus — Lex loci solutionis. See Counsel. 30. Sale of Goods. 210. Sale of perishable goods — Future deli- very — Condition of .prepayment — Bill of lading — Principal and agent — Vesting of ownership — Bill of exchange — Failure of consideration. 1 — W. purchased and shipped a cargo of corn on the order of C, drawing at ten days for the price, freight and insurance. This draft was discounted at a bank by "W., and the corn insured by him for his own benefit, shipped by him under a bill of lading, which with the policy of insurance, was assigned by him to the bank. The bank forwarded the draft, policy and bill of lading to their agents, with instructions that the corn was not to be deli- vered until the draft' was paid. The draft was accepted by C, but the cargo arriving in damaged condition before maturity, C. refused to receive it, or to pay draft. The bank and \\. sold the cargo on account of whom it might concern, credited C with the proceeds, and W. filed a bill to recover balance of draft and in- terest. — Held, reversing the Court of Appeal for Ontario (5 Out. App. R. 626), Strong, J., 367 CONTRACT. 368 dissenting, that the contract was not one of agency; that the property in the corn re- roained by the act of W. in himself and his assignees, until after the arrival of the corn and payment of the draft; and the damage to the corn having occurred while the property in it continued to be in W. and his assignees, G. should not bear the loss. Corhy v. Wil- liams, vii., 470. 211. Sale of goods ly sample — Place of in- spection — Delivery — Sale through brokers — Agency — ■ Acquiescence.'^ — Where goods are sold by sample the place of delivery is, in the absence of a special agreement to the contrary, the place for inspection by the buyer, and re- fusal to inspect there when opportunity there- for is afforded is a breach of the contract to purchase. — Evidence of mercantile usage will not be allowed to add to or affect the construc- tion of a contract for sale of goods unless such custom is general. Evidence of usage in Canada will not affect the construction of a contract for sale of goods in New York by parties domiciled there, unless the latter are shewn to have been cognizant of it. and can be presumed to have made their contract with reference to it. — If parties in Canada contract to purchase goods in New York through brokers, first by telegram and letters, and completed by exchange of bought and sold notes, signed by the brokers, the latter may be regarded as agents of the purchasers in Canada ; but if not, if the purchasers make no objection to the form of the contract, or to want of authority in the brokers, and after the goods arrive refuse to accept them on other grounds, they will be held to have ratified the contract. Trent Valley Woollen Mfg. Co. V. Oelrichs, xxiii., 682. 212. Sale of timiei Delivery — Time for payment — Premature action.] — By agreement in writing, I. agreed to sell and the V. H. L. Co. to purchase timber to be delivered " free of charge where they now lie within ten days from the time the ice is advised as clear out of the harbour so that the timber may be counted. . . . Settlement to be finally made inside of thirty days in cash, less 2 per cent, for the dimension timber which is at John's Island. — Held, affirming the decision of the Court of Appeal, that the last clause did, not give the purchaser thirty days after delivery for payment ; that it provided for delivery by vendor and payment by purchasers within thirty days from the date of the contract; and that if purchasers accepted the timber after the expiration of thirty days from such date, an event not provided for in the con- tract, an action for the price could be brought immediately -after the acceptance. Victoria Harbour Lumber Co. v. Irwin, xxiv., 607. 213. Sale by sample — Objections to invoice — Reasonable time — Acquiescence — Evidence.'] — If a merchant receives an invoice and re- tains it for a considerable time without mak- ing any objection, there is a presumption against him that the price stated in the in- voice was that agreed upon. Judgment of the Queen's Bench, that the evidence was suffi- cient 'to rebut the presumption reversed, and trial court judgment (Q. R. 9 S. C. 128) re- stored. — Gwynne, J., dissented, holding that the appeal depended on mere matters of fact as to which an appellate court should not interfere. Kearney v. Letellier, xsvii., 1. 214. Construction of agreement to .'secure advances — Sale — Pledge — Delivery of posses- sion—Arts. 434. 1025, 1026, 1027, 11,12, im 1492, 14940, 0. C- — Bailment to manufac- turer.'] — K. B. made an agreement with T. for the purchase of the output of his sawmill dur- ing the season of 1896, a memorandum being executed between them to the effect that T. sold and K. B. purchased all the lumber that he should saw at his mill during the season, delivered at Hadlow wharf, at Levis ; that the purchasers should have the right to refusfe all lumber rejected by their culler ; that the lum- ber delivered, culled and piled on the wharf should be paid for at prices stated; that the seller should pay the purchasers $1.50 per hun- dred deals, Quebec standard, to meet the cost of unloading cars, classification and piling on the wharf ; that the seller should manufacture the lumber according to specifications furnish- ed by the purchasers ; that the purchasers should make payments in cash once a month for the lumber delivered, less two and a half per cent. ; that the purchasers should advance money upon the sale of the lumber on condi- tion that the seller should, at the option of the purchasers, furnish collateral security on his property, including the mill and machinery belonging to him, and obtain a promissory note from his wife for the amount of each eullage, the advances being made on the culler's certi- ficates shewing receipts of logs not exceeding $25 per hundred logs of fourteen inches stan- dard ; that all logs paid for by the purchasers should be stamped with their name, and that all advances should bear interest at the rate of 7 per cent. Before the river-drive com- menced, the logs were culled and received on behalf of the purchasers, and stamped with their usual mark, and they paid for them a total sum averaging $32.33 per hundred. Some of the logs also bore the seller's mark, and a small quantity, which were buried in snow and ice, were not stamped, but were received on behalf of the purchasers along with the others. The logs were then allowed to remain in the actual possession of the seller. During the season a writ of exfecution issued against the seller, under which all moveable property in his possession was seized, including a quan- tity of the logs in question, lying along the river-drive and at the mill, and also a quan- tity of lumber into which part of the logs in question had been manufactured, at the seller's mill. — Held (Taschereau, J., taking no part m the judgment upon the merits), that the con- tract so made between the parties constituted a sale of the logs, and, as a necessary conse- quence, of the deals and boards into which part of them had been manufactured. King V. Dupuis dit Gilbert, xxviii., 388. 215. Agreement to supply goods — Property in goods supplied — Execution — Seizure.] — By an agreement between H., of the one part, and W. and wife of the other, the latter were to provide and furnish a store, and H. to supply stock, and replenish same when necessary; W. was to devote his whole time to the busi- ness ; W. and wife were to make monthly re- turns of sales and cash balances, quarterly re- turns of stock, etc., on hand, and to remit weekly proceeds of sales with certain deduc- tions. H. had a right at any time to examme the books and have an account of the stock, etc. ; the net profits were tx) be shared between the parties ; the agreement could be determined at any time by H. or by W. and wife on a month's notice. — Held, that the goods supplied by H. under this agreement as to stock of the business were not sold to W. and wife, and remained the property of H. until sold in the 369 CONTRACT. 370 ordinary course; such goods, therefore, were not liable to seizure under execution against H. at the suit of a creditor. Ames-Holden Co. V. Hatfield, xxix., 95. 216. Sale of goods — Delivery — " At " shed — " Into " shed or grounds adjacent.'] — A ten- der by H. to supply coal to the Town of Goderich pursuant to advertisement thereof contained an offer to deliver it " into the coal shed, at pumping station or grounds adjacent thereto where directed by you," (that is by a committee of the council). The tender was accepted and the contract afterwards signed called for delivery " at the coal shed." A por- tion of the coal was delivered, without direc- tions from the committee, from the vessel on to the dock, about 80 feet from the shed and separated from it by a road. — Held, reversing the judgment of the Court of Appeal, that the coal was not delivered " at the coal shed " as agreea by the contract signed by the parties which was the binding document. — Held, also, that if the contract was to be decided by the terms of the tender the delivery was not in accordance therewith the place of delivery not being " at the pumping station or grounds ad- jacent thereto." Town of Goderich v. Holmes, xxxii., 211. 217. Contract by — Correspondence — Sale of goods — Condition as to acceptance — Post letter — Time limit — Term for delivery — Breach of contract — Damages — Counterclaim — Condition precedent — Right of action.'] — The appellant, O., wrote a letter, dated 2nd October, 1899, offering to supply the company with thirty- seven car loads of hay at prices mentioned " subject to acceptance in five days, delivery within six months." On 5th Oct. the company wrote and mailed a letter in reply, as follows : ■ — " We would now inform you that we will accept your offer on timothy hay as per your letter to us of the 2nd instant. Please ship as soon as possible the orders you already have in hand and also get off the seven cars as early as possible as our stock is very low. Try and ship us three or four cars so as to catch the next freight here from Northport. We will advise you further as to shipment of the thirty cars. Should we not be able to take it all in before your roads break up. we presume you will have no objection to allowing balance to remain over until the farmers can haul it in. Do the best you can to get some empty cars at once, as we must have three or four cars by next freight." — This letter was registered and, although it reached O.'s post office within the five days, yet by reason of the registration it was not received by him until the following day. On 12th Oct. O.'s agent wrote the com- pany acknowledging the letter and saying that acceptance of the offer arrived too late and that therefore the hay could not be furnished. On 6th Nov. the company replied insisting on delivery of the hay as contracted for by the 15th of that month, and notifying O. that, in case of default, they would replace the order charging him with any extra cost and ex- penses. — Held, that the correspondence did not constitute a binding contract as the parties were never ad idem as to all the terms pro- posed. — Prior to the expiration of the six months mentioned in O.'s letter, the company, in defence to an action by him against them, counterclaimed for damages for his alleged breach of contract for delivery of the thirty- seven car loads of hay. — Held, that as the six months limited for making delivery had not expired, the company had no right of action for damages, even had there been a contract, and that the filing of the counterclaim was premature. Oppenheimer v. Braolcman dJKer Milling Co., xxxii., 699. SjuS^ 'f'S.C. VJuo.'^'i^ 218. Sale of goods — Breach of warranty — Special damages — Action on contract subse- quent to recovery — Evidence as to inferiority of goods delivered — Consequential damages. See Evidence, 2. 219. Sale of goods by agent — Undisclosed principal — Deficient delivery — Acceptance of bill of lading — Re-weighing — Notice to seller — Tender — Acknowledgment of liability — Plead- ing — Estoppel. See Action, 128. 220. Sale of goods — Consignment — Delivery — 'Non-acceptance — Rescission. See Sale, 13. 221. Sale of goods in one lot — Independent principals — Contract by agent of two firms — Lump price — • Excess of authority — Ratifica- tion. See Peincipal and Agent, 4. 222. Sale of goods — Particular chattel — Representation. See Sale, 7. 223. Goods sold by weiaht — Delivery — Loss in vendor's possession — Deposit — Damage be- fore weighing. See Sale, 15. 224. 'Unpaid vendor — Conditional sale — Sus- pensive cortdition — Moveables incorporated with freehold — Immoveables by destination — Hypothecary charges — Arts. 375 et seq. G. C. See Sale, 35. 225. Sale of goods — Evidemce to vary written instrument — Mistake — Admission of evidence. See No. 180, ante. 226. Sale of monument by sample — Evidence of contract — Findings on contradictory evi- dence — Reversal on appeal — Practice. See Evidence, 65. 31. Sale of Land. 227. Contract of sale — Centre lettre — Prin- cipal and agent — Construction of contract.] — A sale of property was controlled by a writing in the nature of a centre lettre, by which it was agreed as follows : " The vendor in con- sideration of the sum of $2,940 makes and executes this day a clear and valid deed in favour of the purchaser of certain property (therein described), and the purchaser for the term of three years is to let the vendor have control of the said deeded property, to manage as well, safely and properly as he would if the said property was his own, and bargain and sell the said property for the best price that can be had for the same, and pay the rent, in- terest and purchase money when sold, and all the avails of the said property to the purchaser to the amount of $2,940, and interest at the rate of 8% per annum from the date of these presents, and then the said purchaser shall re-deed to the vendor any part of the said prop- 371 CONTRACT. 372 erty that may remain unsold after receiving the aforesaid amount and interest." The ven- dor was at the time indebted to the purchaser in the sum of $2.'.W1. The two documents were registered. The vendor had other prop- erties, and gave the purchaser a power of attorney to convey all his real estate in the same locality. The term of thj-ee years men- tioned in the contre leitre was continued by mutual consent. The vendor subsequently paid amounts on account of his general indebtedness to the purchaser. It was only after the pur- chaser's death that the vendor claimed from the heirs of the purchaser the balance, above mentioned, of $1,470, as owing to him for the management of his properties. — Held, revers- ing the judgment of the Court of Queen's Bench, and restoring the judgment of the Superior Court, that the proper construction of the contract was to be gathered from both documents and dealings of the parties, and that the property having been deeded merely as security it was not an absolute sale, and that plaintiff was not purchaser's agent in respect of this property. — Held, also, that the only action plaintiff had was the actio man- data contraria with a tender of his rcddition de compte. Hunt v. Taplin. xxiv., 36. 228. Condition as to payment — Interest — Warranty — Payment of assessments on land — Compensation. See Waekanty', 1. 229. Rescission — Misrepresentation — Con- veyance of land — Boundaries — Evidence of de- ceit — Notice — Inquiry. See Title to Land, 2. 230. Sale of mortgaged lands — Agreement in writing — Sale of equity — Specific perform- ance. See Sale, 95. 231. Agreement for sale of land — Descrip- tion — New contract iy conveyance — Payment. See Sale, 108. 232. Sale of land — Misrepresentations — Rescission of deed — Recovery of price. See Sale, 75. 233. Title to land — Objections to title — Wau-er — Specific performance. See No. 245, infra. 234. Vendor and purchaser — Sale of lands — Waiver of objections — Lapse of time — Coti- struction of wUl — Executory devise over — De- feasible title — Rescission of contract. See Will, 60. 235. Vendor and purchaser — Principal and agent — Mistake — Contract — Agreement for sale of land — Agent exceeding authority — Specific performance — Findings of fact. See Yendoe aisid Purchaser, 20. 23G. Agreement for sale of land — Mutual mistake — Reservation of minerals — Specific Sec Sale, 89. performance. 32. Sale of JIinino Rights. 237. Construction of deed — Sale of phos- phate mining rights—Option to purchase other minerals found while working — Transfer of rights.^—M. by deed sold to W. the phosphate mining rights of certain land, the deed contain- ing a provision that " in case the said pur- chaser in working the said mines should find other minerals of any kind he shall have the privilege of buying the same from the said vendor or representative by paying the price set upon the same by two arbitrators, appoint- ed by the parties." W. worked the phosphate mines for five years, and then discontinued it Two years later he sold his mining rights in the land, and by various conveyances they were finally transferred to B., each assign- ment purporting to convey " all mines, min- erals and mining rights already found or which may hereafter be found " on said land. A year after the transfer to B. the original vendor, M., granted the exclusive right to work mines and veins of mica on said land to W. & Co., who proceeded to develop the mica. B. then claimed an option to purchase the mica mines under the original agreement, and demanded an arbitration to fix the price, which was refused, and she brought an action to compel JI. to appoint an arbitrator and for damages.— Held, affirming the decision of the Court of Queen's Bench, that the option to purchase other minerals could only be exercised in re- spect to such as were found when actually working the phosphate, which was not the case with the mica, as to which B. claimed the option. Baker v. McLelland, xxiv., 416. 238. Contract — Mining claim — Agreement for sale — Construction — Enhanced •yoiite.] By agreement in writing signed by both parties B. oflEered to convey his interest in certain mining claims to N. for a price named with a stipulation that, if the claims proved on development to be valuable and a joint stock company was formed by N. or his associate.^, N. might allot or cause to be allotted to B. such amount of shares as he should deem meet. By a contemporaneous agree- ment, N. promised and agreed that a company should immediately be formed and that B. should have a reasonable amount of stock according to its value. No company was formed by N., and B. brought an action for a declaration that he was entitled to an un- divided half interest in the claims or that the agreement should be specifically performed. — Held, reversing the judgment of the Supreme Court of British Columbia, that the dual agreement above mentioned was for a transfer at a nominal price in trust to enable X. lo capitalize the properties and form a company to work them on such terms as to allotting stock to B. as the parties should mutually agree upon ; and that, on breach of said trust, B. was entitled to a re-conveyance of his in- terest in the claims and an account of moneys received or that should have been received from the working thereof in the meantime. Briggs v. Newswander, xxxii., 405. 33. Sale op Patent. 239. Sale of patent — Future improvements.] — By contract under seal M. agreed to sell to B. and S. the patent for an acetylene gas machine for which he had applied and a caveat had been filed, and also all improvements and patents for such machine that he might there- after make, and covenanted that he would procure patents in Canada and the United States and assign the same to B. and S. The 373 CONTEACT. 374: latter received an assignment of the Canadian patent and paid a portion of the purchase, but when the American patent was issued it was found to contain a variation from the descrip- tion of the machine in the caveat and they re- fused to pay the balance, and in an action by 51. to recover the same, they demanded by counterclaim a return of what had been paid on account. — Held, reversing the judgment of the Court of Appeal, that the agreement was not satisfied by an assignment of any patent that M. might afterwards obtain ; that he was bound to obtain and assign a patent for a machine described in the caveat referred to in the agreement ; and that as the evidence shew- ed the variation therefrom in the American patent to be most material, and to deprive the purchasers of a feature in the machine which they deemed essential, M. was not entitled to recover. — Held, further, Gwynne, J., dissent- ing, that as B. and S. accepted the Canadian patent and paid a portion of the purchase money in consideration thereof, and as they took the benefit of it, worked it for their own profit and sold rights under it, they were not entitled to recover back the money so paid as money had and received by 11. to their use. Bingham v. Mcilurray, xxx., 159. 34. Sale of Timber. 240. Construction — Sale of timier — Failure of consideration — Right to recover back money paidJ — ^C, after personal examination made an agreement with W.. who sold him all the pine timber standing on a lot, " such as will make good nierchantable waney-edged timber, suitable for his purpose, at the rate of $13 per hundred cubic feet," and paid $1,000, " the balance to be paid for before the timber is removed from the lot." C. cut $651.17 worth of first-class timber, suitable for the Quebec market, which was all of that class to be found on the lot, and sued W. to recover back the balance of the $1,000, namely, $348.83. — Held, that the true construction of the contract was that W. sold and granted to C. permission to enter upon his lot, and cut all the " good merchantable timber there growing, suitable for his purpose," and not merely " first-class timber;" and that as there was more than sufiicient " good merchantable timber " still remaining on the lot to cover the balance of the $1,000, there was no fail- ure of consideration and plaintiff could not recover back the balance of the money he had paid. — Per Taschereau and Gwynne, J.I., held; That the payment of the $1,000 was an abso- lute payment, the plaintiff believing and repre- senting to defendant that there was sufiicient timber to cover that amount, if not more, on the faith of which representation defendant en- tered into the contract, which he otherwise would not have done, and that if the plaintiff made an error, he, and not the defendant, must suffer the consequences of this error. (See 28 U. C. C. P. 293.) Clarke v. White, iii., 309. 241. Cutting logs — Vesting of property — Re- plevin — Possession — Seizure of goods. See Sheriff, 9. 35. Specific PEEF0EMA3srcE. 242. Specific performance ■ — Terms of deli- very — Reasonable time — Arts. lOOf, 1073. ISPt, G. C. — Trade custom — Measure of dam- ages.'] — On 7th May, 1874, L. sold C. five hundred tons of hay, a memo, being made and signed by L., as follows : " Sold to- G. A. C. 500 tons of timothy hay of best quality, at the price of $21 per ton f. o. b. propellers in canal, Montreal, at such times and in such quantities as the said G. A. C. shall order. The said hay to be perfectly sound and dry when delivered on board, and weight tested if required. The same to be paid for on delivery of each lot, by order or draft on self, at Bank of Montreal, the same to be consigned to order of Dominion Bank, Toronto." — L. delivered 147 tons and 33 pounds of hay, after which C. refused to receive any more. L., having several times notified C. verbally and in writing, by formal protest on the 28th July, 1874, required him to take delivery of the re- maining 354 tons of hay. — The action was for damages for breach of contract, and for extra expenses incurred in consequence. — On appeal. Held, affirming the judgment of the Court of Queen's Bench, that the contract was in- tended to be executed within a reasonable time ; that, from the evidence of usages of the trade, the delivery, under the circumstances, was intended to be made before the new crop of hay ; that C. being in default to receive the hay when required, within reasonable time of the coming in of the new crop, he was liable for the damages sustained, and that the prop- er measure of damages was the difference at the place of delivery between the value when acceptance was refused and the contract price with the addition of the consequent necessary expenses, the amount of which, being a matter of evidence, is properly within the province of the court below to determine. Chapman v. Larin, iv., 349. 243. Executors — Poioers — Sale of wild lands — Unknown quantity — Specific perform- ance.'] — ^A sale of a lot of wild land of un- known area at so much per acre, by execu- tors under powers to sell such portion as might be necessary to pay debts due by their testator, proved upon survey to exceed the estimate made before the sale both as to the quantity of land and the amount necessary to meet the liabilities. — Held, reversing the judg- ment appealed from, that the purchaser at a rate per acre was entitled to conveyance of the whole of the lot so sold, and that the execu- tion of such conveyance would not constitute a breach of trust under the will. (See 2 B. C. Rep. 67.) Sea "v. McLean, xiv., 632. 244. Sale of land — Specific performance — Agreement to assign mortgage in part pay- ment — Second mortgage — Negotiable instru- ment.] — In a sale of land for $4,800, L. agreed to give in part payment a second mortgage on another parcel for $2,500, which was subse- quent to first mortgage for a large amount. W. refused to accept the mortgage, and in an action on the agreement to recover the pur- chase money and interest represented by such mortgage it was admitted that the mortgage was not a first mortgage, that no notice had been given to W. of its being a second mort- gage, nor had there been any waiver of his right to demand a first mortgage. On the con- trary he had asked, " Is this a negotiable in- strument?" and was told "It is all right." — Held, afiirming the Court of Queen's Bench for Manitoba, that under the terms of the agree- ment plaintiff was entitled to a good market- able mortgage — that is a first mortgage upon the real estate — Per Ritchie, C.,T. The words "negotiable instrument" did not mean a nego- 375 CONTEACT. 376 tiable instrument in the nature of a promissory note, but an instrument which could be taken into the market as a saleable instrument — Per Strong, J. ■ An agreement to assign a mortgage on land by way of absolute transfer or sale, or, as in the present case, to assign a mortgage on land in payment, or part payment, of other land sold by the proposed transferee to the proposed transferor, is a contract of which a Court of Equity would decree specific perform- ance, and in carrying out a decree for specific performance, the purchaser is always entitled to a reference as to title whatever may be the nature of the property which is the subject of the sale, the right to a reference of title not being confined to sales of real estate. A Court of Equity would not compel a party _ who agreed to purchase a mortgage on land simply to take any other than a mortgage of the legal estate free from all prior incumbrances. He title in such a case which the vendor of the mortgage impliedly undertakes to give is a good marketable title, which means a title to a mortgage of a legal estate in possession, just as the vendor who sells land, without saying more, impliedly agrees to shew a good title to both the mortgage debt, the money secured by the mortgage, and to the security holden for the debt, the land ; and he can only shew this by proving that the legal estate free from all incumbrances has passed under the mortgage. The same rule should prevail in a court of law, the construction of contracts being the same in both jurisdictions. If the agreement had been executed the remedy of the plaintiff would have been upon any covenants which the trans- fer might have contained, or, if still in fieri, if it could be shewn there had been any waiver of the right to call for a good title, the plaintiff might be concluded ; and this might have been a consequence of distinct notice to him during the negotiations that the mortgage was upon the equity of redemption only, but there was no proof of any such waiver or acceptance of notice from which it might be inferred — Per Henry, J. When it was stipulated in general terms that a mortgage was to be assigned the agreement could onlj^ be performed by assign- ing a first mortgage. — Appeal dismissed with costs. Lvnch v. Wood, Cass. Dig. (2 ed.) 783. 245. Specific performance — Title to land — Objections to title — Waiver.] — To entitle a party to a contract to a decree for specific performance, he must have been prompt him- self in performance of the obligations de- volving upon him, and always ready to carry out the contract within a reasonable time, even although time might not have been of the essence of the agreement. — Specific per- formance will not be decreed when the party asking performance has declared his inability to carry out the agreement on his part. — ^A purchaser of land who takes possession of the property and exercises acts of ownership by making repairs and improvements, will be held to have waived any objections to the title. — Objections to title cannot be raised where the purchaser has made a tender of a blank deed of mortgage for execution, for the purpose of carrying out the purchase. Judgment ap- pealed from (29 N. S. Rep. 424) aflBrmed. Wallace v, Besselin, xxix., 171. 246. Agreement to provide hy will — Ser- vices rendered — ■ Quantum meruit. See Specific Peefoemance, 3. 247. Exchange of land — Time for com? pletion — Waiver — Notice — Rescission. See Specific Peefobmance 4, 86. Statute of Featjds. 248. Interest in mine — Agreement to transfer portion of proceeds of sale — Statute of Frauds.J — ^An agreement by the owner of an interest in a gold mine to transfer to an- other, in consideration of services performed in working the mine, a portion of such own- er's share in the proceeds when it was sold is not a contract for sale of an interest in land within the Statute of Frauds. (24 N. S. Rep. 526, reversed). Stuart v. Mott, xxiii! 384. 249. Statute of Frauds — Memorandum in writing — Repudiating contract 6j/.] — A writ- ing containing a statement of all the terms of a contract for the sale of goods requisite to constitute a memo., under the 17th section of the Statute of Frauds, may be used for that purpose though it repudiates the sale. .Tiidg- ment appealed from (22 Ont. App. R. 468) aflirmed. Martin v. Hauiner, xxvi.. 142. 250. Partnership — Dealing in land — Star tute of Frauds.'\ — ^A partnership may be form- ed by a parol agreement notwithstanding it is to deal in land, the Statute of Frauds not applying to such a case. Judgment appealed from (6 B. C. Rep. 260) affirmed, Gwynne and Sedgwick, JJ., dissenting. Archibald v. McNerhanie, xxix., 564. 251. Statute of Frauds — Auction sale — Name of vendor not disclosed — Unsigned contract — Subsequent correspondence. See Vbhdok ajstd Puechasfe, 3. 252. Proof — Question for jiA-y — Parol agreement — Memo, in writing — Statute of Frauds. See Evidence, 16. 37. Stock Jobbing. 258. Construction of " stock joUing " memo. — Stoek exchange custom — Sate of shares — Undisclosed principal — Marginal transfer — " Settlement " — Obligation, of pur- chaser. See Pbincipal and Agent, 48. 38. Sueettship. 254. Financial agent's commission — Secur- ity for advances — Suretyship — Indorsement of unused note — Right to commission for indors- ing — Consideration.] — M.. by writing, agreed to become surety for McD. by indorsing a promissory note, and McD. agreed to transfer property to JI. as security, to do everything necessary to be done to realize such securi- ties, to protect M. against any loss or ex- pense in regard thereto, or in connection witn the note, to pay him a commission for indors- ing, and to retire note within 6 months from date of agreement. The note was made and indorsed and the securities transferred, but was never used. In an action by M. for ms commission : — Held, affirming the Court ot Appeal for Ontario, Taschereau and Gwynne, JJ., dissenting, that M. having done every- thing on his part to be done to earn his com- mission, and having had no control over tne note after he indorsed it, and being in no way 377 CONTEACT. 373 responsible for the failure to discount it, was entitled to the commission. McDonald v. Manning, xix., 112. 255. Building railway — Surety for perform- ance of — Interpretation with rights of surety. See Suretyship, 5. 256. Vendor and purchaser — Agreement for sale of lands — Deviation from terms — Giving time — Secret dealings — Arrears of in- terest — Release of lands — Discharge of s urety — 'Novation. See PEiisrciPAL and Surety, 4. 39. Tender. 257. Tender — Unilateral undertaking — Bond — Condition — Acceptance.'] — H. ten- dered for construction of a railway pursuant to advertisement, and his offer was condition- ally accepted. At the same time H. executed a bond reciting the fact of the tender, con- ditioned, within 4 days, to provide 2 accept- able sureties and deposit 5% of the amount of his tender in the Bank of Montreal, and also to execute all necessary arrangements for the commencement and completion of the work by specified dates, and the prosecution thereof until completed. These conditions were not performed and the contract was eventually given to other persons. In an ac- tion on the bond : — Held, affirming the judg- ment appealed from (18 Ont. App. R. 415), that the agreement made by the bond was unilateral ; that the railway company was under no obligation to accept the sureties of- fered or to give H. the contrs^ct ; that the bond and the agreement for the construction of the works were to be contemporaneous acts, and as no such agreement was entered into H. was not liable on the bond. Brant- ford, W. & Lake Erie Ry. Go. v. Huffman, xix., 336. 258. Tender iy fi-rm — Assignment of inter- est — Alteration of specifioation after tender and 'before acceptance — Provision insertea against assignment — Incomplete contract — Locus standi — Action.'] — On 1st February, 1880, the corporation of St. Gabriel called for tenders for waterworks for the village, ac- cording to plan and specification. — St. .T. & Co. tendered "to do- the several works of supplying and laying water pipes in this vil- lage according to plan and specifioation," for $37,600.99.— The specification had no prohi- bition against transferring the contract. The tender of St. J. & Co., when the tenders were opened on 2nd March, was the lowest but one, that of D. & Co. By a memo, of agreement, made 5th March, 1880. between St. J. and C, doing business together under the name of St. J. & Co., and T. St. J. & _C. transferred all their interest in or to and by virtue of the tender to T. for $500, a further sum of $500 to be paid by T. when contract should be awarded by by-law duly passed. — D. & Co. availed themselves of cer- tain irregularities to withdraw their tender, the St. Gabriel council decided to make some changes in the plans and speMfications, and at a meeting on 12th July. 1880, resolv- ed that the specification as made by the en- gineer of the corporation, with the corrections as amended by the Council, be accepted and adopted, and that St. J. should be allowed two days to consider the specification and, if he should accept, that he should attend on the 15th at 3 p.m. to sign the contract. — The new specification contained the following : " The contractor will not be permitted to sub-let any portion of the work, except for the de- livery of materials, without the consent of the municipal council." On 15th July, St. J. and C. went to the office of the respondent's notary to sign the contract. At the same time T. presented himself, and claimed the right to sign the contract as transferee, producing and communicating to the mayor, who was present, the document by which St. J. & Co. had transferred to him all their interest in the contract in question. — The mayor thereupon requested delay until the evening to consult the council, which was to meet in accordance with the terms of the adjournment on the 12th July, when he made a report of the respective pretensions of St. J. and C. and of T. St. J. was called upon by the members of the coun- cil to state whether T.'s pretensions were founded, and whether it was true that he was transferee of St. J. & Co.'s interests under the tender which they had submitted. The re- sult was that the council determined not to give the contract to St. J. & Co., but sent for the next lowest tenderers, to whom they made an offer on the terms and conditions proposed to St. J. & Co. at the meeting of 12th July, and this offer being accepted it was resolved to give them the contract, and it was signed the next day. • St. J. in his own name, and as the only person interested in the tender of St. J. & Co., then instituted an action in damages for breach of the contract which he pretended was entered into between himself and respondent under the resolutions of 12th July, 1880.— The Superior Court (12 R. L. 15) dismissed plaintiff's action, holding that the evidence shewed no individual tender by St. J., but one by St. J. and C, as constitu- ting the firm of St. J. & Co., that therefore the plaintiff had no locus standi to maintain the action in his own name ; that, besides, un- der the circumstances there never had been any completed contract between the parties ; the provision against assigning the contract was a material stipulation which had been violated by the assignment to T., and that the council had been justified in refusing to ax;- cept the tender. — This judgment was reversed by the Court of Review at Montreal, but re- stored by the Queen's Bench. — On appeal the Supreme Court of Canada, Henry, J., dis- senting, affirmed the judgment of the Court of Queen's Bench.. Appeal dismissed with costs. St. James v. Corporation of St. Gabriel, 12th May, 1885, Cass. Dig. (2 ed.) 147. 259. Agreement as to tender — Fraud by partners — Breach of contract — Damages. See Partnership, 4. 40. Trade Custom. 260. Sale of goods by sample — Delivery- Inspection. See No. 211, ante.. 41. Varying Terms. 261. Oral agreement in variation of written contract — Consideration.] — Defendant had 379 CONTEACT. 380 agreed in writing to accept goods in payment of two bills of exchange accepted by plaintiff, and plaintiff, having delivered the goods in payment of such bills, was subsequently sued by an indorsee of one of them, and compelled to pay it. In an action to recover the amount so paid by plaintiff, defendant offered evidence to shew that at the time the agree- ment in writing was made, the plaintiff orally agreed that the goods should not be taken as payment in full of the bills, and that he would pay the balance as soon as he was able. The Supreme Court affirmed the judgment appeal- ed from (20 X. S. Rep. 210) which held that such agreement, if made, was void for want of consideration. Cox v. Seeley, 6tb May, 1896. 262. Railways — Expropriation of land — Title to land — Tenants in common — Proprii- taires par indivis — Construction of agreement — ilisdescription — Plan^ and hooks of refer- ence — Satisfaction of condition as to indem- nity — Registry laws — Estoppel — R. S. Q arts. 5163, 5164, art. 1590 G. C.]— The provisions of the Civil Code respecting the registration of real rights have no application to proceedings in matters of expropriation of lands for railway purposes under the pro- visions of the Revised Statutes of Quebec. — Pending expropriation proceedings begun against lands held in common, (par indivis) for the purposes of appellant's railway, the following instrument was signed and deliver- ed to the company by six out of nine of the owners par indivis, viz. : " Be it known by these presents that we. the legatees Patterson of the Parish of Beauport, Counry of Quebec, do promise and agree that as soon as the Quebec, Montmorency and Charlevoix Rail- way is located through our land in Parishes of Xotre-Dame des Anges, Beauport and L'Ange-Gardien, and in consideration of its being so located, we will sell, bargain and transfer to the Quebec, Montmorency and Charlevoix Railway Company, for the •sum of one dollar, such part of our said land as may be- required for the construction and main- tenance of the said railway, and exempt the said company from all damages to the rest of the said property, and that pending the execution of the deeds we will permit the construction of said railway to be proceeded with over our said land, without hindrance of any kind, provided that the said railway is located to our satisfaction. As witness our hands at Quebec, this 11th day of June, in the year of Our Lord, one thousand, eight hun- dred and eighty-six." Afterwards the line of the railway was altered and more than one year elapsed without the deposit of an amend- ed plan and book of reference to shew the deviation from the line as originally located. The company, however, took possession of the land and constructed the railway across it and, in August, 1889, the same persons who had signed the above instrument granted an absolute deed of the lands to the company for a consideration of five dollars, acknowl- edged to have been paid, reciting therein that the said lands had " been selected and set apart by the said railway company for the ends and purposes of its railway and being already in the possession of the said railway company since the eleventh day of June, one thousand eight hundred and eighty-six, in vir- tue of a certain promise of sale sous seing prii-e by the said vendors in favour of the said company." Neither of the instruments were registered. Q. purchased the New Waterford Cove property in 1889 and, after registering his deed, executed by all the own- ers par indivis, brought a petitory action to recover that part of the property taken by the railway company, alleging that the in- struments mentioned constituted a donation of the lands and did not come within the operation of arts. 5163 and 5164 of the Re- vised Statutes of Quebec. Held, that the terms of s.-s. 10 of art. 5164, R. S. Q. were sufficiently wide to include and apply to do- nations ; that the instrument in question was not properly a donation, but a valid agree- ment or accord within the provisions of said tenth sub-section, under onerous conditions of indemnity which appeared to have been sat- isfied by the company ; that, as the agreement stipulated no time within which the new plan should be filed and the location appeared to have been made to the satisfaction of the re- quired proportion of the owners, it was suf- ficient for the company to file the amended plan and book of reference at any time there- after ; and that, as the indemnity agreed upon by six out of nine of the owners par indim had been satisfied by changing the location of the railway line as desired, the requirements of art. 5164 B. S. Q., had been fully com- plied with and the plaintiff's action could not, under the circumstances, be maintained. Que- bec, Montmorency d Charlevoix Ry. Co. v. Gibsone; Gibsone v. Quebec, Montmorency i Charlevoix Ry. Co., xxix., 340. 263. Oral agreement — Evidence — With- drawal of questions from jury — Sew trial.] — D. gave instructions in writing to H. ^^ specting the sale of a coal mine on terms mentioned and agreeing to pay a commission of 5% on the selling price, such commission to include all expenses. H. failed to effect a sale. Held, affirming the jodgment appealed from (6 B. C. Rep. 505), that in an action by H. to recover expenses incurred in an en- deavour to make a sale, and reasonable re- muneration, parol evidence was admissible to shew that the written instructions did not constitute the whole of the terms of the con- tracts, but there had been a collateral oral agreement in respect to the expenses, and that the question as to whether or not there had been a collateral oral agreement in re- spect to the expenses and that the question as to whether or not there was an oral contract in addition to what appeared in the written instructions was a question that ought to have beBn submitted to the jury. Dunsmuir V. Lowenberg, Harris & Co., xxx., 334. 264. Written instrument — Collateral parol agreement — Work and labour done — iMn. See Evidence, 221. 265. Raihi-ays — Expropriation — ri"f '" lands — Proprietaires par indivis — Plam, surveys, books of reference — Estoppel — Satisfaction of condition as to indemnitij— Application of statute — Registry laws— Con- struction of agreement. See Railways, 32. 266. Sale of goods — Evidence to vary written instrument — Mistake — Admissio'^ of evidence. See No. 180. ante. 381 COPYEIGHT. 383 CONTRAINTE PAR CORPS. 1. Appeal — Jurisdiction — Amount in controversy — Secretion of estate hy insolvent — Gontrainte par corps — Arts. 885, SS8 C. P- 0-] — On a contestation of a statement of an insolvent trader by a creditor claiming a sum exceeding $2,000, the judgment appealed from condemned the appellant, under the pro- visions of art. 888 O. P. Q., to three months' imprisonment for secretion of a portion of his insolvent estate, to the value of at least $6,- 000. Held, that there was no pecuniary amount in controversy and there could be no appeal to the Supreme Court of Canada. Clement v. Banque Sationale, xxxiii., 343. 2. Administration of minor's Account — Reliquat de compte - See Tutorship, 2. property — - Discretion. CONTRIBUTORIES. See Company Law — Winding-up Act. CONTROVERTED ELECTION. See Election Law. CONVENTION. See CoNTKACT — Treaty. CONVERSION. 1. Carrier's contract — Shipping receipt — Limitation of liability — Damages — Negli- gence — Connecting lines — Wrongful conver- sion — Sale of goods for non-payment of freight — Principal and agent — Varying terms of contract.'\ — A shipping receipt with conditions relieving the carrier from liability for loss or damages arising out of " the safe- keeping and carriage of the goods," even though caused by the negligence, carelessness or want of skill of the officers, servants or workmen of the carrier, without his fault or privity, and restricting claims to the cash value of the goods at the port of shipment, agreed for the carriage by the defendants' and other connecting lines of transportation, and made the freight payable on delivery of the goods at the point of destination. The de- fendants had previously made a special con- tract with the plaintiff but delivered the re- ceipt to his agent at the point of shipment with a variation of the special terms made with him in respect to all shipments to him as consignee during the season of 1899, the variation being shewn by a clause stamped across the receipt of which the plaintiff had no knowledge. One of the shipments was sold at an intermediate point on the line of trans- portation on account of non-payment of freight by one of the companies in control of a connecting line to which the goods had been delivered by the defendants. Held, that the plaintiff's agent at the shipping point had no authority, as such, to consent to a variation of the special contract, nor could the carrier do so by inserting the clause in the receipt without the concurrence of the plaintiff ; that the sale, so made at the intermediate point, amounted to a wrongful conversion of the goods by the defendants, and that they were not exempt from liability in respect thereof, at their full value. Wilson v. Canadian De- velopment Co., xxxiii., 432. [Leave to appeal to Privy Council i July, 1903.] 2. Seizure of chattels — Sale of perishable — Order of court — Holding in medio. See Sheriff, 1. CONVEYANCE. 1. Insolvency ■ — Foreign assignment — Lands in Canada — Lex loci.'] — An assignment and conveyance in pursuance of foreign bank- ruptcy proceedings is ineffectual to pass title to lands in Canada. Macdonald v. Georgian Bay Lumber Co., ii., 364. 2. Contract for sale of land — Payment of purchase money on d'elioery of conveyance — Duty to prepare.} — A provision in a contract for purchase of land that the purchase money is to be paid as soon as the conveyance is ready for delivery does not alter the rule that the Conveyance should be prepared by the pur- chaser. Fournier and Taschereau, JJ., dis- senting. Stevenson v. Davis, xxiii., 029. 3. Sale of land — Tender of conveyance — Objection — Delay — Default of vendor — Pay- ment of interest. See Vendor and Purchasek, 30. 4. Conveyancing — Mortgage — Leasehold premises — Terms of mortgage — Assignment or sub-lease. See Mortgage, 9. And see Deed — Fraudulent Conveyances — Lease — Mortgage. COPYRIGHT. 1. Infringement of copyright — Textual copy — Source of information — Statutory forms — Notice on title page — Deposit of copies.] — The publisher of a woj-k containing biographi- cal sketches cannot copy them from a copy- righted work, even where he has applied to the subjects of such sketches and been re- ferred to the copyrighted work therefor. — In works of this nature where so much may be taken by different publishers from common sources and the information given must be in the same words, the courts will be careful not to restrict the right of one publisher to pub- lish a work similar to that of another, if he obtains the information from common sources and does not, to save himself labour, merely copy from the work of the other that which has been the result of the latter's skill and diligence. — The notice of copyright to be in- serted in the title page of a copyrighted work is sufficient if it substantially follows the statutory form. The omission of the words " of Canada " in such form is not a fatal defect, and. even if a defect, it is cured by s.-s. 44, s. 7 of the Interpretation Act. — De- positing in the office of the Minister of Agri- culture copies of a book containing notice of 383 COSTS. 38d copyright before the copyright has been grant- ed Qoes not invalidate the same when granted. Garland v. OemmUl, xiv., 321. 2. PuUication of dictionary — Source of in- formation — Infringement — Evidence — 'Tex- tual copy.] — In an action for infringement of copyright in a dictionary the unrebutted evi- dence shewed that the publication complained of treated of almost all the subjects in the exact words used in the dictionary first pub- lished and repeated a great number of errors that occurred in the plaintiff's work. Held, affirming the iudgment appealed from. (Q. R. 10 Q. B. 255), that the evidence made out a prima facie case of piracy against the de- fendants which justified the conclusion that they had infringed the copyright. Cadieux v. Beauchemin, xxxi., 370. COBFORATE SEAL. Executed contract — LiaMUty of corpora- tions.] — An executed contract for purposes within its corporate powers and of which it receives benefit is binding upon a corporation although the contract was not executed under the corporate seal. Bernardin v. North Duf- ferin, xix., 581. COKPORATION. See Company Law — Pokeign Coepora- TioNS — Mtjntcipal Cokporations — Rail- ways — School Thustees. COSTS. 1. Appeal foe Costs, 1-5. 2. Payment to ob by Paeties, 6-34. 3. Refusal of Costs, 35-68. 4. Othee Cases, 69-83. 1. Appeal foe Costs. 1. Appeal for costs — Jurisdiction — Habeas corpus — Prisoner at large.]— General costs of appeal were allowed where it appeared that at the time of instituting an appeal against an order in a matter of haheas corpus, the pris- oner was at large. Eraser v. Tupper. Cass. Dig. (2 ed.) 421; Cass. Prac. (2 ed.) 54, 83. 2. Appeal for costs — Mistake.] — Though an appeal will not lie in respect of costs only, yet where there has been a mistake upon some matter of law, or of principle, which the party appealing has an actukl interest in having reviewed, and which governs and affects the costs, the party prejudiced is entitled to have the benefit of correction by appeal. Archlald V. deLisle; Baker v. deLisle; Mowat v. de- Lxsle, XXV., 1. 3. Quashing appeal — Voluntary execution — Question of costs — Estoppel.] — The court may quash an appeal for costs only, although there may be jurisdiction to entertain it bcMomann v. Dowker, xxx., 323. 4. Appeal for costs—Hearing refused. See Appeal, 36. 5. Appeal for costs — Haieas corpus — Pris- oner at large. See Peactice of Supebme CotnaT 66 2. Payment to oe by Paeties. 6. Construction of will — Order on allowing appeal.] — In a case submitted for the con- struction of a will, upon allowing an appeal it was ordered that the costs should be paid by the respondents who were executors and trustees out of the general residue of the estate of the deceased, but if the residue should have been distributed then that costs should be contributed by the persons who should have received portions of the residue ratably ac- cording to the amounts respectively received by them. Fisher v. Anderson, iv., 406. 7. Mistake — Pleading — Tender into court] — Appellants not having tendered with their plea costs accrued up to and inclusive of its production, ordered to pay the respondent the costs incurred in the court of first instance. The Mtna Life Insurance Go. v. Brodie, v., 1. 8. Cross-appeal — Motion to quash — Taxing costs.] — A motion to quash an appeal on tie ground that it should not have been bronght as a substantive appeal, but as a cross-appwl, was dismissed. But the respondent having succeeded in having the judgment of the court below varied (reversed on one point and af- firmed on another), was allowed costs as of cross-appeal taken under rule 61. Brunei y. Pilon, v., at p. 356 ; Cass. S. C. Prac. (2 ed.) 164. 9._ Controverted election — Preliminary ob- jections — Onus prohandi.] — Costs allowed on dismissal, Strong, J., dissenting, in view of established jurisprudence followed in the court below. Stanstead Election Case, xx., 12. 10. Objection taken in factum — Quashing for want of jurisdiction — Counsel fee.]-^ When objection to the jurisdiction is taken m the factum and motion to quash the appeal made at the earliest convenient time, general costs will be allowed and counsel fees as of a motion to quash ; the counsel fee being in the discretion of the taxing officer subject to in- crease by order of the court or a judge. Dan- jon V. Marquis (iii., 251) ; Reid v. Ramsay; McGowan v. Mockler, Cass. Prac. (2 ed.), 81, 82 ; Cass. Dig. (2 ed.) pp. 420, 421. 11. Certiorari — Quashing appeal for want of jurisdiction — Objection taken by court.]— On an appeal from a judgment of the Court of Queen's Bench for Manitoba making abso- lute a rule to quash a conviction brought upon certiorari from a magistrate's court, objection was taken by the court for want of juris- diction by reason of the matter having arisen before a tribunal that was not a Superior Court. The appeal was quashed for want of jurisdiction and costs allowed to the respond- ent. The Queen v. Nevins. Cass. Dig. (2 ed.) 427; Cass. Prac. (2 ed.) 27, 81. 12. Objection taken in factum — t^'"** 'f jurisdiction — Quashing appeal.] — Where OD- jection to the jurisdiction is taken in respond- ent's factum and motion to quash made at the Earliest convenient time the general costs of the appeal will be given and a_ counsel tee as on a motion to quash. Maire, etc.. 385 COSTS. 386 Terrehonne v. Swurs de la Providence, Cass. Dig. (2 Bd.) 434; Cass. S. C. Prac. (2 ed.) 81. 13. Appeal — Jurisdiction — Amount ire con- troversy — Affidavits — Conflicting as to amount — The Exchequer Court Acts—SO & 51 Vict. 0. 16, ss. 51-53 (O.)— 54 d 55 Vict. c. 26, s. 8 (D.) — The Patent Act—B. 8. C. c. 61, s. 36.'\ — On a motion to quash an appeal where tlie respondents filed affidavits stating that the amount in controversy was less than the amount fired by the statute as necessary to give jurisdiction to the appellate court, and affidavits were also filed by the appellants, shewing that the amount in controversy was sufficient to give jurisdiction under the sta- tute, the motion to quash was dismissed, but the appellants were ordered to pay the costs, as the jurisdiction of the court to hear the appeal did not appear until the filing of the appellants' affidavits in answer to the motion. Dresohel v. Auer Incandescent Light Mfg. Co., xxviii., 268. 14. Aiandonment of expropriation proceed- ings — Usurpation of lands — Illegal detention.'i — After the commencement of expropriation proceedings the city took possession of lands, constructed works thereon and incorporated it with a public street. Acting under a spe- cial statute subsequently passed, the expro- priation proceedings were abandoned without payment of indemnity or return of the prop- erty. The declaration in an action by plain- tiff to obtain relief was defective but an amendment was ordered under s. 63, Supreme and Exchequer Courts Act for the purpose of determining the actual controversy and as defendant's conduct had been tyrannical and flagrantly illegal the plaintiff was allowed his costs in all the courts. City of Montreal v. Hogan, xxxi., 1. 15. Contract for sale — Action for price — Counterclaim — Specific performance — Costs.l —In an action for the price of land under an agreement for sale, or in the alternative for possession, defendant filed a counterclaim for specific performance and paid into court the amount of the purchase money and interest, demanding therewith a deed with covenants of warranty of title. Plaintiff proceeded with his action and recovAed judgment at the trial for the amount claimed and costs, including costs on the counterclaim, the decree directing him to give the deed demanded by the defend- ant as soon as the costs were paid. The ver- dict was affirmed by the court en hanc. Held, reversing the judgment appealed from (83 N. S. Rep. 334), that as defendant had succeed- ed on his counterclaim he should not have been ordered to pay the costs before receiving his deed and the decree was varied by a direc- tion that he was entitled to his deed at once with costs of appeal to the court below en 'banc, and to the Supreme Court of Canada against plaintiff. Parties to pay their own costs in court of first instance. — Held, per Gwynne, J. Defendant should have all costs subsequent to the payment into court. Millard v. Darrow, xxxi., 196. 16. Controverted election — Change of soli- citors — Payment of costs — Stay of proceed- ings on appeal.'} — While an appeal was pend- ing, on 1st October, 1901, motion was made for ' a change of solicitors of record and was granted on deposit being made of $400 to secure former solicitor's costs. Thereupon s. c. D.^13 counsel for appellant stated that an agreement for postponement of the hearing had been come to and the order for postponement was made accordingly. Beaudin, K.G., then asked leave to present a petition to have a new petitioner appointed on the ground that the postponement was the result of fraudulent collusion between the new solicitors and the former petitioner who had been paid to abandon proceedings. Leave for the application was granted after notice in order that, if collusion were proved, the order to postpone . might be rescinded. On 22nd November another motion to change solicitors was made and granted, on consent of parties, the hearing being ordered to be per- emptorily fixed for the term then in session and not later than 29th November. This date for hearing was fixed by the court suo mottl. On 29th November appellant's counsel applied to stay proceedings till costs of the solicitor on the record from 1st October to 22nd November had been paid. The order was refused and the hearing ordered to pro- ceed forthwith. Upon appellant's counsel stating that the case could not be distin- guished from the Two Mountains Election Case (31 Can. S. 0. R. 437) the appeal was dismissed with costs. Terrebonne Election Case, 29th November, 1901. 17. Provincial bonds — Succession duties — ■ Exempted securities — Sale under will — Duty on proceeds — Proceedings by or against the Crown — Costs.} — Costs will be given for or against the Crown as in other cases. .Juris- prudence of Privy Council and Supreme Court of Canada stated as settled by a number of cases specially referred to. Lovitt v. Attor- ney-General of Nova Scotia, xxxiii., 35U. 18. Increased counsel fee — Application in chambers — Quashing appeal. See Practice of StrpREME Cotjrt, 65. 19. Misconduct of administrator — Refusal to facilitate liquidation of estate — Personal litigation — Order charging his share with costs. See Executors and Admikistbators, 2. 20. Security — Special iaU — ■ Exoneretur — Practice. See Appeal, 3. 21. Assignment for benefit of creditors — Lien of execution creditor — Costs of appeal — Limitation of appeal. See Appeal, 341. 22. Quebec License Act, 1878 — Refusal of license — Tender — Mandamus. See Liquor Laws, 13. 23. Application for appeal per saltum — ■ Taxation of fee. See Appeal, 186, 317, 318. 24. Filing factum — Blotion for non pros. — Indulgence on terms. Sec Practice of Supreme Court, 29. 25. Adding parties — Transfer of plaintiff's interest — Attempt to get party responsible for costs — Costs on motion. See Practice of Supreme Court, 226. 387 COSTS. 388 26. Appeal — Olstructions ly party — Settl- ing case — Order extending time — Special order as to costs in both courts. See Pbactice of Supkeme Coukt, 79, 122. 27. Reimbursement of costs paid under Su- preme Court order — Reversal of judgment by Privy Council. See Practice of Supkeme Court, 67. 28. Solicitor and client — Fund in court — Lien — Priority of payment. See SoLiciTOE, 9. 29. Appeal — Incomplete record — Case re- mitted to trial court — Directions as to costs. See Practice of Supreme Court, 36. 30. Appeal — Cross-appeal to Privy Council — Practice — Stay of proceedings — Costs or- dered to be costs in the cause. See Practice of Supreme Court, 231, 232. 31. Appeal — Jurisdiction — Special leave — R. S. C. c. 135, ss. 40, 42 — Form of applica- tion and order — Gross-appeal to Privy Coun- cil — Inscription pending such appeal — Stay of proceedings — Costs allowed. See Practice op Supreme Court, 232. 32. Telephone pole — Negligence — Party to suit — Costs on unnecessary proceeding. See Negligence, 192. 33. Appeal per saltum — Motion granted with costs to be costs in the cause. See Practice of Supreme Court, 195. 34. Stamps on election petition — Technical objections to form — Prete-nom — Preliminary objections — Abandonment of proceedings — Re- instatement — Costs — Matter of procedure. See Election Law, 118. 3. Refusal of Costs. 35. Appeal standing dismissed on equal di- vision — Discretion of court in awarding costs saved^-38 Vict. c. 11, s. 38.] — By the Act 38 Vict. c. 11, s. 38, the Supreme Court of Can- ada being authorized, in its discretion, to order payment of costs of appeal, the decision in this case, being on an equal division that the respondent should not have costs, did not necessarily prevent the majority of the court from ordering the payment of costs of appeal m other cases of an eaual division of opinion amongst the judges. The Liverpool and Lon- don and Globe Insurance Co. v. Wyld i. 605 at pp. 693-696. " . . 36. Court equally divided — Costs refused.] — The practice of the court has been to refuse costs when the court has been equally divided Gurry v. /'"tj/ 13th JIarch, 1880. Cass. Dig! (2 ed.) 676; McLeod v. N. B. Ry. Co. v 7?? ; '- ofe v. Morgan, vii., 1. McCallum v. Odette, vii., 36; Shield's v. Peak, viii. 579- mioij y. Ken. viii. 474; JJegantic Blection Case, vin 169 ; Trust and Loan v. Lawra- son,^bi9; see also Cass S. C Prac. ^ed.' pSl. MMual error—Preliminary exception- Jurisdiction— Objection taken by court— Divi- sion of costs.] — Either through erroneous views held in common by both parties or by mutual agreement to let the matter pass in silence a question as to the jurisdiction of the court to hear an appeal was not raised but the case was argued on the merits. The court raised the question proprio motU and quashed the appeal without costs. Bank of Toronto V. Les Cure, etc., de la Nativite de la Sainte Vierge, xii., 25. 38. Quashing appeal — Objection taken iy court.] — Where an appeal is quashed for want of jurisdiction it will be quashed with- out costs, if the objection has been taken by the court itself. Major v. City of Three Rivers, 18 C. L. J. 122. 17th November, 1882, Cass. Dig. (2 ed.) 422; Gladivin v. Gummings, 3rd November, 1883, Cass. Dig. (2 ed.) 426) ; Oendron v. McDougall, 4th March, 1885, Gass Dig. (2 ed.) 429; Bank of Toronto v. Les Cur4. etc., de la Nativite, xii., 25 ; Monette y. Lefebvre, xvi., 387. 39. Printing of case — Unnecessary matter — One-third cost deducted.] — The cost of printing unnecessary and useless matter in case was not allowed on taxation. L'Heureux V. Lamarche, xii., at p. 465 ; Cass Dig. (2 ed.) 674. 40. Claim on public works contract — Waiver of legal rights — Costs withheld from Grown.] — Where a claim against the Govern- ment was referred to arbitration, the Crown not insisting on its strict legal rights and the claimants thereby put to great expense, the Crown was deprived of costs in all the courts. The Queen v. Starrs, xvii., 118. 41. Quashing appeal — Objection taken hy court-— Jurisdiction.] — On quashing an appeal for want of jurisdiction on suggestion by a member of the court at the hearing no costs were allowed. Accident Ins. Go. of N. A. v. McLachlin, xviii., 627. 42. Objections taken for first time on ap- peal — Amending answers.] — Where objections were taken for the first time on appeal the appellant was not allowed costs. Canada Southern Ry. Co. v. Norvell; Canada South- ern Ry. Co. v. Cunningham; Canada Southern Ry Co. V. Duff; Canada Southern Ry. Co. t. Oatfield, Cass. Dig. (2 ed.) 34; Cass. S. C. Prac. (2 ed.) 83. 43. Motion to quash — Want of jurisdiction — Delay in application — Refusal of costs.] — On quashing an appeal for want of jurisdic- tion the court refused costs because a motion to quash had not been made at the earliest convenient opportunity. Oendron v. He- Dougall, Cass. Dig. (2 ed.) 429; Cass. S. C. Prac. (2 ed.) 44. Taxation in Supreme Court of Canain — Solicitor and client.] — An application for an order directing registrar to tax costs be- tween solicitor and client was refused, the Chief Justice stating that the question was duly considered by the judges at the organiza- tion of the Supreme Court, and it was not thought advisable to regulate costs between solicitor and client. Bonk v. Merchants Ua/r. Ins. Co., Cass. Dig. (2 ed.) 677. 45. Counsel fee — Advocate arguing ap^ in person as respondent.] — The respondent who was an advocate, argued his appeal in .J 389 COSTS. 390 person. Motion to tax counsel fee was re- fused, Pournier and Henry, JJ., dissenting. Charlevoix blection Vase ( I aliii v. Langlois), Cass. S. C. Prac. (2 ed.) 140. 46. Application for habeas corpus — Appeal in favorem liiertatis.l — Costs are not given, as a general rule, in haieas corpus matters. In re Johnson, Cass. Dig. (2 ed.) 329, 077; S. C. Prac. (2 ed.) 53, 83. 47. LiheV— Slander — Privileged statements — Public interest — Charging corruption against political candidate — - Challenging to sue — Justification — Costs.'] — lie defendant had caused a defamatory statement to be printed in a newspaper, and on a separate fly-sheet, and circulated through the constitu- ency, during a Parliamentary election, with a printed challenge to the plaintiff and others implicated in the charges made to justify their innocence by taking an action for damages in case they were not guilty, and offering at the same time to make a deposit to cover the costs of suit. — The Supreme Court of Canada, in affirming the judgment of the Court of Queen's Bench for Lower Canada (which had reversed the judgment of the Superior Court in favour of the plaintiff, and dismissed the action with costs), refused to allow costs under the circumstances. Strong, C.J.. dis- sented, being of opinion that the Superior Court judgment for $100 damages with costs as of an action for that amount should be restored. Oauthier v. Jeannotte, xxvili., 590. 48. Assignment for benefit of creditors — Fraudulent preference — Briber;/.] — Where the appellant was an inspector of an insol- vent estate and participated in arrangements intended to secure a fraudulent preference to a particular creditor the appeal was allowed with costs but the action against him was dismissed without costs and an order made that no costs should be allowed in any of the courts below. Brigham v. Bangue Jacques- Gartier, xxx., 429. 49. Action for personal injuries — Prescrip- tion — Failure to plead exception — Judicial notice of limitation — Dismissal of action — Arts. 2188, 2262, 2267 G. C.]— In an action for bodily injuries where the extinction of the right of action by prescription was not plead- ed or raised in the courts below and upon an appeal the prescription was judicially noticed and the action dismissed, the appeal was al- lowed without costs. City of Montreal v. McGee, xxx., 582. 50. Construction of ivritten contract — Specifications — " From " and " to " streets ■ — Reference to annexed plan — Mistake — Ap- portionment of costs.] — Where the contentions of neither party were fully adopted, the ap- peal was allowed without costs in the Supreme Court of Canada. City of Montreal v. Can- adian Pac. liy. Co., xxxiii., 396. 51. Appeal — Jurisdiction — Objection taken by court — Quashing appeal. See Appeal, 109, 111. 52. Irrelevant matter in factum — Censure of solicitor — Loss of costs. See Pbaotice of Supreme Coubt, 28. 53. Equal division of opinion — Judgment beloto .iianding affirmed — Dismissal of appeal without costs: See Election Law, 73. 54. Appeal — Equal division of opinion — Dismissal without costs. See Appeal, 163. 55. Appeal — Equal division of opinion — Dismissal without costs. See LiQuoE Laws, 2. 56. Scandalotts reflections in appellant's factum — Ordered to be taken off files — Costs withheld. See Practice of Supreme Court, 15. 57. Expropriation of land — Award less than amount offered — Special matter considered by arbitrators — Refusal of costs. See Arbitrations, 28. 58. Application to court — Setting down Ex- chequer Court appeal — Hearing — Lapse of time — New point of practice — Costs withheld. See Practice of Supreme Court, 114. 59. Appeal failing upon equal division of court — Practice — Costs refused. See RiDEAu Canal Lands, 2. 60. Question of jurisdiction — Failure to ob- ject in factum — Mitigation of costs. See Appeal, 368. 61. Quashing for want of jurisdiction — Objection taken in factum — Costs allowed on motion only. See Appeal, 184. 62. Quashing appeal — Objection taken by court — Costs withheld. See Appeal, 110, 111. 63. Question of jurisdiction — Objection taken by court- — Costs withheld. See Appeal, 113. 64. Taxation of witnesses — Controverted election — Disallowance in cases not appealed. See Practice of Superior Court, 177. 65. New objection taken on appeal — Pre- scription — Costs withheld. See Limitations of Actions, 22. 66. Appeal — Jurisdiction — Award by drainage referee — R. S. U. c. 135, s. 24 — Costs withheld — Objection taken by court. See Appeal, 52. 67. Appeal — Dismissal for want of prose- cution — Application to reinstate refused without costs — Notice — Practice. See Practice of Sup. Court, 0.3, 96, 97. 68. Appeal — Jurisdiction — Final judg- ment — R. S. C. c. 135, s. 24 — Costs reduced. See Practice of Sup. Court, 68. 4. Other Cases. 69. In Exchequer Court — Security for costs — 'Pime for application — Petition of right — Discretionary order.] — Per Pournier, J., in the Exchequer Court of Canada. Where, by a letter addressed to the suppliant, the Secretary of the Public Works Depart- 391 COUNSEL. m ment stated, that he was desired by the Min- ister of Public Works to offer the sum of $3,950 in full settlement of the suppliant's claim against the department, an application on behalf of the Crown for security for costs was refused, on the ground that the power of ordering a party to give security for costs, being a matter of discretion and not of abso- lute right, the Crown in this case could suf- fer no inconvenience from not getting security, as well as on the ground of delay in making the application. Application for security for costs in the Exchequer Court must be made within the time allowed for filing statement in defence, except under special circum-. stances. Wood v. The Queen, vii., 631. 70. Action ly firm of solicitors — Set-off — Mutual debts — 'Appeal— Final judgment.] — In an action by a firm of attorneys for costs defendants cannot set off a sum paid by one of them to one of the attorneys for special services rendered by him, there being no mutuality and the payment not being for the general services covered by the retainer to the firm. — Per Taschereau. J. The judgment of the Court of Appeal aflBrming the Divisional Court judgment on appeal from a report of the taxing ofiBcer on a reference is not a final judgment from which an appeal lies to the Su- preme Court of Canada. McDoufjall v. Cam- eron; Bickford v. Cameron, xxi., 379. 71. Sunreme and Exchequer Courts of Can- ada — Parol evidence — Quantum mertiitj — In proceedings before the Supreme and Ex- chequer Courts of Canada an attorney ha.'; the right to establish the quantum meruit of his services by oral evidence in an action for his costs. Paradis v. Basse, xxi., 419. 72. Distraction — Motion to amend plead- ings.'] — I-n appeal, where distraction of costs has not been asked for by the pleadings, or by the factum, it should be asked for when judg- ment is rendered. If not then asked for, any subsequent application must be made to the court upon notice to the other side. See Con- verse V. Clarice. 12 L. C. R. 402 ; The Water- works Co. of Three Rivers v. Dostaler, 18 L. C. J. 196 ; Lator v. Campbell, 7 Legal News, 163. Letourneux v. Dansereau. Cass Dig. (2 ed.) 677; Cass. S. C. Prac. (2 ed.) 84. 73. Estoppel — Loss of right of appeal — Acquiescence in judgment — Reception of costs by appellant.] — The judgment appealed from gave certain costs to the appellant which were taxed and paid to him out of moneys in court to the credit of the cause. A motion to quash the appeal was made on the ground that by accepting these costs the appellant has acquiesced in the judgment appealed from by taking a benefit thereunder. Held, that the reception of these costs was in no way inconsistent with the appeal against the con- struction the judgment placed upon the will in dispute in the case. In re Ferguson; Turner v. Bennett; Turner y. Carson, sxviii., So. 74. Appeal — Discretion of court appeal- ed from— Costs.]— It is only when some fun- damental principle of justice has been ignored or some other gross error appears that the bupreme Court will interfere with the discre- tion of provincial courts in awarding or with- holding costs. Smith V. St. John City Ry Co,; Consolidated Electric Co. v Atlantic Trust Co.; Consolidated Electric Co. v. Pratt xxviii., 603. ' 75. Drainage — -Qualification of petitioner— " Last revised assessment roll " — R. S. q (1897) c. 226 — Costs of non-appealing party] • — The judgment appealed from (1 Ont. t R. 156. 292) reversed the trial court iiids- ment (32 O. R. 247) and held that the "last revised assessment roll " governing the sta- tus of petitioners in proceedings under the Drainage Act. was the roll in force at the time the petition was adopted by the munici- pal council and referred to the engineer tor report, and not the roll in force at the time that the by-law was finally passed. The con- tractor had been made party in the Court of Appeal for Ontario and appeared at the hear- ing, but did not himself appeal. The judg- ment appealed from held that the effect of al- lowing the appeal did not give him any costs on the appeal. The Supreme Court affirmed the judgment appealed from. Challoner v. The Township of Lobo, xxxii,, 505. 76. Privy Council judgment — Rule in Su- preme Court — Special circumstances. See Practice of Stjpbbiok Cotjet, 229. 77. Lien by solicitor — Money deposited in court — Opposition en sous ordre — Art. 753 C. G. P. — Sub-collocation. See Opposition, 16. 78. Judgment dismissing appeal — Jfon- procedendo — Default of appearance. See Practice of Superior Court, 91. 79. Execution for costs of Supreme Court judgment — Stay of proceedings — Amount in dispute — Appeal— Jurisdiction. See Practice of Sup. Court, 249. 80. Stay of proceedings in court below — Subsequent reference — Order as to costs gen- See Appeal, 823. 81. Taxation in suit against school trustees — Application by ratepayer — Jurisdiction of provincial courts — Interference on appeoi. See Appeal, 179. ' 82. Immoral agreement — Trust — Lien for costs — Evidence — Husband and wife. See Contract, 162. 83. Counterclaim by solicitor against sher- iff's fees — Signed bill of costs — Set-off. See Solicitor, 10. COUNSEL. Right of action for fees — Retainer — Re- fresher — Fishery commission — Petition of right — Quantum meruit — Lex loci] — An ad- vocate of the Province of Quebec, one of Her Majesty's counsel, was retained by the Goyern- ment of Canada as of counsel for Great Bri- tain before the Fishery Commission at Halifax pursuant to the Treaty of Washington. As to terms of retainer, the judge in the Ex- chequer Court found " that each of the coun- sel engaged was to receive a refresher equal to the retaining fee of $1,000, that they were to be at liberty to draw on a bank at Halifax 393 COUNTY COUETS AND JUDGES. 394 for $1,000 a month during the sittings of the commission, that the expenses of the suppliant and his family were to be paid, and that the final amount of fees was to remain unsettled until after the award." The amount awarded by the commissioners was $5,500,000. The suppliant claimed $10,000 as his remuneration, in addition to $8,000 already received by him. Held, per Fournier, Henry and Taschereau, JJ.. that the suppliant, under the agreement entered into with the Crown, was entitled to sue by petition of right for a reasonable sum in addition to the amount paid him, and that $8,000 awarded him in the Exchequer Court was a reasonable sum. — Per Fournier, Henry, Taschereau and Gwynne, JJ. By the law of the Province of Quebec, counsel and advocates can recover for fees stipulated for by an ex- press agreement. — Per Fournier and Henry, JJ. By the law also of the Province of On- tario counsel can recover for such fees. — Per .Ritchie, C.J. As the agreement between the suppliant and the Minister of Marine and Fisheries, on bfehalf of Her ilajestv. was made at Ottawa, in Ontario, for services to be per- formed at Halifax, in Nova Scotia, it was not subject to the law of Quebec ; that in neither Ontario nor Nova Scotia could a barrister maintain an action for fees, and therefore that the petition would not lie. — Per Strong, J. The terms of the agreement, as established by the evidence, shewed, in addition to an express agreement to pay the suppliant's expenses, only an honorary and gratuitous undertaking on the part of the Crown to give additional remuneration for fees beyond the amount of fees paid, which undertaking is not only no foundation for an -action but excludes any right of action as upon an implied contract to pay the reasonable value of the services ren- dered ; and the suppliant could therefore re- cover only his expenses in addition to the amount so paid. — Per Gwynne, J. By the Petition of Right Act, s. 19, the subject is denied any remedy against the Crown in any case in which he would not have been entitled to such remedy in England, under similar cir- cumstances. Bv the laws in force there prior to 23 & 24 Vict. c. 34 (Imp.), counsel could not, at that time, in England, have enforced payment of counsel fees by the Crown, and therefore the suppliant should not recover. — The Queen v. Doutre, vi., 343. [Note. — On appeal to the Privy Council, it was Held, 1. that in Quebec an advocate is en- titled, in the absence of special stipulation, to sue for and recover on a quantum meruit in respect of professional services rendered by him, and may lawfully contract for any rate of remuneration which is not contra Jionos mores, or in violation of the rules of the bar. — 2. That in the absence of stipulation to the contrary, express or implied, Jlr. Doutre must be deemed to have been employed upon the us- ual terms upon which such services are ren- dered, and that his status in respect both of right and remedy was not effected either by the lex loci contractus or the lex loci solu- tionis. — 3. That the Petition of Right Act, 1876, s. 19, s.-s. 3, does not in such case bar the remedy against the Crown by petition. 9 App. Cases 745.] COUNTEBCLAIM. 1. Solicitor and client — Action by sheriff for fees — Pleading- — Setting off claim for over- charges in ails paid — Signed lill of costs.'] — . In an action by the sheriff against a solicitor for oflBce fees and charges, the solicitor cannot counterclaim for overcharges in former bills paid to the sheriff by him in respect of matters in which the solicitor may have acted for the parties interested, because any such over- charges, if recoverable from the sheriff, do not belong to the solicitor but to the clients for whom he acted, but, in such an action, the solicitor may set up by way of counterclaim his costs in a suit in which he had appeared for the sheriff notwithstanding his omission to render a signed bill of the costs prior to the filing of the counterclaim. Taylor v. Robert- son, xxxi., 615. 2. Action for price of land — Tender and de- posit — Demand of deed with warranty. See Costs, 15. 3. Contract by correspondence — Post letter — Time limit — Term for delivery — Breach of contract — Damages — Counterclaim — Condi- tion precedent — Right of action. See CONTEACT, 217. COUNTY COURTS AND JUDGES. 1. Statute — Amending Act — Retroaction — Sale of lands — Judgments and orders.] — Until 1897 it was the practice in Manitoba for the Court of Queen's Bench to grant orders for the sale of lands on judgments of the County Court under rules 803 et seq. of the Queen's Bench Act, 1895. In that year the Court of Queen's Bench decided that this practice was irregular, and in the following session the Legislature passed an Act providing that " in the case of a County Court judgment, an application may be made under rule 803 or rule 804, as the case may be. This amendment shall apply to orders and judgments heretofore made or en- tered, except in cases where such orders or judgments have been attacked before the pass- ing of this amendment." Held, Sedgewick, J., dissenting, that the words " orders and judg- ments " in said clause refer only to orders and judgments of the Queen's Bench for sale of lands on County Court judgments and not to orders and judgments of the County Courts. Held, further, i-eversing the judgment of the King's Bench (13 Man. L. R. 419), Davies, J., dissenting, that the clause had retroactive oper- ation only to the extent that orders for sale by the Queen's Bench on County Court judg- ments made previously were valid from the date on which the clause came into force but not from the date on which they were made. Held, per Sedgewick, J., that the clause had no retroactive operation at all. Schmidt v. Ritz, xxxi., 602. 2. Powers of judge — Scrutiny of votes — In- quiry into corrupt acts. See Canada Tempeeance Act, 1. 3. Muncipal inquiry — Jxidicial functions — Inferior tribunal— R. S. 0. (1887) v. 18h, s. Jftt. See Peohibition, 1. 4. Jurisdiction — Legislative authority — Pro- vincial courts — Speedy trials — Criminal proce- dure — Administration of justice. See Constitutional Law, 22. 395 COUET OP KEVIBW. 396 5. Appeal — Jurisdiction — Case originating in County Court — Transfer to High Court. See Appeal, 115. 6. Appeal — Jurisdiction — 52 Vict. c. 37, s. 2 (D.) — Appointment of presiding officers — County Court Judges— 55 Vict. c. J/S (Ont.) — 57 Vict. c. 51, s. 5 (Ont.)— 58 Vtct. c. 4' (Out.) — Construction of statute — Appeal from assessment — Final judgment — " Court of last resort." See Appeal, 114. 7. Sheriff — Trespass — Sale of goods py in- solvent — Bona fides — Judgment of inferior tri- bunal — Estoppel — Res judicata — Bar to action — Fraudulent preferences — Pleading. See Insolvency, 22. COURT. 1. Jurisdiction — Action for redemption — Foreign lands — Lex rei sitae — Action in per- sonam.'] — ^An Ontario Court will not grant a decree for redemption of a mortgage on lands in Ontario at suit of a judgment creditor of _ a mortgagor, whose judgment being registered is, by statute in Manitoba, a charge upon the lands, the judgment creditor and mortgagee both having domicile in Ontario. — The only locus standi the judgment creditor would have in an Ontario Court would be to have direct relief against the land by means of a sale to which relief he would be restricted in such a case in a suit in the courts of Manitoba, and a decree for a sale would not have been enforce- able in the latter province. — A court of equity will, where personal equities exist between two parties over whom it has jurisdiction, though such equities may refer to foreign lands, give relief by a decree operating not directly upon the lands, but directly in personam, but such relief will never be extended so far as de- creeing a sale in the nature of an equitable ex- ecution. Henderson v. Bank of Hamilton, xsiii., 716. 2. Constitution of Election Court — Substitu- tion of new court — Change of name — Contro- verted election. See Election Law, 101. 3. Criminal jurisdiction — Oyer and terminer — Commission — Supreme Court of B. C. — Con- stitution. See Habeas Corpus, 2. 4. Jurisdiction — Municipal corporation — Opening road allowances — C. S. V. C. c. 5Ji — R. S. O. {1887) c. 184, ss. 524, 531. See Municipal Corporations, ICO. 5. Inferior tribunal — Judge of County Court — Municipal inquiry — R. S. 0. (-Z.%7) c. 184, s. 411. See Prohibition, 1. 6.^ Lessor and lessee — Overholding tenant — Claim for use and occupation— Jurisdiction — Arts. 881. 888 C. C. P. See Landlord and Tenant, 23. 7. Provincial tribunals — Taxing costs — In- terference by appellate court. See Appeal, 179. 8. Appeal — Jurisdiction — 52 Viet. c. 37, s. 2 (D.) — Appointment of presiding officers — County Court judges — 55 Vict. c. Ig (Ont) 57 Vict. 0. 51, s. 5 (Ont.)— 58 Vict. c. 1,1 (Ont.) — Construction of statute — Ajifeal from assessment — Final judgment — " Court of last resort." See Appeal, 114. 9. Divisional Court — Appeal direct — R. s. C. e. 135, s. 26, s.-s. 3 — Order in chambers. See Appeal, 329. 10. Appeal — Forfeiiure — Waiver — Ouster of jurisdiction — Objection taken by court. See Appeal, 432. 11. Criminal law — Perjury — Judicial pro- ceeding — De facto tribunal — Misleading justice —Jurisdiction — ■ Construction of statute — B. 8. O. arts. 5551, 5561 — Criminal Code, s. 11,6. See Criminal Law, 24. 12. Construction of statute — Special leave to appeal — " Judge of court appealed from "— Jurisdiction — R. S. C. v. 135, s. 1,2. See Appeal, 336. COURT HOUSES. 1. Removal from shire town — R. 8. S. S. (5 ser.) e. 20, 1.^ See JIUNiciPAL Corporation, 81. 2. Municipal corporation — Construction of statute— 55 Vict. c. 42, ss. 391, 40Jh WS. J/'S (Ont.) — City separated from county — Main- tenance of court house and goal — Care and maintenance of prisoners- See Arbitrations, 30. COURT OF EQUITY. Agreement as to boundaries — Statute of Frauds — Purchaser for value — Notice — Dis- cretionary jurisdiction. See BoUNDAET, 2. COURT OF PROBATE. Jurisdiction — Accounts of executors ani trustees — Res judicata. See Trusts, 12, 14. COURT OF REVIEW. 1. Jurisdiction — Judgment in Court of Re- view— Judr/ment in first instance varied— A/'- 1,3 G. P. 0,-54 £ 55 Vict. c. 25, s. S. ss. 3- Construction of statute.] — Where the Superior Court, sitting in Review, has varied a judg- ment, on appeal from the Superior Lourt, dj increasing the amount of damages, the juaf- ment rendered in the court of first instance is not thereby confirmed, and consequently tnere cannot be an appeal direct from the judgmeni of the Court of Review to the Supreme touri of Canada under the provisions of the tnir" sub-section of section three, c. 25 of the stat- utes of 54 & 55 Vict. (D.), amending tne 397 CEIMINAL LAW. 398 Supreme and Exchequer Courts Act. Simpson V. Palliser, xxix., 6. 2. Jurisdiction — Xew trial — Entering judg- ment on verdict — 3Jf Vict. c. 4, s. 10 (Que.) — 35 Vict. c. 6, s. 13 (Que.) See Railways, 108. 3. Appeal from Court of Revieiv — Appeal to Privy Council — Appealable amount — 5Jf y Parliament — Petition of right — Quantvm meruit— 31 Vict. c. 12, ss. 7, 15, 20. See Contract, 91. 10. Government railway — Breach of con- tract — Damages — Petition of right — 37 Viet. c. 16 (D). See TOET, 1. 11. Acceptance of bond — Execution — Instru- ment signed in blank — Estoppel — Proximate cause. See Evidence, 153. 12. Setting aside letters patent — Suits oy Attorney-Genera I — Res judicata — Estoppel. See Title to Land, 130. 13. Judgment in former suit — Attorney- General of Canada impleaded — Estoppel as against Crown. See Res Judicata, 2. 14. Act confirming title— Estoppel — Pi""^' ing. See Title to Land, 132. 409 CEOWN. 410 15. Territorial and prerogative rights — Beneficial interest — Actions hy Dominion Government — Exchequer Court — Information of intrusion — Subsequent action — Practice. See Constitutional Law, 23. 16. Interest against the Orown Court Act—B. 8. G. c. ISS, s. 52. See Interest, 6, 7. Supreme 17. Injury from public work — Negligence of Crown officials — Bight of action — Liahility of the Crown— 50 & 51 Yiot. c. 16, ss. 16, 23, 58 — Jurisdiction of Exchequer Court — Prescription —Art. 2261 C. C. Jl0 See Negligence. ' ' ' 2. Canadian Waters ; Fisheries ; Naviga- tion, Etc. 18. Constitutional law — Navigable ivaters — Title to alveus — Dedication of public lands — Presumption of dedication — User — Obstruction to navigation — Public nuisance — Balance of convenience.'] — The user of a bridge over a navigable river for 35 years is sufficient to raise a presumption of dedication — If a pro- vince before confederation, had so dedicated the bed of a navigable river for the purposes of a bridge, that it could not have objected to it as an obstruction to navigation, the Crown as representing the Dominion, on assuming control of the navigation, was bound to permit the maintenance of the bridge. — An obstruc- tion to navigation cannot be justified on the ground that the public benefit to be derived from it outweighs the inconvenience it causes. It is a public nuisance though of very great public benefit, and the obstruction of the slightest possible degree. The Queen v. Moss, xxvi., 322. 19. Public work — Navigation of River St. Lawrence — Negligence — Repair of channel — Parliamentar/y appropriation — Discretion as to expenditure.'] — Action for damages to SS. " Arabia " sustained by striking an obstruc- tion in the River St. Lawrence ship channel which had been deepened by the Department of Public Works and subsequently swept once. The suppliants conf endecT that the Crown was obliged to keep the channel clear, and that failure to do so amounted to negligence. The judgment appealed from (7 Ex. C. R. 150) held that the channel was not a public work after the work of deepening was completed, and. even if it was, no negligence had been proved to make the Crown liable under s. 16, (c) of the Exchequer Court Act (1887). It also decided that the department charged with the reoair and maintenance of the work with money voted by Parliament for that purpose was not obliged to expend the appropriation as such matters were within the discretion of the Governor-in-Council and Minister, who were responsible only to Parliament in respect thereof. — The Supreme Court affirmed the judgment appealed from. Hamburg American Packet Co. v. The King, xxxiii., 252. 20. B. N. A. Act, 1867, ss. 91, 92, 109—31 'Vict. c. 60 (D.) — Protection and regulation of ' fisheries — Navigable streams — Fishing license ■ — Vngranted lands — Riparian rights. See Fisheries, 2. 21. Property in beds of harbour's — Grant of foreshore— B. N. A. Act. 1867, s. 108—25 Vict. c. 19 (P. E. I.). See Harbours, 1. 22. Vnauthorized grant — Halifax harbour — Ti See Navigation, 1. 23. Foreshore of harbour — 2'itle to — Grant to railway of usei — Interference with access to — Jus publicum. See Constitutional Law, 24. 3. Contract ; Liabilitt. 2i. Public work — Agreement binding on Crown — Damages to property — Parol under- taking to indemnify by officer of the Crown.] — Where by the Government Railway works in St. John the pipes for city water supply were interfered with, the cost reasonably and properly incurred tq restore the property to its former safe and serviceable condition, may be recovered under arrangement with the Chief Government Railway Engineer, and UT)on his undertaking to indemnify the city. Judgment appealed from (2 Ex. C. R. 78) affirmed, Strong and Gwynne, JJ., dissenting on the ground that the chief engineer had no authority to bind the Crown to pay damages beyond any injury done. The Queen v. St. John Water Commissioners, xix., 125. 25. Payment by departmental authority — Salaries of license inspectors — Approval by Oovernor-in-CouncU — Liquor License Act, 1883, s. 6 — Action — Ultra vires.] — ^Claim by license commissioners for moneys paid to li- cense inspectors with the approval of the De- partment of Inland Revenue, in excess of the salaries fixed 2 years later by order-in-council under s. 6 of the Liquor License Act, 1883. Held, per Pournier, Taschereau and Patter- son, JJ., affirming the judgment appealed from (2 Ex. C. R. 293), that the Crown could not be held liable for any excess of the salary P.xed and. approved of by the Governor-Gen- eral-in-Council. — Per Strong. J. The Act un- der which appellant was appointed having been declared ultra vires the petition of rieht was not maintainable. Burroughs v. The Queen, xx., 420. 26. Crown lands — Dominion license to cut timber — Implied covenant — Warranty of title ■ — Quiet enjoyment.] — Licenses granted and actually current in 1884 and 1885 conferred upon the licensee " full right, power and li- cense to take and keep exclusive possession of the said lands except as hereinafter mentioned for and during the period of one year from the 31st December, 1883, to 31st December, 1884, and no longer." — Qu(erc, Though this was in law a lease for one year of the lands comprised in the license, was the Crown bound by any implied covenant to be read into the license for good right and title to make the lease and for quiet enjoyment? Buhner v. The Queen, xxiii., 488. 27. Contracts binding on the Crown — Pm6- lic works — Extras — Certificate of engineer — Authority of subordinate officers — 31 Vict. c. 12 (D.). See Contract, 89. 411 CEOWK 412 28. Acceptance of tender — Contract binding on the Crown — Condition precedent — Certifi- cate of chief engineer — Atolition of office — Waiver. See Public Wokk, 1. 29. Parliamentary printing — Departmental printing — Tender — Acceptance — Obligation binding on the Crown — Form of contract. See Contract, 92. 30. Transfer of contract — Acquiescence by public oMcers — Binding assent — Cancellation — Breach. See Contract, 93. 31. Contract with Crown — 39 Vict. c. 3. if. li <{■ 8 (P. E. I.) — Disqualification of member in Provincial Assembly — Candidate for Souse of Commons. See Election Law, 70. 32. Parol agreement — Part performance — ■ Carriage of mails — Authority to bind the Crown— R. 8. C. c. 35. See No. 3, ante. 33. Qovernment contract — breach — Interest. See INTEBEST, 4. Damages for 34. License to cut timbei — Implied war- ranty — Breach of contract. See No. 92, infra. 35. Petition of right — Contract for public work — Extras — Final certificate. See CoNTEACT, 61. 36. Construction of public work — Interfer- ence with public rights — Injury to private owner. See Public Work, 3. 37. Public work — Terms of contract — Authority of Government engineer to vary — Delay. See Contract, 97. 38. Liability for tort — Injury to property ore public work — 50 & 51 Vict. c. 16 (D.). See Constitutional Law, 25. _ 39. Constitutional Lam — Powers of execu- tive^ councillors — " Letter of Credit " — Obli- gations binding on Provincial Legislatures — Government expenditures — Negotiable instru- ment — " Bills of Exchange Act, 1890 " " The Bank Act," R. S. C. c. 120. See Constitutional Law, 39, 99. 40. Contracts binding on the Crown — Goods sold and deUvered on verbal orders by Groion officials — Supplies in excess of tender — Errors and omissions in accounts — Interest against the Crown. See Public Works, 5. 41. Contract binding on the Grown — Public work — Formation of contract — Order-in- council — Ratification — Breach. See Contract, 103. 42. Interest against the Grown — Supreme Court Act—R. S. C. c. 135. s. 52. See Interest, 6, 7. 43. Interest on duties improperly levied Liability of the Grown. See Interest. 10. 44. Construction of contract — Public workt — Arbitration — Progress estimates — En- gineer's certificate — Appeal by head of depart- ment — Final estimates — Condition precedent. See Contract, 101. 4. Criminal Matters. 45. Reserved case — Trial — Empaneling jury — Personation of juror — R. S. G. c. ITk s 259. ' See Criminal Law, 7. 46. Criminal procedure — Challenging jurors — Standing aside a second time. See Criminal Law, 10. 5. Damages ; Negijgencb. 47. Government railway — 43 Vict. c. 8— Damage from overflow of water — Negligence- Boundary ditches.} — Held. aflBrming the judg- ment appealed from (2 Ex. C. R. 396), that under ^ Vict. c. 8, confirming the agreement of sale to the Crown of the Rivigre du Loup branch of the Grand Trunk Railway, the Crown cannot be held liable for damages caused from the accumulation of surface water to land crossed by the railway since 1879 unless it is caused by acts or omissions of the Crown's servants, and as the damages in the present case appear, by the evidence relied on, to have been caused by the non- maintenance of the boundary ditches of claim- ant's farm, which the Crown is under no ob- ligation to repair or keep open, the appel- lant's claim for damages must be dismissed. Hlorin v. The Queen, xx., 515. 48. " Public work " — Xegligence — Militia class firing — Government rifle range — Officers and servants of the Crown — Injury to the fer- son^-50 d 51 Vict, o 16, s. 16c {D.)—R.S.G. c. 41, ss. 10, 69.] — A rifle range under the con- trol of the Department of Militia and Defence is not a "public work" within the meaning of the Exchequer Court Act, 50 & 51 Vict. c. 16, s. 16 (c). — The Words "any officer or servant of the Crown" in the section referred to, do not include oflBcers and men of the militia.-- Girouard, J., dissented. Judgment appealed , from (6 Ex. C. R. 425) affirmed. Larose v. The King, xxxi., 206. 49. Negligence of servants — Public iDork — Tolls — Contract — Liability as carrier. See Action, 109. 50. Public work — Agreement binding on Crown — Damages to property — Parol under- taking to indemnify — Officer of the Crown. See No. 24, ante, 51. Public work — Government railway- Negligence of Crown servant — Prescription — 50 & 51 Vict. c. 16— Arts. 2262, 226T, 2188, 2211 C. C.—R. S. G. c. 38. See No. 1, ante. 413 CEOWN. 414 52 Negligence — Servants of Grown — Common employment — Lajv of Queiec — 30 d 51 Vict. c. 16. See Negligence, 29. 53. Suretyship — Postmaster's iond — Penal clause — Lex fori — Negligence — Laches of Crown officials — Release of sureties. See No. 4, ante. 54. Public- work — Navigation of River St. Lawrence — ■ Negligence — Repair — Parlia- mentary appropriation — Discretion as to ex- penditure. See No. 19, ante. 55 Injury from puhUc work — Negligence of Crown officials — Right of action — Liabil- ity of Crown — 50 & 51 Vict. c. 16, ss. 16, 23, 58 — • Jurisdiction of Exchequer Court — Pre- scription — Art. 2261 C. C. ^^, See Negmgencb, 6. Escheats and Forfeittjees. 56. Constitutional law — ■ Legislative juris- diotion^-Escheat — R. 8. O. (1877) c. 94— B. N. A. Act {1867) ss. 91, 92, 102 & 109.'\— On appeal to the Supreme Court the parties agreed that the appeal should be limited to the question, as to whether or not the Gov- ernment of Canada or of the province was entitled to estates escheated to the Crown for want of heirs. — Held, Ritchie, C.J., and Strong, J., dissenting, that the Province of Ontario does not represent Her Jlajesty in matters of escheat in said province, and there- fore the Attorney-General for Ontario could not appropriate the property escheated to the Crown in this case for the purposes of the province, and that the Escheat Act, c. 94, K. S. O. was ultra vires. — Per Fournier, Tasche- reau and Gwynne, JJ. That any revenue de- rived from escheats is by s. 102 of the B. N. A. Act 1867, under the control of the Parlia- ment of Canada as part of the Consolidated Revenue Fund of Canada, and no other part of the Act exempts it from that disposition. Mercer v. Attorney-General for Ontario, v., 538. [On appeal to the Privy Council this judg- ment was reversed, 8 App. Cas. 767.] 57. Public domain — Escheat for want of heirs — Proceedings by information — Want of parties — Limitation of action — Incor- poration of escheated lands. See Title to Land, 131. 7. Highways ; Bridges ; Ferries. 58. Municipal corporation — Highways — Old trails in Rupert's, Land — Substituted roadtvays — Necessary way — R. S. C. c. 50, s. 108 — Reservation in Grown grant — De- dication — User — Estoppel — Assessment of lands claimed as highway — Evidence.'] — The user of old travelled roads or trails over the waste lands of the Crown in the North- West Territories of Canada, prior to the Do- minion Government survey thereof does not give rise to a presumption that the lands over which they passed were dedicated as public highways. — The land over which an old travelled trail had formerly passed, leading to the Hudson Bay trading post at Edmonton, N.-W. T., had been enclosed by the owner, divided into town lots and assessed and taxed as private property by the municipality, and a new street substituted therefor shewn upon registered plans of sub-division, and laid out upon the ground had been adopted as a boun- dary in the descriptions of lands abutting thereon in the grants thereof by letters patent from the Crown. — Held, reversing the decision of the Supreme Court of the North-West Ter- ritories, that under the circumstances, there could be no presumption of dedication of the lands over which the old trail passed as a public highway either by the Crown or by the private owner notwithstanding long user of the same by settlers in that district prior to the Dominion Government survey of the Edmonton Settlement. Heiminck v. Town of Edmonton, xxviii., 501. 59. Liability for acts of agents — Quebec turnpike roads — Legislative acknowledge- ment — Debentures. See Quebec Turnpike Trust, 1. 60. Constitutional law — Navigable waters — I'itle to alveus — Dedication of public lands — Presumption — User — Obstruction to navigation — Public nuisance — Balance of convenience. See No. IS, ante. 61. Highway — Old trails in Rupert's Land — Substitution of new way — Dedication. See Dedication, 1. 62. B. N, A, Act (1867) s. 111—8 Vict. c. 90 (Can.) — Reversion of toll bridge— i-Indem- nity — Liability of Province of Canada — Re- medial process. See Statute, 154. 63. Ferry license — Interference — Tor- tious breach of contract — Bridges within ferry limits — R. 8. G. c, 97. See Ferries, 2. 8. Officers and Servants of the Crown. 64. Notice of action — Contractor to build Oovernment railway — J^J^ Vict. c. 2.5, s. 109 — "Employee."] — Section 109, Government Railway Act, 1881, provides that " no action shall be brought against any officer, employee or servant of the department for anything done by virtue of his office, service or em- ployment, except within three months after the act committed, and upon one month's previous notice in writing." Held, reversing the judgment appealed from (20 N. S. Rep. 30) , Ritchie, C.J., and Gwynne, J., dissenting, that a contractor with the Minister of Rail- ways and Canals as representing the Crown, for the construction of a branch of the Inter- colonial Railway, is not an " employee " of the department within this section. Kearney V. Oakes, xviii., 148. 65. Action for tort — Fraud or misconduct of Crown servants — Misrepresentation — Time contract — Forfeiture — Liquidated damages — Claim for extras — Condition precedent — Engineer's certificate — 31 Vict. c. 13 — Inter- colonial Railway. See Contract, 90. 415 CEOWN. 415 66. Negligence of Crown servants— Com- mon employment-Law of QueUo-50 & 51 Vict. c. 16. See Negugence, 29. 67. Government of Qjeleo - Retired offi- cii — Commutation of pension — Interest of wife — Transfer. See Pension de Ketbaite. 68. PnUio work — Government railway— 4f^n!^i.f.Tre-r^!2m'm^t^, C. C.—B. S. C. c. "^ See No. 1, ante. 69 Government railways — LialJUty for act of employee— R. S. C. c. 38. s. 50. See Negugence, 219. 70. PuMic tcorh — NegUgence — MUitia class firing— Government rifle range— Officers and servants of the Grown — 50 d 51 Vtct. c. 16, s. 16c {D.)—B. S. C. c kl, ss. 10, 69. See No. 48, ante. 71. Contract — Right of action — PuWc officer — Solicitor and client — R. S. 0. cc. U4, 125 — Inquiry as to public matters — Remun- eration of commissioner — Quantum mermt. See No. 5, ante. 72. Injury from public work — Jfegligence of Crown officials — Right of action — LiahU- ity of Crown^50 & 51 Vict. c. 16, ss. 16, 23, 5S — Jurisdiction of Exchequer Court — Pre- scription — Art. ZS61 C. C. jp ( See Negugence, 1h&. 9. Prerogative. 73. Insolvent "bank — Winding-up proceed- ings — Priority of Crown as simple contract creditor — Estoppel — Acceptance of dividends —Waiver— 45 Vict. c. 23.]— The Bank of P. E. Island became insolvent, and a winding-up order was made. The bank was indebted to Her Majesty in $93,494.20, public moneys of Canada on deposit to the credit of the Re- ceiver-General. The first claim filed at the request of the respondent (liquidator of the bank), did not specially notify the liquidator that Her Majesty would insist upon the priv- ilege of being paid in full. Two dividends of 15% each were afterwards paid, and on the 28th February, 1884, there was a balance due of $65,426.95, and respondent was notified that Her Majesty intended to insist upon the prerogative right to be paid in full. At this time there was on hand a sum sufficient to pay the claim in full. The Supreme Court (P. E. I.) held that Her Majesty the Queen, represented by the Minister of Finance, and the Receiver-General, had no prerogative or other right to receive the whole amount, but only a right to receive dividends as an or- dinary creditor of the bank. Held, reversing the judgment appealed from, 1. That the Crown claiming as a simple contract creditor has a right to priority over other creditors of equal degree. This prerogative privilege be- longs to the Crown as representing the Do- minion of Canada, when claiming as a cred- itor of a provincial corporation in a provin- cial court, and is not taken away in proceed- ings in insolveney by 45 Vict. c. 23. 2. That the Crown had not waived its right" to be preferred in this case by the form in which the claim was made, and by the acceptance of two dividends. The Queen v. Bank of Nova Scotia, xi., 1. 74. Prerogative — Insolvent tank — Assets — R. S. G. cc. 120, 124 — Deposit by insurance company — Priority of note-holders.] — "^^ prerogatives of the Crown exist in British coloni'es to the same extent as in the United Kingdom. The Queen v. Bank of Nova Scotia (11 Can. S. C. R. 1) followed.— The Queen is the head of the constitutional Gov- ernment of Canada, and in matters affectiog the Dominion at large her prerogatives are exercised by the Dominion Government. — The Crown prerogatives can only be taken away by express statutory enactment. Therefore Her Majesty's right to payment in full of a claim against the assets of an insolvent bank in priority to all other creditors is not inter- fered with by the provisions of the Bank Act (R. S. C. c. 120, s. 79). giving note- holders a first lien on such assets, the Crown not being named in such enactment. Gwynne and Patterson, JJ., contra. — - Held, per Gwynne, J., that under legislation of the old Province of Canada, left unrepealed by the B. N. A. Act, no such prerogative could be claimed in the Provinces of Ontario and Que- bec ; the court would not, therefore, be justi- fied in holding that such a right attached, under the B. N. A. Act, in one Province of Canada which does not exist in them all.-;- An insurance company, in order to deposit $50,000 with the Minister of Finance and re- ceive a license to do business in Canada ac- cording to the provisions of the Insurance Act (R. S. C. c. 124), deposited the money in a bank and forwarded the deposit receipt to the minister. The money in the bank drew interest which, by arrangement, was received by the company. The bank having failed the Government claimed payment in full of this money as money deposited by the Crown. Held, reversing the judgment appealed from (27 N. B. Rep. 351), Strong, J., dissenting, that it was not the money of the Crown but held by the Finance Minister in trust for the company ; it was not, therefore, subject to the prerogative of payment in full in priority to other creditors. Maritime Bank v. The Queen, xvii., 657. 75. Prerogative — Provincial rights — Insol- vent lank — Note-holder's lien.]— The Govern- ment of each Province of Canada represmts the Queen in the exercise of her prerogative as to all matters afEecting the rights of tlif province. The Queen v. Bank of Nova hcow (11 Can. S. C. R. 1) followed. Gwynne, J. dissenting.— Under s. 79 of the Bank Act (K S. C. c. 120) , note-holders have the first uci on the assets of an insolvent bank m priorin to the Crown. Strong and Taschereau, JJ- dissenting. Judgment appealed from [^J ^ B. Rep. 379) varied. Liquidators of n Maritime Bank v. Receiver-General of J"™ Brunswick, xx., 695. , j, [AflSrmed by Privy Council in "s|ect K holding on prerogative, 8 Times L. R. bn.j 76. Territorial and prerogative '■W**^" Beneficial interest — Actions by pomm» Government— Exchequer Court— Mormawf of intrusion — Subsequent action — rra< See Constitutional Law, "' 417 CEOWN. 418 10. Public Lands and Timber. (a) Dominion Lands, 77-80. (6) Mines and Minerals, 81-84. (o) Sales, Grants, and Licenses, 85-102. (d) Taxes and Dues, 103-108. (o) Dominion Lands. 77. Railway belt — Reserve in British Gol- umhia — 41 Vict. c. H. s. 2 (B.C.) — ■Provincial grant — Title to land.] — By s. 11 of the order- in-eouneil admitting the Province of British Columbia into confederation, British Col- umbia agreed to convey to the Dominion Gov- ernment, in trust, to be appropriated in such manner as the Dominion Government might deem advisable in furtherance of the constrvic- tion of the Canadian Pacific Railway, an ex- tent of public lands along the line of railway After certain negotiations between the Gov- ernments of Canada and British Columbia, and in order to settle all disputes, an agreement was entered into, and on 19th December, 1883, the legislature of British Columbia passed the statute 47 Vict. c. 14, by which : — " From and after the passing of this Act there shall be, and there is hereby, granted to the Dominion Government for the purpose of constructing and to aid in the construction of the portion of the Canadian Pacific Railway on the main land of British Columbia, in trust, to be ap- propriated as the Dominion Government may deem advisable, the public lands along the line of railway before mentioned, wherever it may be finally located, to a width of twenty miles on each side of the said line, as provided in the order-in-council, s. 11, admitting the Pro- vince of British Columbia into confederation." On 20th November, 1883, by public notice the Government of British Columbia reserved a belt of land of 20 miles in width along a line by way of Bow River Pass. In November, 1884, F., to comply with the provincial sta- tutes, filed a survey of land within said belt which was finally accepted on 13th January, 1885, and letters patent under the great seal of the province issued to F. The Attorney- General of Canada by information of intru- sion sought to recover possession of the land, and the Exchequer Court dismissed the in- formation with costs. — Held, reversing the judgment of the Exchequer Court, Henry, J., dissenting, that at the date of the grant the Province of British Columbia had ceased to have any interest in the land covered by said grant, and that the title to the same was in the Crown for the use and benefit of Canada. The Queen v. Farwell, xiv., 392. 78. Laying out and ascertaining ordinance lands — Reversion of lands not used for canal purposes — Vesting of lands in Crown. See RiDEAu Canal Lands, 2. 79. Foreshore of hariour — Provincial grant —B. N. A. Act, 1867— Estoppel— Act con- firming title. See Title to Land, 132. 80. Title to land — Railway lelt in British Columbia — XJnsurveyed lands — Pre-emption — Federal and provincial rights — If^ Vict. c. 6 (D.) See Constitutional Law, 72. s. c. D. — 14 (J) Mines and Minerals. 81. Patent — Reservation of coal — Order-in- council — Agreement.'] — Certain Crown lands in Quebec had been granted to the suppliants, as assignees of one Kaye, the applicant for said lands, from which the Crown contended the coal thereon was reserved, which was the sole question in issue. The Exchequer Court (3 Ex. C. R. 157), held that .there being no ex- press or implied agreement to the contrary the suppliants were entitled to a grant con- veying such mines and minerals as would pass without express words. — The Supreme Court of Canada affirmed the judgment of the Ex- chequer Court, and dismissed the appeal with costs. The Qticcn v. Canadian Agricultural Goal, and Colonization Co., xxiv., 713. 82. Mining law — Royalties — Dominion Lands Act — Publication of regulations — Re- newal of license — Payment of royalties — Vol- untary payment — R. S. C. c. 5Jf, ss. 90, 91.] — The Dominion Government, by regulations made under The Dominion Lands Act, may validly reserve a royalty on gold produced by placer mining in the Yukon though the miner, by his license has the exclusive right to all the gold mined. Taschereau and Sedgewick, JJ., dissenting. — The " exclusive right " given by the license is exclusive only against quartz or hydraulic licenses or owners of surface rights and not against the Crown. Tascher- eau and Sedgewick, .JJ., dissenting. — The pro- vision in s. 91 of The Dominion Lands Act that regulations made thereunder shall have effect only after publication for four succes- sive weeks in the Canada Gazette means that the regulations do not come into force on pub- lication in the last of four successive issues of the Gazette, but only on the expiration of one week therefrom. Thus where they were published for the fourth time in the issue of 4th September, they were not in force until the 11th, and did not affect a license granted on 9th September. — Where regulations pro- vided that failure to pay royalties would for- feit the claim, and a notice to that effect was posted on the claim and served on the licensee, payment by the latter under protest was not a voluntary payment. — One of the regulations of 1889 was that " the entry of every holder of a grant for placer mining had to be renewed and his receipt relinquished and replaced every year." Held, per C. J. and Girouard and Davies, JJ.. reversing the judgment of the Exchequer Court (7 Ex. C. R. 414), Sedge- wick, J., contra, that the new entry and re- ceipt did not entitle the holder to mine on the terms and conditions in his original grant only, but he did so subject to the terms of any regulations made since such gi-ant was issued. — The new entry cannot be made and new receipt given until the term of the grant has expired. Therefore, where a grant for one year was issued in December. 1896, and in August, 1897, the renewal license was given to the miner, such renewal only took effect in December, 1897, and was subject to regula- tions made in September of that year. — Regu- lations in force when a license issued were shortly after cancelled bv new regulations im- posing a smaller royalty. Held, that the new regulations were substituted for the others and applied to said license. The King V. Chappelle ; The King v. Carmack ; The King V. Tweed, xxxii., 586. [Leave to appeal to Privy Council granted, March, 1903 ; 40 Can. Gaz. p. 569.] 419 CEOWN". 420 83. Mines and minerals — Placer mining regulations — Staking claims — Overlapping lo- cations — Renewal grant — Unoccupied Grown lands.] — In August, 1899, M. staked and re- ceived a grant for a placer mining claim on Dominion Creek, Yukon, which, however, actually included part of an existing creek claim previously staked by W. In 1900 he applied for and obtained a renewal grant for the same area, W.'s claim having lapsed in the meantime, and was continuously in undis- puted possession of that area, with his stakes standing from the time of his original location until March, 1901, when S. and T. staked bench claims for the lands embraced in "W.'s expired location which had been overlapped by M.'s claim, as being unoccupied Crown land. Held, affirming the judgment appealed from, Davies and Armour, JJ.. dissenting, that the application for the renewal gi'ant by M., after W.'s claim had lapsed, for the identical ground he had originally staked and continuously occupied, gave him a valid right to the location without the necessity of a formal re-staking and new application and that, following the rule in Osiorne v. Morgan (13 App. Cas. 227), the possession of il. un- der his renewal grant should not be disturbed. iHt. Laurent v. Mercier, xxxiii., 314. 84. Railway subsidy — Dominion Lands Act — Reservation in grant.'] — ^By an equal divi- sion of opinion, the Supreme Court affirmed the decision of the Exchequer Court (8 Ex. C. R. S3), by which it was held that lands granted as subsidy to railways under 53 Vict. c. 54 (D.), were subject to the existing regu- lations respecting reservation of baser mine- rals in the grants thereof, notwithstanding that there was no reference thereto in the orders-in-council allotting the lands to the rail- way and that the grant was expressed in the statute to be a free grant subject merely to cost of survey. C-algary and Edmonton Ry. Co. T. The King. 29th April, 1903. [Leave to appeal to the Privy Council was granted, July. 1903.] CtK,,5iUy- t»?. y ll,, (c) Sales, Grants, and Licenses. 85. Permits to cut timber {Man.) — Rights of holders — Dominion Lands Act, 1879. s. 52 — Trespass.] — On 21st November, ISSl, Sin- nott obtained a permit from the Crown timber agent, Manitoba : "To cut, take and have for their own use from that part of range 10 E. that extends five miles north and five miles south of the C. P. Ry. track, the following quantities of timber, 2,000 cords of wood and 25,000 ties, permit to expire on 1st May, 1882." A similar permit was granted to Sin- nott on 10th February, 1882, to cut 25,000 ties. In February, 1882, under leave granted by an order-in-council of 27th October, 1881, Scoble cut timber for the purposes of the con- struction of the C. P. Ry., from the lands covered by the permit of 21st November, 1881. Sinnott claimed by their " permit " the sole right of cutting timber on said lands antil the Ist May, 1882, and prayed that Scoble might be restrained by injunction from cutting tim- ber on said lands, and ordered to account for the value of the timber cut. Scoble justified "J«er the order-in-council of the 27th October 1881, and denied the exclusive possession or title to the lands or standing timber. — Tlie plaintiffs applied ex parte for, and obtained, an interim injunction against the defendants At the hearing Miller, J., made the injunction perpetual, and ordered a reference to ascer- tain the damages caused plaintiffs by the cut- ting of the timber by defendants. On re-hear- ing, this decree was reserved and a decree made dismissing the bill with costs and directing an account to be taken of the damages sustained by reason of the interim injunction.— Held that the decree made on re-hearing should be affirmed, that the permit in question did not come within the provisions of the Dominion Lands Act of 1879, and did not vest in the plaintiffs any estate, right or title in the tract of land upon which they were permitted to cut, nor did it prevent the Government giving like licenses, or others of equal au- thority, to other persons, as long as there was sufficient timber to satisfy the requirements of the plaintiffs' licenses. Sinnott v. Scoble xi 571. ' ■' 86. Crown lands — Setting aside grant Error and improvidence — Evidence.] — In an action to set aside letters patent for error and improvidence under the Manitoba Act, per Patterson, J. — In the construction of the sta- tute 35 Vict. c. 3, amended by 35 Vict. c. 52, effect must be given to the term improvidence as meaning something distinct from fraud or error; letters patent may, therefore, be held to have been issued improvidently if issued in ignorance of a substantial claim by persons other than the patentee to the land which, if it had been known, would have been investi- gated and passed upon before the patent is- sued ; and it is not the duty of the court to form a definite opinion as to the relative strength of opposing claims. Ponseca v. At- torney-General of Canada, xvii., 612. 87. Location tickets — Transfer of rights — Registration — Waiver by Grown — Canceling tion — 23 Vict. c. 2, ss. 18 & 20 \Gart,.)—S% Vict. 0. 11, s. 13 {Q.)—36 \Vict. c. 8 (Q.)]- A location ticket of Crown land was granted to H. in 1863. In 1872 H. put on record with the department that by arrangement with the Crown Lands Agent, he had per- formed settlement duties on another lot known as the homestead lot. In 1874, H. transferred his rights to appellant, paid all moneys; due with interest on the lots, registered the trans- fer under 32 Vict. c. 11. s..' 18 (Que.), and the Crown accepted the fees for registering the transfer and for the issuing of the patent. In 1878, the commissioner cancelled the loca- tion ticket for default to perform settlement duties. Held, reversing the judgment ap- pealed from (M. L. R. 2 Q. B. 316), Tas- chereau, J., dissenting, that the registration by the commissioner in 1874, of the transfer to respondent was a ■waiver of the right of the Crown to cancel the location ticket for de- fault to perform settlement duties, and. the cancellation was illegally effected. Hollmd V. Ross, xix., 566. 88. R. S. 0. (1887) c. 25— License to cut timber — Renewals — Free grants — Patent- Interference with rights of patentee.] — By s. 3, R. S. O. (1887) c. 25. the Lieut.-Gov.-in- Couucil may appropriate any public lands . • as free grants to actual settlers, etc., and by s. 4 such grants or appropriations shall ne confined to lands . . within the tract ^or territory defined in that section. By s. pine trees on lands located or sold within limits of the free grant territory aft 421 CEOWN. 422 March, 1880, shall be considered as reserved from the location, and shall be the property of Her Majesty, and s. 11 enacts that patents of such lands located or sold shall contain a reservation of all pine trees on the land, and that any licensee to cut timber thereon may, during the continuance of his license, enter upon the uncleared portion and cut and re- move trees, etc. — The company held a license, issued 30th May, 1888, to cut timber on land within the free grant territory, but which had not been appropriated under s. 3 of the Act. A license was first issued to the company in 1873 and had been renewed each year since that time. The license authorized the cutting of timber on lands unlocated and sold at its date ; lands sold or located while it was in force ; pine trees on lots sold under orders-in- council of 27th May, 1869, and pine trees, when reserved, on lots sold under order-in- council of 3rd April, 1880, upon the location described on back of license. — Regulations made by order-in-council of 27th JIay. 1800, provided that " all pine trees on any public land thereafter to be sold, which at the time of such sale or previously was included in any timber license, shall be considered as reserved from such sale and shall be subject to any timber license covering or includmg such land in force at the time of such sale, or granted within three years from the date of such sale, etc. All trees remaining on the' land at the time the patent issues shall pass to the paten- tee." A patent for a lot in the free grant territory was issued to S. on 13th March, 1884. — On the back of the license was a sche- dule of lots included in the location with the date of sale or location, and the sale or loca- tion of S.'s lot was mentioned. The company claimed the right to cut timber on said lot which had not been appropriated by the L. G. in C. Held, aflSrming the judgment ap- pealed from (17 Out. App. R. 322), that the provisions of R. S. O. (Ig87) c. 2.5, ss. 10, 11, relating to the pine trees in the territory, only apply to such lots as have been specifi- cally appropriated under s. 3 ; that the license of the company, though renewed from year to year, was only an annual license ; that the license issued in 1888 did not give the holders a right under the regulations of 27tli May, 1869, to the timber on land patented in 1884, and that the company had notice, by their license of 1888, that the lot in question had been patented to S. more than three years previously. Lahefield Lvmier and Mfg. Co. V. Shairp, xix., 657. 89. Right of pre-emption — Lands reserved — Agricultural settlers — -J7 Viet. c. I.'f (B.C.)]— By 47 Vict. c. 14, s.-s. (f) (B.C.), land conveyed to the B. & N. Ry. Co. was, for 4 years from the date of the Act, thrown open to the actual " settlers for agricultural purposes," coal and timber land excepted. H. and W. respectively claimed rights of pre- emption under this Act. Held, affirming the Supreme Court (B.C.), that the Act did not confer a right of pre-emption to lands not within the pre-emption laws of the province ; that only " unreserved and unoccvipied lands " came within those laws and the lands claimed had long before been reserved for a town site ; and that the claimants were not upon the lands as " actual settlers for agricultural pur-, poses," but had entered with express notice that the lands were not open for settlement. Hoggan v. Esquimaiilt ci Navaiino Ry. Co.; Waddington v. Esquimault d Nanainio Ry. Co., sx., 235. [In Hoggan v. Esquimault £ Nanaimo Ry. Co., the Privy Council affirmed this decision. (1894) A. 0. 429.] 90. R. S. 0. art. 5976—Tim'ier licenses- Official plan — Description — Rebate — Art. 992 C. C. — Practice — Title of cause.J — Where the holder of a timber license does not verify the correctness of the official description of the lauds to be covered by the license before it issues, and after its issue works on lands and makes improvements on a branch of a river which he believed formed part of his limits, but was subsequently ascertained by survey to form part of adjoining limits, he cannot reco\er from the Crown for losses sustained by acting on an understanding derived from a plan furnished by the Crown prior to the sale. Fournier, J., dissenting. — Per Patterson, J., the licensee's remedy would be by action to cancel the license under art. 992 C. C, with a claim for compensation for moneys expend- ed. — This action was instituted against the Government of Quebec, but when the case came up for hearing on the appeal to the Supreme Court, the court ordered that " Her Majesty the Queen " be substituted for that of " Government of the Province of Quebec." Grant v. The Queen, xx., 297. 91. Title — Grant of non-existent suh-divi- sion — Description — Boundaries — Patent im- providently granted.'] — Action for trespasses by defendant during 1878-79-80 and 1881, up- on land alleged to be part of lots 34 and 35 in concession C. in the Township of Btobicoke, Ontario, and to be plaintifE's property, and damages for the cutting and removal of tim- ber, and injunction to restrain future tres- pass. — Defendant contended that the land was not part of lots 34 and 35 in concession C, but part of lots 34 and 35 in concession B, and was his property. — Both parties derived title under H. J. B., who executed a mortgage dated 30th April. 1856, to S. F.. comprising among other lands lots 34 and 35 in conces- sion ,B, of Etobicoke. — On foreclosure of that mortgage, a final order was made 1st March, 1874, for the sale of the mortgaged lands, and under it lots 34 and 35 in concession B, of Etobicoke, were sold to J. M. to whom the lots were conveyed by the administrator and the sole devisee of the mortgagee, by deed dated 10th April, 1875. On 8th May 1875, J. M. conveyed to J. B. lots 34 and 35, in broken front, concession B. and on 14th July, 1875, J. B. conveyed to defendant lots 34 and 35, in broken front, concession B. — By deed, 27th October, 1857, after the mortgage H. .T. B., the mortgagor, conveyed to plaintiff seven acres, more or less, composed of parts of lots 34 and 35 in concession B, known as the Ox- bow, described by metes and bounds, which is the land in question. Defendant did not dis- pute that plaintiff acquired the equity of re- demption subject to the mortgage, but con- tended that by sale under the decree, title passed to the purchaser free from the equity as being a part of lots 34 and 35, in conces- sion B, the whole of which lots were included in the mortgage and sold to J. M. Plaintiff contended that the land, although erroneously described in the deed of it to him, as part of lots 34 and 35 in concession B, really formed part of lots 34 and 35 in concession C, and was, therefore, not included in the mortgage, and in the alternative, that if the land did not form part of concession C, it formed part of broken front in front of, and separate from lots 34 and 35 in concession B, and therefore 423 CEOWN. 424 was not included in the mortgage — On 2nd April, 1883, after action, the Crown granted plaintiff a piece of land said to contain 3 and 75-lOOths acres, and being the north bend of the Oxbow or land in question, describing it by metes and bounds as being lot 35 in conces- sion C, of Etobicoke. Held, reversing the judg&ent appealed from, that the evidence es- tablished that there were no such lots as 34 and 35 in concession C ; that the various de- scriptions in the patents and other title deeds also shewed that the lands in dispute formed parts of lots 34 and 35 in concession B, and therefore the description in the mortgage was sufficient to include such lands, and the de- fendant was entitled to a declaration that he was seized in fee : and that the patent was vouJ, as having been improvidently granted. Johnson V. Crosson, Cass. Dig (2 ed.) 848. 92. Disputed territory — License to cut tim- ber — Implied warranty of title — Breach of contract — Damages.'\ — The claimant applied to the Government of Canada for licenses to cut timber on ten timber berths situated in the territory lately in dispute between that Government and the Government of Ontario. The application was granted on the condition that the applicant would pay certain ground rents and bonuses, make surveys and build a mill. The claimant knew of the dispute which was at the time open and public. He paid the rents and bonuses, made the surveys and enlarged a mill he had previously built, which was accepted as equivalent to building a new one. The dispute was determined ad- versely to the Government of Canada, at the time six leases or licenses were current, and consequently the Government could not renew them. The lease was granted under ss. 49 and 50 of 46 Vict. c. 17, and the regulations made under the Act of 1879 provided that " the license may be renewed for another year subject to such revision of the annual rental and royalty to be paid therefor as may be fixed by the Governor-in-Council." — In a claim for damages by the licensee: — Held. 1. Or- ders-in council issued pursuant to 4(3 Vict. c. 17, ss. 49 and 50, authorizing the Minister of the Interior to grant licenses to cut tim- ber, did not constitute contracts between the Crown and proposed licensees, such orders-in- council being revocable by the Crown until acted upon by the granting of licenses un- der them.— 2. The right of renewal of the licenses was optional with the Crown, and tjje claimant was entitled to recover from the Government only the moneys paid to them tor ground rents and bonuses. — The licenses which were granted and actually current in " f i> -, ^^ conferred upon the licensee tull right, power, and license to take and Keep exclusive possession of the said lands except as hereinafter mentioned for and during the period of one year from the 31st December, 1883. to the 31st December 1884 and no longer."— Q«ff.re. though this was in law a lease for one year of the lands comprised in the license was the Crown bound by any im- plied covenant to be read into the license for good right and title to make the lease and .?ijri«s'°^°^'°^^'- •»«''"'^'- ^- The Queen, dB Scire facias— Title to land—Anmilment of letters patent-Tender-Sale or pledge- \ ente a remere—Concealment of material fact -Arts. 1274-1219 R. S. Q. - Registration- Transfer of Crown lands — Art. 1007 C P —Art. 1553 G. C.]— The locatee of certain Crown lands sold his rights therein to B re- serving the right to redeem the same within nine years, and subsequently sold the same rights to M., subject to the first deed. These deeds were both registered in their proper order in the registry office for the division and in the Crown lands office at Quebec. M. paid the balance of Crown dues remaining unpaid upon the land and made an application for letters patent of grant thereof in which no mention was made of the former sale by the original locatee. In an action by scire facias for the annulment of the letters patent grant- ed to 51., Held. Taschereau. J., dissenting, that the failure to mention the vente d remere in the application for the letters patent was a misrepresentation and concealment which entitled the Crown to have the grant declared void and the letters patent annulled as having been issued by mistake and in ignor- ance of a material fact, notwithstanding the registrayon of the first deed in the Crown land office. Fonseca v. Attorney-General for Canada (17 Caq. S. C. R. 612) referred to. Held, further, Taschereau, J., dissenting, that it is not necessary that such an action should be proceeded or accompanied by tender or deposit of the dues paid to the Crown in order to obtain the issue of the letters patent. The Queen v. Montminy, xxix., 484. 94. Scire facias — Crown lands — Grant made in error — Adverse claim — Cancellation —32 Yict. e. 11, s. 26 (Que.) — R. S. Q. 1299.'] — The provisions of the Quebec statute respecting the sale and management of public lands (32 Vict. c. 11, K. S. Q. art. 1299) do not authorize the cancellation of letters patent by the Commissioner of Crown Lands where adverse claims to the lands exist. (Judgment appealed from reversed, and Q. R. 18 S. C. 520, restored.) The King v. Adams, xxxi., 220. 95. Timher licenses — Sales T>y local agent — Location ticket — Suspensive condition — Title to lands — Art. 1085 C. C.—Arts. 1269 et seq. and 1309 et seq. R. 8. Q.] — During the term of a license to cut timber on ungranted lands of the Province of Quebec, the local Crown Lands Agent made a sale of part of the lands covered by the license, and issued location tickets or licenses of occupation therefor under {he provisions of arts. 1269 et seq. of the Re- vised Statutes of Quebec, respecting the sale of Crown lands. Subsequently the timber license was renewed, but, at the time the re- newal license was issued, there had not been any express approval by the Commissioner of Crown Lands of the sales so made by the local agent as provided by art. 1269 R. S. Q. Beld, affirming the judgment appealed from, Tas- chereau and Davies, JJ., dissenting, that the approval required by art. 1269 K. S. Q. was not a suspensive condition, the fulfilment ot which would have retroactive effect from the date when the sales by the local agent were made, and that, at the time of the issue of the renewal license, the lands in question were still ungranted lands of the Grown for which the timber license had been validly issued. Lellanc v. RoMtaille, xxxi., 582. 90. Dominion Lands Act — Homestead pat- ent — Equitaile or statutory title. See Title to Land, 98. 425 CEOWN. 426 97. Grants under Manitoia Act — Setting aside letters patent — • Evidence — Error — Im- providence — lies judicata — Estoppel against the Grown. See TiTLB TO Land, 130. 98. Aiction en iornage — R. S. Q. arts. il53, mk, Uo5. See BotJNDABT, 3. 99. Crown grant — Disseisin of grantee — Tortious possession — Statute of Maintenance, 32 Hen. 8, c. 9. See Title to Land, 83. 100. Dedication — User — Presumption of dedication — PuMio nuisance. See Constitutional Law, 5 and 81. 101. Grant of land — Title — Possession. See Title to Land, 102. 102. Dominion license to cut timber on Crown lands — Implied contract — Warranty of title — Quiet enjoyment. See No. 92, ante. (d) Taxes and Dues. 103. Assessment — Beneficial interest — Exemption from taxation — R. S. 0. (1887) c. 193, s. 7, ss. i.] — Property of a bank be- came vested in the Dominion Government and a piece of land included therein was sold and a mortgage taken for the purchase money, the mortgagor covenanting to pay the taxes. Not haying done so, the land was sold for non-payment. In an action to set aside the tax sale : — Held, affirming the judgment ap- pealed from (17 Ont. App. R. 421), that the Crown having a beneficial interest in the land it was exempt from taxation as Crown lands. Quirt V. The Queen, xix., 510. 104. Sale and grant ly letters patent — Sale for taxes. See Assessment and Taxes, 37. 105. Sale of timber limits — Bonus on trans- fer — Payment by purchaser. See Sale, 75. 106. Dues for booms find timber slides — Lien — Agreement to secure arrears. See Chattel Mortgage, 18. 107. Leased lands — Occupation for Crown purposes — Municipal taxation — Exemption. See Assessment and Taxes, 40. 108. Yukon administration — Franchise granted over Dominion lands — Tolls. See Constitutional Law, 78. 11. Public Works. 109. Public work — Agreement binding on Crown — Damages to property — Parol un- dertaking to indemnify — Officer of the Crown. See No. 24, ante. 110. Public work — Government railway — Negligence of Grown servant — Prescription — oO d 51 V.ict. c. 16— Arts. Z262, 2261, 2188, 2211 G. G.—R. S. C. e. 38. See No. 1, ante. 111. Government buildings — Supply of loater to — Water rates — Discount for promot payment — Refusal of discount. See Municipal Corporation, 199. 112. Public work — Obstruction to canal — Use of canal. See Expropriation, 2. 113. Piiblic work — Negligence — Militia class firing — Government rifle range — Of- ficers and servants of the Grown — 50 & 51 \ict. c. 16, s. 16c (D.)—R. S. C. c. U, ss, 10, 69. See No. 48, ante. 114. Public work — Navigation of River St. Lawrence — Negligence — Repair — Par- liamentary appropriation — Discretion as to expenditure. See No. 19, ante. 115. Injury from public work — Negli- gence of Crown officials — Right of action — Liability of Crown — 50 d 51 Vict. c. 16, ss. 16, 23, 58 — Jurisdiction of Exchequer Court — Prescription — Art. 2261 C. , See Negligence, 12. Railways and Railway Aid. 116. Government railways — Public work — Crown officers — Misfeasance — Non-feasance — Tort — ■ Negligence — Right of action — " 27ie King can do no wrong " — Carriers — Contract — Railway ticket. See Railways, 100. 117. Government railway — Breach of contract — Damages — Petition of right — 37 Vict. c. 16 (D.) See Tori, 1. 118. Public work — Government railicny — Negligence of Grown servant — Prescription —50 & 51 Vict. c. 16— Arts. 2262, 2267, 2188 2211 G. C.—R. S. C. c. 28. See No. 1, ante. 119. Public work — Agreement binding on Grown — Damage to property — Parol un- dertaking to indemnify — Officer of the Crown. See No. 24, ante. 120. Government railway — 48 Vict. c. 8 — Damage from overflow of water — Negligence — Boundary ditches. See No. 47, ante. 121. Railway su Discretion — Trust — Application Petition of right. See Constitutional Law, 55. 122. Government railway — Liability for act of employee — R. S. C. c. 38, s. 50. See Negligence, 30. 437 CUSTOMS DUTIES. 428 13. Waiveb. 123. Insolvent tank — Winding-up proceed- ings — Priority of Crown as simple contract creditor — Estoppel — Acceptance of divi- dends — -iS Vict. c. 23. See No. 73, ante. 124. Forfeiture of right of appeal — Waiver — Condition precedent — Petition of right — Arts. 1020, 1209, 1220 C. F. Q. See Appeal, 432. CURATOR. 1. Substitution — Action against former curator — Intervention — Art. 1.54 0. C. P. See Substitution, 1. 2. Purchase of trust estate — Negotiorum gestor — Mandate — Action for aiccount — Re- lease — Parties to suit. See Aocouj^T, 4. And see Administrators — Assignment — Guardian. CUSTOMS DUTIES. 1. Article imported in parts — Rate of duty ■ — Scrap brass — Good faith — Jf6 Vict. c. 12, s. 153 — Subsequent legislation — Legislative declaration.] — A., manufacturer of an " Auto- matic Sprinkler," a brass device composed of several parts, was desirous of importing the same into Canada, with the intention of putting the parts together there and selling the completed articles on the market. He in- terviewed the appraiser of hardware at Mon- treal, explained to him the device and its use, and was told that it should pay duty as a manufacture of brass. He imported a num- ber of sprinklers and paid the duty on the several parts, and the Customs officials then caused the same to be seized, and an infor- mation to be laid against him for smuggling, evasion of payment of duties, under -valuation, and knowingly keeping and selling goods illegally imported, under ss. 153, 15.5, of the Customs Act, 1883. Held, reversing the Ex- chequer Court (1 Ex. C. R. 373), that there was no importation of sprinklers, as complet- ed articles, and the Act not imposing a duty on parts of an article, the information should be dismissed. — Held, also, that the subsequent passage of an Act, 48-49 Vict. c. 61, s. 12, re- enacted by 49 Vict. c. 32, s. 11, imposing a duty on such parts was a legislative declara- tion that it did not previously exist. Grin- nell v. The Queen, xvi., 119. 2. Teas in transit through United States to Canada— 52 Tict. c. 11, — Tariff Act (1886) item 781— R. 8. G. c. 33, s. iO.]— Plaintiffs made two shipments of tea from Japan to New York for transportation in bond to Canada. In one case the bills of lading were marked "in transit to Canada;" in the other the teas appeared upon the consular invoice made at the place of shipment to be consigned to plain- tiff s brokers in New York for transhipment to Canada. On arrival of both lots at New York and pending sale thereof in Canada, they were allowed to be sent to a bonded warehouse as unclaimed goods for some five or six months and were finally entered at the New York Cus- toms House for transportation to Canada, and forwarded to Jlontreal. There was nothing to shew that plaintiffs at any time proposed to make any other disposition of the teas, and there was nothing in what they did that contra- vened the laws or regulations of the United States or of Canada with respect to the trans- portation of goods in bond. — Held affirming the judgment appealed from (2 Ex. C. R. 126) Gwynne, J., dissenting, that as it clearly ap- peared that the tea was never entered for sale or consumption in the United States ; that it was shipped from there within the time limited by law for goods in transit to remain in a warehouse ; and that no act had been done changing its character during transit, it was therefore " tea imported into Canada from a country other than the United States but pass- ing in bond through the United States " and under R. S. C. c. 'S3, s. 10, not liable to dutj as goods exported from the United States to Canada. Carter, Macy & Co. v. The Queen, xviii., 706. 3. 50 & 51 Vict. c. 39, Items 88 and 113— Exemption from duty — Steel rails for use on railways — Application to street railways.]— The exemption from duty in 50 & 51 Vict, c. 39, item 173, of " steel rails weighing not less than twenty-five pounds per lineal yard, for use on railway tracks," does. not apply to rails to be used for street railways, which are subject to duty as " rails for railways and tramways of any form," under item 88. Strong, C.J., and King, J., dissenting. To- ronto Railway Co. v. The Queen, xxv.. 24. Memo. See (1896) A. C. 551. 4. Customs duties — Duties on goods — Foreign-built ships— Customs' Tariff Act, 1891, s. 4-] — A foreign-built ship owned in Canada which has been given a certificate from a British Consul and comes into Canada for the purpose of being registered as a Canadian ship i5 liable to duty under section 4 of the Cus- toms' Tariff Act, 1897. — ^A taxing Act is not to be construed differently from any other statute. The King v. Algoma Central By. Co., xxxii., 277. [Affirmed on appeal by Privy Council, 40 Can. Gaz. 400.] 5. Customs duties — Lex fori — Lex loci — In- terest on duties improperly levied — Mistake of law — Repetition — Presumption as to good faith —Arts. 1041, 1049 C. C]— The Crown is not liable, under the provisions of articles 1047 and 1049 C. C, to pay interest on the amount of duties illegally exacted under a mistaken construction placed by the customs officers upon the Customs Tariff Act. Wilson v. TU City of Montreal (24 L. C. Jur. 222) ap- proved. Strong, C.J., dubitante.—Per Strong, C.J. The error of law mentioned in arts. 1047 and 1049 C. C. is the error of the party pay- ing and not that of the party receiving.^ Money paid under compulsion is not money paid uiwer error within the terms of those articles. TU Toronto Railway Go. v. The Queen (4 Ex. C. R. 262; 25 Can, S. 0. R. 24; [1896] A. C. 551) discussed. The Algoma Ry. Co. v. Jw King (7 Ex. C. R. 239) referred to. Judg- ment appealed from (7 Ex. C. B. 28() affirmed. Ross v. The King, xxxii., 532. 6. Duty payable to the Grown— Clasnitiair tion — Legislation subsequent to importai Future rights — Right of appeal. See, Appeal, 51. 439 DAMAGES. 430 7. Revenue — Imported goods — Tariff Act — Retrospective legislation — R. S. C. c. 32 — 57 d 58 Vict. c. S3 (D.)—5S & 59 Vict. c. 23 [D.) See Legislation, 1. CUSTOM OF PORT. See Shipping. CUSTOM OF TRADE. 1. Breach of contract — Evidence — Custom of trade — Local usage — Damages — Sale of goods.'\ — On appeal the Supreme Court affirm- ed the judgment of the Court of Queen's Bench (Q. R. 8 Q. B. 221), which held that a custom of trade by which orders were filled by manufacturers according to the dates when received had been sufiiciently proved and was binding, but that an alleged custom denied by most manufacturers in similar business could not be considered uniform or universal or binding upon the parties. Marsh v. Legatt, xxix., 739. 2. Commercial usage — Loading part on coast of South America — Guano Islands — Evidence — Construction of policy. See Insurance, Makine, 19. . 3. Shipment of grain — Transshipment in transit — Continuing original hills of lading. See Bill of Lading, 3. 4. Voyage policy — " At and from " — Construction of policy — Usage. See INSUBAKCE, Marine, 24. a port 5. Sale of goods iy sample — Sale through irokers — Trade usage — Delivery — Inspection. See CoNTKACT, 211. 6. Sale of shares — Marginal transfer — Stock exchange custom — Undisclosed principal — " Settlement " — Obligation of purchaser — " Stock jotting." See Becker, 3. DAMS. See Basement — Rivers and Streams Servitude — Watercourses. DAMAGES. 1. Assessment ; Measure of Damages ; Right of Action, 1-38. 2. Breach of Covenant, 39-43. 3. Common Fault, 44-46. 4. Damnum Absque Injuria, 47, 48. 5. Discretionary Award, 49-53. 6. Expropriations. 54-59. 7. Injuria Sine Damnum, 60. 8. Joint Tort Feasors, 61-63. 9. Libel, 64-67. 10. Licensed Ferry, 68. 11. Limitation of Action, 69. 12. Negligence ; Proximate Cause, 70-75. 13. Nuisance, 70-78. 14. Penal Clause, 79. 15. Waiver. 80-82. 16. Warranty, 83, 84. 1. Assessment ; Measure of Damages ; Right of Action. 1. A'egligence — Death of loife — Damages to husband as administrator — Benefit of children — Loss of household services — Care and train- ing of children.] — Although on the 'death of a wife, caused by negligence of a railway com- pany, the husband cannot recover damages of a sentimental character, yet the loss of house- hold services, accustomed to be performed by the wife, which would have to be replaced by hired' services, may be a substantial loss for which damages may be recovered, and so also may be the loss to the children of the care and moral training of their mother. Judg- ment of the Court of Appeal for Ontario (11 Ont. App. R. 1) affirmed. St. Lawrence & Ottawa Ry. Co. v. Lett, xi., 422. [The Privy Council refused leave to ap- peal; 6 Can. Gaz. 583.] 2. Assessment — Material loss — Injured feel- ings — Misdirection as to solatium — l^ew trial — Art. 1056 C. C] — In an action of damages brought for the death of a person by the con- sort and relations under art. 1056, C. C. which is a re-enactment and reproduction of the C. S. L. C. c. 78, damages by way of solatium for the bereavement suffered cannot be recov- ered. Judgment appealed from (il. L. R. 2 Q. B. 25) reversed and new trial ordered. Canadian Pacific Ry. Vo. v. Robinson, xiv., 105. 3. Death of parent — Bereavement — Negli- gence — Art. 1056 C. C. — Solatium — Pecuniary loss — -Verdict — Cross-appeal — Practice.] — In an action for damages, the descendants of L., killed driving down a street, alleged to have been at the time of the accident in a bad state of repair, by being thrown from a sleigh, the trial judge (without a jury), gi-anted $1,000 damages by way of solatium for bereavement (M. L. R. 2 S. C. 56). Held, reversing the judgment of the Court of Queen's Bench, that the verdict could not be upheld on the ground of solatium, and as the respondents had not filed a cross-appeal to sustain it on the ground that there was suffi- cient evidence of a pecuniary loss for which compensation could be claimed, the action must be dismissed with costs. City of Mon- treal V. Labelle, xiv., 741. 4. Assessment of damages — Action for negli- gence — Deduction of life insurance] — A de- duction of insurance on the life of deceased from the amount of a verdict upon entering judgment was held to be improper. Grand Trunk Ry. Co. v. Beckett, xvi., 713. 5. Discretion as to award — Interference on appeal — Evidence — Error in fact or law — Par- tiality.] — The amount of damages awarded in the discretion of the trial judge should not be interfered with on appeal, unless clearly un- reasonable and unsupported by the evidence, or for error in law or fact, or partiality of the judge. Levi v. Reed (6 Can. S. C. R. 482), and Gingras v. Desilets, Cass. Dig. (2 ed.) 212, followed. Cossette v. Dun, xviii., 222, 431 DAMAGES. 432 6. Use and occupation — Estimating damages — Prescription — Quasi delit — Plead- ing.] — In assessing damages for use and occu- pation of lands it is not merely the value of the property for agricultural purposes should be considered, but its different and even pros- pective capabilities should be taken into con- sideration (See Mayor of Montreal v. Brown, 2 App. Gas. 184). — In the case in question not only was the keeping logs in safety a prospective use which might be made of plaintiff's lands, but the actual use to vifhich the property was put by defendants. If land be well adapted for a particular purpose, as this was, and there are those who require it for such purpose, the value of the property is to be determined, not by what it might be worth if used for other purposes, but by the value which its exceptional adaptation to spe- cial purposes gives it in the estimation of those conversant with property of that de- scription and capable of speaking of the value of the fair use of such property. The evidence justified the finding of the Superior Court, that the property was worth $400 per annum. (See 7 Q. L. R. 286 ; 15 R. L. 514) . Breakey V. Carter, Cass. Dig. (2 ed.) 463. 7. Libel in newspaper — Additional litel in plea — Incidental demand — Excessive damages — Reduction of verdict or new trial.] — ^Action for $10,000 damages for the publication of an article which appeared in the Toronto " JIail " 8th December, 1884. Defendant filed a plea which plaintiff alleged contained an additional libel and he filed an incidental demand claim- ing $5,000 further damages. At the trial the jury returned a verdict for plaintiff, $6,000 for the libel contained in the newspaper, and of $4,000 for the additional libel contained in the defendant's plea. — The Court of Review ordered judgment on the verdict and rejected a motion by defendant in arrest of judgment, for judgment non obstante veredicto and for a new trial. The Queen's Bench dismissed an ap- peal (M. L. R. 4 Q. B. 84). Held, that upon the plaintiff consenting to reduce the verdict to $6,000, the appeal should stand dismissed without costs, the plaintiff to have his costs in the court below, and that in the event of his not consenting to a reduction of the ver- dict there should be a new trial; plaintiff to signify his election by filing a consent to that effect with the Registrar within ten days. — The respondent (plaintiff) filed the necessary consent to a reduction of the verdict and judg- ment went accordingly. Mail Printing Co. v. Laflammc, Cass. Dig. (2 ed.) 493. 8. I)icrcn'!ing tncnrd without cross-appeal — R. 8. O. (1887) c. U, ss. 47, 48— Supreme Vourt, rule 61—yotice by statute.}— TJndeT the Out. Jud. Act, and S. C. Rule 61, the Siupreme Court of Canada has power to in- crease an award for damages to a respondent without a cross-appeal. — Per Strong, C.J. The statute is sufficient notice to the appellant that the court may pronounce such a judg- ment as arbitrators ought to have given lou-n of Toronto Junction v. Christie xxv 551. ' ■' 9. Operation of electric potcer house — F»- Iration smoke and noise — Assessment of dam- ages — Reversal on appeal.] — In reversing the judgment appealed from, the Supreme Court, m the interest of both parties, assessed dam- ages, once for all, at an amount deemed suffi- cient to indemnify the plaintiff for all injur- ies, past, present and future, resulting from the nuisance complained of, should she elect to accept the amount so estimated in full satis- faction thereof ; otherwise, the record was or- dered to be transmitted to the trial court to have the amount of damages determined. Gar- eau V. Montreal Street Railway Co iitii 463. ' ■' 10. Action for personal injuries — Assess- ment of damages — li'uture sufferings.] — When in an action for bodily injuries there is but one cause of action, damages must be assessed once for all. And when damages have been once recovered, no new action can be main- tained for sufferings afterwards endured from the unforeseen effects of the original injury City of Montreal v. McGee, xxx., 582. 11. Common law liability — Employer and employee — Defective ways, works or plant- Assessment of damages.] — Where an injury has occurred by reason of defendant's neglect to provide the best known or conceivable ap- pliances to prevent accidents, the employer is subject to common law liability and the as- sessment of damages should be left to the reasonable discretion of the jury. Balch & Peppard v. Romburgh, 12th June, 1900. 12. Principle of assessment — Average es- timate.] — The assessment of damages by tak- ing the a'verage estimate of the witnesses ex- amined is wrong in principle — G. T. Ry Co V. Goupal (28 Can. S. C. R. 531) followed.' Pairman v. City of Montreal, xxxi., 210. 13. Contract — Drainage — Inter-municipal works — Assessment of damages — Guarantee — Continuing liability.] — The City of Montreal, having a sewer sufficient for all its purposes within its limits and through lands lying on a lower level than those of the adjoiniag municipalities of Ste. Cunegonde, St. Henri and Westmount, entered into an agreement in writing with Ste. Cunggonde by which the last named city was permitted to connect its sewers with the Montreal sewer in question for drain- age purposes, and by the same agreement, the City of Montreal consented that the City ,o£ Ste. Cunggonde should allow the two other municipalities to make connections with its sewers, so connected, in such a manner that waters coming from such three higher muni- cipalities should be drained J:hrough the Mon- treal sewer. The privilege was granted on condition that the connection with the Mon- treal sewer should be made by Ste. Cunfigonde at its own cost and to the entire satisfaction of the Montreal engineers ; that Ste. Cun6- gonde should guarantee Jlontreal against all ■■ damages which might result whether from the connection of said sewers or works neces- sary " in connection therewith, as well to the City of Montreal as to other persons or cor- porations and Ste. Cunggonde bound itself to pay and reimburse to the said City of Montreal all sums of money that the latter might be " called upon and condemned to pay on account of such damages and the costs resulting therefrom." In case of the Montreal sewer becoming insufficient, and its capacity requiring to be increased, or a new sewer con- structed, it was provided that Ste. CunSgonde should contribute proportionately to the cost of constructing the new works. The Ste. Cunggonde sewer was accordingly connected, and the other municipalities, upon entering into similar agreements with the City of Cunegonde, were permitted by Ste. Cunfegt to make connections with its sewers w*"' 433 DAMAGES. 434 their lands were also drained through the Montreal sewer, the agreements of the two last municipalities binding them as the arriire- garaiits, respectively, of 'the City of Ste. Cunggonde. In an action by the City of Montreal to recover from Ste. Cun§gonde dam- ages which it had been compelled to pay for the flooding of cellars by waters from the sewer in question, the arriire-garants were made parties by the principal defendant on de- mands in warranty : Held, that the guarantee in question bound the several higher munici- palities for all damages resulting not only from the act of making the actual connection of the sewers, but also for damages that might be subsequently occasioned from time to time on account of the user by them of the Mon- treal sewer for drainage purposes. Held, also, that, as the City of Montreal had not obliged itself to construct additional or new works within any fixed time in case of insuflficiency, the adjoining municipalities were not relieved from any of their liabilities on account of postponement of construction of such works by the City of Montreal. Held, further, that the judgment awarding damages against the City of Montreal being a matter between third parties and not res judicata against the other municipal corporations interested, the said City of Montreal was only entitled to recover by its suit against Ste. Cunggonde, such dam- ages as might be shewn to have resulted from the connection and user of the sewers under the agreement; that the City of Montreal, when sued, was not obliged to summon its warrantor into the action for damages, but could, after condemnation, recover such dam- ages by separate action under the contract ; that it was not, by the terms of the contract, a condition precedent to action by the City of Montreal, that it should first submit to a judicial condemnation in liquidation of such damages ; and that, as between the City of Ste. Cunegonde and the arriire-garants, their contracts bound them, respectively, to pay such damages, with interest and costs in pro- portion to the areas drained by them respec- tively into the Montreal sewer. City of Mon- treal V. City of Ste. Cunegonde; City of Ste. Cunegonde v. City of St. Henri; City of Ste. Cunegonde v. Town of Westmount, xxxii., 135. [Leave to appeal to the Privy Council was refused on application by the Town of West- mount, July, 1902.] 14. Assessment of damages — Estimating by guess — Concurrent findings — Reversal on ajj- peal — New trial.] — The evidence being insuffi- cient to enable the trial judge to ascertain the damages claimed for breach of contract, he stated that he was obliged to guess at the sum awarded and his judgment was affirmed by the judgTnent appealed from. The Supreme Court of Canada was of opinion that no good result could be obtained by sending the case back for a new trial and, therefore, allowed the appeal and dismissed the action, thus reversing the concurrent findings of both courts below. Ar- mour, J., however, was of opinion that the proper course was to order a new trial. Wil- liams V. Stephenson, xxxiii., 323. 15. Assessment of damages — Reservation of recourse for future damages — Expropriation — Res judicata — Right of action.] — A lessee of premises used as an , ice house recovered in- demnity from the city for injuries suffered in consequence of the expropriation of part of the leased premises, and, in his statement of claim, had specially reserved the right of further recourse for damages resulting from the expropriation. In an action brought after his death by his universal legatee to recover damages for loss of the use of the ice-house during the unexpired term of the lease, Held, affirming the judgment appealed from, that the reservation in the first action did not preserve any further right of action in consequence of the expropriation and, therefore, the plaintiff's action was properly dismissed by the courts below, as, in such cases, all damages capable of being foreseen must be assessed once for all and a defendant cannot be twice sued for the same cause. Citi/ of Montreal v. AlcOee, 30 Can. S. C. K.. 582, and Chaudiire Machine and Foundry Go. v. Canada Atlantic Ry. Co. (33 Can. S. C. R. 11) followed. Anetil v. City of Quebec, xxxiii., 347. 16. Measure of damages — Lessee of pew dis- turbed in possession. See Action, 41. 17. Breach of contract — Delivery — Specific performance — Measure of damages — Assess- ment by court below. See CoNTKACT, 242. 18. Mode of assessment — Verdict — Qeneral damages and loss of rent. See Negligence, 1. 19. Articles 1515, 151S C. C. — Assessment by expertise ordered. See Sale, 103. 20. Measure of damages — Evidence — Breach of contract — Notice — Wrongful dismissal. See New Trial, 17. 21. Cancellation of contract for public work — Breach — Value of work done — Prospective profits — Reduced value of plant. See COKTEACT, 93. 22. Husband and wife — Tenancy by the courtesy — Insurable interest in wife's property — Measure of damages. See INSUEANCE, FlEE, 82. • 23. Measure of damages — Infringement of patent — Profits received — Evidence — Royalty. See Patent of Invention, 6. 24. Access to navigable waters — Obstruc- tion — Remedy of owner — Measure of damages. See Railways, 68. 25. Fault of servant — Art. lOoJf C. C. — Vin- dictive damages — Assessment of damages. See Negligence, 116. 26. Assessment — I nterference with franchise — Aba tern en t — Nominal damages . See Tolls, 1. 27. Assessment — Life insurance — Reduction of verdict. See Railways, 47. 28. Mis-trial — Misdirection — Prejudice to defendant — Xew trial — Consent to reduction of damages. See Libel, 2. 435 DAMAGES. 436 29. Afwiciit lights— Long user—ilcasure of damages — Misdirection — yew trial. See Easement, 4. 30. Action of warranty — ^ egligence— Ob- struction of street — Assessment of damages — Questions of fact. See Appeal, 232. 31. Lialility for loss — Pleasure of damages. See Pbincipal and Agent, 49. 32. Lease — Negligence — Hire of tug — Con- ditions — Repairs — Compensation — Presump- tion of fault — Evidence — Measure of damages. See Negligence, 143. 33. Purchase of insolvent estate — Refusal to complete — Action by curator — Completion after judgment — Subsequent action for inci- dental expenses. See Insolvency, 49. 34. Floatable waters — Constitution of stat- ute — " The Saw-logs Driving Act," R. S. 0. {1887) c. 121 — Arbitration — Action on award — River improvements — Detention of logs. See Watekcoubses, 4. 35. Illegal detention of lands — Measure of damages. See ExPEOPRiATiON, 11. 36. Exchequer Court appeal — Assessment of damages — Interference with findings of Exche- quer Court judge. See Appeal, 241. 37. Riparian rights — Building dams — Pen- nine back waters — Warranty — Improvement of watercourses — Art. 5535 R. S, Q. — Arbitra- tion — Condition precedent — Assessment of damages. See RivEKS and Streams, 6. 38. Contract for construction of icorks — Deductions for portions omitted^Partial can- cellation of contract — Arts. 1065, 1691 C. C. — Deferred payments — Computation of interest — Payments in advance — Rebates. See Contract, 31. 2. Breach of Covenant. 39. Pledge — Deposit icith fender — Forfei- ture — Breach of contract — Municipal corpor- ation — Right of action — Damages — Compensa- tion and set-off — Restitution of thing pledged — Arts 1966, 1969, 1911, 1972, 1975 G. Gl-, — Practice on appeal — Irregular procedure.'] — C. on behalf of J. C. & Co.. a firm of contrac- tors of which he was a member, deposited a sum of money with the City of Montreal as a guarantee of the good faith of J. C. & Co. in tendering to supply gas for illuminating and other purposes to the city and the general pub- lic within the city limits at certain fixed rates, lower than those previously charged by com- panies supplying such gas in Montreal, and for the due fulfilment of the firm's contract entered into according to the tender. After the construction of some works and laying of pipes in the public streets. J. C. & Co. trans- ferred their rights and privileges under the contract to another company and ceased oper- ations. The plaintiff, afterwards, as assignee of C, demanded the return of the deposit which was refused . by the city council which assumed to forfeit the deposit and declare the same confiscated to the city for non-execution by J. 0. & Co. of their contract. After the transfer, however, the companies supplying gas in the city reduced the rates to a price below that mentioned in the tender so far as the city supply was affected, although the rates charged to citizens were higher than the price mentioned in the contract. Held, that the deposit so made was a pledge subject t» the provisions of the sixteenth title of the Civil Code of Lower Canada and which, in the ab- sence of any express stipulation, could not be retained by the pledgee, and that, as the city had appropriated the thing pledged to its own use without authority, the security was gone by the act of the creditor and the debtor was entitled to its restitution although the obli- gation for which the security had been given had not been executed. — On a cross-demand by the defendant for damages, to be set off in compensation against the plaintiff's claim; Held, that, as the city had not been obliged to pay rates in excess of those fixed by the con- tract, no damage could be recovered in respect to the obligation to supply the city ; and that the breach of contract in respect to supplying the public did not give the corporation any right of action for damages suffered by the citizens individually. Held, further, that pros- pective damages which might result from the occupation of the city streets by the pipes actually laid and abandoned were too remote and uncertain to be set-off in compensation of the claim for the return of the deposit. — The court also decided that, following its usual practice, it would not, on the appeal, interfere with the action of the courts below in matters of mere procedure where no injustice appeared to have been suffered in consec[uence although there might be irregularities in the issues as joined which brought before the trial court a demande almost different for the matter actu- ally in controversy. Finnic v. City of Mon- treal, xxxii., 335. 40. Breach of covenant to issue dehenturet — Assessment of damages — Arts. 1065, lOlO, 1073, 1077, 1840, 1841 C. C. See Conteact, 6. 41. Rectification of contract — Breach of agreement. See Res Judicata, 16. 42. Public work — Breach of contract— Ap- propriation of plant — Interest. See Contract, 21. 43. Contract — Shipping receipt — Carriers-^ Liability limited by special conditions — Negli- gence — Connecting lines of transportation- Wrongful conversion — Sale of goods for non- payment of freight — Principal and agent- Varying terms of contract. See Carriers, 2. 3. Common Fatjlt. 44. Apportionment — 'Collision in par Shipping. See Negligence, 38. 437 DAMAGES. 438 45. Contract for manufacture of machinery ■ — Cause of delay in completion — Penal clause — Common fault. See Contract, 192. 46. Negligence — Common fault — -Division of damages. See Negligence, 47. 4. Damnum Absque Injuria. 47. Right of action — Lawful use of land — Injury to adjoining property — Nonsuit.] — Damages and injury must both concur to give a right of action, and no action can lie in consequence of the ordinary and lawful use of land by its owner. (18 N. B. Rep. 523, affirmed). St. John Young Men's Christian Association v. Hutchison, Cass. Dig. (2 ed. ) 210. 48. PuMic work — Wharf property injur- iously affected — Evidence. See Public Work, 4. 5. Discretionary Award. 49. Libel — Confidential report — Discretion of trial — Interference on appeal.] — In an ac- tion for libel the trial judge awarded plaintiff ¥2,000. The Court of Appeal reduced the damages to $500. Held, that the amount of damages awarded by the trial judge in his dis- cretion, should not be interfered with on ap- peal unless clearly unreasonable and unsup- ported by the evidence, or there be some error in law or fact, or partiality on the part of the judge. Levi v. Reed (6 Can. S. C. R. 482), and Gingras v. Desilets (Cass. Dig. 2 ed. 212) followed. (See M. L. R. 3 S. C. 345.) Cas- sette V. Dun, xviii., 222. 50. Personal injuries — Measure of damages ■ — Findings of fact — Exemplary damages.] — In an action for damages for injuries to his feelings, reputation and health the Superior Court at Three Rivers assessed damages at $3,000. — On appeal to the Queen's Bench, re- duced the damages to $600 condemning plain- tiff to pay all the costs of appeal. Held, re- versing the judgment appealed from (10 R. L. 275), Taschereau, J., dissenting, that in view of very serious injuries sustained by plain- tiff and of the misconduct of defendant (who appears io have abused his position of Justice of the Peace), the amount awarded by rhe trial judge was not so clearly excessive as to justify interference with his judgment. — Per Fournier, J. The abuse by plaintiff of his position of J. P. was an important element to be taken into consideration in fixing the amount of damages. — Per Gwynne, J. The sound rule to adopt is that in mere matters of fact, or in the estimation of damages not cap- able of precise calculation, nor ascertainable by the application of any rule prescribing a measure of damage, this court should sustain the judgment of first instance, unless satisfied that its conclusions are clearly erroneous. — ^Appeal allowed with costs in Queen's Bench and Supreme Court. Levi v. Reed (G Can. S. C. R. 482) approved. — Per Taschereau. J., dissenting. Though the amount awarded by the Queen's Bench was not sufficiently large, yet taking into consideration the posi- tion of the plaintiff and the nature of the in- juries $3,000 was excessive. Gingras v. Desi- lets, Cass. Dig. (2 ed.) 212. 51. Finding of trial judge — Exemplary dam- ages — Special damages — Interference on ap- peal. See Appeal, 205. 52. Public work — Award — Past and future damage — Review on appeal. See Arbitrations, 10. 53. Measure of damages — Estimating by See No. 14, ante. 6. Expropriations. 54. Expropriations for railway purposes — Farm crossings — Estimating compensation. See Railways, 26. 55. Expropriation of land — Severency by railway — Farm crossings — Estimating com- pensation. See Railways, 27. 56. Expropriation for railway purposes — Estimation of damages — Prospective capa- bilities — Increased advantages — Severance of possession — Paper town site — Terminus — Set-off. See Expropriation, 22. 57. Expropriation by railway — Assessment of compensation ■ — Town plot sub-division — Valuation of lands — Crossings. See Expropriation, 1. 58. Municipal corporation — Expropriation proceedings ■ — Negligence — Interference with proprietary rights — Abandonment of proceed- ings — Damages — Servitudes established for public utility. See Servitude, 6. 59. Expropriation of land — Reducing dam- ages — Vol u a tion — Eviden ce. See Expropriation, 3. 7. Injuria Sine Damnum. 60. Injuria sine damnum — Counterclaim — Action of contract — Verdict for plaintiff — Technical breach by plaintiff — Defendant's nominal damages — New trial.] — In an action on a contract and also on the common counts to recover the balance of the contract price for work done for the defendant, the evidence shewed that there was a technical breach of the contract by which, however, the defend- ant had sustained no substantial damage. A verdict was found for the plaintiff and a new trial was refused. — Held, affirming the Court of Appeal for Ontario, that a verdict would not be set aside, merely to enter a verdict for nominal damages in favour of the other party. Beatty v. Oille, xii., 706. 8. Joint Tort-feasors. 61. Appeal — Practice — Judgment of court — Withdrawal of opinion — Master's report — 439 DAMAGES. 440 Credibility of witnesses — Apportionment of damages — Irrelevant evidence — Severance of damages — Reasons for report — Equal division of judges in appeal — Pinal judgment.] — The Court of Appeal for Ontario, composed of four judges, pronounced judgment, two being in favour of dismissing an appeal, the other two pronouncing no judgment. In the Supreme Court it was objected that in the judgment ap- pealed from no decision had been arrived at. Ueld, that the appellate court could not go behind the formal judgment which stated that the appeal had been dismissed ; further that the proposition was the same as if the four judges had been e(iually divided in opinion, in which case the appeal would have been prop- erly dismissed. — In an action against several mill-owners for obstructing the Ottawa River by throwing sawdust and refuse into it from their mills, a reference was made to the mas- ter to ascertain the amount of damages. Held, aiBrming the judgment appealed from, that the master rightly treated the defendants as joint tort-feasors ; that he was not called upon to apportion the damages according to the injury inflicted by each defendant, and that he was not obliged to apportion them according to the different grounds of injury claimed by the plaintiff. Ueld, further, that the master was the final judge of the credibility of the wit- nesses and his report should not be sent back because some irrelevant evidence may have been given of a character not likely to have affected his judgment, especially as no appeal was taken from his ruling on the evidence. — On a reference to, a master, the latter, pro- vided he sufiiciently follows the directions of the decree, is not obliged to give his reasons or enter into a detailed explanation of his re- port to the court. — (Compare, 11 O. R. 491; 14 Ont. App. R. 419; 15 App. Cas. 188.) Booth V. liatti, sxi., (xi7. 62. Breach of contract — Government rail- way — Joint misfeasance — Reduction of dam- ages — Petition of right. See Tort, 1. 63. Carriers — Partial loss of goods — Re- lease to one of several joint tort-feasors. See Estoppel, 64. 9. Libel. 64. Libel by mercantile agency — Confiden- tial report — li'alse information — Xegligence — Arts. 1053, 1054. 1727 G. 0.]— Persons carry- ing on a mercantile agency are responsible for the damages caused to a person in business when by culpable negligence, imprudence or want of skill, false information is supplied con- cerning his standing, though the information be communicated confidentially to a subscriber to the agency on his application therefor. ( See M.^L. R. 3 S. C. 345.) Cassette v. Dun, xviii., 65. Libel — Evidence — Special injury — Ex- ■cessive verdict — New trial. See Libel, 1. p^^6. SpecioZ damages — Loss of custom — See Libel. 4. .„;5" •*!«'»'«P«Per libel — Additional libel in plea — Excessive damages. See Xo. 7, ante. 10. Licensed Febet. 68. Monopoly — highways and ferries — Tolls — Navigable streams — Disturbance of licensee — Companies and partnerships — North- west. See Constitutional Law, 27. 11. Limitation of Actions. 69. Statute of Limitations — Criminal con- versation — Ceasing of adulterous intercourse.] — In an action for crim. con., it was question- ed whether or not the Statute of Limitations commenced to run only when the adulterous intercourse ceased, and whether or not images could be recovered only for intercourse within the six years preceding action. (See 27 Ont App. R. 703.) King v. Bailey, xxxi., 338 12. Negligence; Proximate Cause. 70. Negligence — Work in mine — Entering shaft — Code of signals — Disregard of rules — Damages.] — A miner was getting into the bucket by which he was to be lowered into the mine when owing to the chain not being checked his weight carried him rapidly down and he was badly hurt. In an action for dam- ages against the mine owners the jury found that the system for lowering the men was faulty ; the man in charge of it negligent ; and that the engine and brake by which the bucket was lowered were not fit and proper for the purpose. Printed rules were posted near the mouth of the pit providing among other things that signals should be given, by any miner wish- ing to go down the mine or be brought up, by means of bells, the number telling the engineer and pitman what was required. The jury found that it was not usual in descending to signal with the bells ; and that the injured miner knew of the rules but had not complied with them on the occasion of the accident. On appeal to the Supreme Court of Canada from a judgment setting aside the verdict for plaintiff and ordering a new trial. — H eld, reversmg said judgment (8 B. C. Rep. 344) and restoring the judgment of the trial judge (7 B. C. Kep. 414), that there was ample evidence to sup- port the findings of the jury that defendants were negligent ; that there was no contribu- tory negligence by non-use of the signals, the rules having, with consent of the employees and of the persons in charge of the men, been disregarded, which indicated their abrogation; the new trial should, therefore, not have been granted. — Beld, further, that as the negligence causing the accident was not that of the per- sons having control of those going down the mine, it was not a case of negligence at com- mon law with no limit to the amount of dam- ages, but the latter must be assessed under the Employees' Liability Act ( [1897] E. S. B. C. c. 69). Warmington v. Palmer, xxxii., 126. 71. Extra expenses — Probable cause — J/l Vict. c. H, s. 4 (Que.). See Injunction, 2. 72. Libel by mercantile agency — False in- formation — Confidential report. See No. 49, ante. 73. Action for negligence — Excessive to ages — Neic trial. See Negligence, 15. 441 DBBATS DE COMPTE. 443 7i. Remote cmise — Street railway — Eject- ment from car — Consequent illness. See NegligejSCE, 234i^^ 75. Xegligence — Personal injuries — Drains and sewers — Liability of municipality — Officers and employees of municipal corpora- tion — 59 Met. c. 55, s. 26, s.-s. 18 (Que.). See Negligence, 124. 13. Nuisance. 76. Xuisance — Trespass — Continuing dam- age.] — In 18SS the Canada Atlantic Railway CQmpany ran ttieir line through Britannia Terrace, a street in Ottawa, in connection with which they built an embankment and raised the level of the street. In 1895 the plaintiffs became owners of land on said street on which they have since carried on their foundry business. In 1900 they brought an action against the Canada Atlantic Railway Company alleging that the embankment was built and level raised unlawfully and without authority and claiming damages for the flood- ing of their premises and obstruction to their ingress and egress in consequence of such work. — Meld, that the trespass and nuisance (if any) complained of were committed in 1888, and the then owner of the property might haN-e taken an action in which the dam- ages would have been assessed once for all. His right of action being barred by lapse of time when the plaintiff's action was taken the same could not be maintained. Chaudiere Machine & Foundry Co. v. Canaaa Atlantic Ry. Co., xxxiii., 11. 77. Emphyteutic lease — Injuries to leased lands — Right of action — Domaine utile — Re- covery by lessee.] — The right of action for damages to leased lands lies in the lessee of an emphyteutis who has the beneficial estate therein ; and. where the owner of the legal estate has brought a petitory action to eject an adverse occupant and for damages, the lessee may be added as a party plaintiff in the action for the purpose of recovering any dam- ages that may be shewn to have been sustain- ed. Massawippi Valley By. Co. v. Reed, xxxiii., 457. 78. yuisance — Livery stable — Offensive odours — Noise of horses. See Nuisance, 3. 14. Penal Clause. 79. Contract for building engine — Con- struction of — Time for completion — Delay. See Contract, 192. 15. Waiver. 80. Constructions on public property — Suf- ferance — yuisance — Long possession — Tres- pass. See Estoppel, 1. 81. Promotion of joint stock company — Prospectus — Mortgage given subsequently for existing debts — Fraud — Action ex delicto — Waiver. See Company, 11. 82. New trial— Remittitur damnum — Prac- tice. See Evidence, 14. IC. A^'aebanty. 83. Sale of goods — Breach of warranty — Recovery of special damages — Action subse- quently taken on contract — Evidence of in- feriority of goods dehvered — Consequential damages. See Evidence. 2. 84. Eviction — Knowledge of cause — Spcci^al agreement — Liquidated damages — Art. 1513 C. C See Title to Land, 124. DATION EN PAIEMENT. 1. Gift inter vivos — Subsequent deed — Da- tion en paiement — Registration — Arts. 806, 1592 C. C] — A gift inter vivos of real estate with warranty by the donor was not register- ed, but a subsequent deed, which was regis- tered changed its nature from an apparently gratuitous donation to a dation en paiement. In an action by testamentary executors of the donor to set aside the donation for want of registration. — Held, affirming the judgment appealed from (M. L. R. 6 Q. B. 316), that the forfeiture under art. 806 C. C. resulting from neglect to register applies only to gratui- tous donations, and as the deed in this case was in effect a dation en paiement. with war- ranty, which under art. 1592 C. C. is equi- valent to sale, the testamentary executors had no right of action against the donee based on the absence of registration of the original deed of gift inter vivos. Lacoste v. Wilson, xx., 218. 2. Sale — Donation in form of — Gifts in con- templation of death — Mortal illness of donor — Presumption of nullity — Validating circum- stances — Arts. 762. 989 G. C] — During her last illness and a short time before her death, B. granted certain lands to V. by an instru- ment purporting to be a deed of sale, for a price therein stated, but in reality the trans- action was intended as a settlement of arrears of salary due by B. to the grantee, and the consideration acknowledged by the deed was never paid. — Held, reversing the decision of the Court of Queen's Bench, that the deed could not be set aside and annulled as void, under the provisions of article 762 of the Civil Code, as the circumstances tended to shew that the transaction was actually for good consideration (dation en paiement) , and consequently legal and valid. Valade v. La- londe, xxvii., 551. DEATH OF PARTY. Judgment reserved — Death after hearing- Entry of judgment nunc pro tunc. See Pbacticb, 227. DEBATS DE COMPTE. See Account. 443 DEBTOE AKD CEEDITOE. 444 DEBENTURES. 1. Provincial bonds — Succession duties — Property exempt — Sale under will — Duty on proceeds — Costs — Proceedings iy or against the Crown.]— Debentures of the Province of Nova Scotia are, by statute, "not liable to taxation for provincial, local or municipal pur- poses " in the province. L. by his will, after making certain bequests, directed that the residue of his property, vphich included some of these debentures, should be converted into money to be invested by the executors and held on certain specified trusts. This direction was carried out after his death, and the Attor- ney-General claimed succession duty on the whole estate. — Beld, aflBrming the judgment appealed against (35 N. S. Rep. 223), Sedge- wick and Mills, JJ., dissenting, that although the debentures themselves were not liable to the duty either in the hands of the executors or of the purchasers, the proceeds of their sale when passing to legatees were. Costs will be given for or against the Crown as in other cases. Lovitt v. Atty-Gen. of Xova Scotia, xxxiii., 350. 2. By-law — Conditions precedent to issue — Indorsement of future conditions — Art. 982, Municipal Code. See Railways, 88. 3. Railway subsidy — Signature by de facto officer — Condition precedent to aid. See Municipal Corporation*, 83. DECEIT. Bills and notes — Conditional indorsement — Principal and agent — Knowledge by agent — Constructive notice — Deceit by bank manager. See Bills akd Notes, 26. DEBTOR AND CREDITOR. 1. Attachment, 1. 2. Chattel Mobtgage. 2 4. 3. Composition and Discharge, 5-7. 4. Fraud against Creditors, 8-12. 5. Limitations of Actions, 13, 14. 6. Partnership Debts, 15. 7. Payment ; Interest, 16-24. 8. Preferences. 25-42. 9. Pressure, 43-45. 10. Sale of Goods, 46-48. 11. Security for Debt ; Suretyship, 49-53. 12. Separate Estates, 54-56. 13. Sheriff's Sales, 56. 1. Attachment. 1. Sale of goods on credit — Insolvency of consignee — Seizing goods in bond. See Stoppage in Transit. 2. Chattel Mortgage. 2. Unregistered Mortgage — Assignment for benefit of creditors — Priority. See Chattel Mortgage, 15. 3. Description of mortgaged goods — C S M. c. Jf9, s. 5. See Chattel Mortgage, 3. 4. Chattel mortgage — Existing debt — Con- sideration — Purchase by creditor. See Chattel Mortgage, 1, 7. 3. Composition and Discharge, 5. Deed of composition — Execution — As- signment in trust — Release — Authority to sign — Ratification — Estoppel.] — To an ac- tion by L. against A. the defence was release by deed. A. had executed an assignment for benefit of creditors and received authority by telegram to sign for L., the deed dated 8th October, 1881. Afterwards, With knowledge of it, L, continued to send goods to A., and on 5th November, 1881, wrote to A., " I have done as you desired by telegraphing you to sign deed for me, and I feel confident that you will see that I am protected and not lose one cent by you. After you get things ad- justed I would like you to send me a cheque for $800." ... In April, 1885, A wrote to L., " In one year more I will try again for myself and I hope to pay you in full." In November^ 1886, the account sued upon was stated. — Held, reversing the judgment appeal- ed from (21 N. S. Rep. 466), Taschereau and Patterson, JJ., dissenting, that the execution of the deed on his behalf being made without sufficient authority, L. was not bound by the release contained therein, and never having subsequently assented to the deed, or recog- nized or acted under it, he was not estopped from denying that he had executed it. — Eeli, per Taschereau and Patterson, JJ., that though A. had no sufficient authority to sign the deed, yet there was an agreement to com- pound which was' binding on L., and the un- derstanding that L. was to be paid in full would be a fraud upon the other creditors of A., who could only receive the dividends real- ized by the estate. Lawrence v. Anderson, xvii., 349. 6. Composition and discharge — Acqui- escence in — ffeto arrangement of terms of settlement — Waiver of time clause — Prin- cipal and agent — Deed of discharge — Notice of withdrawal from agreement — Fraudulent preferences. '\ — Upon default to carry out the terms of a deed of composition and discharge, a new arrangement was made respecting the realization of a debtor's assets and their dis- tribution, to which all the execution creditors appeared to have assented. Seld, that a credi- tor who had benefited by the realization of the assets, and by his action given the body of the creditors reason to believe that he had adopted the new arrangement, could not re- pudiate the transaction upon the ground that the new arrangement was not fully under- stood, without at least a surrender of the ad- vantage he had received through it — The debtor's assent i to such repudiation and the grant of better terms to the one creditor would be a fraud upon the other creditors, and as such inoperative and of no Mfect. Eowland, Sons & Co. v. Orant, xxvi., ili- 7. Partnership — Insolvent firm — Assign- ment for benefit of creditors — Composrfwnr Discharge of debt — Release of deitor.\---i- and C. doing business under the name or & Co., made an assignment for the beneft 445 DBBTOE AND CEEDITOR. 44G creditors, and T. then induced the Dueber Co., a creditor, to pay ofiE a chattel mortgage on the stock, and a composition of 25 cents on the dollar of unsecured claims, the com- pany to receive its own debt in full with in- terest. The assignee of T. & Co. then trans- ferred all the assets to the Dueber Co., and the arrangement was carried out, the com- pany eventually as provided ^n a contempor- aneous deed executed by the parties interested re-conveying the assets to T., taking his pro- missory notes and a chattel mortgage as se- curity. In an action by the company against T. & Co. on the original debt : Held, affirming the judgment appealed from (26 Ont. App. R. 295), that the original debt was extinguished and C. was released from all liability there- under. Dueber Watch Case Mfg. Go. v. Tag- gart, xxx., 373. 4. Fraud against Ckeditoks. 8. Fraudulent purchase hy person in in- solvent circumstances — Dehts contracted out of Canada — Pleading — ■ Confession and avoidance. See Insolvency, 38. 9. Pawning chattels — Insolvency — Judg- ment creditor. See Pledge, 2. 10. Conveyance in name of a trustee — Fraudulent device — Parties in pari delicto. See Tbxjsts, 20. 11. Estoppel — Conveyance by married woman — Agreement — Recital. See Fraudulent Conveyances, 5. 12. Voluntary conveyance of land — IS Elie. c. 5 (Imp.) — Solvent vendor — Action by mortgagee. See Fraudulent Conveyance, 6. 5. Limitations of Actions. 13. Claims of a commercial nature — C. S. L C. c. 67— Art. 2260 G. C .—Limit atim, of action for debt — Loan hy a non-trader tc aj trader — Interruption of prescription — Ac- knowledgement in writing — Entries in mer- chant's books — Evidence. See Prescription, 26. 14. Prescription — Unpaid note — Security for, by deed — Novation. See Prescription, 6. 6. Partnership Debts. 15. Partnership debts — Division of assets — Art. 1898 G. G. — Mandate — Account. See Partnership, 7. 7. Payment ; Interest. 16. Appropriation of payments — State- ments of account rendered — Rule in Clay- ton's case.] — In 1884 J. was unable to pay his liabilities as they matured, his principal cred- itors being appellants, (G. & Co.), for about $2,000, and C. for over $1,500.— Proposals were made for an arrangement, but before settlement each creditor issued writs against J. Pending the suits C. & P. offered to take 60 cents on the dollar or give the same for the claim of G. & Co. Appellants agreed to take 60 cents on the dollar, but both suits went to judgment. 0. & P. signed judgment on 22nd January. 1885, for $1,252.44, and ap- pellants signed judgment on 27th February, 1885, for $2,112.67. Appellants were paid by C. & P. indorsing J.'s note for $1,164.67, dated 21st February. 1885, which note was paid by C. & P. on maturity and appellant's judg- ment was assigned to them 2nd April, 1885,' at J.'s request ; as security for the amount of the note which they were obliged to pay. — After this arrangement C. & P. continued to furnish J. with goods. J. paid moneys there- after from time to time, but never at any time did he pay his new account in full. — In January, 1887, J. owed C. & P., on all accounts about $8,000, and they then sued him and recovered a judgment against him for $3,062.07, which with the amounts of the two judgments and with some unmatured notes of J.'s made up the total amount. On 10th January, 1887, fi,. fa. against the goods of J. issued on the first judgment recovered by C. & P. against J. for $1,252.42 and was placed in the sheriff's hands on the same date. — A writ of fi.. fa. against the goods of J. also issued on the judgment by appellants against J. for $2,112.67, on 10th January, 1887, and was on same date placed in the sheriff's hands, but only $1,257.84 and interest was claimed thereon, being the amount actually paid by C. & P. to appellants for their claim. — On 7th February, 1887, fi,. fa. against the goods of J. issued on the second judgment recovered by C. & P. for $3,062.07 and was placed in the sheriff's hands same date. — Subsequently respondents each recovered a judgment against J. and placed a writ of fi,. fa. against the goods of J. in the hands of the sheriff. — On 7th February, 1888, the sheriff seized the goods and stock-in-trade of J. and on 17th February sold the same to C. & P., at 78 cents on the dollar of the invoice price, the total purchase money amounting to $6,101.16. — Immediately after the sale the sheriff re- ceived notice from respondents claiming that the two first above mentioned executions were paid and satisfied as against respondents, thereupon he paid to C. & P. the amount of the third above execution $3,062.07, and retaining the balance took interpleader proceedings, and thereupon an issue was directed to try the validity of the appellant's execution, C. & P. being the real plaintiffs. — C. & P. in the course of their dealings with J. rendered four state- ments of account, as follows : — 1. Rendered October 22nd, 1885. This statement is divided into "Old Acct." and "New Acct." "Old Acct." extends from September 22nd, 1884, to Febru- ary 27th, 1885. Debits, $2,952.75; credits, $1,594.50; balance. $1,358.25. J. Green & Co., note, $1,164.67 ; interest on same, $93.95 ; total, $2,616.87.— " New Acct." extends from xVpril 18th, 1885, to Oct. 23rd, 1885. Debits $2,537.55 ; credits, $1,704.90 ; balance, $832.65. — 2. Rendered October 21st, 1886, and marked " New Acct." To amt. acct. rendered, $832.65 ; debits (goods), $14,506.77; credits, $9,740.58; balance, $5,598.84.-3. Rendered October 23rd, 1886. This account is set out verbatim. 1885 — October 23rd. to amount old account, $2,- 616.87; 1886 — February 24th, cash note Green & Co., $88.22; February 24th. cash 447 DEBTOR AND CEEDITOE. 448 note, Green & Co.. $41.19; by amount over- charged on interest, 78 cents ; to amount old account, $2,745.50; to amount new account, as per detailed statement, $5,598.84; total, $8,344.34. — 4. Rendered December 31st, 1886. To amount account rendered. $8,344.84; to debits (goods), $2,421.67; credits, $2,992.17; balance, $7,783.84. The accounts are all blended into one account in No. 3 and the balance is then carried forward iiito one continuous account in No. 4. and all pay- ments credited generally. These payments are more than sufficient to pay the old ac- count, including the 6. & Co. notes. — Taylor, C.J., gave judgment for respondents holding that whatever the original arrangement was for paying ofC G. & Co., C. & P., by the state- ments rendered and the receipts they gave, had so appropriated the payments made by J., that the old account was paid off. This judgment was afiSrmed by the Queen's Bench, — On appeal the Supreme Court affirmed the judgment, Gwynne and Patterson, JJ., dis- senting, on the ground that in their view of the evidence it was agreed that all payments made by J.- after the opening of the new ac- count in April, 1885. should be applied to the new purchases until fully paid for, which agreement was continued to be acted upon until the closing of the account, and therefore the case did not come within the rule in Clayton's Case, but rather within the excep- tion to the rule as laid down in City Dis- count Co. V. McLean (L. R. 9 C. P. 693), and Heinniker v. Wigg (4 Q. B. 791). Green V. Clark. Cass. Dig. (2 ed.) 614. 17. Payment to pretended agent — False re- presentations as to authority — Ratification iy creditor — tnrlictahlc offence.'\ — Where pay- ment is obtained from a debtor by one who falsely represents that he is agent of the creditor, upon whom a fraud is thereby com- mitted, if the creditor ratifies and confirms the payment he adopts the agency of thg per- son receiving the money and makes the pay- ment equivalent to one to an authorized agent. — ^The payment may be ratified and the agency adopted, even though the person receiving the money has, by his false representations, com- mitted an indictable offence. (See 31 N. B. Rep. 21). Scott V. Bank of New Brunswick, xxiii., 277. 18. Deltor and creditor — Security for deht — Security realized by creditor — Appropria- tion of proceeds — 7?cs judicata.'] — If a mer- chant obtains from a bank a line of credit on terms of depositing his customers' notes as collateral security, the bank is not obliged, so long as the paper so deposited remains un- collected, to give any credit in respect of it, but when any portion of the collaterals is paid it operates at once as payment of the merchant's debt, and must be credited to him. —Under the Judicature Act, estoppel by res judicata cannot be relied on as a defence to an action unless specially pleaded. Judgment appealed from (23 Ont. App. R. 146) re- versed. Cooper et al. v. The Molsons Bank, xxvi., 611. [Affirmed on appeal to Privy Council (26 Ont. App. R. 571.)] 19. Appropriation of payments — Error in appropriation — Arts. 1160, 1161 G. C] — A bank borrowed from the Dominion Govern- ment two sums of $100,000 each, giving de- posit receipts therefor respectively numbered 323 and 329. Having asked for a further loan of a like amount it was refused, but afterwards the loan was made on C, one of the directors of the bank, becoming personally responsible for re-payment, and the receipt for such last loan was numbered 346. The Government having demanded payment of $50,000 on account that sum was transferred in the bank booTss to the general account of the Government, and a letter from the presi- dent to the Finance Department stated that this had been done, enclosed another receipt numbered 358 for $50,000 on special deposit, and concluded, " Please return deposit receipt No. 323 — ^$100,000, now in your possession." Subsequently $50,000 more was paid and a return of receipt No. 358 requested. The bank having failed the Government took pro- ceedings against O. on his guar'intee for the last loan made to recover the balance after crediting said payments and dividends re- ceived. The defence to these proceedings was that it had been agreed between the bank and O. that any payments made on account of the borrowed money should be first applied to the guaranteed loan and that the president had instructed the accountant so to apply the two sums of $50,000 paid, but he had omitted to do so. The trial judge gave effect to this objection and dismissed the information of the Crown. Held, reversing the judgment ap- pealed from (6 Ex. C. R. 21), Taschereau and Girouard, JJ., dissenting, that as the evidence shewed that the president knew what the ac- countant had done and did not repudiate it, and as the act was for the benefit of the banlt, the latter was bound by it ; that the act of the Government in immediately returning the spe- cific deposit receipts when the payments were made was a sufficient act of appropriation by the creditor within art. 1160 G. C, no appro- priation at all having been made by the debtor on the hypothesis of error ; and if this were not so the bank could not now annul the hn- putation made by the accountant unless the Government could be restored to the position it would have been in if no imputation at all had been made, which was impossible as the Government would then have had an option which could not now be exercised. The Qwen V. Ogilvie, xxix., 299. 20. Interest — Deit certain and time certain —3^4 Wm. IV., 0. 4^, s. 28 (7mj).)]— To entitle a creditor to interest under 3 & 4 Wm. IV., c. 42, s. 28 (Imp.), the written instru- ment under which it is claimed must shew by its terms that there was a debt certam, pay- able at a certain time. It is not suflicient , that the same may be made certam by some process of calculation or some act to be per- formed in the future. Sindaw v. neiim, xxxi., 408. 21. Fire insurance — " Mortgage . Payment to mortgagee— Li/iUhty of vtm' to insured— Subrogation in rights of mon gagee — Release of mortgage. See iNsuEAsrcE. Fieb, 72. 22. Creditors of company — Pj^vment '« shares — Appropriation by directors treated as paid up. See Company Law, 40. 23. Money paid-Voluntary pavment--Iii^ solvency of debtor,— Action by asstgnee Status. „ See Payment, 3. 449 DEBTOR AND CEEDTTOE. 450 24. Payment — Accord and satisfaction- Mistakc — Principal and agent. See Mistake, 7. 8. Preferences. 25. Insolvency— Knowledge of, hy creditor — Fraudulent preference — Pledge — Warehouse receipt — Novation — Arts. 1035. 1036, 116!) G. C] — W. B. E., connected with two busi- ness firms in Montreal, viz., the firm of W. E. Elliott & Co., oil merchants, of which he was the sole member, and Elliott, Pinlayson & Co., wine merchants, made a judicial abandonment on the 18th August, 1889, of his oil business. Both firms had kept their accounts with the Bank of Commerce. The bank discounted for W. E. Elliott & Co., before his departure for England on the SOtlr June, a note of $5,087.- 50 due 1st October, signed by John Elliott & Co., and indorsed by W. E. Elliott & Co., and Elliott, Finlayson & Co., and on the 5th July took, as collateral security from Pinlayson, who was also W. E. Elliott's agent during his absence, a warehouse receipt for 292 barrels ■of oil, and the discount was credited to Elliott, Pinlayson & Co. On and about the 9th July 146 barrels were sold, and the proceeds, viz., $3,528.30, were subsequently, on the 9th Au- gust, credited to the note of $5,087.50. On the 13th July, McDougall, Logic & Co. failed, and W. B. E. was involved in the failure to the extent of $17,000, of which amount the bank held $7,559.3(1 and on the 16th July, Pinlayson, as agentf for W. E. E., left with the bank as collateral security against W. E. E.'s indebtedness of $7,559.30 on the paper cf McDougall, Logie & Co., customers' notes to the amount of $2,768.28, upon which the bank collected $1,603.43. and still kept a note of J. P. & Co. unpaid of $1,165.32. On the re- turn of W. E. E., another note of John Elliott & Co., for $1,101.33, previously discounted by W. E. B., became due at the bank, thus leav- ing a total debit of the Elliott firms, on their joint paper, of $2,660.53. The old note of $5,087.50 due 1st October, and the one of $1,101.33 were signed by John Elliott & Co., and on the 10th August were replaced by two notes signed by Elliott, Pinlayson & Co., and secured by 200 barrels of oil, 146 barrels re- maining from the original number pledged, and an additio'nal warehouse receipt of 54 barrels of oil, indorsed 'over by W. E. E. to Pinlayson, Elliott & Co., and by them to the bank. The respondent, as curator for the estate of W. E. Elliott & Co., claimed that the pledge of the 200 barrels of oil on the 10th August, and the giving of the notes on the 16th July to the bank, were fraudulent preferences. The Superior Court held that the bank had knowledge of W. E. E.'s insol- vent condition on or about the 13th of July, and declared that they had received fraudu- lent preferences by receiving W. B. E.'s cus- tomers' notes, and the 200 barrels of oil, but the Court of Appeal, reversing in part the judgment of the Superior Court, held that the pledging of the 200 barrels of oil by Elliott, Pinlayson & Co. on the 10th August was not a fraudulent preference. (Q. R. 1 Q. B. 371.) — On an appeal and cross-appeal to the Supreme Court: — Seld, 1st. That the finding of the courts below of the fact that the bank's knowledge of W. E. Elliott's insolvency dated from the 13th July, was sustained by evidence in the case, and there had therefore been a fraudulent preference given to the bank by the insolvent in transferring over to it all his customers' paper not yet due. Gwynne, J., dissenting. — 2ndly, That the additional se- curity given to the bank on the lOth August of 54 barrels of oil for the substituted notes of Elliott. Finlayson & Co., was also a fraudu- lent preference. Gwynne, J., dissenting. — 3rdly, Reversing the judgment of the Court of Queen's Bench and restoring the judgment of the Superior Court, that the legal effect of the transaction of the 10th August was to release the pledged 146 barrels of oil. and that they became immediately the property of the insolvent's creditors, and could not be held by the bank as collateral security for Elliott, Pinlayson & Co.'s substituted notes. Gwynne and Patterson, JJ., dissenting. Stevenson v. Canadian Bank of Commerce, xxiii., 530. 26. Dehtor and creditor — Payment by debt- or — Appropriation — Preference — R. S. O. (ISST) 0. 124-2 — A trader carrying on busi- ness in two establishments mortgaged both stocks-in-trade to B. as security for indorse- ments on a composition with his creditors, and for advances in cash, and goods to a fixed amount. The composition notes were made and indorsed by B., who made advances to an amount considerably over that stated in the mortgage. A few months after the mort- gagor was in default for the advances and a portion of overdue notes, and there were some notes not matured, and B. consented to the sale of one of the mortgaged stocks, taking the purchaser's notes in payment, applying the amount generally in payment of his over- due debt, part of which was unsecured. A few days after B. seized the other stock of goods covered by his mortgage, and about the same time the sheriff seized them under execution, and shortly after the mortgagor assigned for benefit of creditors. An inter- pleader issue between B. and the execution creditor resulted in favour of B., who received out of the proceeds of the sale of the goods, under an order of the court, the balance re- maining due on his mortgage. Horsfall v. Boisseau (21 Ont. App. R. 663), The as- signee of the mortgagor then brought an ac- tion against B. to recover the amount repre- senting the unsecured part of his debt, which was paid by the purchase of the first stock, which payment was alleged to be a preference io B. over the other creditors. — Held, aSirm- ing the decision appealed from (23 Ont. App. R. 230), that there was no preference to B. within R. S. O. [1887] c. 124. _s. 2; that his position was the same as if his whole debt secured and unsecured had been overdue, and there had been one sale of both stocks of goods, realizing an amount equal to such debt, in which case he could have appropriated a portion of the proceeds to payment of his secured debt, and would have had the benefit of the law of set-off as to the unsecured debt under s. 23 of the Act; and that the only remedy of the mortgagor or his assignee was by redemption before the sale, which would have deprived B. of the benefit of such set- off. Stephens v. Boisseau, xxvi., 437. 27. Assignment for the benefit of creditors — Preferred creditors — Moneys paid under voidable assignment — Linbilift/ of assignee — Statute of Elizabeth — Hindering and delaying creditors.^ — In an action to have a deed of assignment for the benefit of creditors set aside by creditors of the assignor on the ground that it is void under the Statute of 451 DEBTOE AND CEEDITOE. 452 Elizabeth, neither moneys paid to preferred creditors nor trust property disposed of in good faith by the assignor or persons claiming under him can be recovered, nor can persons holding under the deed be held personally liable for moneys or property so received by them. Cox v. Worrall (26 N. S. Rep. 366), questioned. (See 24 Can. S. C. R. 321). Taylor v. Cummings, xxvii., 589. 28. Insolvency — Fraudulent preferences-^ Chattel mortgage — Advances of money — Soli- citor's knowledge of circumstances — R. 8. 0. (1881) c. m—5Jf Vict. c. 20 {Ont.)^58 Vict. c. 23 (.Ont.)] — In order to give a preference to a particular creditor, a debtor who was in insolvent circumstances, executed a chattel mortgage upon his stock-in-trade in favour of a money-lender, by whom a loan was ad- vanced. The money, which was in the hands of the mortgagee's solicitor, who also acted for the preferred creditor throughout the transaction, was at one time paid over to the creditor who, at the same time, deliv^ered to the solicitor, to be held by him as an escrow and dealt with as circumstances might reciuire, a bond indemnifying the mortgagee against any loss under the chattel mortgage. The mortgagee had previously been consulted by the solicitor as to the loan, but was not in- formed that the transaction was being made in this manner to avoid the appearance of violating the Acts respecting assignments and preferences, and to bring the case within the ruling in Oihhons v. Wilson (17 Ont. App. R. 1.) — ■ Held, that all the circumstances, necessarily known to his solicitor in the trans- action of the business, must be assumed to have been known to the mortgagee, and the whole affair considered as one transaction contrived to evade the consequences of illegally preferring a particular creditor over others, and that, under the circumstances, the ad- vance made was not a liona fide payment of money within the meaning of the statutory exceptions. Burns & Lewis v. Wilson, xxviii., 207. 29. Assignment for benefit of creditors — Preferred creditors — Money paid under void- aile assignment — Levy and sale under execu- tion — Statute of Elizabeth.'\ — ^Where an as- signment has been held void as against the statute, 13 Eliz. c. 5. and the result of such decision is that a creditor who had subse* quently obtained judgment against the assign- or and, notwithstanding the assignment, sold all the debtor's personal property so trans- ferred, becomes entitled to all the personal property of the assignor levied upon by him under his execution, such creditor has no legal right and no equity to an account or to fol- low moneys received by the assignee or paid by him under such assignment in respect to which he has not secured a prior claim by taking the necessary proceedings to make them exi- gible. Judgment appealed from (29 N. S. Rep. 162), reversed. Cummings cG Sons v. Taylor, xxviii., 337. 30. Fraudulent preferences — Transfer of property — Delaijiiig or defeating creditors — IS Eliz. c. 5.] — A transfer of property to a cre- ditor for valuable consideration, even with in- tent to prevent its being seized under execu- tion at the suit of another creditor, and to delay the latter in his remedies or defeat them altogether, is not void under 13 Eliz. c. o, if the transfer is made to secure an existing debt and the transferee does not, either di rectly or indirectly, make himself an instru- ment for the purpose of subsequently bensfit V??n '5r^ transferor Judgment appealed from (30 N. S. Rep. 121) reversed. Mnlcahv v Archibald, xxviii., 523. 31. Fraudulent preference — Collusion — Pressure — R. 8. B. C. cc. 86, 87— The Bank Act, s. SO — Company law — Mortgage by di- rectors — Ratification — B. C. Companies Arf> 1890, 1892, J89//.]— The action was to set aside a mortgage by an incorporated company to the bank, an assignment of book debts and judgment by the bank against the company on grounds: (1) that the mortgage was volun- tary, fraudulent, and void under the Statute of Elizabeth; (2) void as a fraudulent prefer- ence; (3) not executed in accordance with the Companies Act; (4) that the assignment was void for same reasons and contrary to the Bank Act ; and (5) the judgment voluntary, fraudulent, and void under the Statute of Elizabeth. It was contended that moneys re- ceived by the bank were exigible under plain- tiffs' executions and an order asked accord- ingly. The judgment appealed from (8 B. C. Rep. 314) affirmed the trial judgment and held that there was good consideration for the mortgage, that it was given under pressure and should not be set aside although compris- ing the whole of the debtor's property and given under insolvent circumstances to the knowledge of the mortgagee and deprived the other creditors of their remedy ; also, that the mortgage given by the company's directors without proper authority had been legally ratified by subsequent resolution of the share- holders. The Supreme Court affirmed the judgment appealed from, Gwynne, J., taking no part in the decision, and subsequently the Privy Council refused leave for an appeal (8 B. C. Rep. 337). Adams d Burns v. Tlie Bank of Montreal, xxxii., 719. 32. Conveyance in fraud of creditors — Ille- gal preference— Arts-. 993, 1033, 1035, 10^0, 1981, 1982 C. C— Insolvent Act of 1S69 ani 1875. See Insolvency, 11. 33. Winding-up insolvent bank — Priority of claims by the Crown — Waiver — 45 Viet, c, 23 (D.) See Ceown, 73. 34. Security obtained by simulated loartr- Chattel mortgage — Bona fides — Pressure- See Pkaudui-ent Pkeference, 2. 35. Insolvency — Chattel mortgage — Suit ly creditors — Parties. See Fraudulent Pkefeeence, 3. 36. Assignment in trust — Unreasonable con- ditions — Preferences — Resulting trusts — Fraud on creditors — Statute of Elizabeth. See AssiQNiiENTS, 3. 37. Insolvency — Conveyance in fraud of creditors generally — Simulated sale. See Fraudulent Convetances, i. 3S. Fraudulent preference— Pledge of rail- way property — Advances to insolvent com- pany — Priority. See Lien, 7. 453 DEBTOE AND CEEDITOE. 454 39. Assignment for ienefit of creditors — Preference — Hindering und delaying — Statute of Elizabeth. See Chattel Mobtgage, 12. 40. Purchase of land hy married woman — Re-sale — Garnishee of purchase money — Debt of husband — Statute of Elisabeth — Hindering or delaying creditors. See Practice, 61. 41. Insolvency — Assignment — Preference — Payment in money — Cheque of third party. See Insolvency, 23. 42. Assignment for the benefit of creditors — Affidavit of bona fides — Preferences — Dis- tribution of assets — Arbitration — Conditions of deedr— Statute of Elizabeth. See Fbaudulent Preferences, 9. 9. Pressure. 43. Preferences — Pressure — Insolvency — 49 Vict. c. 45 (Man.) See Fbaudulen* Conveyances, 2. 44. Mortgage by insolvent — Pressure — R. S. O. (1887) c. m, s. 2. See Fraudulent Preference, 6. 45. Conveyance — Vntue pressure — Trust property. See Duress, 2. 10. Sale of Goods. 4G. Goods sold — Person- to whom credit was given — Assignment in trust — Power of attor- ney by trustee — Authority of attorney to «s_e principaVs name — Evidence.^ — A., doing busi- ness as J. A. & Sons assigned to H. for bene- fit of creditors. H., by power of attorney, authorized A. to collect all moneys due his estate, etc., and to carry on the business if expedient. A. continued the business as be- fore, and in the course of it purchased goods from F., to whom on some occasions he gave notes signed " J. A. & Sons — H. trustee per A." All the goods so purchased from F. were charged in his books to J. A. & Sons, and the dealings between them after the assign- ment continued for five years. Finally, A. being unable to pay what was due to F., the latter brought an action against H. on notes signed as above, and for the price of goods so sold to A. — Held, reversing the Supreme Court of Nova Scotia, Taschereau, J., dis- senting, that the evidence at the trial of the action clearly shewed that the credit for the goods sold was given to A. and not to H. ; that A. did not carry on the business after the assignment at the instance or as the agent of H., nor for the benefit of his estate ; that A. was not authorized to sign H.'s name to notes as he did ; and that H. was not liable either as the person to whom credit was given or as an undisclosed principal. — Held, further, that if H. was guilty of a breach of trust in allowing A. full control over the estate, that would not make him liable to F. in this apfinn ffrnhlp.r V Pnrsljfh XTU.. 4S9. 47. Open sale — Change of possession — R. S. O. (1877) c. 119, s. 5. See Sale, 12. 48. Agreement to supply goods — Property in goods supplied — Execution — Seizure. See Contract, 215. 11. Security for Debt — Suretyship. 49. Loan by savings bank — Pledge of secu- rities for — Validity of — Insolvency of bor- roicer — Right of curator to impugn transac- tion— R. 8. C. c. 122, s. SO.'i—L,. borrowed a sum of money from a savings bank which he agreed to re-pay with interest, transferring in pledge as collateral security letters of credit on the Government of Quebec. L. having be- come insolvent the bank filed its claim for the amount of the loan, with interest, with the curator of the estate, and on appeal the appel- lants, as creditors of L., contested on the ground that the said securities were not of the class mentioned in the Act relating to savings banks (R. S. C. c. 122, s. 20), and the bank's act in making said loan was ultra vires and illegal. (See Q. R. 3 Q. B. 315.)— , Held,, that L., having recei\-ed good and valid .consideration for his promise to re-pay the loan, could not, nor could the appellants, his creditors, who had no other rights than the debtor himself liad, impugn the contract of loan, or be admitted to assail the pledge of the securities. — Assuming that the act of the bank in lending the money, on the pledge of such securities, was ultra vires, although this might affect the pledge as regards third par- ties interested in the securities, it was not, of itself and ipso facto, a radical nullity of public order of such a character as to disen- title the bank under arts. 989 and 990 C. C. from claiming back the money with interest. Bank of Toronto v. Perkins (8 Can. S. C. R. 903) distinguished. Rolland v. Gaisse d'Economie de Quebec, xxiv., 405. 50. Conditional license to take possession of goods — Creditor's opinion of debtor's incapa- city — Bona fides — Replevin — Conversion.} — F., a trader, having become insolvent, and be- ing indebted among others to the firm of T. M. & Co., composed of T. and M., arranged to pay his other creditors 50 per cent, of their claims, T. M. & Co., indorsing his notes for securing such payment, they to be paid»in full, but payment to be postponed until a future named day. T. M. & Co. were secured for indorsing by an agreement under seal, by which it was agreed that if F. should at any time, in the opinion of T. M. & Co., or either of them, become incapable of attending to his business, the debt due to T. M. & Co., should at once become due. and they could take pos- session of the stock-in-trade, book debts, and property of F., and sell the same for their claim, having first served on F. a notice in writing, signed by the firm name, stating that in their opinion F. was so incapable ; and that on a change in the firm of T. M. & Co., the agreement should enure to the benefit of the firm as changed if it assumed the liabilities of, and took over T.'s indebtedness to the old firm. This arrangement was carried out, and some time after the date for payment to T. M. & Co., payment not having been made, a bank to which F. was indebted failed, and T. M. & Co.. then consisting of T. and K.. M. 455 DEDICATION. 456 having retired, persuaded P. to assign his book debts to them, and afterwards served on him a notice as required by the agreement, and took possession of his place of business and stock. F. then agreed to act for T. M. & Co.. until a certain day after, and resumed possession, but when T. JNI. & Co. returned on said day he disputed their right, and eject- ed them from the premises. Two days after he assigned to the official assignee for the benefit of all his creditors, and T. M. & Co. issued a writ to replevy the goods from him and the assignee. Held, affirming the decision appealed from (10 JIan. L. K. 340), Gwynne. J., dissenting, that F. and the assignee were guilty of a joint conversion of the property replevied. — Gwynne. J., held that there was no conversion by either. — Held. also, affirm- ing said decision. Gwynne, J., dissenting, that if T. M. & Co. formed an honest opinion that F. was incapable such opinion must govern, though tnistaken in point of law or fact, illogi- cal or inconclusive : that they were justified in believing from his loose business methods, waste of time over small matters, financial embarrassments, and acting under the direc- tion of his creditors, that F. was worn down by worry and generally unfit for business ; that the fact that the notice would not have been given if certain demands of T. M. & Co. had been complied with did not necessarily shew mala fides; and that the change in the firm of T. JI. & Co., did not vitiate the notice as one of the original members clearly formed the opinion, if one was formed, and conveyed It to F, Francis v. Turner, sxv,, 110. 51. Principal and surety — Giving time to principal — Reservation of rights against surety.'] — Where a creditor gives his debtor an extension of time for payment, a formal agreement is not required to reserve his rights against a surety, but such reservation may be made out from what took place when the extension was given. Wijke v. Rogers (1 DeG. JI. & G. 408) followed. Gorman v. Dixon, xxvi., 87. 52. Vendor and purchaser — Agreement for sale of lands — Assigrwient by vendee — Princi- pal and surety — Deviation from terms of agreement — Giving time — Creditor depriving surety of rights — Secret dealings with princi- pal — Release of lands — Arrears of interest — Novation — Discharge of surety. See PKijSteiPAL and Sukety, 4. « 53. Principal and surety — Guarantee bond — Default of principal — Non-disclosure by creditor. See Principal and Surety, 5. 12. Separate Estate. 54. Married woman's property — Separate estate — Contract ly married woman — Sepa- rate property exigible — C. S. V C. c 73 — •?.) Vict. c. 16 (0.)—R. N. O. (1817) ec. 12.5 and 127—47 Vict. c. 19 (0.)} — A woman married between 1859 and 1872 acquired, in 1879 and 1882, lands in Ontario as her sepa- rate property, and in 1887, before the Mar- ried Woman's Property Act of that year (R, S. 0. c. 132), came into force, she became liable on certain promissory notes made by her. Held, reversing the judgment appealed from (19 Out. App. R. 383). that the liability of her separate property to Satisfy a judgment on said promissory notes depended on the con- struction of the Married Woman's Real Es- tate Acts of 1887 (R. S. O. cc. 125, 127) and the Married Woman's Property Act, 1884 (47 Vict. c. 19), read in the light furnished by certain clauses of C. S. U. C. c. 78; and that her capacity to sue and be sued in re- spect thereof carried with it a corresponding right on the part of her creditors to obtain the fruits of a judgment against her by execu- tion on such separate property. Moore v. Jackson, xxii., 210. 55. Married woman — Separate property- Conveyance — Contracts — G. S. N. B. o, 72, See Married Woman, 3. 13. Sheriff's Sales. 56. Execution — Sales under execution — Equitable rights — Unregistered transfers — Registration — Real Property Act — R. S. C. c. 51; 51 Vict. (D.), c. 20. See REGisTRy Laws, 31. DEDICATION. 1. Old trails in Rupert's Land — Grown grant — Squatter's f^an of sub-division — Sui- stitution of new way — Dedication — Highwaii — Adopting new street as a boundary.] — A squatter in possession of public lands near the old Hudson Bay Trading Post at Edmonton, who afterwards became patentee of the greater part of the lands he occupied, had made , a plan of sub-division thereof into town lots, which shewed a new roadway or street laid down in the place of the old travelled trail across said lands leading to the trading post, and subsequently, the Crown, in making grants, described several parcels of the lands in the patents as being bounded and abuttin? upon the said new street, or roadway, so laid down on the plan. Held, affirming the judg- ment appealed from (1 N. W. T, Kep., pt i p. 39) , that the space so shewn upon the plan, as laid out for a street, had been adopted and dedicated by the Crown as and for a public street and highway, in substitution for the old travelled trail or roadway across said lands. Brown et al. v. Town of Edmonton, xxiii., 308 ; xxviii., 510. 2. Constitutional law — Navigable waters- Title to bed of stream — Crown — Dedication of public lands — Presumption of dedication -- Vser — Obstruction to navigation — Pumw nuisance — Balance of convenience. See Navigable Waters, 2, 3. Municipal corporation — Highways— OH trails in Rupcrfx Land — Substituted htgMay — Necessary way — R. S. G. c. 50, s.m—li»- servation in Grown grant — Dedication user — Estoppel — Assessment of lands claimed M highway — Evidence — Presumption. See Highway, 3. 4. Highway — User — Evidence. See Highway, 5. 457 DEED. 458 DEED. 1. Charge upojt Lands, 1-3. 2. Conditions, 4 6. 3. Construction, 7-12. 4. Conveyance as Security, 13-19. 5. Covenants, 20-22. 6. Deliveey, 23. 7. Description of Lands, 24-34. 8. Duress, 35. 9. Estoppel, 36-39. 10. Fixtures, 40. 11. Poem, 41-44. 12. Married Woman, 45. 13. Nullity, 46-54. 14. Parol Evidence, 55-58. 15. Postponement, 59. 16. Ratification, 60, 61. 17. Eevocation, 62. 63. 18. Tax Sales, 64. 1. Charge upon Lands. 1. Construction of deed — Partition — Charge upon lands.] — ^A deed for the partition of land held in common contained a conveyance of a portion thereof to M. W.. for certain consider- ations therein recited of which one was the condition that she should procure from her minor children, upon their coming of age, the necessary quitclaim deeds for the release of their interests in another portion of the land in question apportioned and conveyed to her co-parceners, and the amount of certain pay- ments of money then made for the purpose of ettectuating the partition, was by the deed of partition declared to remain a lien on that portion of the land thereby conveyed to M. W. until such quitclaims should have been obtained and delivered to her said co-parceners. Meld, that the said recital was sutEcient to charge that portion of the said land so con- veyed to M. W. with the amount of the said payments of money as a security for the due execution and delivery of the quitclaims in conformity with the condition stipulated in the deed of partition. Qreen v. Ward, xxix., 572. 2. Agreement to charge lands — Statute of Frauds. See Mortgage, 25. 3. Title to lands — Seignorial tenure — Words of limitation — Covenant by grantee — Charges running with title — Servitude — Condition, si voluero — Prescriptive title — Edits and Ordon- nances (L.C.) — Municipal regulation — 23 Vict. (Can.) c. 85. See Servitude, 4. 2. Conditions. 4. Substitution — Bail-d,-rente — Donation — Sale — Consideration — Rente fonciire — Prohi- bition to alienate — Onerous title — Nullity — Arts. 970. 123Jf C. C.—18 Yict.^ c. 250— Evid- ence.]— By 18 Vict. c. 250, W. F. and E. F. were authorized to sell lands greves de substi- tution, in consideration of a non-redeemable rent representing the value of the property. On 7 September, 1860, they assigned to A. F., part of the entailed property, in consideration of a rente fonciire of £6 annually, payable by a deed stipulating that the assignee could not alienate the land, nor any part thereof, without express written consent of the assig- nors, under penalty of nullity. The prop- erty was subsequently seized by^ a judgment creditor of A. F., and W. F. opposed the sale and asked that the seizure be declared null, be- cause the property seized could not be sold by reason of the above prohibition to alienate. Held, affirming the judgment appealed from, that the deed was in accord with the provi- sions of 18 \'ict. c. 250 ; that it was a purely onerous title on its face, and consequently the prohibition to alienate was void. Held, also, that parol testimony ought not to have been admitted as evidence to vary the character of the deed as an onerous title. — Quwre, Whether the substitutes may not, when the substitution opens, attack the deed for want of sufficient consideration. Eraser v. Pouliot, iv., 515. 5. Contract — Subsequent deed — Inconsis- tent provisions.] — C, by agreement of April 6th, 1891, agreed to sell to the Erie County Gas Co., all his gas grants, leases and fran- chises, the company agreeing, among other things, to " reserve gas enough to supply the plant now operated or to be operated by them on said property." On April 20th a deed was executed and delivered to the company, trans- ferring all the leases and property specified in said agreement, but containing no reserva- tion in favour of C. such as was contained therein. The Erie Company, in 1894, assigned the property transferred by said deed to the Provincial Natural Gas and Fuel Company, who immediately cut of£ from the works of C. the sipply of gas, and an action was brought by C' to prevent such interference. Held, affirming the decision of the Court of Appeal, that as the contract between the par- ties was embodied in the deed subsequently ex- ecuted the rights of the parties were to be determined by the latter instrument, and as it contained no reservation in favour of O. his action could not be maintained. Carroll v. Provincial Natural Gas and Euel Co., xxvi., 181. 6. Construction of deed — Sale, of phosphate mining rights — Option to purchase other min- erals ivhile working — Exercise of option. See Contract, 237. 3. Construction. 7. Terms of deed — Servitude — Roadway — User— Art. 549 C. C'.l— In 1831 the owners of several contiguous farms purchased a road- way over adjacent lands to reach their culti- vated fields beyond a steep mountain which crossed their properties, and by a clause in- serted in the deed, to which they all were parties, they respectively agreed " to furnish roads upon their respective lands to go and come by the above purchased road for the cultivation of their lands, and that they would maintain these roads and make all necessary fences and gates at the common expense of themselves, their heirs and assigns." Prior to this deed and for some time afterwards, the use of a road from the river front to a pub- lic highway at some distance farther back, had been tolerated by the plaintiff and his auteurs, across a portion of his farm which 459 DEED. 460 did not lie between the road so purchased over, the spur of the mountain, and the nearest point on the boundary of the defendant's land, but the latter claimed the right to continue to use the way. — In an action (negatoire) to prohibit further use of the way; Eeld. affirm- ing the decision appealed from (Q. B. o Q. B. 572), that there was no title in writmg sufficient to establish a servitude across the plaintiff's land over the roadway so permitted by mere tolerance ; that the effect of the agree- ment between the purchasers was merely to establish servitudes across their respective lands so far as might be necessary to give each of the owners access to the road so purchased from the nearest practicable point of their re- spective lands across intervening properties of the others for the purpose of the cultivation of their lands beyond the mountain. Riou V. Biou, xxviii., 53. 8. Construction of deed of lands — Riparian rights — Building dams — Penning hack icaters — Warranty — Improvement of watercourses — Art. 5535 B. 8. Q.] — A deed conveying a por- tion of the vendor's lands bordering on a stream granted the privilege of constructing dams, etc.. therein, with the proviso that, in case of damages being caused through the con- struction of any such works, the vendor or his successors in title to the adjoining lands should be entitled to have the damages assessed by arbitrators and that the purchasers should pay the amount awarded. Held, that, under the 'deed, the purchasers were liable, not only for damages caused by the flooding of lands, but also for all other damages occasioned by the building of dams and other works in the stream by them ; and, that the provisions of art. 5535 R. S. Q., did not entitle them to construct or raise such dams without liability for all damages thereby caused. Hamlin v. Bannerman, xxxi., o3-±. 9. Railways — Construction of deed — Loca- tion of permanent icay — Laying out boundar- ies — Fencing — Riparian rights — yotice of prior title — Registry laws — Possession — Ac- quisitive prescription.^ — In the conveyance of lands for the pei^manent way the deed de- scribed lands sold to the railway company as bounded by an unnavigable ■ stream, as "se- lected and laid out " for the railway. Stakes were planted to shew the side lines, but the railway fences were placed inside the stakes above the water's edge, and the vendor was allowed to remain in possession of the strip of land between the fence and the middle of the bed of the stream. The deed was duly registered and, subsequently, the vendor sold the rest of his property including water rights, mills, and dams constructed in the stream to defendant's auteur, described as " including that part of the river which is not included in the right of way, etc." Held. 1. that the description in the deed included, ex jure natiirw. the river ad medium filum agues and that the company's title thereto could not be defeated by the subsequent conveyance, not- withstanding that they had not taken phy- sical possession of all the lands described in the prior conveyance to them ; 2. That the failure of the vendor to deliver the full quan- tity of land sold by him to the company and their abstention from troubling him and his grantees in possession of the same could not be construed as conduct placing a construction upon the deed different from its clear and unambiguous terms, or as limiting the area of the property conveyed so as to exclude the strip outside the fences or the bed of the stream ad medium filum-, and 3, that such pos- session by the vendor and his assigns was not possession which could ripen into a title by acquisitive prescription of the property in question, ilassawippi Valley Ry. Co. v. Reed xxxiii., 457. ' 10. Construction of deed — Sale of patent — Future improvements. See Patent of Invention, 11. 11. Construction of deed — Deceased partner — Continuation — Purchase of share — Discount — Good will. See Partneeship, 27. 12. Construction of warranty clause — Sher- iff's deed — Sale of rights in land — Claimant under prior title — Fviction. See Title to Land, 126. 4. Conveyance as Secubitt. 13. Banking — Bond to secure advances — Construction — Estoppel — Misrepresentation — Literate obligee.'] — M.. a man of education, well acquainted with commercial business, ex- ecuted a bond to pay money, in certain events, to the bank. By an agreement, bearing even date it was recited that, in consideration of a certain mortgage, the bank had agreed to make further advances to joint obligors with M., parties to the agreement, and that' the agree- ment was executed to secure the bank in case there should be any deficiency in the assets of the firm, or in the value of the property com- prised in said mortgage, and to secure the bank from ultimate loss ; that if the firm should pay, then the bond and agreement should become wholly void. In a suit brought upon the agreement against JI., alleging a de- ficiency in the assets of the firm and indebted- ness to the bank. il. pleaded that the agree- ment had been executed by him on representa- tion made to him by one of his co-obligors that it was to secure the bank against loss arising by reason of non-registration of the mortgage, or by reason of over- valuation of property in the mortgage, and not otherwise. The bank, made no representations whatever to the defendants. Held, affirming the judg- ment appealed from (5 O. R. 112), (Gwynne, J., dissenting), that M. was bound by the ex- ecution of the documents, and liable upon them according to their tenor and effect. Mojfatt v. Merchants Bank of Canada, xi., 46. [The Privy Council refused leave to appeal.J 14. Absolute conveyance — Operation as mortgage — Evidence.} — Evidence of the most conclusive character must be adduced in order to have a deed absolute in character declared to operate as a mortgage only. McMioken v. Ontario Bank, xx., 548. 15. .ibsolute sale of mortgaged lamds—Piir- . chase of equity of redemption — Consmratmn mentioned. See Sale, 106. 16. Absolute in form — Conveyance to thiri party — Security for loan — XJndisclosei trust Parol testimony — Statute of Frauds- See Specific Performance. 2. 461 DEED. 462 17. Sule of land — Absolute in form — Effect as mortgage — Parol testimony. See Evidence, 225. IS. Obligation — Conntitiition d'hypotheqtie • — Sccnrity for unpaid note — Novation — Pre- scription. See Pkesckiption, 6. 19. Conveyance in absolute form — Mortgage — Resulting trust — Xotice — Estoppel. ■ See Title to Land, 7. 5. Covenants. 20. Covenant for title — Escrow — Estoppel.'] — To an action for breach of covenant for title in a mortgage to the plaintiffs, executed by T., the defendants' grantee. R.. one of the de- fendants, pleaded that T. did not. after the making of that deed, convey the lands to the plaintiffs. The deed from defendants to T. was dated 22nd June, 1855, and the mortgage from T. to the nlaintiff was dated 10th April, 1855. Both were registered on the 28th July, 1855 — the deed first. It appeared that there were two mortgages from T. to the plaintiffs on another lot, when this mortgage was made, and instead of which it was given. After ex- ecuting this mortgage, T. found that a deed from the defendants to him was necessary to give the . legal title, and he got the deed in question. The two mortgages were not dis- charged until the 16th August, 1855. Held, (Henry, J., dissenting), reversing the judg- ment appealed from (1 Out. App. R. 26), and affirming 32 U. O. Q. B. 222, that the whole transactions shewed that the mortgage was not intended to take effect until the perfecting of T.'s title and the discharge of the other mortgages for which it was given, and that the plaintiff, therefore, could recover. Also, per Richards. C.J., and Strong, J., that assum- ing the deed of the 10th of April, 1855. to have been a completed instrument from its date, the usual covenant contained in it that the grantor was seized in fee at the date of the deed created an estoppel, and that the estoppel was fed by the estate T. acquired by deed of 22nd June. 1885. Trust and Loan Co. v. Rut- tan, i., 564. 21. Landlord and tenant — Conditions of lease — Construction of deed — Practice.'] — Where a written lease of lands provides for the payment of indemnity to the lessees in case they should be dispossessed by the lessor before the expiration of the term of the lease, the lessees are entitled to claim the indemnity upon being so dispossessed although the evic- tion may be for cause, inasmuch as the lessor could not, under the lease, dispossess the lessee except for breach of the conditions therein mentioned. The Queen v. Poirier. xxx., 36. 22. Construction of lease — Provision for ter- mination — Sale of premises — Parol agreement — Misrepresentation — Quiet enjoyment.'] — ^A lease of premises used as a factory contained this provision : " Provided that in the event of the lessor disposing of the factory the les- sees will vacate the premises, if necessary, on six months' notice." Held, reversing the judg- ment appealed from (20 Out. App. R. 78), and (29 O. R. 75), that a parol agreement for the, sale of the premises, though not enforce- able under the Statute of Frauds, was a " dis- position " of the same under said provision en- titling the lessor to give the notice to vacate. Held, further, that the lessor having, in good faith, represented that he had sold the prop- erty, with reasonable grounds for believing so, there was no fraudulent misrepresentation en- titling the lessee to damages even if no sale within the meaning of the provision had actu- ally been made, nor was there any eviction or disturbance constituting a breach of the covenant for quiet enjoyment. Lumbers v. G'oW Medal Furniture Mfg. Co., xxx., 55. 6. Delivery. 23. Delivery — Retention by grantor — Pre- sumption — Rebuttal.'] — The fact that a deed, after it has been signed and sealed by the grantor, is retained in the latter's possession is not sufficient evidence that it was never so delivered as to take effect as a duly ex- ecuted instrument. — The evidence in favour of the due execution of such a deed is not re- butted by the facts that it compromised all the grantor's property, and that while it pro- fessed to dispose of such property immediately the grantor retained the possession and enjoy- ment of it until his death. .Judgment appealed from (31 N. S. Rep. 333) reversed. Zwicker V. Ziijicker, xxix., 527. 7. Description of Lands. 24. Description of land — Extent — Terminal point — Number of rods — Railway company.] — A specific lot of land was conveyed by deed, and also : " A strip of land 25 links wide, running from the eastern side of the aforesaid lot along the northern side of the railway sta- tion about twelve rods unto the western end of the railway station ground, the said lot and strip together containing one acre, more or less." Held, reversing the decision of the Su- preme 0)urt of Nova Scotia, Taschereau, J., dissenting, that the strip conveyed was not limited to twelve rods in length, but extended to the western end of the station, which was more than twelve rods from the starting point. Doyle V. MePhee. xxiv., 65. 25. Construction of deed — Conveyance of land — Uncertain description — Evidence of in- tention — Verba fortius accipuntur contra pro- ferentem — Maxim applied — Patent am- biguity.] — A grant of land bounded by the bank of a navigable river, or an international waterway, does not extend ad m,edium filum as in the ease of a non-navigable river. — If in a conveyance of land the description is not cer- tain enough to identify the locus it is to be construed according to the language of the instrument, though it may result in the grantor assuming to convey more than his title warranted. — The intention of the parties to a deed is paramount and must govern regardless of consequences. Res magis vuleat quam per- eat is only a rule to aid in arriving at the intention, and does not authorize the court to override it. — A general description of land as being part of a specified lot must give way to a particular description by boundaries, and, if necessary, the general description will be re- jected as falsa demonstratio . — Where there is an ambiguity on the face of a deed incapable of being explained by extrinsic evidence the maxim verba fortius accipiuntur contra pro- ferentem cannot be applied in favour of either 463 DEED. 464 party.— Where a description is such that the point of commencement cannot be ascertained it cannot be determined at the election of the grantee.— Judgment appealed from (^1 ver the cause of action and then, as inci- lental plaintiff, making a cross-demand for iamages to be set off against plaintiffs' claim. —Held, that in the Province of Quebec, as in :he rest of Canada, in negotiations carried on )y correspondence, it is not necessary for the iompletion of the contract that the letter iccepting an offer should have actually eached the party making it, but the mailing n the general post office of such letter com- )letes the contract, subject, however, to re- location oi the offer by the party making it lefore receipt by him of such letter of ac- eptance. Underwood v. ilaguire (Q. R. G J. B. 237) overruled. (Q. R. 16 S. C. 22, •eversed). ilagann v. Auger, xxxi., 18(3. 4. Inhabitant- of St. John, N.B. — Taxes on mfe's property — Income tax — Imprisonment —Damages. See Assessment and Taxes, 29. 5. Establishment of domicile — Change of omidle — Foreign divorce — Decree in New 'ork — Force in Quebec— Jurisdiction of for- ign court — Lex loci — Lex domicilii — Author- lation to sue. See DivoECE. DOMAIN£ DIRECT. See Title to Land DOMAINE UTILE. See Title to Land. DOMINION ARBITRATORS. Accounts of the Province of Canada — Com- on school funds and lands — Administration I Ontario — Remitting price of lands sold — Default in collections — WitJtlioIding lands from sale — Uncollected balances — Jurisdiction of Dominion arbitrators-] — By the submission of 10th April, 1890, amongst other matters submitted to the Dominion arbitrators were the following: "(/s) The ascertainment and determination of the principal of the common school fund, the rate of interest ■sj'hich would be allowed on such fund, and the method of computing such interest. (i) In the ascer- tainment of the amount of the principal of the said common school fund, the arbitrators are to take into consideration not only the sum now held by the Government of the Dominion of Canada, but also the amount for which Ontario is liable, and also the value of the school lands which have not yet been sold." The Province of Quebec claimed that Ontario was liable (1) for the purchase money of lands sold which may have been remitted by the Province of Ontario to the purchasers ; (21 for purchase moneys which might, if due diligence had been used, have been collected from the purchasers by Ontario, but which, owing to the neglect and default of the pro- vincial officers, haie not been collected but have been lost; (3) for lands which might have been sold but have not been sold, and (4) for all uncollected balances of purchase money. Held, Gwynne, J., dissenting, that the Dominion arbitrators have jurisdiction, under the submission, to hear and adjudicate upon the claims so made by the Province of Quebec. The Province of Quebec v. The Province of Ontario and the Dominion of Canada. In re Common School Fund and Lands, xxxi., 516. DOMINION LANDS. See Crown. DONATION. 1. Revocation — Fraud— Arts. SOS, lOSi C. C. — Marriage contract — Insolvency of donor — Evidence.] — T. purchased lands in 1876 from L. for $12,350, of which $3,789 was paid in cash, the balance being secured by hypothec on the lands. In June, 1879, a daughter of T. was married to .T. K.. and on the contract of marriage T. made a dona- tion to her of property of considerable value, and remained with no other than the mort- gaged property. — In July, 1881, L. brought an action to set aside the gift claiming that the property^ sold had so depreciated in value as to be insufficient to cover the balance secured only by the property so sold, that the gift had reduced T. to a state of insolvency, and had been made in fraud of L., and that at the time of the gift T. was notoriously insolvent. — The only e\-idence of the value of the pro- perty still held by T. at the date of the dona- tion, was that of an auctioneer as to value in November, 1881, and that of a real estate agent, who did not know the condition of the property two years before, but stated that it was not worth more than $6,000 in Novem- ber, 1881. adding that he considered property better than it was two years before, although very little changed in price. Held, reversing the judgment appealed from (3 Dor. Q. B. 2471 , that in order to obtain the revocation of the gift, it was incumbent on the plaintiffs to prove the insolvency or deconfiture of the 479 DEAIF^GE. donor at the time of the donation, and that there was no proof in this case sufficient to shew that the property remaining to the donor at the date of his donation was inade- quate to pay the hypothecary claims with which it was charged. Treacey v. Liggett, ix., 441. 2. Donatio mortis causa — Delivery to third person — Delivery of key.'] — To effect a donatio mortis causd delivery to a third per- son for the use of the donee is sufficient pro- vided that such third person is not a mere trustee, agent, or servant of the donor. The assent of the donee or even his knowledge of the delivery is not requisite. — Delivery of the keys of the desk containing the property to be donated constitutes an actual delivery of such property and transfers the possession of and dominion over the same. Walker v. Foster, xxx., 299. 3. Donatio mortis causa — Ratification iy will — Seisin — Payment of legacy — Sale of land — Charges — Action hypothecaire.'] — On appeal the Supreme Court affirmed the .iuds- ment of the Court of Queen's Bench (Q. R. 8 Q. B. 511), in an hypothecary action by which it was also asked that a discharge by executors should be set aside. C. sold land to A. W. M. and C. B. M. for $150,000 se- cured by privilege of iailleur de fonds, of which $50,000 was payable to respondent after vendor's death. C. afterwards by his will ratified the donation and delegation of payment, A. TV. M. and C. B. JI. being named as testamentary executors. The C. C. Co. acquired the land assuming the obligation of paying this $50,000. The executors discharg- ed the debt and the hypothec by which it was secured. It was held by the court below, that, even if the delegation were null on ac- count of the donatio mortis causd by acte entre vifs, the will validated it and the credit passed to the respondent with all its acces- sories including the hypothec and special pri- vilege of lailleur de fonds, and further, as the executors were seised only for the execu- tion of the will, and there was no necessity to use this credit to pay debts of the succes- sion, they had no power to grant the dis- charge. Consumers Cordage Co. v. Con- verse, XXX., 618. 4. Interdiction — Donation iy interdict — Sheriff's sale — Warranty — Arts. 1467, 2116 C.C] — Per Taschereau, J. Neither the ven- dor nor his heirs, who have renounced the succession, nor his universal donees, who have accepted the donation, can on any ground whatever, attack a title for which the vendor has given warranty. Rousseau v. Burland, xxxii., 541. 5. Registration 806, 1592 C. G. Suhseguent deed — Arts. See Dation en Paibment, 1. 6. Sale — Gifts in contemplation of death — ■ Mortal illness of donor — Presumption of nul- hty — Validating circumstances — Dation en paiement—Arts. 762, 989 G. C. See Sale, 86. 7. Railways — Expropriation — Title to lands — Proprietaires par indivis — Plans, sur- veys, looks of reference — E.stoppel — Satisfac- t%on of condition as to the indemnity — Appli- cation of statute — Registry laws—Constno- tion of agreement. See Radlways, 32. 8. Title to land — Substitution — Revocation of deed — Unborn children — Recitals— Pre- sumption. See Deed, 62. 9. Marriage contract — Property excluded— Subsequent acquisition — Don mutuel—Uesili- ation for value — Death of husband — BAgU of widow to possession. ' See Maeeied Woman, 2. 10. Marriage covenant — Universal com- munity — Registry laws. See Maeeiage Laws, 2. And see Gift. DOW^EB. 1. Interdiction ■ — Authorization by inter- dicted husband — Sheriff's sale — Registry laws — Warranty —^ Succession — Renunciation— Donation by interdict.'] — The registration of a notice to charge lands with customary dower must, on pain of nullity, be accom- panied by a certificate of the marriage in re- spect of which the dower is claimed and must also contain a description sufficient to identify the lands sought to be affected. — ^A sale by the sheriff against a debtor in possession of an immoveable under apparent title discharges the property from customary dower which has not been effectively preserved by registra- tion validly made under the provisions of art. 2116 of the Civil Code.— ;Sfem6te, that voluntary interdiction, even prior to the pro- mulgation of the Civil Code of Lower Canada, was an absolute nullity and that the authori- zation to a married woman to bar her dower is not invalidated by the fact that her hus- band had been so interdicted at the time of such authorization. Rousseau v. Burhnd, xxxii., 541. 2. Construction of will — Executory devise over — Contingencies — " Dying without issue " — " Revert " — Annuity — Election by uMom— Devolution of Estates Act, Jfi Vict. (0.) e. 22 — Conditions in restraint of marriage— " The Witts Act of Ontario," R. S. 0. (iSS?) c. 109, s. 30. See Wnx, 15. And see Mabeiage Laws. DRAINAGE. 1. Defective award — Petition for worh- Initiating . municipality — Adjoining muwn- pality — Report — Termini not defined— I^",''? benefited — Assessments m adjoining m««i«- pality.] — Under the drainage clauses of Be Municipal Act a by-law was passed by tne Township of Chatham founded on the report, plans, and specifications of a surveyor, mane with a view of drainage of lands in «»' township. The by-law set out that the PJ"' tion had been signed by a majority of wj ratepayers of the township to be benen™ by the work and recited the report, W/K it appeared that to obtain sufficient tan 481 DKAINAGE. 482 was necessary to continue the drain into the adjoining Township of Dover. The surveyor assessed certain lots and roads In Dover, and also the town line between Dover and Chat- ham, for part of the cost as for benefit. The Township of Dover appealed from this report uijder 46 Vict. c. 18, s. 582, on the grounds that a majority of the owners of property to be benefited had not petitioned for the works as required by the statute ; that no proper reports, plans, specifications, assessments, and estimates had been made and served ; that neither the Council of Chatham nor the sur- veyor had power to assess or charge the lands in Dover for the purposes stated in the report and by-law ; that the report did not specify any facts to shew that the Council of Chat- ham or their surveyor had authority to assess the lots or roads in Dover for any part of the cost of the proposed work ; that the as- sessment upon lots and roads in Dover was much too high in proportion to any benefit to be derived ; that no assessment whatever should be made on lands or roads in Dover as the works would, in fact, be an injury thereto; and that the report did not suffi- ciently specify the beginning and end of the work, nor the manner in which Dover was to be benefited. — rThree arbitrators were appoint- ed under the Act who all agreed that Dover would be benefited by the work, but R. P., one of the arbitrators, thought $500 should be taken off the town line, and W. D. another arbitrator, held that, while the bulk sum as- sessed was not too great, the assessment on the respective lands and roads and parts thereof should be varied, but that this was a matter for the Court of Revision. A memo- randum to this effect was signed by W. D. and A. E., the third arbitrator, at the foot of which R. F. signed a memorandum that he dissented and declined to be present at the ad- journed meeting to sign the award " If in ac- cordance with the above memoranda." W. D. and A. B. met and signed an award confirm- ing the assessment on the lands and roads in Dover, and on the town line made by the surveyor, and dismissing the appeal for the reason that the grounds mentioned had not been sustained. — ^The Queen's Bench Division set aside this award for want of concurring minds in the arbitrators, and defect in the report not specifying the beginning and end of the works (5 O. R. 325). This judgment was sustained on appeal (11 Ont. App. R. 248.) On appeal to the Supreme Court of Canada : — Held, Ritchie, C.J., dissenting, that the award should have been set aside upon the ground that it was not shewn that the petition was signed by a majority of the owners of the property to be benefited, so as to give the corporation of Chatham jurisdic- tion to enter Dover and do work therein. — That the arbitrators should have adjudicated upon the merits of the appeal against the several assessments on the lots and roads as- sessed, as their award was, by ss. 400 & 404 of 46 Vict. c. 18, made final, subject to appeal only to the High Court of Judicature, and it was not a matter for the Court of Revision to deal with ; — also that the award was bad because it professed to be a final adjudication against Dover upon all the grounds of appeal stated in the notice, and charged every lot and road so assessed with the precise amount assessed upon them respectively, although, by a minute of the arbitrators who signed the award, it appeared that they refused to ren- der any award upon such point and expressed their intention to submit to the Court of Re- s. f! n. — If! vision. — Further, that the arbitrators should have allowed the appeal against the assess- ment, and their award should have been set aside on the merits, because the evidence failed to shev? any benefit to the lots or roads in Dover which were assessed, but actually shewed that the surveyor did not assess them for benefit from the works, but for reasons which were not sufficient under the statute, and did not warrant the assessment. Township of Chatham and North Gore v. Township of Dover East and West, xii.j 321. , 2. Negligence — Injuring liability — Arbitra- tion — Right of action — Notice of action — Mandwinus — Discretion of counoil — Mainten- ance and repair.'] — By s. 483 of B. S. O. (1887) c. 184, owners of private lands in- jured by drainage works are to be indemnified, contested claims to be determined by arbitra- tion. Held, that it is only when the act causing the injury can be justified as the exercise of a statutory power, that the party injured must seek his redress in the mode provided by the statute ; the right of action at common law in other cases has not been taken away by the statute. — Held, also, that under s. 569 of the same Act, the municipal council, on a petition for drainage, has a discretion to exer- cise in regard to the adoption, rejection, or modification of any scheme proposed by the engineer or surveyor; and, if adopted, it is not relieved from liability for Injuries caused by any defect therein or in the construction of the work or from the necessity to provide a proper outlet for the drain when made thereunder.- — In pursuance of a petition and surveyor's report, a municipality constructed drains which flowed into others formerly in use and, which not having the capacity to carry off the additional volume of water, be- came overcharged and flooded the lands ad- joining. Held, that the municipality was guilty of neglect of the duty imposed by the Act to preserve, maintain, and keep the drains in repair, and were liable in an action for damages so caused to the lands. Held, per Strong and Gwynne, J J. (Ritchie and Patterson, J J., contra), that the drains caus- ing the injury being wholly within the limits of the initiating municipality, and not bene- fiting the lands in an adjoining municipality, did not come under the provisions of s. 583 of the Act, and an owner of injured lands was not entitled to a mandamus under that section. — Per Ritchie, C.J., and Patterson, J., s. 583 applied to said drains, but a mandamus could not issue for want of the notice required thereby. — Per Strong and Gwynne, JJ., that though the owner was not entitled to the sta- tutory mandamus it could be granted under the Ontario Judicature Act. Williams v. Township of Raleigh, xxi., 103. Note. — ^The judgment appealed from was reversed and set aside, the judgment of the Chancery Division of the High Court of Jus- tice varied by striking out directions that de- fendants should repair and maintain the em- bankment of " Drain No. 1." remove the em- bankment of the " Bell Drain," stop the over- charging of "Drain No. 1," make a sufficient outlet for waters brought into it bv subse- auently constructed drains to avoid the over- flowing of plaintiff's lands and postponing the issue of mandamus till defendants could make the necessary improvements. As so varied the Divisional Court judgment was re- stored. 3. Ontario Municipal Ad — R. B. O. (1887) c. 18-i, s. 583 — Non-completion — Mandamus — 483 DEAIiSrAGE. 484 Maintenance and repair — Flooding lands — Damages — Restoring roads.] — Under the drainage provisions of the Municipal Act, R. S. O. (1887) c. 184, respondent undertoolj the construction of a drain along the town line between Chatham and Sombra, but the work was not fully completed according to the plans and specifications, and owing to its imperfect condition' the drain overflowed and flooded the adjoining lands of M. who joined in an action against the township, alleging that the effect of the work on the drain was to stop up the outlets to other drains in Sombra, back the waters thereof and flood roads and lands in the township, and they asked an injunction to restrain Chatham from so interfering with existing drains and man- damus to compel the completion of the drain so undertaken as well as damages for the in- jury to M.'s land and other land in Sombra. Held, affirming the judgment appealed from (18 Out. App. R. 252), that M. was entitled to damages, and reversing it, Taschereau, J., dissenting, and Patterson. J., hesitating, that the Township of Sombra was entitled to a mandamus, but the original decree should be varied by striking out the direction that the work should be done at the cost of the Town- ship of Chatham, it not being proved that the original assessment was sufficient. Held, per Ritchie, C.J., Strong and Owynne, JJ., that s. 583 of the Municipal Act providing for mandamus to compel the making of repairs to preserve and maintain a drain does not ap- ply to this case in which the drain was never fully made and completed, but that the Town- ship of Sombra was entitled to a mandamus under Out. Jud. Act, R. S. O. (1887) c. 44. Held, further, that the flooding of lands was not an injury for which the Township of Sombra could obtain damages, even though a general nuisance was occasioned. The only pecuniary compensation to which Sombra was entitled was the cost of repairing and restor- ing roads washed away. — Per Patterson, J. It might be preferable to leave the judgment appealed from undisturbed and allow the ap- pellant to work out its remedy under s. 583 of the Municipal Act. Township of Somlra V. Township of Chatham, xxi., 305. 4. By-laws — Drainage Act — Petition for drain — Withdrawal of name from — Improper construction.'] — The action was brought by Gibson to have a by-law of the corporation quashed, or, in the alternative, for damages for injury to his property, resulting from im- proper construction and want of repair of a drain made under said by-law. The ground upon which said by-law was attacked was that the plaintiff had withdrawn from the petition and there were not suflicient names on it without him. — The trial judge held that plaintiff had not withdrawn from the peti- tion, and refused to quash the by-law. He also held that plaintiff had failed to prove his allegations in the statement of claim on which his right to damages was founded. The Di- visional Court reversed this decision on the first ground, and held the by-law invalid. The Court of Appeal for Ontario (21 Ont. App. R. 504) restored the original judgment. — The Supreme Court of Canada affirmed the judgment appealed from and flismis?ed the appeal with costs. Gibson v. Township of North Easthope, xxiv., 707. 5. Assessment — Intermunicipal oiligations — Initiation and contributions — By-law — On- tario Drainage Act, 1873 — 38 Vict, c SR (n\ —36 Vict. c. 39 {0.)—B. S. 0. (W) o 184— Ont Mun. Act. 1892—55 Vtct c M (O.)] — The provisions of the Ontario Muni cipal Act (55 Vict. c. 42, s. 590), that if a drain constructed in one municipality is used as an outlet, or will provide an outlet for the water of lands of another, the lands in the latter so benefited may be assessed for their proportion of the cost, applies only to drains properly so called, and does not include origi- nal watercourses which have been deepened or enlarged. • — • If a municipality constructing such a drain has passed a by-law purporting to assess lands in an adjoining municipality for contribution to the cost, a person whose lands might appear to be affected thereby, or by any by-law of the adjoining municipality proposing to levy contributions toward the cost of such works, would be entitled to have such other municipality restrained from pass- ing a contributory by-law. or taking any steps towards that end, by an action brought before the passing of such contributory by-law. Broughton v. Grey and Blma, xxvii., 495. 6. Ditches and Watercourses Act, 189i ( Ont. ) — Owner of land — Declaration of own- ership — Award — Defects — Validating award —57 Vict, c 55—58 Viet., c. 54 (0««.)]-A lessee of land with an option to purchase the fee is not an owner who can initiate pro- ceedings for construction of a ditch under The Ditches and Watercourses Act, 1894, of On- tario. Township , of Osgoode v. York (24 Can. S. C. R. 282) followed.— If the initiat- ing party is not really an owner the filing of a declaration of ownership under the Act will not confer jurisdiction. — Section 24 of the Act, which provides that an award there- under, after expiration of the time for appeal- ing to -the judge, or afteij it is affirmed on ap- peal, shall be binding notwithstanding any defects in form or substance either in the award or any of. the proceedings, does not validate an award or proceedings where the party initiating the latter is not an owner. Township of MoKUlop v. Township of Logan, xxix., 702. 7. Improvement of natural watercourses — Artificial watercourses — Embankments — Dykes — " The DrMnage Act, 1894"— 57 Vict, c. 56 {Ont.) — "The Ontario Drainage Act, 1873" — " The Municipal Drainage Aid Act" —36 Vict. c. 39 — 36 Vict. o. 48 {Ont.)- " Benefit " assessment — " Injuring liability " — " Outlet liability " — Assessment of wSi lands — Construction of statute.] — The On- tario Act, 57 Vict. c. 56, has not abrogated the fundamental principle underlying the pro- visions of the previous Acts of the legislature respecting tlie powers of municipal institu- tions as to assessments for the improvement of particular lands at the cost of the owners which rests on the maxim qui sentit comma- dum sentire debet ct onus — ^Lands from whicn no water is caused to flow by artificial means into a drain having its outlet, in another municipality than that in which it ™s imti; ated cannot be assessed for " outlet liability under said Act. — ^Where a drainage wort in- itiated in a higher municipality, obtains an outlet in a lower municipality, the assessment for " outlet liability " therein is limited to tne cost of the work at such outlet.— Every assess- ment, whether for " injuring liability or Mr " outlet liability " must be made upon consid- eration of the special circumstances of eacn 485 DEAINAGE. 486 larticular case and restricted to the mode rescribed by the Act. In every case there lust be apparent water which is caused to low by an artificial channel from the lands o be assessed into the drainage work or upon ither lands to their injury, which water is to nal interest. His evidence at the trial to le same effect was denied by the head man- ger. Held, that the jury having believed the sfendaut's account and given him a verdict hich the evidence justified, such verdict ought ) stand. Western Bank of Canada v. McOill Exii., 581. 5. Prand — False inventory — Compromise ition to annul. See Partition, 1. G. Payment under threat of criminal pro- cution — Repetition de I'indu — Ratification — rror as to tact. See Mistake, 3. And see Force — Pressure. DUTIES. 1. Provincial bonds — Succession duties — operty exempt — Sale under will — Duty on oceeds — Costs — Proceedings by or against 3 Crown.l — Debentures of the Province of )va Scotia are, by statute, " not liable to sation for provincial, local or municipal rposes " in the province. L. by his will, ;er making certain bequests, directed that i residue of his property, which included ne of these debentures, should be converted :o money to be invested by the executors and d on certain specified trusts. This direc- n was carried out after his death, and the torney-General claimed succession duty on ! whole estate. Held, affirming the judg- nt appealed against (35 N. S. Rep. 223), igewick and Mills, JJ., dissenting, that al- ugh the debentures themselves were not We to the duty either in the hands of the cutors or of the purchasers, the proceeds their sale when passing to legatees were. — 5ts will be given for or against the Crown in other cases. Lovitt v. Attorney-General Nova Scotia, xxxiii., 350. 2. Illegal distilleries — Penalties — Vice-Ad- miralty Courts — Jurisdiction. See Constitutional LiAW, 18. 3. Customs duties — Duties on goods — For- eign built ship — Customs Tariff Act, 1897, s. 4. See Customs, 4. 4. Duties on export of lumber — Improper levy — Payments of interest — Liability of Crown for further interest. See Interest, 10. And see Customs — Excise — Inland Re- venue. DUTY. Master and servant — Negligence — " Quebec Factories Act " — R. S. O. arts. 3019 to 3058— C. C. art. 1033 — Civil responsibility — Acci- dent, cause of — Conjecture — Evidence — Onus of proof — Statutable duty, breaich of — Police regulations. See Master and Servant, 12. And see Negligence. "DYING AVITHOUT ISSUE." 1. Will, construction of — Fknecutory devise over — Conditional fee — Life estate — Estate tail.] — A testator died in 1856, having pre- viously made his last will, divided into num- bered paragraphs by which he devised his pro- perty amongst certain of his children. By the third clause he devised lands to his son F. on attaining the age of 21 years — " giv- ing the executors power to lift the rent and to rent, said executors paying F. all former rents due after my decease up to his attain- ing the age of 21 years, and by a subsequent clause be provided that " at the death of any one of my sons or daughters having no issue, their property to be divided equally among the survivors." F. attained the age of 21 years and died in 1893, unmarried and without issue. Held, that neither the form nor the language used in the will would authorize a departure from the general rule as to construction ac- cording to the ordinary grammatical meaning of the words used by the testator, and that, as there would be no absurdity, repugnance, or inconsistency in sucK a construction of the will in question, the subsequent clause limiting the estates bequeathed by an executory devise over must be interpreted as referring to all the property devised to the testator's sons and daughters by the preceding clauses of the will. Held, further, that the gift over should be construed as having' reference to failure of issue at the death of the first devisee, who thus took an estate in fee subject to the executory devise over. Crawford v. Broddy, xxvi., 345. 2. Construction of will — Executory devise ovei — -Contingencies — " Revert " — Dower — Annuity — Election by widow — Devolution of Estates Act — JfS Vict. (O.) c. 28 — Conditions in restraint of marriage — " The Wills Act of Ontario," R. S. 0. (1881) c. 109, s. 30. See Will, 15. 491 EASEMENT. 492 3. Will — Devise to two sons — Devise over of one share — Condition — Context — Codicil. See Will, 16. 4 Statute construction of — Estates tail, Acts abolishing— K. S. .V. S. (1 ser.) c. 112 —R. S. ^'. S. (2 ser.) c. 112—R.lJ.A.b. (3 ser.) c. 111—23 1 ict. c. 2 (A. S.)—ntll— Construction of — Executory devise over — Dy- ing without issue " — " Lawful heirs " — '•Heirs of the body " — Estate in remainder expectant — Statutory title — B. S. X. S. (2 ser.) c. 114 ss. 23 and 2h — Title by will — Conveyance ly tenant in -tail. See Wn-L, 18. 5. Will — Construiction of — Words of futur- ity — Life estate — Joint lives — Time for ascer- tainment of class — Survivor dying without is- sue — " Lawful heirs." See Will, 34. EASEMENT. 1. Dkaiitage, 1-3. 2. Light and Aib, 4, 5. 3. Mebger, 6. 4. Paettt Wall, 7. 5. Plan of Sub-division, 8. 6. Railway Grossing, 9, 10. 7. Right of Way, 11-15. 8. Ripaeian Rights, 16-18. 9. Uses, 19, 20. 1. Drainage. 1. Aggravation of natural servitude — Dam- ages — Drainage — Art. 501 C. C] — The pro- prietor of a superior tenement, who has in- creased and aggravated the servitude appur- tenant thereto, over adjoining lands of a lower level, remains liable for damages resulting therefrom, notwithstanding that he has com- plied with the directions of the judgment de- claring the aggravation by the re-construction in a proper manner of the drain by which the natural servitude had been increased. (See 15 R. L. 391; 19 R. L. 620; 21 R. L. 59.) Vineierg et vir v. Hampson, 27th February, 1890. 2. Adjoining proprietors of land — Different levels — Injury 'by surface water — Water- course.'\ — O. and S. were adjoining proprietors of land in the Village of Frankford, Ont., that of O. being situate on a higher level than the other. In 1875 improvements were made to a drain discharging upon the premises of S., and a culvert was made connecting with it. In 1887, S. erected a building on his land and cut off the wall of the culvert, which projected over the line of the street, which resulted in the flow of water through it being stopped and backed up on the land of O.. who brought an action against S. for the damage caused there- by. Held, affirming the judgment appealed from (24 Ont. App. R. 526). that S. having a right to cut off the part of the culvert which projected over his land was not liable to O. for the damage so caused, the remedy of the latter, if he had any, being against the muni- cipality for not properly maintaining the drain. Ostrom v. Sills, sxviii., 485. 3. Trespass — Damages — Eciuitable interest — Municipal by-law — Registration — Notice— It. S. O. (1877) c. 114. See Municipal Corpokation, 89. And see Drainage — Riparian Rights- Rivers AND Streams — Wateecoueses. 2. Light and Aie. 4. Light and air — Twenty years' use— Pre- scription — Misdirection — Measure of damages — New trial.]- — ^Action on the case for ob- structing plalntifE's lights. Plaintiff and de- fendant were owners of contiguous houses. Defendant's house was built prior to 1853 for B., who in that year conveyed it to S., who deeded to H., from whom plaintiff purchased under registered deed. In 1853, whilst de- fendant's house was occupied by R. a tenant of S., the house owned by plaintiff was built for A. from whom, through, several mesne con- veyances, plaintiflE derived title. Whilst plain- tiff's house was in course of erection, two windows were placed in the gable end of it to afford light and air to attic bedrooms. These windows overlooked the house which B. had erected. A. began to live In the house about December, 1854. The windows re- mained unobstructed until August, 1874, when defendant, by raising his house and putting a mansard roof upon it, caused the obstruction complained of, by closing up the lower half of the windows. — ^There was no evidence of express grant of an easement, plaintiff relying upon 20 years' uninterrupted enjoyment. ■ For defendant it was shewn by S. that he never gave A. permission to place the windows, and that he did not notice them till after he had sold in 1857. S. saw A.'s house built. De- fendant had examined the records, and there was no grant of an easement in the lights in question; he was ignorant of the windows when he bought, in 1874, and did not know of them till the obstruction was made. The evid- ence was not certain as to when R.'s tenancy terminated. No question appears to have been raised at the trial as to the time her lease terminated, nor was this point left to the jury, the contention of plaintiff's counsel bemg that time began to run from the period when the windows were put in, and that the tenancy had nothing to do with the question. The trial judge directed the jury that "if S.. the owner of the land, did not occupy the land hunselt, but it was occupied by his tenants, then he would not be bound by the user, unless he knew of the windows being there; if he knew of the windows being there, and did not o^ struct them within twenty years, he woum be bound, and the tenancy had nothing to ao with the question ;" and as to measure of dam- ages : " The fair measure would be wUat 11 would cost the plaintiff to make such alter^ ations in his house as would admit the same quantity of light and air as he had before ue defendant raised his roof."-The jury found for plaintiff for $400.— A rule «m for a new trial was discharged. Held reversing tne judgment appealed from (2 Pugs. sj«^ 503), 1. that the duration of R.'s teiMcj w^ a proper question for, the, jury, and it shoma have been left to them ^i*°".t *\rkS- tion that it made no difference if S. had mm ledge of the existence of the windows, toru the tenancy continued after August im, there was manifestly no user for f '.l, with the consent or acquiescence otaeie ant and those through whom he claimed, 493 EASEMENT. 4,M S., then owner of the fee, would have had no right to enter upon the possession of his ten- ant for the purpose of obstructing the lights. Angus v. Dalton (6 Atto. Cas. 740) referred to. 2. There was misdirection as to measure of damages; the plaintiff should liaTe been limited to recovery in respect of loss and in- convenience caused by darkening his windows up to the time action was brought, and for future damages he could bring successive ac- tions from time to time as long as the nuisance continued. Fugsley v. Ring, Cass. Dig. (2 ed.) 241. 0. Windows — Overhanging roof — Right of view. See Title to Land, 41. 3. Mekgee. 6. Unity of ownership — Easements apparent and non-apparent — Quasi-easement — Swise- quent grants — implied reservation — Implied grant.'] — One piece of land cannot be said to be burdened by an easement in favour of an- other when 'both belong absolutely to the same owner, who has, in the exercise of his own unrestricted right of enjoyment, the power of using both as he thinks fit and of making the use of one parcel subservient to that of the other, if he chooses so to do, — and if the title to different parcels comes to be vested in the same owner, there is an extinguishment of any easements which may previously have ex- isted, a species of merger by which what may have been, whilst the different parcels were in separate hands, legal easements, cease to be so, and become mere easements in fact — quasi easements. — If the quasi servient tenement is subsequently first conveyed without expressly providing for the continuance of the ease- ments, there is no implied reservation for the benefit of the land retained by the grantor, ex- cept of easements of necessity, and no distinc- tion is to be made for this purpose between easements which are apparent and those which are non-apparent. — If the dominant tenement is first granted, all quasi easements which have been enjoyed as appendant to it over a quasi servient tenement " retained by the grantor, pass by implication. Attrill v. Piatt, x., 425. 4. Party Wall. 7. Party wall — Visible incumbrance — No- tice — Conveyance — Registration — Trespass. See Deed, 41. 5. Plan of Sub-division. 8. Alteration of sale plan — Lease according to new plan — Acceptance by purchaser — Es- toppel.] — The lane shewn on a sale plan as running in rear of a lot purchased was closed before registration of the plan, and the pur- chaser subsequently accepted a lease describ- ing the lot according to a plan shewing the lane in rear as closed. Held, (affirming 11 Ont. App. 416), that the purchaser was, by such acceptance, estopped from claiming a right of way over the land shewn as a lane in the sale plan. — Per .Gwynne, J. Though the advertisement of the public sale stated " lanes run in rear of the several lots," the contract evidenced thereby and by the public sale gave the purchaser no right to use the lane after- wards closed. Carey v. City of Toronto, xiv., 172. 6. Railway Crossing. 9. Farm crossing — Cattle-pass — Trestle bridge — Embankment. See Railways, 42. 10. Right of loay — Farm crossing — Pre- scription. See Railway, 44. 7. Right of Way. 11. User — Adjoining lands — Way of neces- sity — License — Pres'cription — Agreement for right of way.] — In an action for obstructing a right of way plaintiff claimed use both by prescription and agreement, and also that by the agreement the way was wholly over de- fendant's land. Plaintiff acquired the land from his father who retained the adjoining land which was eventually conveyed to de- fendant, and after so acquiring it. continued to use a track over the adjoining land, mostly through bush land, to reach the concession line, and his claim to the use of the way by prescription depended on whether or not his user was of a well-defined road, or merely of an irregular track and by license and courtesy of the adjoining owner. Finally an agreement was entered into between the plaintiff and his brother, who had acquired the adjoining lot which he afterwards conveyed to defendant, by which, in consideration of privileges granted to him, the brother covenanted to per- mit plaintiff to have a right of way along a lane to which the way formerly used led, and extending forty rods east from the centre of the lot, so as to allow plaintiff free communi- cation from defendant's lot along said lane to the concession line. The issue raised on the construction of this agreement was. whether the right of way granted thereby should be wholly or in part on plaintiff's land, or wholly on that of the defendant. Held, reversing the judgment appealed from (16 Ont. App. R. 3, and restoring 15 O. R. 699), Ritchie, C.J., dissenting, that plaintiff had no title to the right of way by prescription, the evidence clearly shewing that the user was not of a well-defined road but only of a path through bush land and that he only enjoyed it by li- cense from his father, the adjoining owner, which license was revoked by his father's death : but, — affirming the judgment appealed from, that under the agreement the right of way granted to plaintiff was wholly over de- fendant's land, the agreement not being ex- plicit as to the direction of such right of way, requiring a construction in favour of the plaintiff and against the grantor. Rogers v. Duncan, xviii., 710. 12. Necessary way — Implied grant — User — Obstruction of woaj — Interruption of prescrip- tion — Acquiescence — Limitation of actions — R. S. N. 8. (5 ser.) c. 11Z~R. 8. N. 8. U ser.) c. 100—2 & S Wm. IV. (Imp.), c. 71, ss. 2 and Jf.] — K. owned lands in the County of Lunenburg, N. S., over which he had for years utilized a roadway for convenient purposes. After his death the defendant became owner 496-- BASEMENT. ^96 of the middle portion, the parcels at either end passing to the plaintiff, who continued to use the old roadway, as a winter road, for hauling fuel from his wood-lot to his residence, at the other end of the property. It appeared ■ that though the three parcels fronted upon a public highway, this was the only practical means plaintiff had for the hauling of his win- ter fuel, owing to a dangerous hill that pre- vented him getting it off the wood-lot to the highway. There was not any formed road across the lands, but merely a track upon the snow during the winter months, and the way was not used at any other season of the year. This user was enjoyed for over twenty years prior to 1891, when it appeared to have been first disputed, but from that time the way was obstructed from time to time up to March, 1894, when the defendant built a fence across it that was allowed to remain undisturbed, and caused a cessation of the actual enjoyment of the way, during the fifteen months immed- iately preceding the commencement Of the ac- tion in assertion of the right to the easement by the plaintiff. The statute (R. S. N. S. 5 ser. c. 112) provides a limitation of twenty years for the acquisition of easements, and declares that no act shall be deemed an in- terruption of actual enjoyment, unless sub- mitted to or acquiesced in for one year after notice thereof and of the person making the same. jUeld, reversing the judgment appealed from (29 N. S. Eep. 267), that notwithstand- ing the customary use of the way as a winter road only, the cessation of user for the year immediately preceding the commencement of the action was a bar to the plaintiff's claim under the statute. Held, also, that the cir- cumstances under which the roadway had been used did not supply suflicient reason to infer that the way was an easement of necessity ap- purtenant or appendant to the lands formerly held in unity of possession, which would with- out special grant pass by implication, upon the severance of the tenements. Knock v. Knocic, xxvii., 66i. 13. Construction of deed — Servitude — Road- way— User— Art. 5Ji9 C. C.]— In 1831 the owners of several contiguous farms purchased a roadway over adjacent lands to reach their cultivated fields beyond a steep mountain which crossed their properties, and by a clause inserted in the deed to which they all were parties they respectively agreed " to furnish roads upon their respective lands to go and come by the above purchased road for the cultivation of their lands, and that they would maintain these roads and make all necessary fences and gates at the common expense of themselves, their heirs and assigns." Trior to this deed and for some time afterwards the use of a road from the river front to a public highway at some distance farther back^ had been tolerated by the plaintiff and his awteurs, across a portion of his farm which did not lie between the road so purchased over the spur of the mountain, and the nearest point on the boundary of the defendant's land, but the latter claimed the right to continue to use the way. In an action (nigatoire) to pro- hibit further use of way : Held, affirming the decision appealed from (Q. R. 5 Q. B. 572), that .there was no title in writing sufficient to establish a servitude across the plaintiff's land over the roadway so permitted by mere toler- ance ; that the effect of the agreement be- tween the purchasers was merely to establish servitudes across their respective lands so far as might be necessary to give each of the owners access to the road so purchased from the nearest practicable point of their respec- tive lands across intervening properties of the others for the purpose of the cultivation of their lands beyond the mountain. Biou v. Uiou, xxviii., 53. 14. Right of way — Easement — User.] — A right of way granted as an easement inci- dental to specified property cannot be used by the grantee for the same purposes in respect to any other property. Judgment appealed from (20 Ont. App. R. 95) affirmed. Pur- dom V. Robinson, xxx., 64. 15. Appurtenant right — Accretion — Access to lands redeemed — /Statutory interference with right of way — Public works — Indemnity. See Title to Land, 32. 8. Riparian Rights. 16. Interference with navigation — Water lots — Crown grant — Trespass- — Public waters — Prescription.] — W. was lessee of water lots held under patent granted in 1840, the lease being given by authority of the patent and public statutes respecting the construction of the Ksplanade in Toronto, which formed the boundary of said water lots. — Held, affirmmg the judgment appealed from (12 Ont. App. R. 327), that such lease gave to W. a right to build as he chose on the lots, subject to any regulations which the city had power to im- pose, and in doing so to interfere with the right of the public to navigate the water. Held, also, that the waters being navigable parts of the Bay of Toronto, no private ease- ment by prescription could be acquired therein while they remained open for navigation. London and Canadian Loan and Agency Go. v. Warin, xiv., 232. 17. Access to navigable river — RaUway — Obstruction — Damages. See RiPAEiAN Rights, 1. 18. Ice harvesting — Navigable waters — 'Trespass on water lots. See Rivers and Streams, 5. 9. Usee. 19. Sale of land — Unity of possession — Sev- erance — Continuous user.] — When two proper- ties belonging to the same owner are sold at the same time, and each purchaser has notice of sale to the other, the right to any continu- ous easement passes with the sale as an abso- lute legal right. But the easement must have been enjoyed by the former owner at the time of the sale. Therefore, one purchaser could not claim the right to use a dam on his land in such a way as to cause the water to flow back on the other property, where such right, if it had ever been enjoyed by the former owner, had been abandoned years before the sale. Judgment appealed from (32 N. S. Kep. 340) affirmed. Hart v. McMullen, xxx., 245. 20. Right of way— Common use — Title to land — Prescription. See User, 2. .\ND see Servitude. 497 EJECTMENT. 498 EDUCATION. 1. Denominational schools — Manitoba Act — Rights acquired by practice — Legislative jur- isdiction. See Constitutional Law, 69. 2. Powers of Provincial Legislatures — Manitoba constitution — Rights prejudicially affected— S3 Vict. c. 3, s. 22, s.-s. 2—B. N. A. Act, s. 93, s.-s. 3. See Constitutional Law, 2. 3. School corporation — Decision of superin- tendent of public instrwction — Appeal — Final judgment — Mandamus — Practice. See Mandamus, 3. 4. Will — Condition of legacy — Religious lib- erty — Restriction as to marriage — Exclusion from succession — Public policy. See Public Policy, 1. EJECTMENT. 1. Recovery of land — Fraudulent convey- ance by husband to wife — Pleadings — Posses- sion in wife — Sale by sheriff — Trial after de- murrer.} — Action of ejectment against K., and her husband, J. K., to recover possession of land. Ferguson, J., gave judgment in favour of the plaintiff against the defendants (14 O. R. 226 J, and Court of Appeal affirmed the judgment for reasons stated by Burton, J., who held that K. having been treated as having possession, had the same right to defend the possession thus attributed to her as if a stranger to the plaintiff and not his wife. Rule 144 made it sufficient for her to state by way of defence that she was in posses- sion, and dispensed with a plea of title on her part, unless her defence depended upon an equitable estate or right, or unless she claimed relief upon any equitable ground. Her defence was partly of the character which had to be specially set out, alleging irregularities, or faults of omission and commission by the sheriff, in the conduct of the sale under /s. fa. against K. ; but without doubting the correctness of the view taken of the alleged acts and omissions, K. could not be heard to criticise those proceedings ; as far as she was concerned the plaintiff owned the interest pro- fessed to be conveyed by the sheriff, and that included whatever right her husband had to possession of the property. The contest, there- fore, turned on the sufficiency of evidence con- cerning the title of J. K. There was no direct evidence, but sufficient was shewn to enable plaintiff to recover, in the absence of any title in K., in the proceedings and adjudication in the former action between plaintiff and K., in which the conveyance from J. K. to his wife was declared fraudulent and void under 13 Eliz. c. 5. The plaintiff's position at the trial after production of these proceedings was the same as if he had put in evidence the patent from the Crown to J. K. and then proved, as he did, his acquisition of J. K.'s interest in the land. Plaintiff did not, on the evidence, require to resort to the judgment on the demurrer, but Mr. Justice Burton did not wish to be understood as intimating any doubt of the correctness of that judgment. The gravamen of the demurrer was that the state- ment did not allege title in J. K. It did allege the former action and judgment, but their bearing on the admission of title in J. K. was not so apparent as it might have been. An application such as that in Phillips v. Phil- lipps (4 Q. B. D. 127), might have led, as in that case, to a better statement being ordered, but that is a very different thing from holding the pleading bad on demurrer. — In his view of the evidence, it became unnecessary to express any opinion on the application of decisions like Johnasson v. Bonhote (2 Ch. D. 298). — The Supreme Court, Held, that although K. might set up the irregularities and defects in the sheriff's sale her allegations were such that she could not do so without making the sheriff a party ; but the findings of the trial judge on the question of irregularity and of value were correct. The proof of title also was sufficient ; and the appeal should therefore be dismissed. Kane v. Magee, 4th Dec, 1889 ; Cass. Dig. (2 ed.) 247. 2. Parties — Non-joinder of tenants in com- mon — Action for use and occupation — Mesne profits — Trespass.] — C. H. and J. H. were ten- ants in common of lands under will of T. H. and each occupied a portion. On 30th Dec, 1868, L. purchased the interest of C. H. at sheriff's sale. C. H. died 7th March, 1870, and his widow, the defendant, with the assent of J. H., remained in possession of the portion of which O. H. had been in possession. In proceedings for partition against the heirs of T. H., to which defendant was no party, the portion she occupied was, on 12th Aug., 1873, allotted to L. as sole owner. He thereupon brought action for use and occupation, adding a count in trespass for the mesne profits since the death of C H. — ^A rule nisi to enter a non- suit was made absolute (2 Russ. & Ches. 229), and it was held that no action would lie for use and occupation, the widow occupy- ing adversely ; that no action would lie for mesne profits as there had been no previous re- covery in ejectment by plaintiff, and that even if a contract had been proved to sustain use and occunation, the non-joinder of J. H. as a plaintiff, was fatal. On appeal. Held, 1. An action of trespass for mesne profits is conse- quential to recovery in ejectment. — 2. Even if such action would lie under some circum- stances without ejectment brought, plaintiff could not recover without entry and posses- sion. — 3. After entry there is a relation back to the actual title as against a wrong-doer, and an action may be maintained for trespass prior to such entry. But besides deficient evi- dence of entry, there was evidence that de- fendant remained in possession subsequent to 12th Aug., 1873, when plaintiff's title accrued, with his assent. Strong, J., dubitante. — 4. In any event the action for mesne profits would not lie, defendant having been, previous to the 12th Aug., 1873, in possession with the con- sent of .1. H., the co-tenant in common, and being, therefore, entitled to notice to quit, or demand of possession, before her possession could be considered tortious. Lecain v. Hosterman, 28th Jan., 1878; Cass. Dig. (2 ed.) 827. 3. Illegal possession — Landlord's title — Evidence — Estoppel — Account for waste — Jurisdiction of Court of Chancery — R. 8. (1877) c. 40, s. 87—33 Vict. c. 23 (Ont.) . See Title to Land, 99. 4. Action by devisee — Land mortgaged by testator — Sale under decree for payment of debts — Assignment of mortgage — Title by statute. See Title to Land, 56. 499 ELECTION LAW. 500 ELECTBICITY. See Electric Lighting — Master and Servant — Negligence — Tramway. ELECTRIC LIGHTING. 1. Contract — Duration — Ttight to vancel — Repugnant clauses.'] — A contract for supply- ing light to a hotel contained the following provisions. "This contract is to continue in force for not less than 36 consecutive calen- dar months from date of first burning, and thereafter until cancelled in writing by one of the parties hereto. . . . Special condi- tions if any. This contract to remain in force after the expiration of the said 36 months for the term that the party of the second part renews his lease for the Russell House." After the expiration of the 36 months the lease was renewed for five years longer. Meld, reversing the judgment of the Court of Appeal (1 Ont. L. R. 73), that neither of the parties to the contract had a right to cancel it against the will of the other during the renewed term. Ottawa Electric Co. V. St. Jacques, xxxi., 636. 2. Negligence — Operations of a dangerous nature — Supplying eleqtric light — Insulation of electric wires.] — The defendants are a company engaged in supplying electric light to consumers in the City of Montreal under special charter for that purpose. They placed a secondary wire, by which electric light was supplied to G.'s premises in close proximity to a guy-wire used to brace primary wires of another electric company which, although ordinarily a dead wire, might become dan- gerously charged with electricity in wet weather. The defendants' secondary wire was allowed to remain in a defective condition for several months immediately preceding the time when the injury complained of was sustained, and it was at that time insufiiciently insulated at a point in close proximity to the guy-wire. While attempting to turn on the light of an incandescent electric lamp on his premises, on a wet and stormy day, G. was struck with in- sensibility and died almost immediately. In an action to recover damages against the com- pany for negligently causing the injury, Held, affirming the judgment appealed from, that the defendants were liable for actionable negligence as they had failed to exercise the high degree of skill, care and foresight, re- quired of persons engaging in operations of a dangerous nature. Royal Electric Co. v. Hev^ xxxii., 462. ELECTRIC RAIL"WAY. See Railway — Tramway. ELECTION LAW. 1. Agency, 1-5. 2. Appeal, 6-25. 3. Ballots, 26-28. 4. Corrupt Practices, (a) Betting, 29. (6) Brilery, 30-47. 29-59. (c) Conspiracy, 48. (d) Conveyance to Polls, 49 51. (e) Intimidation, 52-54. (f) Subornation, 55. {g) Treating, 56-58. (h) Trivial Acts, 59. 5. Deposit, 60-64. 6. Discretionary Order, 65. 7. Discontinuance, 66-69. 8. Disqualification, 70, 71. 9. Evidence, 72 80. 10. Expenses, 81, 82. 11. Findings in Trial Court, 83-89. 12. Libel and Slander, 90. 13. Petition, 91-122. (a) Status of Petitioner, 91-99. (6) Piling of Petition, 100-104. (c) Form of Petition, 105-111. {d) Service of Petition. 112-122. 14. Preliminary Objections, 123-125. 15. Procedure, 126-132. 16. Recriminatory Charges, 133-135. 17. Trial, 136-143. 1. Agency. 1. Limited powers of agent — Acts ieyoitd scope of his authority.] — ^An agent who is not a general agent', but one with powers o^- pressly limited, cannot bind the candidate by acts done beyond the scope of his authority. Judgment appealed from affirmed. Berthier Election Case; Genereux v. Guthiert, ix.. 102. 2. Implied agency — Surrounding circum- stances ■ — Corrupt practices — Treating — Bribery.] — H., a Conservative, prior to the election, canvassed B., in company with the respondent. On election day H. was selected by the assistant-secretary of the association (an acknowledged agent of the respondent) to represent respondent at Burnley poll, and ob- tained a certificate under s. 42 of the Act, entitling him to vote at that poll. H. there met B. and treated him by giving him a glass of whiskey and after B. had voted he gave him $2,- and subsequently sent him $50. The treating, according to B.'s evidence, was noth- ing more than an act of good fellowship; and according to H.'s account, B. was not feel- ing well, and the whiskey was given in conse- quence. B. negatived that the $2 were paid him for h*is vote, and H. said that he sup- posed it was a dollar bill and told.B. to go and treat the boys with It, and that it was not given on account pf any previous promise, or for his having voted. The court below held that none of these acts constituted cor- rupt acts so as to avoid the election. — Held, per Ritchie, C.J., and Henry and Taschereau, JJ. • — There was sufficient evidence of H. s agency, but it was not necessary to decide this point. — Per Strong, J. There was no proof of H.'s agency. Agency is not to be presumed from the fact that the respondent permitted H. to canvass B. in his presence, and there is an entire absence of proof of any sufficient authority to H. to bind the re- spondent by his acts at the polling place in the matters of treating and the payment of the $2.— Per Pournier. J. The treating of B. 501 EJjBCTIOlSr LAW. 5oa on polling day, both before and after he had voted, by H., an agent, and the giving of the sum of $2 immediately after he had vftted, were corrupt acts sufficient to avoid the elec- tion. West Northumberland Election Case; Henderson v. Guillet, x., 635. 3. Organization of political party — Infer- ences from combined elements -^ Proof of agency.] — There was no formal organization of the party supporting appellant ; the county reform association had been disbanded and the minutes, regularly kept since 1882, de- stroyed, as were the rough minutes of every meeting of a convention of the party held since that date. In lieu of local committees vice-presi- dents were appointed for the respective town- ships, and on the approach of a contest the vice-presidents called a meeting of the county association, composed of all reformers in the riding, to go over the lists and do all the neces- sary work of the election. The evidence of H.'s agency relied on was, that he had always • been a reformer, had been active for two elections,' had attended one important com- mittee meeting and been recognized by the vice-president of his township as an active supporter of the appellant, and that he acted as scrutineer at the polls in the election in question. The trial judge held that all these elements combined, in view of the state of affairs regarding organization, were sufficient to constitute H. an agent of the appellant. — Held, affirming the judgment appealed from, Ritchie, C.J., dissenting, and Taschereau, J., hesitating, that the circumstances justified the trial judge in holding the agency of H. Established. Haldimand Election Case; Colter V. Glenn, xvii., 170. 4. Political association — Agency of mem- 6ers.] — If a political association is formed for a place within the electoral district, and it is not shewn that there was any restriction on the members to work for their candidate within the limits of that place only, they are his agents throughout the whole district. West Prince Election Case, xxvii., 241. 5. Scrutineer under written authority — Illegal acts at his polling place — ■ Corrupt practices. See No. 28, infra. 2. Appbal. 6. Supreme Court Act, 1879. s. 10—38 Vict. e. 11, s. Jf8 — Appeal — Election petition — Preliminary objections — Procedure.] — On 21st April. 1877. an election petition was deposited against the respondent, who filed preliminary objections that the petition, notice of presenta- tion and copy of receipt of the deposit had been served upon him. Judgment maintained the preliminary objections and dismissed the petition with costs. On appeal to the Supreme Court under 38 Vict. c. 11. s. 48 — Held, (Taschereau and Fournier. JJ., dissenting), that there was no appeal, and that, under that section, an appeal lay only from the decision of a judge who tried the merits of an election petition. — Per Richards, C.J., and Strong, J., that the hearing of the preliminary objections and the trial of the merits of the election peti- tion are distinct acts of procedure, Charle- voix Election Case; Brassard v. Langevim, ii., 319. (Note. — The statute has been amended.) 7. Appeal — Notice — Setting down for hear- ing ■ — Extension of time — Supreme Court Rules, 56, 69 — Jurisdiction — Discretion of judge.] — On motion to quash appeal where ap- pellant had not, within three days after setting down the petition for hearing, given notice thereof in writing, nor obtained from the judge who tried the petition further time for giving such notice. — Held, that the provi- sion in s. 48 of the Sup. & Ex. Courts Act was imperative ; that such notice was a condi- tion precedent to jurisdiction to hear the ap- peal ; that as the appellant had failed to comply with the statute, the court could not grant relief under rules 56 or 69 ; and thit therefore the appeal could not be then heard, but must be struck off the list of appeals, with costs of the motion. — Held, also, that the judge who tried the petition had exclusive power to extend the time for giving such no- tice to be exercised according to sound dis- cretion, and that judge having subsequently made such an order, the appeal was heard as having come properly before the court. Tas- chereau, J., dissented. North Ontario Elec- tion Case; Wheeler v. Gihbs, in., 374. 8. Reversal of question as to jurisdiction of trial court — Re-hearing on merits — Sending back record for further adjudication — Second appeal.] — The original petition was tried on the merits, subject to objection to jurisdiction. The objection was maintained and in conse- quence the petition was dismissed. This judg- ment was appealed from by the present respon- dent under s. 48, Sup. Court Act, who limited his appeal to the question of jurisdiction, and it was held that McCord, J., had jurisdiction, and ordered that the cause should be proceeded with. The record was accordingly sent to the court below, and MeCord, J., after suggesting a re-hearing rendered his judgment on the merits declaring the election void. On appeal it was contended that McCord, J., had no jurisdiction so to proceed with and finally de- cide on the merits of the case a second time. — Held, that the Supreme Court, on the first appeal, even if the appeal had not been limit- ed to the question of jurisdiction, could not have given a decision on the merits, and that the order of this court remitting the record to the proper officer of the court below to be pro- ceeded with according to law, gave jurisdic- tion to McCord, J., to proceed with the case on the merits, and to pronounce a judgment on such merits, which latter judgment was properly appealable under section 48, Supreme Court Act. (Fournier and Henry. J J., dis- senting.) (See 6 Q. L. R. 100). Belleehasse Election Case; Larue v. Deslauriers, v., 91. 9. Controverted election — Service of petition — Preliminary objection — Rule extending time for service — ^2 Vict. c. 39, s. iO.]— The peti- tioner, on ex parte application to a judge, ob- tained extension of time for service of peti- tion, but subsequently, on cause shewn, the judge rescinded the order as made improvi- dently. On a second ex parte application, sup- ported by affidavits, the judge made another order extending the time. Respondent then obtained a rule nisi to set aside the second order, and the rule was made absolute by the full court, on the ground that all the facts on which the second application was based were in the knowledge of the petitioner when the first application was made. — Held, Fournier and Henry, JJ., dissenting, that the matter at issue was not in the nature of a preliminary 503 ELECTION LAW. 504 objection, and that the rule was not a judg- ment, order or decision on a preliminary objec- tion from which an appeal would lie to the Supreme Court. Kings Election Case; Dickie V. Woodworth, viii., 192. [Approved of and followed in the Glouces- ter Election Case, 8 Can. S. C. R. 204.] 10. Appeal— 42 Vict. c. 39, s. 10 — Rule ab- solute in banc to rescind order of a judge — Preliminary objection.] — A petition was filed by appellant under the " Dominion Contro- verted Elections Act, 1874," against the re- turn of respondent. Preliminary objections were filed, and before hearing by consent of the attorney of the appellant, respondent obtain- ed an order for withdrawal of the deposit and removal of petition off the files. The money was withdrawn, but not the petition, and shortly afterwards, the appellant, alleging that the proceedings by his attorney were with- out his knowledge or consent, a second order rescinding the order so made, and directing that, upon re-payment of the security, the peti- tion be restored, and the appellant should be at liberty to proceed. On appeal from an or- der of .the Supreme Court (N.B.), i-escinding the order for restoration, Beld, that the judg- ment appealed from is not a judgment on preliminary objections within the meaning of 42 Vict. c. 39, s. 10, and therefore not appeal- able. Kings Election Vase (8 Can. S. C". R. 192) followed. Gloucester Election Case; Commeau v. Burns, viii., 204. 11. Dominion Controverted Elections Act — R. 8. C. c. 9, ss. 32, S3 & 50— Petition— Ex- tension of time — Appeal— Jurisdiction.] — ^An order In a controverted election case made by the court below or a judge thereof not sitting at the time for the trial of the petition, and granting or rejecting an application to dismiss the petition on the ground that the trial had not been commenced within six months from the time of its presentation, is not an order from which an appeal will lie to the Supreme Court of Canada under s. 50 of the Dominion Controverted Elections Act. Pournier and Henry, JJ., dissenting. L'Assomption Case; Gauthier v. Normandeau; Quebec County Case; O'Brien v. Garon xiv 429. _ 12. Order dismissing objection to jurisdic- tion — Proceeding with trial after lapse of time limit — Appeal.] — ^An order, at the trial of an election petition, overruling an objection to the jurisdiction to proceed with trial as more than six months had elapsed from the presentation of the petition, is appealable to the Supreme Court of Canada. (Gwynne, J., dissented.) Glengarry Election Case; Purcell v. Kennedy xiv., 453. ' 1.5. Controverted election - — Discontinuance — Dismissing appeal.] — ^A motion to dismiss an appeal by either party ought properly to be made to the court. Soulanges Election Case, Cass. S. C. Prac. (2 ed.) 120; Cass. Dig. (2 ed.) 682. \ / , ^. 14. Practice in election cases — Quashing ap- peal — Motion in chambers.] — A motion to quash an election appeal was directed to stand over till hearing of the appeal, as too im- portant a matter to be disposed of on sum- mary application. Charlevoix Election Case Cass. Dig. (2 ed.) 695. 15. Appeal from, ruling on preliminary ob- jection at trial — Jurisdiction.] — Before pro- ceeding with the trial of an election petition the judges overruled an objection that they could not then proceed with the trial of one of two petitions against the appellant be- cause the petitions had not been bracketed as directed by R. S. C. c. 9, s. 30, was not a judgment gr decision appealable to the Supreme Court of Canada. Taudreuil Elec- tion Case, xxii., 1. 16. Appeal — Election petition — Preliminary abjection — Delay in filing — Objections struck out — Order in chambers — R. S. C. c. 8, s. 50.] — The Supreme Court refused to entertain an appeal from the decision of a judge in cham- bers granting a motion to have preliminary objections to an election petition struck out for not being filed in time. Such decision was not one on preliminary objections within s. 50 of the Controverted Election Act, and if it were, no judgment on the motion could put an end to the petition. West Assiniboia Case, xxvii., 215. 17. Appeal — Preliminary objections — R, S. C. c. 9, ss. 12 and 50 — Order dismissing peti- tion — Affidavit of petitioner.] ■ — The appeal given to the Supreme Court of Canada by the Controverted Elections Act (R. S. C. c, 9, s. 50), from a decision on preliminary ob- jections to an election petition can only be taken in respect to objections filed under s. 12 of the Act. No appeal lies from a judg- ment granting a motion to dismiss a petition on the ground that the affidavit of the peti- tioner was untrue. Marquette Election Vase, xxvii., 219. 18. Controverted election — Lost record — Substituted copy — Judgment on preliminary objections — Discretion of court below — Juris- diction.] — The record in the case of a con- troverted election was produced in the Su- preme Court of Canada on appeal against the judgment on preliminary objections and, in re- transmission to the court below, the record was lost. Under the procedure in similar cases in the province where the petition was pend- ing, a record was reconstructed in substitution of the lost record, and upon verification as to its correctness, the court below ordered the substituted record to be filed. Thereupon, the respondent in the court below raised prelim- ary objections traversing the correctness of a clause in the substituted petition which was dismissed by the judgment appealed from. — Held, that, as the judgment appealed from was not one upon a question raised by prelim- inary objections, nor a judgment upon the merits at the trial, the Supreme Court of Can- ada had no jurisdiction to entertain the ap- peal, nor to revise the dlscrfetion of the court below in ordering the substituted record to be filed. Two Mountains Election Case, xxxiii, 55. 19. Controverted election — Trial of petition — Extension of time — Appeal — Jursdiction.] — On 25th May, 1901, an order was made by Mr. Justice Belanger for the trial of the petition against the appellant's return as a member of the House of Commons for Beauharnois thirty days after judgment should be given by the Supreme Court on an appeal then pend- ing from the decision on preliminary objec- tions to the petition. Such judgment was given on 29th October and on 19th November, 505 BLtECTION LAW. 506 on application of the petitioner for instruc- tions, another order was made by the said judge which decided that juridical days only should be counted in computing the said thirty days, stating that such was the meaning of the order of 25th May, and that 6th December would be the date of trial. On the petition coming on for trial on 6th December appel- lant moved for peremption on the ground that the six mouths' limit for hearing had expired. The motion was refused and on the merits the election was declared void. On appeal to the Supreme Court. — Held, Davies, J., dissenting, that an appeal would not lie from the order of 19th November ; that the judge had power to make such order and its effect was to ex- tend the time for trial to 6th December, and the order for peremption was, therefore, right- ly refused. Beauharnois Election Case, xxxii., 111. 20. Appeal — Controverted election — Judg- ment dismissing petition.] — An appeal does not lie to the Supreme Court of Canada from a judgment dismissing an election petition for want of prosecution within the six months prescribed by s. 32 of the Dominion Contro- verted Elections Act (R. S. C. c. 9). Riche- lieu Election Vase, xxxii., 118. 21. Matter in controversy — Fee of office — Collateral issue — Future rights — Quebec Flec- tion Act — Disqualification — R. S. Q. art. 429. See Appeal, 29. 22. Discontinuance of election appeal — Practice — Certificate to speaken See No. 66, infra. 23. Controverted cases not appealed — Dis- allowance of costs. See Pkactice of Supreme Court, 107. 24. Setting down for hearing — Expediting proceedings. See Pbaotice of Supreme Court, 106. 25. Appeal — Election petition — Preliminary objections — Delay in filing — Objections struck out — Order in chambers — R. S. C. c. 8, s. 50. See No. 16, ante. 3. Ballots. 26. Dominion controverted election — Scru- tiny — Recount — Rejected ballots — 37 Vict. c. 9 ss. 4S, 45, 55, 80—41 Vict. c. 6, ss. 5, 6, 10 — Neglect by deputy returning officer — Ini- tials on ballots — Objections by county judge.] — In ballot papers containing the names of four candidates, the following ballots were held valid : 1. Ballots con- taining two crosses, one on the line above the first name, and one on the line above the second name, valid for the two first named candidates ; 2. Ballots containing two crosses, one on the line above the first name and one on the line dividing the second and third com- partments, valid for the first named candi- date; 3. Ballots containing properly made crosses in two of the compartments of the ballot paper, with a slight lead pencil stroke in another compartment ; 4. Ballots marked in the proper compartments thus X . The follow- ing ballots were held invalid : 1. Ballots with a cross in the right place on the back of the ballot paper, instead of on the printed side ; 2. Ballots marked with an x instead of a cross. — On a recount, the appellant, who had a minority of votes according to the return of the returning ofiicer, was declared elected, all the ballots cast at three polling districts, in which the appellant had polled only 331 votes and the respondent 345, having been struck out on the ground that the deputy returning officer had neglected to place his initials upon the backs of the ballots. — On appeal to the Supreme Court (P. E. I.), it was proved that the deputy returning officer had placed his initials on the counterfoil before giving the ballot paper to the voter, and afterwards, pre- vious to his putting the ballot in the ballot box, had detached and destroyed the counter- foil, and that the ballots used were the same as those he had supplied to the voters, and Peters, J., held that the ballots of the three polls ought to be counted, and did count them. — On appeal to the Supreme Court of Canada, Held, affirming the judgment of Peters, J., that in the present case, the deputy returning officers having had the means of identifying the bal- lot papers as those supplied to the voters the neglect to put their initials on the backs of these ballot papers not having affected the re- sult of the election, or caused substantial in- justice, did not invalidate the election. Monk Election Case [Hodgins' Blec. Cas. 725] ap- proved. Qucere, Whether the county judge can object to the validity of a ballot paper when no objection has been made to it by the candi- date or his agent, or an elector, in accordance with the provisions of 37 Vict. c. 10, s. 56, at the time of the counting of the votes by the deputy returning officer. Queen's {P. E. I.) Election Case; Jenkins v. Brecken, vii., 247. 27. Voting — Marking of ballots — Scrutiny — Irregularities — Numbering and initialing ballots — Dominion Election Act, 1874, c. 80 — Saving tilause.] — In a polling division, no statement of votes either signed or unsigned was in the ballot box. and the deputy return- ing officer had indorsed on each ballot paper the number of the voter on the voter's list. These votes were not included either in the count before the returning officer, the recount by the county judge nor before the judge who tried the election petition. Held, affirming the court below, that the ballots were properly re- jected.— Certain ballot papers were objected to as having been imperfectly marked with a cross, or having more than one cross, or having an inverted V, or because the cross was not directly opposite the name of the candidate, there being only two names on the ballot paper and a line drawn dividing the paper in the middle. Held, affirming the ruling at the trial that these ballots were valid. — Per Ritchie, C.J. Whenever the mark evidences an at- tempt or intention to make a cross, though the cross may be in some respects imperfect, the ballot should be counted, unless from the peculiarity of the mark made it can be rea- sonably inferred that there was not an honest design simply to make a cross, but that there was also an intention so to mark the paper that it could be identified, in which case the ballot should be rejected. But if the mark made indicates no design of complying with the law, but on the contrary a clear intent not to mark with a cross as the law directs, as, for instance, by making a straight line or round O, then such non-compliance with the law renders the ballot null. The Stepney Oose, remarks by Denmian, J. (4 O. M & H. 37) referred to. — During the voting] 507 ELECTION LAW. 508 at the request of one of the agents, who thought the ballot papers were not being pro- perly marked, a deputy returning officer, who had been putting his initials and the numbers on the counterfoil, not on the ballot papers, initialled and numbered about twelve of the ballot papers, but finding he was wrong, at the close of the poll, he, in good faith and with an anxious desire to do his duty, and in such a way as not to allow any person to see the front of the ballot paper, and with the assent of the agents of both parties, took these bal- lots out of the box and obliterated the marks he had put upon them. Held, Gwynne and Henry, JJ., dissenting, that the irregularities complained of not having infringed upon the secrecy of the ballot, and the ballots being un- questionably those given by the deputy return- ing officer to the voters, these ballots should be held good, and that said irregularities came within the saving provisions of s. 80 of the Dominion Elections Act, 1874. — Per Henry, J|. Although the ballots should be considered bad, the present appellant having acted upon the return and taken his seat, was not in a position to claim that the election was void. Boihwell Election Case; Hawkins v. Smith, viii., 676. 28. Marking 'ballots — Secrecy of iallotting — Puhlic policy — Findings of fact.] — Secrecy of the ballot is an absolute rule of public policy, and it cannot be waived. — It will re- quire a clear case to reverse the decision of the trial judge who has found as a question of fact whether there was or was not evidence that the slight pencil marks or dots objected to had been made designedly by the voter. — Also, that where the X is not unmistakably above or below the line separating the names of the candidates the ballot is bad. Haldimand Election Case; Walsh v. Montague, xv., 495. 4. COEEUPI Peactices. (a) Betting, 29. (6) Bribery, 30-47. (c) Conspiracy, 48. (d) Conveyance to polls, 49-51. (e) Intimidation, 52-54. (f) Subornation, 55. (g) Treating, 56-58. (h) Trivial Acts, 59. (o) Betting. 29. The Dominion Elections Act, lS7i — Wager by agent with voter — Bribery — Cor- rupt practice.]— Xti agent of the respondent, (the president of the Conservative Associa- tion ) . made a bet of $5 with one Parker, a Liberal, that he would vote against the Con- servative party, and deposited the $5 with a stakeholder, which, after the election, was paid over to Parker. At the trial, the agent denied that he was actuated by any intention to influence the voter, and alleged that the bet was made as a sporting bet on the spur of the moment, and with the expectation that as he said, Parker would warm up and vote •' he admitted that it passed through his mind that some one on the voter's side would make the money good if he voted. Parker said he had formed the resolution not to vote before he made his bet, but the evidence shewed that he did not think lightly of the sum which he was to receive for not voting, his answer be- ing : " Oh ! I don't know that $5 would be an insult to any one not to vote." Held, re- versing the judgment appealed from (4 Oht. Elec. Gas. 32 ) , that the bet in question was colourable bribery within the enactments of s.-s. 1 of s. 92 of the Dominion Elections Act, ] 874, and a corrupt practice which avoided the election. West Northumberland Election Case; Henderson v. Quillet, x., 635. ( 6 ) Bribery. 30. Undue influence — Agency — Treating — Statement in speech — ' Corrupt practices — Promising appointments — Bribery.] — Drink- ing on nomination or polling day is not a corrupt practice sufficient to avoid an election, unless the drink is given by an agent on account of the voter having voted or being about to vote: [39 Vict. c. 9, s. 94 (D.), com- pared with 17 & 18 Vict. c. 102, ss. 4, 23 & 36 (Imp.)] — A candidate, charged by his op- ponent with having no influence, is not guilty of a corrupt practice, if, in a public speech, in reply to the attack, he states " that he had had influence to procure more appointments for the electors of the county than any mem- ber." — Long before the election, R. with mem- bers of his family (the P. family), strongly desired to obtain employment for O., his brother-in-law. R., being a political sup- porter, client and personal friend of L., asked him on different occasions to procure 0. a place. The first time he spoke to him with reference to it was about a year previous to the election ; but he said nothing on that occa- sion about his father-in-law (P.). R.'s evid- ence then went on as follows : " Q. On what occasion did you speak to him (L.) about it? A. It was when the- question of an election arose that I spoke to him about it. Q. Last fall ? A. Yes. Q. What was the date at which you spoke to him regarding the P. family? A. I cannot positively say, but it was 4 or 5 weeks before there was question of the elec- tion. It was then spoken of in the county and out of the county. Q. That was during the election? A. Yes. Q. At all events, it was at the time the election was spoken of? A. Yes. Q. What did you say to him regard- ing your brother-in-law and your father-in- law? A. I went to see Mr. L. on different occasions, when I had some accounts to give him to collect, and I said to him : ' It would greatly please the P. family if you could pro- cure a place for my brother-in-law.' Q. Did you say to Mr. L. in what way it would please the P. family? A. I said this to him: 'It might, perhaps, prevent them from voting at the coming election.' Q. When you told Mr. L. that the P. family could be useful to him by not voting, what did Mr. L. say? A. He simply told me ' that he would think of me, and that if a vacancy occurred, he would do his best for me.' Mr. L., on the other hand, states: 'He (R.) had asked me, not during the election but many months before. I be- lieve, so far as my memory goes, a year before there was any talk of an election, to try and secure some office or occupation, with a slight remuneration, for his brother-in-law. I told him that I would consider his claims ; that he was one of my best supporters ; and, if I saw 509 ELECTION LAW. 510 any occasion where it would be possible for me to support his claim, I would do so. The thing remained in that way ; and previous to the election particularly, there was never one word said or breathed on that subject be- tween R. and myself. I never asked him to use this promise, and never intended to do so ; it was merely because he was a personal friend of mine and a man of respectability and importance that I promised to consider his claim, as I was justified as the representative of the county in doing.' " R. attended 3 or 4 meetings of respondent's committee, checked lists and reported his acts to members of the committee. Before the election, R. repeated to the P. family what had taken place between him and L. At the time of the election, R., while conversing in the family circle, was in- formed by one of them " they would vote for the defeated candidate, but would not use their influence." He said "Do as you please; they will use your votes as an objection to giving 0. a place." This conversation was not re- ported by R. to respondent's committee. Held, 1. that the respondent, having a perfectly legi- timate motive in promising R. to try and get an office for his brother-in-law — his desire to please a political friend and supporter — was not guilty of a corrupt act in making such promise; and further, that the act of R., in re- lation to the votes of the P. family, even if a corrupt one, was not committed with the know- ledge and consent of the respondent. — 2. "That whether R. was respondent's agent or not, the conversations which took place between him and the P. family do not sufficiently shew a corrupt intent on his part to influence their vote, and that he is not guilty of bribery or undue influence within the meaning of the statute. — Per Richards, C.J„ and Strong, J. (dissenting). There was sufflcjent evidence to declare R. respondent's agent. Jacques-Gar- tier Blection Case: Somerville v. Lafiamme, ii., 216. 31. Controverted Elections Act. ISTJf — Gifts for charitable purposes — Payment of deit — Bribery. '[ — Gifts and subscriptions for charitable purposes made by a candidate, in the habit of subscribing liberally to char- itable purposes, not proved to have been of- fered or made as an Inducement to, or on any condition that, any body of men, or any in- dividual, should vote or act in any way at an election, or on any express or implied promise or undertaking that sucli body of men, or individual would, in consequence of such gift or subscription, vote or act in re- spect to any future election, are not corrupt practices within the meaning of that expres- sion as defined by the Election and Contro- verted Elections Acts, 1874. — 2. That the settlement by payment of a just debt by a candidate to an elector without any refer- ence to the election, is not a corrupt act of bribery, and especially so when the candi- date did not ask the elector's support, and the elector neither promised nor gave it. Taschereau and Gwynne, JJ., doubted whe- ther or not the transactions were within the prohibitory provisions of the Act. (See Hodg. Elec. Cas. 751.) South Ontario Election Case; McKay v. Glen, iii., 641. 32. Professional speakers — Voter acting as canvasser — Legal expenses.'] — Per Pour- nier, J. Candidates may lawfully employ and pay for the services and expenses of speakers and canvassers, although they may be voters, provided there be no colourable device in the engagement in order to evade the bribery clauses of the Dominion Elections Act, 1874. Per Taschereau and Gwynne, .TJ. such payments would be illegal. North On- tario Election Case; Wheeler v. Gibbs, iv., 430. (Note.— See Hodg; Elec. Cas. 785.) 33. The Dominion Elections Act, l&H, ss. 96 & 98 — Hiring team — Corrupt practice — " Wilful " offence — Advance of money when not corrupt — Bribery — Constitution of sta- tute.'] — A charge was that S. bribed G. by payment of a note. The evidence shewed 6. had been canvassing for S. a long time before the note fell due, and had always supported him. He was on his way to retire his note when S. asked him to canvass that day, and promised to have the note arranged for. At the same time G. was negotiating with S. for a loan on mortgage, and it was at first stipulated that the amount of this note should be taken out of the mortgage money. S.'s agent, after the election, at the request of G., paid the mortgage money in full and allowed the matter of the note to stand until G. could see S. G. stated that neither the note nor the mortgage transaction influenced him in any way, and that he had to pay the note and did not expect respondent to make him a present of it. — Held, that the evidence did not shew that the advance of money was made in order to induce 6. to procure, or to endeavour to procure, tht return of the re- spondent, and was not, therefore, bribery within the meaning of s.-s. 3 of s. 62 of the Dominion Elections Act, 1874. Selkirk Elec- tion Case; Young v. Smith, iv., 494. 34. Bribery — Clandestine payment — Per- sonal expenses.'] — Evidence that the candidate clandestinely slipped $5 into a voter's pocket for a pretended service not mentioned to the voter nor included in the statement of per- sonal expenses *s sufficient to warrant a find- ing of personal bribery. Judgment appealed from (6 Q. L. R. 100) affirmed. Bellechasse Election Case; Larue v. Deslauriers, v., 91. 35. The Dominion Elections Act, 1874, ««• 82, 83 d 84 — Unauthorized employment of policemen — Colourable device — Liability for acts of sub-agent — Bribery.] — On a charge of bribery against T. and A., the trial judge found that A. had been directed, by T., an agent of P. to employ persons to act as po- licemen at a polling place on polling day, and that with money given to him for this purpose A. had bribed four voters, previ- ously supporters of C, but held that A. was not an agent of P., and therefore his acts could not void the election. On appeal. Held, reversing the judgment appealed from (10 R. L. 651), that as there was no excuse or justi- fication for employing the voters as police- men ; that their employment was merely colourable, and, having changed their votes in consequence of the moneys so paid to them, and P., the sitting member, being responsible alike for the acts of A., the sub-agent, as for the acts of T., the agent, and they having been guilty of corrupt practices, the election was void. Taschereau and Gwynne, JJ., held that A., the sub-agent alone, had been guilty of bribery. Charlevoix Election Case; Cimon V. Perrault, v., 133. 36. Corrupt practices — Giff toicards "build- ing town hall — Charity or Uherality — 511 ELECTION LAW. 512 Bribery — • Candidate's knowledge.'i — ^Before setting out on a canvassing tour P. placed in the hands of B., who was not his financial agent, $100 to be used for the purpose of the election. While visiting a part of the county with which he was not much acquainted, but with which B. was well acquainted, they paid an electioneering visit to K., a leading man in that locality, who indicated to B. his dis- satisfaction with F. and stated that, although he would vote for the Liberal party, he would not exert himself as much as in former elec- tions. F. then went out. and B. asked his host, " Do you want any money for your church?" received a negative reply, and add- ed, "Do you want any money for anything?" K. then answered, " If you have any money to spare there are plenty of things we want it for. We are building a town hall and we are scarce of money." B. said, " Will $25 do?" K. answered, "Whatever you like, it is nothing to me." The money was left on the table. Then, when bidding the appellant and B. good-bye. K. said, " Gentlemen, remember that this money has no influence as far as I am concerned with regard to the election." F. did not repudiate the act of B.. This $25 was not included in any account by F. or his financial agent, and large sums were corruptly expended in the election by the agent of F. Held, afiirming the judgment appealed from, that the giving of the $25 by B. to K. was not an act of liberality or charity, but a gift out of F.'s money, with a view to influence a voter favourably to his candidature, and that, although the money was not given in F.'s presence, yet it was given with his knowl- edge, and therefore that he had been person- ally guilty of a corrupt practice. Megantic Election Case; Frechette v. Goulet, Ix., 279. 37. Election expenses — Corrupt practice — Promise to pay bills of previous election.] — The payment by an agent of $147 to a voter claiming the same to be due for expenses at a previous election and refusing to vote until the amount was paid, is a corrupt practice. Judgment appealed from (10 Q. L. R. 247) affirmed. Selkirk Election Case (4 Can. S. C. R. 494) followed. Levis Election Case; Belleau v. Dessault, xi., 133. 38. Bribery — Inducing elector to abstain from voting — Corrupt loan by agent.'\ — Peti- tioner charged that H., an agent of the can- didate elected, corruptly offered and paid $5 to induce a voter to refrain from voting. H. was in the habit of assisting this voter, and being told by him that he contemplated go- ing on a visit a few days before the election,, and being away on election day, H. promised him $5 towards his expenses. Shortly after the voter went to H.'s house to borrow a coat for his journey, and H.'s Ijrother gave him $5. He went away and was absent on election day. Held, that the offer and pay- ment of the $5 formed one transaction and constituted a corrupt practice under the Elec- tion Act. Haldimand Election Case; Colter V. Glenn, xvii., 170. 39. Corrupt practices — Provincial election fund — Promissory note— Nullity.] — In an ac- tion on a promissory note the evidence shewed that its proceeds were given to an election agent to be used as a portion of an election fund controlled by the maker. Held, affirm- ing the judgment appealed from (M. L. R. 5 Q. B. 332), that the transaction was illegal under 38 Vict. c. 7 (now R. S. Q., art 425), which makes void any contract,' pro mise or understanding in any way relatini to an election under that Act, and the plain tiff could not recover. Dansereau v. St. Louis xviii., 587. 40. Treating on election day — Undue in- fluence — Election speech — Promising ap- pointments — Bribery and corrupt practices. See No. 72, infra. 41. Gifts for charities — Payment of a debt — Controverted Elections Act, 1874. See No. 31, ante. 42. Canvassers — Professional speakers Payment of expenses. See No. 32, ante. 43. Unauthorized policemen — Employment by agent — Bribery. See No. 35, ante. 44. Counter petition — 37 Vict. c. 10. s. 66 — Recriminating charges. See No. 133, infra. 45. Wager by agent — Treating on polling day — Payment of money after voting — Cor- rupt practices. See Nos. 2. 29, ante. 46. Bribery by agent — Loan to pay travel- ling expenses. See No. 87. infra. 47. Promise of employment — Findings by trial judges. See No. 88, infra. (c) Conspiracy. 48. Undue influence — Conspiracy respect- ing marking ballots — Interference with fran- chise. See No. 53, infra. (d) Conveyance to Polls. 49. Hiring teams — Construction of Do- minion Elections Act, 1874, s. 98.] — ^Evi- dence shewed that a team was hired some days before the opening of the poll by an agent of S. for the purpose of bringing voters to the polls. It went for the voters, but re- turned the day before polling day without the voters and was paid for. Heid, that the term " six preceding sections " in s. 98 " Dominion Elections Act, 1874," means the six sections immediately preceding the 98th, and, therefore, the hiring of a team to con- vey voters to the polls, prohibited by s. 9o, was a corrupt practice within the meaning of s. 98. (Henry, J., dissenting.) (Followed in Levis Election Case, xl., 133.) 8ell;wk Election Case; Young v. Smith, iv., 494. 50. Conveying voters to poll — Bailway pass— 37 Vict. c. 9, ss. 92, 96, 98 ^ iw — Powers of limited agent.] — Four charges of bribery were relied upon, three of whicn were dismissed for insufficient evidence as to 513 ELECTION LAW. 51-1 agency. As to the fourth, the facts were: L., agent of C, gave electors employed on steamboats free transportation tickets over the N. S. Railway from Montreal to vote at the election, without any promise exacted from or given by them. The tickets shewed on their face that they had been paid for, but L. had received them gratuitously. The trial judge found that the tickets had not been paid for, and were given unconditionally, and therefore held it was not a corrupt act. — Held, afiBrming the judgment appealed from, Fournier and Henry, JJ., dissenting, that tak- ing unconditionally and gratuitously of a vot- er to the poll by a railway compajiy, or an individual, whatever his occupation may be, or giving a voter a free pass over a railway, or by boat, or other conveyance, if unac- companied by any conditions or stipulations that might affect the voter's action in refer- ence to the vote to be given, is not prohibited by 37 Vict. c. 9 (D.).— 2. That if a ticket, al- though given unconditionally to a voter by an agent of the candidate, has been paid for, then such a practice would be unlawful under s. 96, and by virtue of s. 98 a corrupt practice, and would avoid the election. — 5. That an agent who is not a general , agent, but an agent with powers expressly limited, cannot bind the candidate by anything done beyond the scope of his authority. Berthier Election Case; Oenereux v. Cuthhert, ix., 102. 51. Dominion Elections Act, 1874, ss. 96, 98 — Promise to pay debts for a previous election — Hiring carters — Conveying voters to poll — Corrupt practices.'] — Hiring and pay- ing of carters by an agent to convey to polls voters who are known to be supporters of the agent's candidate is a corrupt practice. Selkirk Election Case; Young v. Smith (4 Can. S. C. K. 494) followed. — Judgment ap- pealed from (10 Q. L. R. 247) affirmed. Levis Election Case; Belleau v. Dussault,. xi., 133. (e) Intimidation. 52. Dominion Elections Act, 1874, s. 95 — Acts of agents — Clergymen using threats — Undue influence.] — When clergymen, agents for a candidate, have been guilty of undue influence the election is void. — Sermons and threats by parish priests may constitute acts of undue influence, and a contravention of the Dominion Elections Act, 1874, s. 95. — Per Ritchie, J. A clergyman has no right, in the pulpit or out of it, by threatening any dam- age, temporal or spiritual, to restrain the lib- erty of a voter so as to compel him into vot- ing or abstaining from voting otherwise than as he freely wills. Charlevoix Election Case; Brassard v. Langevin, i., 145. 53. Dominion Elections Act. 1874, s. 95 — Intimidation — Undue influence — Conspiracy — Corrupt practices — Marhing ballots — Idrnti- fieation.] — It was charged that the respondent personally, as well as acting by his agents, did undertake and conspire to impede, pre- vent, and otherwise interfere with the free exercise of the franchise by voters, and that, in furtherance of a scheme which they knew to be illegal, they did, in fact, so impede, prevent, and interfere with the franchise of certain voters, by getting their ballots mark- ed, rendered identifiable, and consequently void, whereby the franchise of these voters s. c. D. — 17. was unjustifiably interfered with. — At a pre- vious election the respondent had been de- feated by a majority of three votes, and the election having been contested was set aside, and certain voters were reported by the judge as having been guilty of corrupt practices, under s. 104 of the Dominion Elections Act. At a public meeting before the election C, the respondent's' agent, to intimidate these persons and prevent them from voting, in a speech, threatened them with punishment if they voted ; and subsequently printed notices to the same effect were sent to these voters. On the polling day P.,. who had been ap- pointed deputy returning officer, on the dis- tinct understanding with, and promise made to, the returning officer that he would not mark the ballots of these voters, consulted with C-, and on his advice and in collusion with him marked the ballots of certain of these voters. — Held, reversing the judgment appealed from (7 Legal News, 220) that the election was void by reason of the attempted intimidation practiced by C, the respondent's agent ; and by reason also of the conspiracy between the said agent and the deputy re- turning officer to interfere with the free ex- ercise of the franchise of voters, violations of s. 98 of the Dominion Elections Act, 1874, and corrupt practices under s. 98 of the said Act. Soulanges Election Case; Gholette v. Bain, X., 652. 54. Libel — Slander — Public interests — Charge of corruption — Privileged statements ■ — Challenge to sue. See No. 90, infra. (f) Subornation. 55. Agent — Authority of scrutineer — M'ilfully inducing voter to take false oath — Corrupt practice — ■ Farmers' sons — Oath T.] — A scrutineer appointed for a poll- ing place at an election under the written authority of a candidate- is an agent for whose illegal acts at the polling place the candidate will be answerable. — The insisting by such scrutineer of the taking of the farm- ers' sons' oath T by a hesitating voter whose vote is objected to and who is registered on the list as a farmer's son and not as an owner, when, as a matter of fact, the voter's father had died previous to the final revision of the list leaving the son owner of the property, is a wilful inducing or en- deavouring to induce the voter to take a false oath, so as to amount to a corrupt prac- tice within R. S. C. c. 8, ss. 90, 91. and such corrupt practice will avoid the election under s. 93. Strong and Gwynne, JJ., dissenting. — - Per Strong, J. That reading s. 41 in conjunc- tion with s. 45, s.-s. 2, and the oath T in schedule A. of R. S. C. c. 8. an inquiry on a scrutiny as to the qualification of a farm- er's son at the time of voting is admissible, and if it is shewn that a number of unquali- fied farmers' sons' votes larger than the ma- jority were admitted the election will be void. (Taschereau, J., contra.) Haldimand Elec- tion Case; Walsh v. Montague, xv., 495. (g) Treating. 56. Corrupt treating — Trivial act.] — Dur- ing an election liquor was given to an elector. 515 ELECTION LAW. 516 who at the same time was asked to vote for a particular candidate. — Held, that this was corrupt treating under E. S. C. c. 8, s. 86. West Prince Election Case, xxvii., 241. 57. Giving drinks on election day — Agency — Undue influence. See No. 72, infra. 58. Giving liquor to voter — Act of good- fellowship — Corrupt practices. See Nos. 2, 29. ante. (h) Trivial Acts. 59. Corrupt practices — Trivial or un- important acts — Benefit of statute.^ — Though the only corrupt act prbred against a sitting member was of a trivial and unim- portant character, and he had at public meet- ings warned his supporters against the com- mission of illegal acts, yet as such act was committed by an agent whom he had taken with him to canvass a certain locality, and there were circumstances which should hiave aroused his suspicion, he should have given a like warning to this agent, and not having done so he was not entitled to the benefit of the amendment to The Controverted Elec- tions Act in 54 & 55 Vict. c. 20, s. 19. West Prince Election Case, xxvii., 241. 5. Deposit. GO. Controverted election — Appeal — Dissolution of Parliament — Petition lapsing ■ — Return of deposit.~] — Between the appeal from a decision on 8th November, 1890, in a controverted election case and the sittings of the court Parliament was dissolved, and by effect of dissolution the petition dropped. Respondent, in order to have costs out of the deposit in court moved before a judge of the Supreme Court in chambers (on reference from the full court) to dismiss the appeal for want of prosecution, or to have the re- cord remitted to the court below. The peti- tioner claimed the deposit should be returned to him. — Patterson, J., held that the final de- termination of the right to costs being kept in suspense by the appeal, the motion should be refused ; but inasmuch as the deposit in the court below ought to be disposed of by an order of that court, the registrar of the Supreme Court should certify to the court below that the appeal was not heard, and that the petition dropped by reason of dis- solution of Parliament on 2nd February, 1891. [Note. — The court below refused to pay out the deposit, and on motion by peti- tioner the Supreme Court (being shewn that the order by Patterson, J., had not been ap- pealed from) ordered on 15th March, 1893, (see No. 63, infra), a certificate to issue re- citing the proceedings that took place and de- claring that petitioner was entitled to the re- payment to him of the deposit, both as security for costs of petition and as security for costs of appeal.] Halton Election Case; Lush V. Watdie, xix., 557. 61. Preliminary objections — Service — Se- curity — Receipt — R. S. C. c. 9, ss. 8 <£■ 9, s.-ss. e £ g and s. lO-'i — Two members are returned for an electoral district in P. g. Island. With a petition against the return of the two sitting members, petitioner de- posited $2,000 with the deputy prothonotary and in the notice of presentation of petition and deposit of security stated that he had given security of $1,000 for each respondent "in all $2,000" duly deposited with the protho- notary as required by statute. The receipt was signed by the deputy prothonotary appointed by the judges, and acknowledged receipt of $2,000, without stating that $1,000 was de- posited as security for each respondent. The petition was served personally on the re- spondents at Ottawa. — Held, 1. That person- al service of the petition at Ottawa, without an order of the court, is a good service un- der s. 10 of the Controverted Elections Act. — 2. That there being at the time of the pre- sentation of the petition security of $1,000 for the costs of each respondent the security given was sufficient. — 3. That payment to the deputy prothonotary was a valid payment Queen's and Prince (P. E. I.) Election Cases, XX., 26. 62. Controverted election — Preliminary objections — Deposit of security — Legal tender — R. S. C. c. 9, s'. 9 (/.).] — ■ The preliminary objection was that the security and deposit receipt were illegal, null and void, the receipt being : — " That the security required by law had been given on behalf of the petitioners by a sum of $1,000 in a Dominion note, to wit, a bank note of $1,000 (Dominion of Canada) bearing the number 2914, deposited in our hands by the said petitioners, constituting a legal tender under the statute of the Dominion of Canada now in force." The deposit was in fact a Dominion note of $1,000. Held, affirming the judgment appealed from, that the deposit and receipt complied sufficiently with s. 9 (/) of the Dominion Controverted Elections Act. Argenteuil Election Case ■ Christie v. Mor- rison, XX., 194. 63. Dissolution of Parliament — Aiatement of proceedings — Return of deposits — Pay- ment out of court below — Practice-} — In the interval between the taking of an appeal from the decision in the matter of a controverted election, and the sittings of the Supreme Court of Canada, when the appeal was to have been heard. Parliament was dissolved, and the petition was dropped and declared to have abated in consequence, by the judg- ment of His Lordship Mr. Justice Patterson, sitting as a judge of the Supreme Court of Canada in chambers (19 Can. S. C. R. 557). During a subsequent session of the Supreme Court, a motion was made on behalf of the petitioner for an order directing payment out of the court below of the deposit made in that court as security for the costs of the petition, and also of the further deposit made in said court below as security for the corts of the appeal to the Supreme Court. HeU, that the petitioner was entitled to a special order declaring and ordering that the moneys so deposited should be paid to the petitioner out of the said court below. Halton Elec- iion Case; Lush >-. Waldic. 15th March, 1893. 64. Deposit of security — Payment to acting officer. See No. 116, infra. 517 ELECTION LAW. 518 6. DiSCEETIONAET OBDER. 65. Service of petition — Extension of time — Discretion of judge — R. S. 0. o. 9, s. 10 — Practice — Preliminary objections.'] — An order extending time for service of an election peti- tion filed at Halifax from five days to fifteen days, on tlie ground that the respondent was at Ottawa, is a proper order for the judge to make in the exercise of his discretion under s. 10 of c. 9, R. S. C. — SemUe, per Ritchie, C.J., and Henry, J., that the court belovr had power to make rules for the service of an election petition out of the jurisdiction. — Per Strong, J. An extremely strong case should be shewn to induce the court to allow an ap- peal from the judgment of the court below on preliminary objections. Shelburne Elec- tion Case; Robertson v. Laurie, xiv., 258. 7. DiSCONTINTJANCE. 66. Election appeal — Discontinuance ■ — ■ Practice — Certificate of registrar — New writ.'] — Appellant was unseated for corrupt practices by agents, and upon appeal the case was inscribed for the May session, 1892. When the appeal was called, no one appearing for appellant, counsel for respondent stated that he had been served by appellant's soli- citor when a notice of discontinuance, and the appeal was struck off the list.-^The no- tice of discontinuance having been filed in the registrar's ofiSce, he certified to the Speaker of the House of Commons that by reason of such discontinuance, the decision of the trial judges and their report, were left unaffected by proceedings taken in the Su- preme Court. The Speaker subsequently is- sued a new writ. L'Assomption Election Vase; Gauthier v. Brien, xyi. 29. 67. Controverted election — Change of soli- citors — Payment of costs — Abandonment of appeal — Stay of proceedings on appeal — Per- emptory order for hearing.] — While an ap- peal was pending, on 1st October, 1901, mo- tion was made for change of solicitors of record and was gnanted on deposit being made of $400 to secure former solicitor's costs. Thereupon counsel for appellant stat- ed that an agreement for postponement of the hearing had been come to and the order for postponement wa? made accordingly. Beaudin, K.C., then asked leave to present a petition to have a new petitioner appointed on the ground that the postponement was the result of fraudulent collusion between the new solicitors and the former petitioner who have been paid to abandon proceedings. Leave for the application was granted after notice in order that, if collusion were proved, the order to postpone might be rescinded. On 22nd November, another motion to change solicitors was made and granted, on consent of parties, the hearing being ordered to be peremptorily fixed for the term then in session and not later than 29th November. This date for hearing was fixed by the court suo mot's,. On 29th November appellant's counsel applied to stay proceedings till costs of the solicitor on the record from 1st October to 22nd November had been paid. The order was refused and the hearing ordered to pro- ceed forthwith. Upon appellant's counsel stating that the case could not be distin- guished from the Two Mountains Election Case (31 Can. S. C. R. 437), the appeal was dismissed with costs. Terrebonni Election Case, 29th November, 1901. 68. Recriminatory charges — Procedure — Withdrawal of claim to seat — Order avoiding election. See No. 126, infra. 69. Discontinuance — Appeal dismissed by consent. 'See Practice of Supreme Court, 104, 105. 8. Disqualification. 70. House of Commons — Eligible candidate — Legislative assembly — Disqualification — Contract with the Crown — 39 'Vict. c. 3, ss. 4 <& 8 (P. E. /.)] — By instrument under the hand and seal of the Lieutena'nt-Governor of P. E. I., C. was appointed ferryman for the term of 3 years, pursuant to the Acts relating to ferries, and the commission provided that C. should be paid a subsidy of $95 for each year of said term. C. had given to the Gov- ernment a bond with two sureties for the performance of his contract. C. assigned to P. one-fourth interest in the ferry contract, and it was agreed that one-fourth of the pro- fits should be paid over by C. to P. At the time of the agreement P. was a member of the House of Assembly of P. B. I. Subse- quently P. was returned as a member elect for the House of Commons for Prince County, P. B. I., and upon his return being contested, Held, afiirming the judgment appealed from, Taschereau, J., dissenting, that, by the agree- ment with C, P. became a person holding ^ and enjoying a contract or agreement with Her Majesty within the meaning of 39 Vict, c. 3, s. 4 (P. B. I.), which disqualified him and rendered him ineligible for election to the House of Assembly or to sit or vote in the same, by s. 8, to be read with s. 4, his seat in the Assembly became vacated, and he was therefore eligible for election as a mem- ber of the House of Commons. Prince Elec- tion Case; Haekett v. Perry, xiv., 265. 71. Corrupt practices — Conviction of re- spondent — Equal division of opinion on appeal. See No. 128, infra. 9. Bvidence. 72. Candidate's evidence — Multiplicity of charges — "Weight of evidence.'] — The petition in the usual form, charged bribery and cor- ruption on behalf of respondent and his agents ; and treating by agents on nomina- tion and polling days. The bill of particulars formulated 98 charges, but, in appeal, they only insisted upon 17. of which 7 attached personally to the respondent, and 10 to his agents. Respondent was examined on his own behalf, and, in all, 280 witnesses were heard. — The petition was dismissed on all the charges and on appeal to the Supreme Court against this judgment it was unanimously aSirmed, except as to the charge of bribery and undue influence by one Robert, and — Held. 1. That the evidence of a candidate on his own behalf, is admissible in the Province of Quebec. — 2. That when there are a multiplicity of charges each charge •519 ELECTION LAW. 53D should be treated as a separate charge, and, if proved by one witness only, and re- butted by another, the united weight of the testimony, without accompanying or collateral circumstances to aid the court in its apprecia- tion of the contradictory statements, cannot overcome the effect of the evidence in re- buttal, and that, in such a case, the candidate is entitled to the presumption of innocence to turn the scale in his favour. J acques-G artier lEleoUon Case; SomervUle v. Laflamme, ii., 216. 73. Dominion controverted election — Pre- liminary objectiojis — Onus proiandi — Gosts.'\ — The petition complained of the return of G. for the House of Commons and was met by preliminary objections, that the petition- ers were not electors, nor qualified to vote at the election. A day was fixed for hearing preliminary objections, no evidence was given upon them, and they were dismissed, follow- ing Duval V. Gasgrain (19 L. C. Jur. 16), on the ground that the onus proliandi was on the respondent to support such objections. — On appeal, Fournier, Henry, and Gwynne, JJ., were of opinion that the onus proiandi was on the appellant, who by his preliminary ob- jections had affirmed the disqualification of the petitioner. Gontra. Ritchie, C.J., and Strong and Taschereau, JJ. The court being equally divided, the judgment of the court be- low stood affirmed without costs. Megantic Election Case; Frechette v. Goulet, viii., 169. 74. Shorthand notes of evidence — Exten- sion of stenographic notes.] — The shorthand notes of the stenographer employed by the court to take down the evidence were not extended in his handwriting, but were signed by him. Held, that the notes of evidence could not be objected to. Megantic Election Gasej Frechette v. Goulet, ix.. 279. 75. Election expenses — Accounting for ex- penditure — Presumption.] — When an agent of a candidate receives and spends for election purposes large sums of money, and does not render an account of such expenditure, it will create a presumption that corrupt practices have been resorted to. Judgment appealed from (10 Q. L. R. 247) affirmed. Levis Election Gasej Belleau v. Dessault, xi., 133. 76. Proof of agency — Inferences from com- bined elements. See No. 38. ante. 77. Proof of status of petitioner — Onus proliandi — ^ Reservation in decision on pre- liminary objections — Failure to appeal — Res judicata. See No. 95, infra. 78. Inferences hy trial judges — Reverse on appeal. See No. 87, infra. 79. Evidences of corrupt practices — Find- ^ngs of trial judges — Interference on appeal. See No. 88, infra. _ 80. Status of petitioner — Gopy of voter's list — Gertificate. See No. 97, infra. 10. Expenses. 81. Ganvassers — Promise to pay legal ex penses — Voter acting as prdfessional speake — Dominion Elections Act, 1874, s.-s. 3 s. 92.1 — A promise by a candidate to pay thi travelling expenses of a voter who acted ai professional speaker on his behalf providet it were legal to do so. is not a breach of s.-s 3 of s. 92 of The Dominion Elections Act 1874. Taschereau and Gwynne, JJ., dis senting. — Per Fournier, J. Candidates maj legally employ and pay for the expenses anc services of canvassers and speakers, althougl they may be voters, provided the agreement be not a colourable one intended to evade tht bribery clauses of the Dominion Elections Act, 1874. — Per Taschereau and Gwynne, JJ, Such a payment would be illegal. (Sec Hodg. Elec. Case. 785.) North Ontario Elec- tion Gase; Wheeler v. Gibhs, iv.. 480. 82. Personal expefises of candidate — State- ment under 37 Vict. c. 9, s. 123.] — Per Tas- chereau, J. The personal expenses of candi- dates should be included in' the statement of election expenses required to be furnished to the returning officer under 37 Vict. c. 9, s. 123. (Fournier and Henry, J J., expressed no opinion on the merits. Judgment appealed from (6 O. L. R. 100) affirmed. ) —BeUecftase Election Gase; Larue v. Deslauriers, v., 9]. 11. Findings in Trial Couet. 83. Bribery — Personal expenses — Glanie- stine payment to voter.] — The main charge was bribery of one A., and the trial judge found that the appellant had underhandedly slipped into a voter's pocket $5 for a pre- tended purpose, not mentioned to the recipi- ent ; that this amount was not included in the published return of expenses required by the Election Act, and was bribery. Eeli, that an appellate court ought not to reverse the findings of fact of the trial judge nnless the court is convinced beyond doubt that his conclusions are erroneous, and that the evi- dence in this case warranted the finding that appellant had been guilty of personal bribery. Judgment appealed from (6 Q. L. R. 100) affirmed. Bellechase Election Gase; Larue v. Deslauriers, v., 91. 84. Appeal on matters of fact — Bribery- Corrupt intent.] — Among charges of bribery and treating decided was the following: — One M., a blacksmith, who was a neighbour of D., had in his possession for two -years several pieces of broken saws which D. had left with him for the purpose of making scrapers out of them on shares. A few days prior to nomi- nation D. went into JSX.'s shop, and for sharp- ening a scraper told M. to keep the old pieces of saws which he might still have. M. in his evidence answered : "Q. He did not speak of your vote? A. No. Q. What has he said? A. He said that Magnan was coming like mustard after dinner. Q. Dugas did not ask you for whom you were? A. No. Q. D" you swear on the oath D. left with you these two pieces of saws in question with the in- tent to buy (bribe) you? A. I think so, I cannot say that it is sure, I don't know his mind (son idee). It is all I can swear. Q- It has not changed your opinion? A. No. Q. For whom were you In the last election? 521 ELECTIOISr LAW. 523 A. For Magnan." The scrapers were worth about $2, and of no use to D., and no other conversation took place afterwards between the parties. The trial judge found no inten- tion to corrupt M. Held, that the Supreme Court on appeal will not, gn mere matters of fact, reverse the findings of the judge who tries an election petition, unless the evidence is of a nature to convey an irjesistible con- viction that the judgment is not only wrong, but erroneous ; that the evidence in support of the charge of bribing M., as well as of the other charges of bribery and treating, was not such as would justify an appellate court in drawing inferences that D. intended to cor- rupt the voters. Montcalm Election Case; Magnan v. Dugas, ix., 93. 85. Appeal — Findings of fact.'] — As to three charges, the court was of opinion that on the facts the judgment of the court below was not clearly wrong and should therefore not be reversed. Berthier Election Case; ■Genereux v. Cuthbert, ix., 102. 86. Secrecy of ballot — Marking ballot — Reversal on questions of fact — Findings of trial judge.] — A case must be clear in order to obtain reversal of findings of the trial judge on facts as to marks on ballots. Hal- dimand Election Case, xv., 495. 87. Controverted election — Reviewing in- ferences on appeal — Evidence — Loan for travelling expenses — Corrupt intent — R. 8. 0. c. 8, ss. 88, 91; s. 8^ (a) (e) — Free railway, tickets — Bribery.] — G., a voter and supporter of respondent, holding a free railway ticket to go to Listowel to vote and wanting $2 for his expenses while away from home, asked for the loan of the money from W., a bar- tender and friend. W. not having the money at the time applied to S., an agent of re- spondent, who was present in the room, for the money, telling him he wanted it to lend to G., to enable him to go to Listowel to vote. S., the agent, lent the money to W., who handed it over to G. W. returned the $2 to S. the day before the trial. The judges at the trial held it a bond, fide loan by S. to W. Held, Strong and Patterson, JJ., dis- senting, reversing the judgment appealed from, that as the decision of the trial judges depended on the inference drawn from the evidence their decision could be reviewed in appeal, and that the proper inference to be drawn from the undisputed facts in the pre- sent case was that the loan by S. to W. was a mere colourable transaction by S. to pay the travelling expenses of G. within the pro- visions of s. 88 of The Dominion Elections Act and a corrupt practice sufiicient to avoid the election under s. 91 of the Act. — Strong, J., dissenting, was of opinion that there was no evidence that the loan was made to G. with the corrupt intent of inducing him to vote for respondent. — Patterson, J., dissent- ing on the ground that as the decision of the court below depended on the credibility of the witnesses it ought not to be interfered with. — Per Strong and Patterson, JJ., affirming the judgment appealed from, that upon the evidence, which is reviewed in the judgments, the G. T. R. tickets issued at Toronto and Stratford for transportation of voters by rail to the polls in this case were free tickets, and' that as the free tickets had been given to voters who were well known supporters of je- spondent, prepared to vote for him and for him alone, if they voted at all, it did not amount to paying the travelling expenses of voters within the meaning of s. 88 of The Dominion Elections Act. Berthier Election Case (9 Can. S. C. R. 102) followed. lHorth, Perth Election Case; Campbell v. Grieve, xx., 331. 88. Bribery — Promise to procure employ- ment by candidate — Corrupt practice — Find- ing of the trial judges — Interference on appeal —R. 8. C. c. S, s. 97; (J).]— On a charge that appellant had been guilty personally of a cor- rupt practice by promising to W. to endea- vour to procure him a situation in order to induce him to vote, and that such promise was subsequently carried into effect, the trial judges held on the evidence that the charge had been proved. The promise was charged as having been made in Thorold on 28th Feb- ruary, 1891. It was proved that W. some time before the trial made a declaration upon which the charge was based, at the instance of the solicitor for petitioner, and had got for such declaration employment in Montreal from the C. P. R. Co. until the trial took place, and W. swore that the promise had been made on 17th February. G. (appellant), although denying the charge, admitted in his examination that he intimated to W. that he would assist him, and there was evidence that after the election G. wrote to W. and did endeavour to procure him the situation, but the letters were not put in evidence, hav- ing been destroyed by W. at the request of appellant. Held, affirming the judgment ap- pealed from, that as the evidence of W. was in part corroborated by the evidence of appel- lant, the conclusion by the trial judges was not wrong, still less so entirely erroneous as to justify the court as an appellate tribunal in reversing the decision of the court below on the questions of fact involved. Welland Election Case; German v. Rothery, xx., 376. 89. Findings in judgment appealed from — Vague general terms.] — The judgment ap- pealed from did not contain any special find- ings of fact nor any statement that any of the charges mentioned in the particulars were found proved, but stated generally that cor- rupt acts had been committed by respondent's agents without his knowledge, and declared that he had not been duly elected and that the election was void. On an appeal on the ground that the judgment was too general and vague. Held, that the general finding that corrupt acts had been proved was a sufficient compliance with the terms of the statute E. S. C. c. 9, s. 43. Pontiac Election Case; Murray v. Lyon, xx., 626. 12. Libel and Slander. 90. Libel — 8lander — Privileged statements — Public interest — Charging corruption against political candidate — Challenging to sue — Costs.] — Both parties were candidates for election and present at a public meeting when defendant stated that he had bribed the plaintiff at a former election to retire for money paid him. He afterwards printed the statement in a newspaper and on " dodgers " circulated through the constituency with a printed challenge to the plaintiff and others implicated to justify their innocence of the charges by a suit for damages, offering to deposit costs of suit. Curran, J., gave a ver- 523 ELECTION LAW. 534 diet for plaintiff which was reversed on ap- peal. The reversal of the trial court judg- ment was affirmed by the Supreme Court, without costs, the Chief Justice dissenting. CrautMer v. Jeannotte, xxviii., 590. 13. Petition, 91-122. (o) Status of Petitioner, 91-99. (6) Filing of Petition. 100-104. (c) Form of Petition, 105-111. (d) Service of Petition, 112-122. (a) Status of Petitioner. 91. Controverted election — Status of peti- tioner — Evidence — Filing list of electors.'] — At the trial the returning officer, who was also the registrar of the county, and secretary of Inverness, was called as witness, and pro- duced, in his official capacity, the original list of electors for the Township of Inverness, and proved that the name of one of the petitioners, whom he personally knew, was on the list. The original document was retained by the witness, and, as neither of the parties re- quested that the list should be filed, the judge made no order to that effect. The status of the other petitioners was proved in the same way. Held, that there was sufficient evidence that the petitioners were persons who had a right to vote at the election to which the peti- tion related under 37 Vict. c. 10, s. 7 (D.) Megantic Election Case; Frechette v. Goulet, ix., 279. 92. Status of petitioner — Onus protandi — Costs.] — By preliminary objections respond- ent claimed the petition should be dismissed because the petitioner had no right to vote at the election. On the day fixed for proof and hearing of the preliminary objections the petitioner adduced no proof and the respond- ent declared that he had no evidence and the preliminary objections were dismissed. Held, per Sir W. J. Ritchie. C.J., and Taschereau and Patterson, JJ., that the onus prohandi was upon the petitioner to establish his sta- tus, and that the appeal should be allowed and the election petition dismissed. — Per Strong, J., that the onus prohandi was upon the peti- tioner, but in view of the established juris- prudence the appeal should be allowed with- out costs. — Fournier and Gwynne, JJ., con- tra, were of opinion that the onus probandi was on the respondent. Megantic Election Case (8 Can. S. C. K. 169) discussed. Stan- stead Election Case; Rider v. Snow, xx., 12. See No. 94, infra. 93. Description of petitioner — Additions — Redundancy of nomenclature.] — A petition simply stated that it was the petition of "A. C," of Lochiel, County of Glengarry, without describing his occupation, and it was shewn by affidavit that there are two or three other persons of that name on the voters' list for that township. Held, affirming the judgment appealed from, that the petition should not be dismissed for the want of a more particular description of the petitioner. Glengarry Election Case; McLennan v. Chisholm xx., 38. See No. 105, infra. 94. Election petition — Status of petitioner — Onus probandi.] — The appellant filed pre- liminary objections as to the status of the petitioners. When the parties were heard upon the merits of the preliminary objections no evidence was given as to the status of the petitioners and the court dismissed the objec- tions. Held, reversing the judgment appealed from, Gwynna, J., dissenting, that the onus was on the petitioners to prove their status as voters. Stanstead Election Case (20 Can. S. C. R. 12) followed. Bellechase Election Case; Amyot v. Labrecque. xx., 181. 95. Preliminary objections — Reservation of question in judgment — Res judicata — Failure to appeair— Status of petitioner — Practice — R. S. C. c. 9, ss. 12 & 13— Evidence::]— The pre- liminary objection was to the status of peti- tioner, and copies of the voters' lists were filed but no other evidence offered. The court set aside the objection " without prejudice to the right of the respondent if so advised to raise the same objection at the trial of the petition." No appeal was taken from this decision and the case went to trial, where the objection was renewed but was overruled by the trial judges who held that they had no right to entertain it, and on the merits they allowed the petition and voided the election. The appeal to the Supreme Court of Canada was on the ground that the onus was on xieti- tioner to prove status, which had been done. Held, affirming the judgment appealed from, that the objection raising the question of the qualification of the petitioner was properly raised by preliminary objection and disposed of, and the judges at the trial had no juris- diction to entertain such objection. Prescott Election Case; Proulx v. Eraser, xx., 196. 96. Controverted election — Evidence — Status of petitioner — Preliminary objection — Dominion Elections Act, R. S. C. c. 8, ss. SO (b), 31, 33 41, 54, 58 & 65— Electoral Fran- chise Act, R. S. C. c. 5, s. 3B.]—Held, affirm- ing the decision of Gill, J., Gwynne and Pat- terson, JJ., dissenting, that where the peti- tioner's status in a controverted election is objected to by preliminary objection, such status should be established by the production of the voters' list actually used at the elec- tion, or a copy tHereof certified by the Clerk of the Crown in Chancery, and the production at enquMe of a copy certified by the revising officer of the list of voters upon which peti- tioner's name appears, but which has not been compared with the voters' list actually used at said election is insufficient proof. Richelieu Election Case; Paradis v. Bruneau, xxi., 168. See No. 97, infra. 97. Election petition — Copy of voters' list-- Status of petitioner — Certificate.]— On tne hearing of preliminary objections to an elec- tion petition to prove the status of the peti- tioner a list of voters was offered with a certificate of the Clerk of the Crown in Chan- cery, which, after stating that said list was a true copy of that finally revised for tne district, proceeded as follows: "And is also a true copy of a list of voters which was usea at said polling division at and in relation to an election of a member of the House pi Commons of Canada for the said electoral dis- trict . . which original list of voters was returned to me by the returning officer tor said electoral district in the same plight ano 525 ELECTION LAW. 526 condition as it now appears, and said original list of voters is now on record in my ofBce." ileld, that this was, in effect, a certificate that the list offered in evidence was a true copy of a taper returned to the Clerk of the Crown by the returning officer as the very list used by the deputy returning officer at the polling dis- trict in question, and that such list remained of record in possession of said clerk. It was then a sufficient certificate of the paper offered being a true copv of the list actually used at the election. Richelieu Eleetion Vase (21 Can. S. C. R. 168) followed. Winnipeg Elec- tion Case; Macdonald Election Case, xxvii., 201. 98. Controverted election — Preliminary oh- jectionn — Status of petitioner — 61 Vict. c. Hi; 63 & 6Jt Vict. c. 12 {D.)—59 Vict. c. 9, s. 272 ( Que. ) — Dominion franchise — Construction of statute."] — The principal contention on pre- liminary objections to a controverted election petition was that the petitioner had been guilty of corrupt practices before and during the election, and that, by the effect of the statutes 61 Vict. c. 14 and 63 & 64 Vict. c. 12, the Dominion Franchise Act was repealed, and the provisions of the " Quebec Elections Act " regulating the franchise in the Province of Quebec substituted therefor so as. thereby, to deprive the petitioner of a right to vote under 59 Vict. c. 9, s. 272, and being so deprived of a vote that he had no status as petitioner. In the Election Court, evidence was taken on is- sues joined and the judge, holding that no corrupt practice upon the part of the peti- tioner had been proved, dismissed the pre- liminary objections. On appeal to the Su- preme Court of Canada : Held, that, as cor- rupt practices had not been proved, the ques- tion as to the effect of the statutes did not arise. — Per Gwynne, J. The amendment to the Dominion Franchise Act by 61 Vict. c. 14 (D.) and 63 & 64 Vict. c. 12 (D.) has not introduced into the Act the provisions of s. 272 of " The Quebec Elections Act " so as to deprive a person properly on the * list of voters for a Dominion election of his right to vote at such election. Beauharnois Elec- tion Case; Loy v. Poirier, xxxi., 447. 99. Eleetion petition — Service — Copy — Status of petitioner — Preliminary objection — Evidence — Electoral franchise. See Nos. 96 and 97, ante, and No. 108, infra. (6) Filing of Petition. 100. Dominion Controverted Elections Act, 1874, s. S, s.-s. 2 — Cross petition — Time for filing.'] — V. the sitting member, against whom a petition had been filed by L., presented a cross-petition under s. 8. s.-s. 2, of the Dom- inion Controverted Elections Act, 1874. which was not filed within thirty days after the pub- lication of the return by the Clerk of the Crown in Chancery, but within the fifteen days after the service of the petition. A pre- liminary objection, that the c'ross-petition was filed too late, was maintained by Jleredith, O.J. Held, on appeal, that the sitting member could not file a cross-petition, within the fif- teen days mentioned in the last part of s.-s. 2 of s. 8, against a person who was an unsuc- cessful candidate and is a petitioner. — Per Fournier, Taschereau and Gwynne, JJ. The extra fifteen days is given only when a peti- tion has been filed against the sitting mem- ber, alleging corrupt practices after the re- turn. (Henry, J., dissenting.) Montmorency Election Case; Valin v. Langlois, iii., 90. 101. Dominion controverted election — On- tario Judicature Act. 1881 — Presentation of petition — Court.] — The election petition against the election and return of the respon- dent was intituled in the High Court of Jus- tice, Queen's Bench Division, presented to the official in charge, filed and entered in the books of that office. A preliminary objection was taken that the High Court of Justice had no jurisdiction. Held, Henry and Taschereau, JJ., dissenting, reversing the judgment of Came- ron, J., (1 O. E. 43), that the Ontario Judica- ture Act, 1881, makes the High Court of Jus- tice and its divisions a continuation of the former courts merged in it, and that those courts still exist under new names ; and that the petition had not been irregularly intituled and filed. West Huron Election Case; Mit- chell V. Cameron, viii., 126. 102. Controverted election — Preliminary ob- jections — English general rules — Copy of peti- tion— R. S. C. c. 9, ss. 9 (ft), 83.]— Held, affirming the judgment appealed from (7 Man. L. R. 581), Strong and Gwynne, JJ., dis- senting, that the judges of the court in Manitoba not having made rules for practice and procedure in controverted elections the English rules of Jlichaelmas Term, 1868, were in force, and that (under rule 1) the peti- tioner, when filing an election petition, is bound to leave a copy with the clerk of the court to be sent to the returning officer, and his failure to do so is the subject of a substan- tial preliminary objection and fatal to the petition. Lisgar Election Case; Collins v. Ross, XX., 1. See No. 104, infra. 103. Preliminary ohjections — Filing of peti- tion — Construction of statute — Interpretation of words and terms — Legal holiJai/.] — When the time limited for presenting a petition against the return of a member of the House of Commons of Canada expires or falls upon a holiday, such petition may be effectively filed upon the day next following which is not a holiday. This decision was followed in The Burrard Election Case (31 Can. S. C. R. 459). Nicolet Election Case, xxix., 178. (Leave to appeal to Privy Council refused, 32 Can. Gaz. 293.) 104. Election petition — Deposit of copy — Time limit — Preliminary oijections.] — Where a copy of an election petition was not left with the prothonotary when the petition was filed, and, when deposited later, the forty days within which the petition had to be filed had expired : Held, Gwynne. J., dissenting, that the petition was properly dismissed on preliminary objections (8 B. C. Rep. 65). Lisgar Elec- tion Case (20 Can. S. C. R. 1) followed.— Per Gwynne, J. The Supreme Court is com- petent to overrule a judgment of the court differently constituted if it clearly appears to be erroneous. Burrard Election Case; Duval V. Maxwell, xxxi., 459. (c) Form of Petition. 105. Form of petition — Description of peti- tioner — Amendment.] — Held, reversing the 537 ELECTION LAW. 538 judgment appealed from (7 Man. L. R. 581), that the omission to set out in the petition the residence, address and occupation of the peti- tioner is a mere objection to the form which can be remedied by amendment, and is there- fore not fatal. Lisgar Election Case; toUms V. Boss, XX., 1. See No. 93, ante. 106. Election petition — Preliminary objec- tions — Affidavit of petitioner — Bona fides — Ex- amination of deponent— Form of petition--U. S. C. c. 9—54 & 53 Viet. c. 20, s. 3 (.D.)]-- By 54 & 55 Vict. c. 20, s. 3, amending Ohe Controverted Elections Act (R. S. C. c. 9), an election petition must be accompanied by an affidavit of the petitioner ".that he has good reason to believe and verily does believe that the several allegations contained in the said petition are true." The petitioner in this case used the exact words of the Act in his affidavit. Held, that the respondent to the petition was ' not entitled on the hearing on preliminary objections to examine him as to the grounds of his belief. Held, further, that it was not necessary that the petition should be annexed to or otherwise identified by the affidavit, as in case of an exhibit, the refer- ences in the affidavit being sufficient to shew what petition was referred to. — It is no ob- jection to an election petition that it is too general (as by the Act it may be in any prescribed form) if it follows the form that has always been in use in the province. More- over, any inconvenience from generality may be obviated by particulars. Lunenhurg Elec- tion Case, xxvii., 226. 107. Controverted election — B. S. G. c. 9- — No return of member — Illegal deposit — Parties to petition.] — A petition under The Dominion Controverted Elections Act (R. S. C. c. 9) al- leged that T., a respondent, who had obtained a majority of the votes at the election was not properly nominated, and claimed the seat for his opponent, and that if it should be held that T. was duly elected his election should be set aside for corrupt acts by himself and agents. Held, that the petition as framed came within the provisions of s. 5 of the Act and that T. was properly made a respondent. West Durham Election Case, xxxi., 314. 108. Controverted election — Status of peti- tioner — Evidence — Certified copy of voters' list — Imprint of Queen's Printer — Form of peti- tion— Jurat— 61 Vict. c. H. s. 10 (D.)] — On the hearing of preliminary objections to a con- troverted election petition the production of a list appearing on its face to be an imprint emanating from the Queen's Printer, certified by the Clerk of the Crown in Chancery to be a copy of the voters' list used at the elec- tion, and upon which the name of the peti- tioner appeared as a person having a right to vote at such election, is sufficient proof of the status of the petitioner. A copy of the list of electors bearing upon its face a statement that it is issued by the Queen's I'rinter makes proof of its contents without further verifi- cation. — The jurat of the affidavit accompany- ing the petition was subscribed " Grignon & Fortier, Protonotaire de la Cour Supfirieure dans et pour le District de Terrebonne." I?er Gwynne, J. An objection to the regularity of the subscription to the jurat does not consti- tute proper matter to be inquired into by way of preliminary objection to the petition. Two Mountains Election Case; Ethier y. Legault xxxi., 437. ' 109. Appeal — Preliminary oijeotions — R. 8. G. V. 9, ss. 12 d 50 — Order dismissing petition — Affidavit of petitioner. See No. 93, ante. 110. Election petition — Preliminary objec- tions — Affidavit of petitioner — Bona fides — Examination of deponent — Form of petition — R. 8. C. 0. 9—54 & 55 Vict. c. 20, s. 3. See No. 106, ante. 111. Technical objections — Form of affidavit — Stamps on petition. See No. 118, infra. (d) Service of Petition. 112. Service of petition — R. S. C. c. 9, s. 11 — Art. 57, C. C. P. — Preliminary objections.] — The service of an election petition made in Quebec, at defendant's law office, on the ground floor of his residence and having a separate entrance, by delivering a copy to de- fendant's law partner who was not a mem- ber of, nor resident with, defendant's family, is not a service within R. S. C. c. 9, s. 11, and art. 57, C. C. P., and a preliminary objec- tion setting up defective service was main- tained and the election petition dismissed. Gwynne, J., dissenting. Montmagny Election Case; Ghoquette v. Laberge, xv., 1. 113. Controverted election — Preliminary ob- jections — Service at domicile — R. S. C. c. 9, s. 10.] — Leaving a copy of an election petition and accompanying documents at the residence of the respondent with an adult member of his household during the five days after the pre- sentation of the same is a sufficient service under s. 10 of the Dominion Controverted Elections Act even though the papers served do not come into the possession or within the knowledge of the respondent. King's (N.8.) Election Gasej Borden v. Berteaux, xix., 526. See No. 116, infra. 114. Service of petition — Personal service outside territorial jurisdiction — Necessity for order.] — Personal service of an election peti- tion outside the territorial jurisdiction of an Election Court is good service under R. S. C c. 9, s. 10, although no order for such service has been obtained from the judge. Queen's and Prince Election Gases, xx., 26. See No. 116, infra. 115. Controverted election — Re-service of petition — Order extending time — Preliminary objections — R. S. C. c. 9, s. iO.]— Petitioner omitted to serve on appellant with the petition a copy of the deposit receipt, but applied to a judge to extend the time for service that he might cure the omission. An order extending the time (subsequently affirmed by the Court of Appeal) was made and the petition was re- served. Before the order extending the time had been drawn up respondent filed prelim- inary objections and by leave contained in the order he filed further preliminary objections after re-service. The new list of objections in- cluded those made in the first instance, and also an objection to the power or jurisdiction of the Court of Appeal, or a judge thereof, to extend the time for service of the petition beyond the five days prescribed by the Act. 529 ELECTION LAW. 630 Held, that the order was valid and the re- service made thereunder vyas proper and regu- lar service. Glengarry Electric Vase; McLen- nan V. Ghisholm, xx., 38. 116. Preliminary objections — Service of petitions — Security — Payment to acting officer ~R. S. C. c. 9, s. 10, and s. 9 (e) and (g) .] — Appeals from decisions dismissing ijreliminary objections to the election petitions. — The ques- tions raised were : 1st. whether a personal service on the respondent at Ottawa without or with an order of the court at Halifax, or at his domicile is a good service. 2ndly, whether the payment of the security required by R. S. C. c. '9, s. 9 (e), into the hands of a person who was discharging the duties of and acting for the prothonotary at Halifax, and a receipt signed by said person in the prothonotary's name, [s. 9 {g),'i were valid. — The court, fol- lowing King's County (N.8.) Case, (19 Can. S. C. R. 526), and Queen's County {P. E. I.) Case, (20 Can. S. O. R. 26), held the service and payment valid and a substantial com- pliance with the requirements of the statute. Election Cases of Shelhurne (A. S.), White V. Greenwood; Annapolis (2V. 8.), Mills v. Bay; Lunenlurg (N. S.), Kaulbach v. Eisen- hauer; Antigonish {N. S.), Thompson v. Mc- Gillivray; Pictou {N. 8.), Tupper v. McColl; and Inverness (N. 8.), McDonald v. Came- ron, XX., 169. 117. Election petition — Preliminary objec- tions — Service of petition — Bailiff's return — Gross-examination — Production of copy.'i — ^A return by a bailiff that he had served an elec- tion petition by leaving true copies, " duly cer- tified," with the sitting member is a sufficient return. It need not state by whom the copies were certified. (Articles 56 and 78 C. C. P.).- — ^Counsel for the person served will not be al- lowed to cross-examine the bailiff as to the contents of the copies served without produc- ing them or laying a foundation for secondary evidence. Beauharnois Election Case xxvii., 232. ^ 118. Stamps on petition — Technical objec- tions to form — Prete-nom — Preliminary objec- tions — Abandonment of proceedings — Re-in- itatement — Costs — Matter of procedure.'] — The Supreme Court, in dismissing the appeal with costs, held, (1) that objection to the stamping of the petition was not open on ap- peal, (2) that the affidavit would be deemed sufficient as the objections thereto were purely technical, (3) that an objection that the peti- tioner was merely a prete-nom for an interest- ed person who made the deposit and guaran- teed costs was not proper subject for prelimi- nary objec'tion, and (4) that the service anew of the petition, after abandonment of original proceedings and extension of time, without payment of costs of the former proceedings, was only matter of procedure and should not be interfered with on appeal. Laval Election , Case; Leonard v. Labelle 10th December, 1902. 119. Discretionary order — Extending time for service of petition. See No. 65, ante. 120. English general rules — Service of copy of petition on clerk of court. See No. 102, ante. 121. Election petition — Preliminary objec- tions — Service of petition. See No. 104. ante. 122. Abandonment of proceedings — Serving petition anew. See Nos. 66-69 and 118, ante. 14. Pkeliminary Objections. 123. Status of petitioner — Reservation of question — Ues judicata. See No. 95, ante. 124. Objections to petition — Status of peti- tionei — Dominion franchise — Construction of statute. See No. 98, ante. 125. Deposit of petition ■ — Time limit — Grounds of objections. See Nos. 102, 104, ante, and 136, infra. 15. Pkocedube. 126. Commencement of trial — Staying pro- ceedings — Session of Parliament — Adjourn- ments — Recriminatory charges — R. 8. C. c. 9. s. SI, s.-s. 4, ss. 32, 33, .i.-s. 2, and ss. 35, 24 — Withdrawal of claim to seat — Order void- ing election.'] — After the trial of an election petition has been commenced, the trial judge may ' adjourn the case from time to time, as to him seems convenient. — Where the proceedings for the commence- ment of the trial have been stayed during a session of Parliament by an order of a judge, and a day has been fixed for the trial within the statutory period of six months as so ex- tended, on which day the petitioners proceeded with their enquete and examined two wit- nesses after which the hearing was adjourned to a day beyond the statutory period as' so ex- tended to allow the petitioners to file another bill of particulars, those already filed having been declared insufiicient. — Held, there was suflicient commencement of the trial within the proper time and the future proceedings were valid under the Controverted Elections Act, R. S. C. c. 9, s. 32. — In an election peti- tion claiming the seat for the defeated can- didate, recriminatory charges were brought against the defeated candidate and the trial judge, after having found that the election of the sitting member should be set aside for corrupt practices, fixed a day for the evidence upon the recriminatory charges. Thereupon the petitioners withdrew the claim to the seat, and the judge gave judgment avoiding the election. — Held, that s. 42 of c. 9, R. S. C, no longer applied, and the judge was right in refusing to proceed upon the recriminatory charges. — Per Gwynne, J., that it would have been competent for the trial judge to have received evidence on the recriminatory charges, but his refusal to do so was not a sufficient ground for reversing the judgment avoiding the election. Joliette Election Case; Ouilbault V. Dessert, xv., 458. 127. Factum filed too late — Irregular in- scription — Refusal to hear ex parte. ]^Where the appellant's factum was filed only on the morning the appeal was called for hearing, and no one appeared for the respondent, the 531 ELECTION LAW. 533 court refused to hear the appeal ex parte. Levis Election Case, Cass. Dig. (2 ed.) 686. 128. Controverted election — Stay of pro- ceedings pending appeal on preliminary objec- tions — Trial within six months — Extension of time — Disqualifiication.'\ — Preliminary ob- jections to an election petition filed on 22nd Feb., 1902, were dismissed by Loranger, J., on April 24th, and an appeal was taken to the Supreme Court of Canada. On 31st May Mr. Justice Loranger ordered that the trial of the petition be adjourned to the thirtieth juridical day after the judgment of the Supreme Court was given, and the same was given dismissing the appeal on Oct. 10th, making Nov. 17th the day fixed for the trial under the order of .51st May. On Nov. 14th a motion was made before Loranger, J., on behalf of the member elect to have the petition declared lapsed for non-commencement of the trial within six months from the time it was filed. This was refused on 17th Nov., but the judge held that the trial could not proceed on that day as the order for adjournment had not fixed a certain time and place, and on motion by the peti- tioner he ordered that it be commenced on Dec. 4th. The trial was begun on that day and resulted in the member elect being un- seated and disqualified. On appeal from such judgment the objection to the jurisdiction of the trial judges was renewed. — Held, that the effect of the order of May 31st was to fix Nov. 17th as the d^te of commencement of the trial ; that the time between May 81st and Oct. 10th when the judgment of the Supreme Court on the preliminary objections was given, should not be counted as part of the six months within which the trial was to be begun, and that Dec. 4th on which it was begun was therefore within the said six months. — Held, also, that if the order of 31st May could not be considered as fixing a day for the trial it operated as a stay of pro- ceedings and the order of Mr. Justice Laver- gne on Nov. 17th was proper. — ^As to the dis- qualification of the member elect by the judg- ment appealed from the members of the court were equally divided and the judgment stood aflirmed. St. James Election Case, xxxiii.. 137. 129. Controverted election — Prompt pro- cedure necessary.} — On a motion to postpone the hearing of an election appeal, the court (Taschereau, C.J., presiding), stated that, henceforth it would insist upon election ap- peals being prosecuted diligently. Two Moun- tains Election Case, 24th Nov., 1902. 130. Judgment on preliminary objection — Reservation of question — Jurisdiction to re- consider on trial of merits — Res judicata — Failure to appeal — Evidence of status of peti- tioner. See No. 95, ante. 131. Enlarging time for commencement of trial — Notice of trial — Shorthand notes- Reading evidence to witnesses. See No. 138, infra. 132. Bracketing petitions — Separate trials — Overruling preliminary oltjections — Appeal. See No. 140, infra. 16. Receiminatory Charges. 133. Recriminatory charges — Counter-peti- tion^-SI Vict. c. 10, s. 66.]— The appellant claimed under 37 Vict. c. 10, s. 66, that if he was not entitled to the seat the election should be declared void, on the ground of irregularities in the conduct of the election generally, but filed no counter petition and did not otherwise comply with the provisions of 37 Vict. c. 10. Held, that s. 66 of 37 Vict. c. 10 applies only to cases of recrimina- tory charges, and not to a case where neither of the parties or their agents are charged with doing a wrongful act. Queen's (P. E. I.) Election Case; Jenkins v. Brecken, vii., 247. 134. Recriminatory charges — Procedure — Withdraioal of claim to seat — Order avoiding election. See No. 126, ante. 135. Rules of procedure — English rules — Copy of petition for returning officer. See No. 102, ante. 17. Trial. 136. Controverted elections — Want of prose- cution — Ruling at trial — Appeal — R. 8. G. e. 9. ss. 32, 33 <& 50 — Extension of time — Juris- diction.} — The decision of a judge at the trial of an election petition overruling an objec- tion to the jurisdiction of the judge to go on with the trial on the ground that more than six months had elapsed since the date of the presentation of the petition is appealable to the Supreme Court of Canada under s. 50 (6), c. 9, R. S. C. Gwynne, J., dissenting. — In computing the time within which the trial of an election petition shall be commenced the term of a session of Parliament shall not be excluded unless the court or judge has or- dered that the respondent's presence at the trial is necessary. Gwynne, J., dissenting.— The time within which the trial of. an elec- tion petition must be commenced cannot be enlarged beyond the six months from the pres- entation of the petition, unless an order had been obtained on application made within said six months ; an order granted on an appUea- tion made after expiration of the said six months is an invalid order and can give no jurisdiction to try the merits of the petition, which is then out of court. Ritchie, C.J., and Gwynne. J., dissenting. Glengarry Elec- tion case; Purccll v. Kennedy, xiv., 453. (Leave to appeal was refused by the Privy Council, 59 L. J. 279 ; 4 Times L. R. 664.) 137. Preliminary examination of respon- dent — Postponement till after session — En- largement of time for prosecution — Six months' limit — R. S. C. c. 9, ss. H & .?2.]— On 23rd April, 1891, after the petition was at issue, petitioner moved to have respondent ex- amined prior to the trial so that he might use the deposition upon the trial. Respondent moved to postpone such examination until after the session, on the ground that hcing attorney in his own case it would not ' be possible for him to appear, answer the inter- rogatories and attend to the case in which his presence was necessary before the closing of the session." This motion was supported by afiidavit of respondent stating that it 533 EMINENT DOMAIN. 534 would be " absolutely necessary for him to be constantly in court to attend to the present election trial " and that it was not possible ■' for him to attend to the present case for which his presence is necessary before the closing of the session." The court ordered re spondent not to appear until after the session of Parliament. Immediately after the session was over, on 1st Oct., 1891, application was made to fix a day for trial, and it was fixed for 10th Dec, 1891. Respondent was ex- amined in the interval. On 10th Dec, re- spondent objected to the jurisdiction of the court on the ground that the trial had not commenced within six months following the filing of the petition and the objection was maintained. — Held, reversing the judgment ap- pealed from, that the order was in effect an enlargement of the time for the commence ment of the trial until after the session of Parliament and, therefore, in the computation of time for the commencement of the trial the time occupied by the session of Parliament should not he included. Laprairic Election Case; GilieMilt v. Pelletier, xx., 185. 138. Procedure — Enlargement of time for commencement of trial — Jurisdiction — R. S. C. c. 9, ss. 81, 33, 43, 50 {b)— Notice of trial — Shorthand notes — Appeal.'^ — On 10th Oct., 1891, the judge, within 6 months after filing of election petition, enlarged the time for the commencement of trial to 4th Nov., the 6 months expiring 18th Oct. On 19th Oct., an- other order was made by the judge fixing the trial for 4th Nov., and 14 clear days' notice of trial was given. Respondent ■objected to the jurisdiction of the court. — Held, that the orders made were valid. — That the objection to sufiiciency of no- tice of trial given under R. S. C. c. 9, s. 31, was not an objection which could_ be relied on in an appeal under s. 50 (6) of that Act. — That evidence taken by a shorthand writer, not an official stenographer of the court, who has been appointed by the judge, need not be read over to witnesses when extended. Pon- tiac Election Case; Hurray v. Lyon, xx., 626. 139. Trial after lapse of time limit — Con- sent judgment — B. 8. C. c. 8, s. S2j c. 135, s. 52 — Reserve of objection.'] — The trials were commenced on 22nd Dec, 1892, more than 6 months after filing petition, and subject to objection that the court consequently had no jurisdiction. No order was made enlarging the time for commencement of trial. Respondents consented that the elections be voided by reason of corrupt acts committed by agents without their knowledge. — On appeal to the Supreme Court petitioner's counsel signed and filed a consent to reversal of the judgments ap- pealed from without costs, admitting that the objection upon the question of jurisdiction was well taken. — Upon the filing of an affidavit as to the facts stated in respondent's consent, the appeal was allowed and the petitions dismissed without costs. Bagot Election Case; Dupont V. iJorin; Rouville Election Case; Brodeur v. Charbonneau, xxi., 28. 140. Bracketing petitions — Separate trials — R. S. C. c. 9, ss. 30 and 50 — Appeal — Jurisdic- tioii.] — Two election petitions were filed against the appellant, one by A. C, on 4th April, 1892, and the other by A. V., the re- spondent, on 6th April, 1892. The trial of the A. V. petition was by order in chambers, dated 22nd Sept., 1892. fixed for 26th Oct. 1892. On 24th Oct., appellant petitioned in chambers to join the two petitions and have another date fixed for the trial of both petitions. This motion was referred to the trial judges, who, on 26th Oct., before proceeding with the trial, dismissed the motion to have both petitions joined and proceeded to try the A. V. petition. Thereupon appellant objected to the petition being ti:ied then as no notice had been given that the A. C. petition had been fixed for trial, and, subject to such objection, filed an ad- mission that sufficient bribery by appellant's agent without his knowledge had been com- mitted to avoid the election. The trial judges then delivered judgment setting aside the elec- tion. — On an- appeal to the Supreme Court, Held, 1. That under s. 30 of c. 9, R. S. C, the trial judge could try the A. V. petition separately. — 2. That the ruling of the court below on the objection relied on in "the present appeal, viz. : That the trial judges could not proceed with the petition in this case, because the two petitions filed had not been bracketed by the prothonotary as directed by R. S. 0. c 9, s. 30, was not a judgment or decision ap- pealable to the Supreme Court of Canada. Sedgewick, J., doubting. Vaudreuil Election Case, xxii., 1. 141. Dominion Controverted Elections Act, 181^ — Legislative powers — Provincial courts — Civil rights — Procedure — B. N. A. Act, 1867 — Dominion courts. See Constitutional Law, 12. 142. Proicedure — Commencement of trial — ■ Stay of proceedings — Session of Parliament — Adjournments — Recriminatory charges — With- drawal of claim to seat — Order avoiding elec- tion. See No. 126, ante. 143. Controverted election — Preliminary ob- jections — Stay of proceedings pending appeal — Trial within six months — Extension of time. See No. 128, ante. EMINENT DOMAIN. 1. Appeal — Jurisdiction — Title to lands— ^ Municipal by-law — Widening streets — Expro- priation.] — In an action to quash a by-law passed for the expropriation of land, the con- troversy relates to a title to lands, and an ap- peal lies to the Supreme Court of Canada, although the amount in controversy is less than $2,000. — The judgment on the merits in 'the court below (Q. R. 6 Q. B. 345) held, on the annulment of a by-law for widening a street, that the arrangement with the Turnpike Road Trustees by which they handed over the care of the roads to the municipality, within its limits, in consideration of the assumption of obligations, was authorized by 42 & 43 Vict. c. 43 (Q.) That the corporation in passing the by-law was acting within the powers of its charter, and that the right of the trustees over municipal streets was limited to the road-bed, and so long as repairs and toll collection was not interfered with, they could not prevent widening of the streets, laying sewers, etc. — This decision was affirmed for the reasons stated in the judgment appealed from. Mur- ray v. Town of Westmount, xxvii., 579. 2. Expropriation of lands — Public work — Reversion of land not used for canal purposes. See RiDBAU Canai, Lands, 2. EMPLOYER AND EMrLOYEE. 535 3. Pullic work — Construction of trestles — Interference with private property — Injury ■caused ly the works — Damages peculiar to the property in, question — Compensation. See E'TJULic Wobk, 4. 4. Crown — Construction of puUic work — Interference with puUic rights — Injury to private owner. See Public Woek, 3. 5. Railway expropriations — Arbitration — Death of arbitrator — Lapse of time for award. See Railways, 30. 6. Old trails in Rupert's Land — Substituted highway — Necessary way — Reservation in Grown grant — Dedication — User — Estoppel — Evidence. . See Highway, 3. 7. Highways — Old trails in Rupert's Land — Substitution of new way — Dedication of 536 See Highway, 4. ^ 8. Railways^-Eminent domain — Expropria- tion of lands — Arbitration — Evidence — Find- ings of fact — Duty of appellate court — 31 Vict. c. 29 (D.) See Railways, 31. 9. Municipal corporation — Expropriation — Widening streets — Assessments — Excessive valuation — 52 Vict. c. 79, s. 228 (Que.). See MtTNiciPAL Corporation, 128. 10. Expropriation of land — Tenants in common — Propriitaires par indivis — Construc- tion of agreement — Misdescription — Plans and hooks of reference — Surveys — Registry laws — Satisfaction of condition as to in- demnity. See Railways, 32. _ 11. Municipal corporation — Expropria- tion proceedings — Negligence — Interference with proprietary rights — Abandonment of proceedings — Damages — Servitudes estab- lished for public utility — Arts. 406, 417, 507, 105S G. C. — Eminent domain. See Servitude, 6. 12. Assessment — Montreal harbour im- provements — Widening streets — Construction of statute— 57 Vict. c. 57 (Que.) — 52 Vict. c. 79, s. 139 {Que.) See Municipal Corporation, 129. And see Crown — Expropriation - Works — Tolls. ■ Public EMPHYTEUSIS. 1. Railway lands and permanent way — Adverse occupation — Petitory action — Lease for 999 years — Injuries to road-bed — Right of action for damages — Ownership.] — The plain- tiffs had leased a railway constructed by them to operating companies for 999 years, reserv- ing a rental payable at stated times and upon terms a,s to maintaining the railway and its proper operatidn by the lessees. In the ac- tion brought au petitoire for the recovery of part of the leased lands from an adverse occupant and for damagesi caused to the line of railway by the defendant, the pleas raised questions that the lease was actually an alien- ation of all plaintiffs' interests in the lands occupied by the railway and left them with- out any right of action either to recover the possession or to obtain damages for Injuries sustained by the lands. Held, aflSrming the judgment appealed from, that the lease amounted to au emphyteutic lease assigning the domaine utile of the railway and all the plaintiffs' rights in respect thereof, reserving, however, the domaine direct,, and, conse- quently, the plaintiffs had the right of bring- ing the action au pititoire which lies in the party having the legal estate,, and that the lessees might, on an application for an amend- ment, be added as parties plaintiffs in the action for the purposes of recovering any damages shewn to have been sustained upon the leased lands, the action for which would lie only in the holder of the beneficial estate therein. Massawippi Valley Ry. Go. v. Reed, xxxiii., 457. 2. Transfer of lease — Alienation for rent — Emphyteusis — Bail-a-rente — Bail a longues annees — Droit mobilier — Ctimulative demand — Incompatible pleadings — Reintigrande — De- nonciation de nouvel osuvre — Arts. 567, 572, 1593 C. C.—Arts. 176, 177 (6), 1064. 1066 G. P. Q. See Action, 120. EMPLOVER AND EMPLOYEE. 1. Negligence — Electric railway; — Motor- man — Workmen's Compensation Act — Injury to conductor.] — The motorman of an electric car may be a " person who has charge or con- trol " within the meaning of s. 3 of the Work- men's Compensation Act (R. S. O. [1897] c. 160), and if he negligently allows an open car to come in contact with a passing vehicle whereby the conductor, who is standing on the side in discharge of his duty, is struck and injured the electric company is liable in dam- age for such injury. Judgment appealed from (27 Out. App. R. 151) affirmed. Toronto By. Co. V. Snell, xxxi., 241. 2. Government Railways A'ct, 1881 — Suits against Crown officials — Notice of action. See Crown, 64. 8. Injury to employee — Lord Campbell's Act — Exoneration from liability — Art. 1056 G. G. See Negligence, 219. 4. Railway company — Chr-ass on siding. See Negligence, 210. 5. Common employment — Negligence — Dan- gerous material — Arts. 1053, 1056 C. C See Master and Servant, 26. 6. Operation of railway — Defective ways or plant — Lock on switch — Negligence — Findings of jury — Common law liability — Employer and employee — Assessment of damages. See Negligence, 100. 7. Negligence — Use of dangerous materials ■ — Proximate cause of accident — Injuries to workmen — Employers' liability — Presump- tions — ■ Finding of jury sustained by court below. See Negligence, 144. 53? ESTOPPEL. 538 8. Insecure scaffolding — Dangerous employ- ment — Liability for injury to employee — Dis- obedience of orders. See Negligence, 91. ENTAIL. See Substitution — Title to Land. ENVOIi; £N POSSESSION. Testamentary , executors — Succession — Bal- ance due by tutor — Practice — Action for ac- count — Provisional possession — Envoie en possession — ■ Parties — Extra judicial consent to form of actions. See BxECUTOES, 8. And see Servitude. EQUITY OF REDEMPTION. Mortgage — ■ Loan to pay off prior incum- brance — -Interest — Assignment of mortgage — Purchase of equity of redemption — Accounts. See Mortgage, 64. ERROR. See Mistake. ESCHEATS. 1. Failure of heirs — Legislative jurisdiction —iB. IS!. A. Act. 1867, ss. 91, 92, 102,. 109^ B. S. O. (iS77) c. 94. See Cbown, 56. 2. Failure of heirs — Information — Omis- sion of party — Limitation of action — Collu- sive judgment — Tierce-opposition. See Title to Land, 131. ESCROW. 1. Policy of insurance — Delivery without countersigning — Unpaid premium — iVew trial. See INSUKANCE, Life, 7. 2. Delivery of policy — Payment of premium — Countersigning by agent — Evidence. See Insurance, Life, 8. 3. Contract of insurance — Cancelled policy Trovei — Conversion. See Insurance, Marine. 21. 4. Commencement of contract — Policy of life insurance — Delivery. See Insurance, Life, 12. And see Deed. ESTATE TAIL. Devise to great-grandson unborn — Appoint- ment of heir-at-law to hold estate in the in- terim. * See Will, 25. And «ee Substitution — Title to Land. ESTOPPEL. 1. Estoppel by Conduct, 1-38. 2. Estoppel by Deed, 39-61. 3. Estoppel by Record, 62-76. 1. Estoppel by Conduct. 1. Sufferance — Trespass — Nuisance — Damages — Long possession — Constructions on public property — Right of action.'] — C. built a wharf in the bed of the St. Lawrence River, which communicated with the shore by means of a gangway, and had enjoyed the pos- session of this wharf and its approaches for many years, when R. claimed that it was a public nuisance, and destroyed the means of communication from the wharf to the shore. C. sued for damages, and to have the works restored. After issue joined. R. filed a sup- plementary plea, alleging, that since the in- stitution of the action, the person on whose land C.'s bridge rested had erected buildings which prevented the restoration of the bridge and wharf, and further that the wharf had been destroyed by natural causes and aban- doned, and that its re-establishment would be a public nuisance without utility. On appeal from the judgment of the Court of Queen's Bench affirming the dismissal of the action, Held, reversing the judgment appealed from, that as it appeared C. had been openly, and with implied c'onsent of public authority, al- lowed to erect the bridge and wharf on pub- lic property and remain in possession of it for over 16 years, the defendant, who had full knowledge of the fact, was estopped and debarred of any right, to remove what might have been originally a nuisance to him, anjj that, notwithstanding any subsequent aban- donment of this wharf and bridge, C. was entitled to substantial damages. Caverhill v. Robillard, ii., 575. 2. Survey — Standing by — Conventional boundary line-] — A neighbouring proprietor who stands by without objecting to a boun- dary line while it was being located by a surveyor, the line being staked and a build- ing up to that line partly erected by the ad- jacent proprietor was held to be estopped from disputing that the line located by the surveyor was the true boundary line. Gras- sett V. Carter, x., 105. 3. Action by ratepayer ■ — Irfiproper con- struction of municipal work — - Contractor bringing suit — Accer)tance of surplus money.'] — A ratepayer of a municipality cannot main- tain an action, on behalf of himself and the other ratepayers, against the municipality for the improper construction of a drain author- ized by by-law when such ratepayer has him- self been a contractor for a portion of the work and has received his share of the money voted for the work in excess of the amount expended. Judgment appealed from 539 ESTOPPEL. 540 (13 Out. App. R. 53) affirmed. Dillon v. U'oipnship of Raleigh, xiv., 739. 4. Lease of mining rights — Option of lo- cating — Adoption of loundary-'] — McA. leas- ed a portion of a lot of land for mining pur- poses described by metes and bounds with the option : " Pourra le dit acau6reur changer la course des lignes et homes du dit lopin de terre sans en augmenter les homes, I'gtendue ou superficie en suivant dans ce cas la course ou ligne de la dite veine de quartz qu'ill peut y avoir et se rencontrer en cet endroit, aprSs que lui, le dit bailleur, aura prospectg le dit lopin de terre susbaillg," adopted lines of survey made by P, as containing the vein. B. leased another portion of the same lot. In an action en homage the court appointed three surveyors to fix the boundaries. Each surveyor made a separate report, and the re- port and plan of the surveyor L., adopting P.'s lines, vi'as adopted and homologated by the court. — BeU, affirming the judgment ap- pealed from (13 Q. L. R. 168), Gwynne, J., dissenting, that McA. having located the claim m accordance with the terms of the deed was estopped from claiming that the property should be bounded according to the true course of the vein of quartz, and that the judgment homologating the survey adopt- ing P.'s lines and survey was right and should be affirmed. ilcArthur v. Brown, xvii., 61. 5. Solicitor — Practising without certificate ■ — Name appearing as memier of firm — Estop- pel.] — M., a solicitor, who had not taken out his certificate, allowed his name to appear as a member of a firm in active practice. He was not in fact a member, received no profits and paid none of the expenses and the firm did not appear as solicitors of record in any proceedings. The Law Society sued for the penalty, and shewed that the name of the firm was indorsed on certain papers filed of record in suits Carried on by the firm. Held. reversing the judgment appealed ffom (15 Out. App. R. 150), that M. did not "prac- tice as a solicitor " within the meaning of the Act imposing the penalties (R. S. O. (1877) c. 140), and that he was not estop- ped by permitting his name to appear as a member of the firm, from shewing that he was not in fact a member. Macdoupall v. Law Society of Upper Canada, xviii., 203. 6. Conduct — Contract — Free ioomage — Repairs — 36 Vict. c. SI, (Que.)} — M. sued B. for charges authorized under 36 Vict c. 81 (Que.) for the use of booms in the Nico- let River during 1887-1888. B. pleaded that under contracts between M. and B. and his auteurs, and the interpretation put upon them by JI. the repairs to the booms were to be and were, in fact, made by him, and in con- sideration thereof he was to be allowed to pass his logs free ; and, also, pleaded compen- sation for use by M. of other booms, and repairs made by B. on M.'s booms, and which by law he was bound to make. — Held, reversing the judgment of the Court of Queen's Bench, that there was evidence that M. had led B. to believe that under the contracts he was to have the use of the booms free in consideration of the repairs made by him to piers, &c.. and that M. was estopped by conduct from claim- ing the dues he might otherwise have been .authorized to collect. — Held, further, that even if JM.'s right of action was authorized by the statute the amount claimed was fully com- pensated for by the amount expended in re- pairs for him by B. Ball v. McCaffrey, xx 319. See No. 7, infra. 7. Conduct of parties — - Possession — Con- tract — Booms — Proprietary rights — Re- plevin — Revendioation — 36 Vict. c. 81.] O'S. claiming to be the legal depositary, and T. McG. claiming to be usufructuary under 36 Vict. c. 81 (Q.), of certain booms, chains, and anchors in the Nicolet River, of which G. B. had possession for several years un- der deeds and agreements from T. McG. and had stored in a shed for the winter, brought an action en revendication and for $5,000 damages. — Held, affirming the judgment ap- pealed from, that O'S. and T. McG. were not entitled to the possession as alleged, and that they were precluded by their codjuct and ac- quiescence from disturbing G. B.'s possession. Ball V. McCaffrey (20 Can. S. C. R. 819) approved. O'Shaugnessy v. Ball, xxi., 415. 8. Representation of indebtedness — Equit- able assignment — Garnishee process.] — Plaintiff held a judgment against C. and was about to sue R. and M., whom he understood to be C.'s partners. Before doing so he con- sulted one of the defendants, by whom he was informed that there was a balance due from defendants to C, for work performed for defendants on the W. C. Ry. under a contract, and defendants suggested that this amount might be made .available to satisfy plaintiff's claim. On the strength of this rep- resentation garnishee process issued, when defendants denied that there was any debt due. Previous to the garnishment, C. had drawn an order requesting defendants to pay all sums coming due to him under the en- gineer's monthly certificate to IC, but there was no evidence of any indebtedness of C. to K. — Held, affirming the judgment appealed from (2 R. &. G., 199), Strong and Gwynne, JJ., dissenting, that defendants were estopped by their representation from denying indebt- edness to 0., and that there was not evidence of such an assignment as would prevent the attachment from operating on the fund. Shanly v. Fitzrandolph, Cass. Dig. (2 ed.) 279. 9. Signal posts — Running of railway trains — " Stop " notice — Res ipKa loquitur — yegligence.]—The act of a railway com- pany in placing signal posts along the line of railway indicating rules for the running of trains amounts to a declaration that the omission to obey the instructions so given would be negligence. Canadian Pacific Ry. Co. v. Lawson, Cass. Dig. (2 ed.) 729. 10. Fire insurance — Contract — Termina- tion — Notice — Statutory condHiom — Premium note — Waiver — Estoppel.] — 'ttliere an insurer has demanded and received pay- ment of a note given for the premium of in- surance he is estopped from denying that an applicant is insured. — Judgment appealed from (22 Ont. App. R. 68) affirmed, Gw.vnne, J. dissenting. Dominion Orange Mutual As- surance Go. V. Bradt, xxv., 154. 11. Fraudulent conversion — Past dite bonds — Debentures transferable by delivery — Implied notice — Innocent holder for value.] — Debentures transferable by delivery used and marked as exhibits in court were after- wards lost and advertised for in newspapers. 541 ESTOPPEL. 542 Ten years later the owners' agent pledged them to a broker for advances on his own ac- count, the bonds being then long past due, but payment provided for by special statutes. — Held, affirming the judgment appealed from (Q. R. 3 Q. B. 539), l^jurnier and Tasche- reau JJ., dissenting, that neither the adver- tisement, nor marks on the bonds, nor the broker's knowledge of the agent's insolvency were notice to the pledgee of defects in the pledgor's title and that the owners, having by their act enabled their agent to transfer the bonds by delivery, were estopped from asserting title thereto, to the detriment of a bond fide holder. Young v. MacNider, xxv., 272. 12. Nova Scotia Probate Act — Executors and administrators — License to sell lands — Hes judicata.'] — An executrix obtained a license to sell real estate of a deceased tes- tator for payment of his debts. Judgment creditors of devisees moved to set aside the license but failed on the motion and in ap- peal. The lands were sold under the license and executrix paid part of the price to the judgment creditors, who received the same knowing the moneys to be proceeds of the sale. Afterwards the judgment creditors, still claiming the license to be null, issued execution against the lands, and the purchaser brought action for a decla- ration that the judgments were not a charge thereon. Held, affirming the judgment ap- pealed from (27 N. S. Rep. 384). that the judgment upon the motion to set aside the license was conclusive against the judgment creditors and they were precluded thereby from taking collateral proceedings to charge the lands aifected upon the grounds invoked or which might have been invoked upon the motion and that the judgment creditors, by receiving payment out •of the proceeds of the sale, had elected to treat the license as having been regularly issued, and were estopped from attacking its validity in answer to the action. Clarh V. Phinney, xxv., 633. 13. Transshipment in transit -— Custom of trade — Continuing bills of lading — Delivery — Payment of freight — Transfer by indorsement — " Bank Act " — Estoppel.'] — Grain was shipped from Chicago to Montreal, the bills of lading being made only from Chicago to Kingston, where it was, according to the usual custom of trade, transhipped into barges be- longing to the defendants, and thence con- veyed by them to Montreal, without the issue of new bills of lading. It appeared, however, to have been the custom that such bills of lading were, in cases of the kind, treated as continuing. The bills had been transferred by indorsement and delivery to the plaintiff, upon whose order the defendant had delivered the greater part of the cargo, after exacting payment of full jEreight upon the shipment. The defendant had also recognized the custom of the grain trade as to the bills of lading continuing. — In an action to recover an unde- livered balance of the grain so shipped. Held, affirming the decision of the Court of Review, at Montreal, that, under the circumstances. the defendant was estopped from questioning Hie validitv of the transfer nf the bills of ladl- ing under the provisions of " The Bank Act," or objecting that they had become extinct upon delivery of the cargoes at Kingston. St. Lawrence and Chicago Forwarding Go. v. Molsons Bank (28 L. C. .Tur. 127) referred to. Kingston Forwarding Co. v. Union Bank of Canada, 9th December, 1895. 14. Loss of right to appeal — Acceptance of costs awarded appellant — Acquiescence m judgment appealed from.] — The judgment ap- pealed from decided against appellant upon the construction of a will but gave him cer- tain costs which were taxed and paid to him out of moneys in court to the credit of the cause. Held, that the reception of these costs was not inconsistent with an appeal against the judgment upon the construction of the will. In re Ferguson; Turner v. Bennett; Turner v. Carson, xxviii., 38. 1.5. Incorporated company — Action against — Forfeiture of charter — Estoppel — Complin ance with statute — Res judicata.] — In an ac- tion for re-payment of tolls alleged to have been unlawfully collected by a River Improve- ment Company, it appeared that the plaintiff had treated the company as a corporation, used its works and paid tolls fixed by the com- missioner, and the company had also been sued as a corporation. Held, that the plain- tiff was precluded from impugning the legal existence of the company by claiming that its corporate powers were forfeited. Hardy Lumber Co. v. Pickerel River Improvement Co., xxix., 211. 16. Sale of land — Misrepresentation by vendor.] — A vendor of land who wilfully mis- states the position of the boundary line and thereby leads the purchaser to believe that he is acquiring a strip not included in the deed, is estopped from afterwards claiming such strip as his own property. Judgment appealed from (31 N. S. Rep. 232) reversed. Zwieker V. Feindel, xxix., 516. 17. Unauthorized issue of stock — Proceed- ings against holder of unpaid shares — Setting up illegality. Sec Company Law, 36. 18. 'Waiver — 'Winding-up insolvent bank — Notice — Acceptance of dividends — Prerogative —Jio Viet. c. 23 (D.) See Ceown, 73. 19. Conditions of policy of insurance — Policy icithhcld from insured — "Waiver. See INSUKANCE, Fire, 82. 20. Illegal assessment — Fear of process — Payment under protest — "Waiver — Subsequent proceedings to quash. See Assessment and Taxes, 8. 21. .Delay in bringing action — Promotion of joint stock company — Misrepresentation. See Company Law, 37. 22. Railway crossin^/s — Parol agreement — Reliance on statutory provisions. See Railways, 41. 23. Sale of property bequeathed — Invest- ment of proceeds by testator — Partage by legatees — Ratification by heir of beneficiary. See Will, 26. 24. Execution of writ of attachment — Abandonment of seizure' — Action against sheriff. See Sheriff, 5. 543 ESTOPPEL. 54. 25. Error in policy of insurance — Refer- ence of claim under arbitration clause — Waiver. See INSTTEANCE, FiKE, 93. 26. Payment of cheque — Joint payees — In- dorsement by partner — Acquiescence in pay- ment — Monthly receipts. See Partnership, 16. 27. Tenant by sufferance — Distress — Sub- tenancy — Notice to quit — Expiration of lease — Overholding tenant. See Landlord and Tenant, 22. 28. Fraud — Breach of trust — Forgery — Ratification. See Bills and Notes, 19. 29. Attorney compromising client — Agree- ment not to appeal. See Appeal, 412, 30. Execution and delivery of deed — Regis- tration — Representation to mortgagee. See Deed, 36. 31. Debats de compte — Judgment ordering account — Quality of defendant — Acquiescence — Merchants' books of account. See Tutorship, 2. 32. Irregular appearance — Disavowal of at- torney — Long delay — Waiver. See Reqtjete Civile, 1. 33. Trespass to mortgaged property — Prac- tice — Parties to action — Mortgagee in posses- sion — Sale of property to trespasser. See Mortgage, 60. 34. Trustee — Administrator of estate — Re- lease by next of kin — Recession of release — Laches — Estoppel — Delays. See Trusts, 13. 35. Trustee — • Misappropriation — Surety — Knowledge by cestui que trust — Parties. See Evidence, 175. 36. Mistaken consideration — Artifice — Mis- representation — Delays in action to rescind contract — Ratification — Waiver. See Vendor and Purchaser, 26. 37. Non-negotiable note — • Receipt of pro- ceeds — Acknowledgment of liability. ■See Bills and Notes, 32. 38. Railways — Location of permanent way — Fencing — Laying out boundaries — Con- struction of deed — Estoppel by conduct — Words of limitation — Description of lands — Registry laws— Notice of prior title — Riparian rights — Possession — Acquisitive prescription — Tenant by sufferance - — Right of action — Adding parties — Practice. See Railways, 153. 2. Estoppel by Deed. 39. Grant of provincial lands — Foreshore of harbour — Conveyance by grantee — Dower — Claim by widow — Estoppel by deed.l — After the B. N. A. Act came into force the Goven ment of Nova Scotia granted to S. part c the foreshore of the harbour of Sidney, i conveyed through another party to the appe lant, defendant, which, in an action by hi widow for dower in the lands, pleaded tha the grant to S. was void as the lands wer vested in the Dominion of Canada. Eeh afiOirming the judgment appealed from (23 > S. Rep. 214), Strong and Gwynne, JJ., dis senting, that as the defendant had obtained title from S. he was estopped from sayinj that his title was defective. — Per Strong am Gwynne, JJ., dissenting. The conveyance bi S. to the defendant's vendor was an innocen conveyance by which S. himself would no have been estopped and, as estoppel must bi mutual, his grantee would not be estopped There were no recitals in' the deed that woulc estop them and estoppel could not be createc by the covenants. Sydney and L flWAWi iirj Ry. Co. V. Sword, xxi., 152. 40. Conveyance to married woman — Execu- tion by husband — Assent.] — Where a husbanc assented to a conveyance by his wife and per- formed subsequent Acts consistent with such assent it was held that he was estopped from denying the title of his wife's grantor. Webb V. Marsh, xxii., 437. 40o. Life insurance — Wagering policy — Nul lity — Waiver of illegality — Insurable interest — Estoppel — IJf Geo. III., c. Jf8 (Imp.)— Arts. tJftlt, 2480, 2590 C. 0.] — A condition in a policy of life insurance by which the policy is declared to become incontestable upon any ground whatever after the lapse of a limited period, does not make the contract binding upon the insurer in the case of a wagering policy. — Judgment of the Court of Queen's Bench reversed, Sedgewick, J., dissenting. Manufacturers Life Ins. Co. v. Anctil, xxviii., 103. (Affirmed on appeal [1899] A. C. 604). 41. Bona fides — Conveyance by married woman — Agreement — Recital.] — B., a mar- ried woman, in order to carry out an agree- ment between her husband and his creditors consented to convey to the creditor a farm, her separate property, in consideration of the transfer by her husband to her of the stock and other personal property on it, and of in- demnity against her personal liability on a mortgage against said farm. The conveyance, agreement and bill of sale of the chattels were all executed on the same day, the agree- ment, to which B. was not a party, contain- ing a recital that the husband was owner of the said chattels but giving the creditor no security upon them. The chattels having subsequently been seized under execution against the husband it was claimed, on inter- pleader proceedings, that the bill of sale was in fraud of the creditor. Held, affirming the decision of the Court of Appeal, that the re- cital in the agreement worked no estoppel as against B. ; that as it appeared that the hus- band expressly refused to assign the chattels to his creditor there was nothing to prevent him from transferring them to his wife, antt that the Court of Appeal rightly ^f^f ."t" transaction an honest one, and B. entitled to the goods and to indemnity against the mori- gage. Boulton v. Boulton, xxviii., 592. 42. Acquiescement — Flontable waters -- Water power — River improDemenis-^MW user— Servitude— Arts. 400, 5Jf9, 550, 551 ana 545 ESTOPPEL. 546 1213 G. 0.] — Where a riparian owner of lands on a lower level had been permitted by the plaintiffs, for a number of years, to take water power necessary to operate his mill through a flume he had constructed along the river bank partly upon the plaintiffs' land connecting with the plaintiffs' mill-race, sub- ject to the contribution of half the expense of keeping their mill-race and dam in repair, and these facts had been recognized in deeds and written agreements to which the plaintiffs and their autears had been parties, the plain- tiffs could no longer claim exclusive rights to the enjoyment of such river improvements nor require the demolition of the flume notwith- standing that they were absolute owners of the strip of laud upon which the mill-race and a portion of the flume had been Construct- ed. City of Quehec v. North Shore By. Go. (27 Can. S. C. R. 102) and La Gommune de BertUer v. Denis (27 Can. S. C. R. 147) referred to. Lafrance v. Lafontaine, xxx., 20. 43. Quashing appeal — Practice — - Ac- quiescement — Voluntary execution — Ques- tion of costs.'i — Defendants filed judicial abandonments as ordered by the judgments appealed from, declaring, however, in the deeds, that exception was taken thereto, and that they intended to appeal, but made the abandonment to avoid capias, &c. — Held, per Strong, C.J., and Taschereau and Girouard, J.T. That appellants had acquiesced in the judgments, executed the order against them and left matters in a position where it was impossible to obtain relief. Gwynne, ,T., con- curred on the understanding that there should not be res judicata in respect to an alleged partnership. Sedgewick, J., assented doubt- fully, as he did not feel satisfied that the abandonment had not been made under stress. Schlomann v. Dowker. xxx., 323. (The appeal, involving costs only, was quashed on the question of jurisdiction.) See Appeal, 396. ■44. Covenant for title — Warranty clause in an escrow. See Deed, 20. 45. Statute of Limitations — Interruption ■ — Acceptance of contingent interest — Posses- sion. See Will, 56. 46. Married woman — Renunciation of com- munity — Possession — Prescription — Arts. J379, 2191 C. G. See Title to Land, 75. 47. Deed — Ratification — Bona fides — Prescription. See Title to Land, 76. 48. Shaiiy defence — " Want of a seal " — Policy of life insurance — Equitatle relief. See Company Law, 28. 49. Landlord's title — Tax deed — Eject- m ent — Evidence. See Title to Land, 99. 50. Public sale of lots bounded by lanes — Closing of lane — Subsequent lease according to plan shewing lane closed — Acceptan Affirmative testimony — Interested witnesses — Art. 12SZ G. 0. — Arts. 251, 252 0. C. P. — Mala fides — Com- mon rumour.J — In the estimation of the value of the evidence in ordinary cases, the testimony of a credible witness who swears positively to a fact should receive credit in preference to that of one who testifies to a negative. — The evidences oi witnesses who are near relatives or whose interests are closely identified with those of one of the parties, ought not to prevail in favour of such party against the testimony of strangers who are disinterested witnesses. — Evidence of common rumour is unsatisfactory and should not gen- erally be admitted. Lefeunteum v. Beaudoin, xxviii., 89. 240. Purchase of land — Joint negotiations — Deed to one party only — Interest of asso- ciate — Kesulting trust. See Title to Land, 117. 241. Description of lands — Discrepancy — Metes and bounds. See New Tbial, 36. 242. Expert testimony — Appreciation of evidence — Reversal on questions of fact. See No. 60, ante. 243. Admiralty law — Collision — Ship at anchor — Anchor light — Lookout — Weight of evidence — Credibility — Findings of trial judge ■ — Negligence. See Admiralty Law, 4. 244. Operation of tramway — Contributory negligence — Pleadings — Issues — Evidence — Verdict — New trial— Objections taken on ap- peal. See New Tbial, 82. EXCEPTION. See Pleading — Peactice and Pkoceduee. EXCHANGE. Title to lands — Ambiguous description — Possession — Conduct of parties — Presumptions from occupation of premises — Art. 1599 C. C. See Deed, 27. EXCHEQUER COURT OF CANADA. 1. Pinal judgment — Decision — Right of appeal — 38 Vict. c. 11— R. S. C. c. 135— 53 Vict. c. 35. See Appeal, 159. 2. Jurisdiction ■ — Arbitration — Debts of Province of Canada — Deferred liabilities — Toll bridge — Reversion to Crown — Indemnity — Petition of right — Condition precedent — Remedial process. See Constitutional Law, 8. 3. Exchequer Court appeal — Assessment of damages — Interference with findings of Ex- chequer Court judge. See Appeal, 241. 4. Injury from public work — Negligence of Crown officials — Right of action — Liability of the Crown — 50 d 51 Vict. c. 16, ss. 16, 2S, 58 — Jurisdiction of Exchequer Court — Pre- scription — Art. 2261 C. C. See Action, 113. EXCISE. See Duties — Inland Revenue. EXECUTION. 1. Witt — Prohibition to alienate — Exemp- tions from seizure — Judgment against execut- or — Res inter alios acta.} — The will gave ex- tensive powers of discretion to the executor in respect to the administration of the af- fairs of the succession, the partition of the property among the beneficiaries and' dis- pensed with the necessity of an inventory or rendering of accounts. It also provided that the property bequeathed should be exempt from seizure, save for debts due by the suc- cession. The executor indorsed promissory notes for the accommodation of one of the beneficiaries, upon which judgment was re- covered under which lands belonging to the estate were seized in execution. Held, that the transaction in respect to the notes was an affair dehors the estate and that effect should be given to the provision of the will as to ex- emption from seizure. Lionais v. Molaons Bank, x., 526. 2. Sale of railway shares en bloc — Arts. 595, 599 C. C. P.] — Where a number of shares of railway stock were seized and advertised to be sold in one lot, neither the defendant nor any one interested in the safe requesting the sheriff to sell the shares separately, and such shares were sold for an amount far in excess of the judgment debt for which the property was taken in execution, such sale in the absence of proof of fraud or collusion was held good and valid. Judgment appealed from (M. L. R. 2 Q. B. 303) aflSrmed. Con- necticut (£ Passumpsic Rivers Ry. Co. v. Mor- ris, xiv., 318. 3. Writs ■ — Seal — Signature.} — In Nova Scotia writs of execution need not be signed by the prothonotary of the court. It is the seal of the court which gives validity to such writs, not the signature of the officer. Archir bald V. Hubley, xviii., 116. 4. Real Property Act — Registration — Vn- registered transfers — Equitable rights — Sales under execution — R. S. C. c. 51 — 51 Vict. (D.) c. 20.] — The provisions of s. 94 of the Territories Real Property Act (R. S. C. c. 51), as amended by 51 Vict (D.), c. 29, do not displace ' the rule of law that an execution creditor can only sell the real estate of his debtor subject to the charges, liens and equities to which the same was subject in the hands of the execu- tion debtor, and do not give the execution creditor any superiority of title over prior 593 EXECUTOES AND ADMINISTEATOES. 594, unregistered transferees, bnt merely protect the lands from intermediate sales and disposi- tions by the execution debtor. — If the sheriff sells, however, the purchaser by priority of registration of the sheriff's deed would under the Act take priority over previous unregis- tered transfers. Jellett v. Wilkie; Jellett.v. The Scottish Ontario andi Manitoba Land Go. ; Jellett V. Powell; Jellett v. Erratt, xxvi., 282. 5. Fi. fa. de terris — Opposition to seisnre — Assignment for benefit of creditors — In- solvency — Practice — Stay of execution — Art. 772 C. 0. P.] — On appeal the Supreme Court affirmed the judgment of the Court of Queen's Bench (Q. R. 8 Q. B. 517) which hpld that an incomplete cession, de biens by an insolvent execution debtor cannot be op- posed to a seizure of his goods under execu- tion, and that notwithstanding the provisions of art. 772 C. C. P. (old text! the judgment creditor could proceed by fi. fa. de terris to make his debt out of the lands of the execu- tion debtor. Birhs v. Lewis, xxx., 618. 6. Practice — Appeal to Privy Council — Stay of execution.'] — A judge- in chambers of the Supreme Court of Canada will not enter- tain an application to stay proceedings pend- ing an appeal from the judgment of the court to the Judicial Committee of the Privy Coun- cil. Adams & Burns v. The Bank of Montreal, xxxi., 223. 7. Solicitor and client ■ — Territories Real Properties Act — Unregistered transfers — Charging lands — Levy under execution — Irir- demnity to sheriff — Tort — Pleading — Inter- pleader.] — In a suit against a sheriff and an ■ execution creditor in respect of alleged irregu- lar levy under a writ of execution, the sheriff is not obliged to interplead but may be pro- perly joined in a defence with the execution creditor. The delivery of an execution with a requisition to the sheriff to charge and levy upon the lands apparently belonging to the execution debtor does not give rise to any im- plied or express obligation on the part of the solicitor of record to indemnify the sheriff against loss or damage in consequence of ir- regular levy, under the execution. Taylor v. Robertson, xxxi., 615.. 8. Order setting aside fi. fa. — Appellate jur- isdiction — s. 17 Sup. and Ex. Courts Act. See Appeal, 157. 9. Stay of execution — Order for deposit of part of verdict — Security for costs. See Pleading, 4. 10. Stay of proceedings — Res judicata-r- Proceedings in revocation of judgment — Dis- avowal. See Opposition, 3. 11. Interdiction — Marriage laws — Authori- zation by interdicted husband — Dower — Re- gistry laws — Sheriff's sale — Warranty — Suc- cession — Renunciation — Donation. See Title to Land, 111. 12. Mines and minerals — Construction of statute — Free-miner!s certificate — Annual re- newals — Special renewal — Vesting of interest in co-owners — Sheriff — Levy under execution —R. S. B. G. 135, ss. 2, S, 9, Slf—62 Vict. V. i5, ss. 2, 3, i—R. S. B. C. c. 72, ss. 12, 2Jf. See Shebiff,- 15. EXECUTORS AND ADMINISTRA- TORS. 1. Joint executors — Liability for m,oneys re- ceived — Uncollected debts — Dibats de compte — Taking accounts — Interest — Prescription — Arts. 913, 2242 C. C] — Respondents, repre- senting one of the universal residuary legatees sued appellants as joint testamentary execu- tors of W. D., sen., for an account and the balance of the estate in their hands. On a dibat de compte the total value of the estate was proved to be $44,525.65, and appellants, as appeared by an account rendered by them, took possession of $14,510.33 as such execu- tors. The remaining $30,015.33 appeared, by the books of the commercial firm of W. D. & Co., to be due to the estate of W. D., sen., by W. D., Jun., one of the executors, and to have never come into the possession of the other executors. — Held, Tasehereau, J., dis- senting, that under art. 913 C. C. appellants were jointly and severally responsible only for the amount of which they took possession in their joint Capacity, and that, therefore, W. D., jun., was alone responsible for the amount of such balance. — Testamentary executors cannot legally be charged more than a rate of six per cent, for interest on moneys collected by them, after their accoiint has been demand- ed, unless there is proof that they realized a greater rate of interest by the use of such moneys. — An action against executors for an account of their administration, and moneys received, or which ought to have been collect- ed by them in their capacity as such execu- tors, is not prescribed otherwise than by the long prescription of 30 years. Darling v. Brown, ii., 26. 2. Administrator — ■ Misconduct — Refusal to facilitate liquidation — Costs.] — The plain- tiff wished to administer to the estate of his brother, but was unable to give the necessary bond, until W. and J. agreed to become his bondsmen, securing themselves by haying the. estate placed in the hands of the defendants. A portion of , the estate consisted of some Knglish railway stock, which the defendants wished to convert into money, but plaintiff would not assist them in doing so. — In passing the accounts of the estate in the Probate Court of Westmoreland County, it was found that there were several persons entitled to participate as next of kin of the deceased, and the respective amounts due the several claimants were settled by the court. — Owing to the plaintiff's refusal to join in realizing the stock, however, the defendants were un- able to pay some of these parties their respec- tive shares, and finally plaintiff filed a bill to compel the defendants to pay him his portion . of the estate with $1,000, which he Claimed as commission, and also to hand over to him the shares of the next of kin. A decree was made directing that the estate be disposed of by the defendants, and that they were entitled to their costs as between solicitor and client, which could be retained out of the plaintiff's share of the estate. On appeal from the master's report the Vice-Chancellor reversed that portion of the decree which made the plaintift''s share of the estate liable for the defendants' costs, but the Court of Appeal re- stored the original judgment. Held, affirming the Court of Appeal (10 Out. App. R. 76), that as the misconduct of the plaintiff had caused all the litigation, the Court of Appeal had acted rightly in refusing to compel any of the other next of kin to bear the burden of S95 EXECUTORS AND ADMINISTKATOKS. 596 the costs. O'Sullivan v. Karty (22 C. L. J. 17;, xi., 322. 3. Testamentary appointment — Irregulari- ties in administration — Removal of executor —Arts. 282, 285, 917 C. 0.]— Art. 282 G. C. does not apply to executors chosen by the tes- taior, and in an action for the removal, of one of several executors, the existence of a liaw- suit between such executor and the esta.te he represents, and the evidence of irregularities in his administration but not exhibiting any incapacity or dishonesty, are not suflScient cause for his removal. Strong, J., dissenting. Mitchell V. Mitchell, xvi., 722. 4. Will — Legacy — Trust — ClaWn on assets — Priority — Registration — Charge on realty — Notice.'] — H. and his brother were partners in business ; the latter died and H. became by will his executor and residuary legatee. Part of a legacy to B. H., was paid and judgment recovered against the executor for the balance. H. having incumbered both his own share and that devised to him, one of his creditors, mort- gagee of the property, obtained judgment against him and the appointment of receivers of his estate. E. H. asked to have it declared that his judgment for balance of legacy was a chai'ge upon the moneys in the receivers' hands in priority to the personal creditors, of H. Held, affirming the Supreme Court (B. C), that the moneys held by the receivers being personal assets of the testator, or pro- ceeds thereof, E. H. was entitled to priority of payment though his judgment was registered after those of the other cireditors. Held, also, that the legacy was a charge upon the realty of the testator, the residuary devise being of " the balance and remainder of the property and of any estate " of the testator, and the words " property " and " estate " being both sufficient to pass realty. This charge upon realty operated against the mortgagees, who were shewn to have had notice of the will. Cameron v. Har- per, xxi.. 273. 5. Administration of estate — Powers — Mir- ing and service of clerk — yearly salary — Money paid out — ■ Prescription — Arts. 91Jf, 2260, 2261 G. C] — Action against the heirs of X. for services as clerk to his executor, in administering the estate and for money paid and laid out for estate. — Pleas: That all de- mands for salary were prescribed, by two years under art. 2261 0. C.. and all sums ad- vanced and paid by five years under par. 6, art. 2260 C. C. That the executor, who re- ceived $400 per annum under the will, had no right to employ a clerk at expense of estate to do the work thereof, and R.'s work was done for executor, against whom aloue he hud a claim. — The Superior Court held tliat the only prescription for yearly salary was that of 5 years, under par. 6, art. 2260, C. C, while that of 30 years alone was applicable to the claim for moneys laid out for estate. That the general powers of an executor in* elude the engagement of clerks to keep the books of the estate and to carry on its affairs (art. 914 C. C.) ; and $1,754 was awarded to R- — These holdings of law were affirmed, but the action was dismissed in the Queen's Bench (Tessier and Cross, JJ., dissenting) , on the ground that there was evidence that R. had agreed to accept $400 per annum and had been paid that sum. — The Supreme Court re- versed the judgment of the Court of Queen's Bench and varied that of the Superior Court by increasing the amount awarded R. to $5,607. Rattray v. Young, Cass. Dig. (2 ed.) 6. Removal of for waste — Fraudulent ad- ministration — Husband and wife — Will—R^^ jection of evidence.'] — An action to remove executrix. Appellant is the sole surviving ex- ecutrix of the will of the late X. R., and the appellant and the respondent are the remain- ing legatees under the will. The respondent complained : — 1st. Appellant had given a power of attorney to her husband to manage the estate in violation of the terms of the will ; 2nd. Fraud in charging the estate with sums not legally chargeable to the estate; in charging a commission to remune- rate her husband for the management of the estate, while paying one T. a commis- sion for the same services; in taking bonuses for certain leases granted ; in making a fraudulent lease to C. at a notoriously insuffi- cient rent to the injury of the estate ; "in agree- ing to pay $1,200 to H. and T. for cancella- tion of the lease of part of the estate ; 3rd. Waste in pulling down and erecting buildings on the estate. — Appellant denied' waste and fraud, and maintained that she had a right to give her husband a power of attorney. — ^As to the first point respondent relied on these words : " And it is furthermore my will and wish, that neither of the husbands of any of said daughters nor any of my daughters' future husbands, shall have any power over, Control or interference in any manner, with the foregoing devise and bequest to them, but shall be as absolutely free from such power, control or interference, as if they had re- mained unmarried and single." — Appellant complained that the testimony of her husband had been excluded, and that it was competent to the court to allow her husband to be ex- amined. (Art. 252 C. C. P. ; 35 Vict. e. 6, s. 9.) — ^The Superior Court, while admitting that under the will the husband could act as his wife's attorney, removed appellant, on the grounds that the administration of the estate had been fraudulent and wasteful,, that the lease to C. had been imprudent and looked fraudulent, that in the receipt of bonuses by her husband, there had been fraud, for which she was liable, and there had been other irre- gular transactions. — The Queen's Bench held that it was competent for the appellant under the will to appoint her husband her general attorney and agent ; that the trial judge not having admitted the husband's evidence, un- der the circumstances it would not be the duty of the court, even if it had the power, to send back the record to allow him to be ex- amined ; that removal of an executrix, daugh- ter of the testator, herself a legatee, ought not to be ordered on evidence of small payments, which might have been avoided ; that payment of a commission to her husband for appreci- able services, such as collections, would not be ground for removing the executrix selected by the testator ; but affirmed the judgment on account of the transaction with C. and the taking of bonuses on several occasions without accounting for them On appeal. Held, af- firming the judgment appealed from, that the transaction with C was sufficient cause for removal and that the evidence of the husband on behalf of his wife had been properly re- jected. Ross V. Ross, Cass. Dig. (2 ed.) 306. 7. Building — Want of repair — Damages- Art. 1055 C. C. — Trustees— Personal UaiMy of — Executors — Arts. 921. 981 (o) 0. G.— Procedure.'] — The owner of property abutting on a highway is under a positive duty to keep 597; EXECUTOES AND ADMIKISTEATOES. 59S it from being a cause of danger to the public by reason of any defect, either In structure, repair, or use, and management, which reason- able care can guard against. — A. T. sued J. F. and M. W. F., personally as well as in their quality of testamentary executors and trustees of the will of the late J. F., claiming $4,000 damages for the death of her husband who was killed by a window falling on him from the third story of a building, which formed part of the general estate of the late J. F., but which had been specifically bequeathed to one G. F., and his children, for whom the said J. F. and M. W. F. were also trustees. The judgment of the courts below held the ap- pellants liable in their capacity of executors of the general estate and trustees under the wills. Held, that the appellants were respon- sible for the damages resulting from their negligence in not keeping the building in re- pair as well personally as in their quality of trustees (d'Mritiors fiduciaires) for the bene- fit of G. F.'s children, but were not liable as executors of the general estate. — Where par- ties are before the court qua executors, and the same parties should also be summoned qua trustees, an amendment to that effect is sufficient, and a new writ of summons is not necessary. Ferrier v. Trepannier, xxiv., 87. 8. Testamentary succession — Executors — Balance due iy tutor — Practice — Action for account — Provisional possession — Envoie en possession — Parties.'] — The appeal was from the .iudgment of the Court of Oueen's Bench for Lower Canada (Q. R. 6 Q. B. 34), which reversed the decision of the Superior Court, District of Quebed, and dismissed the plain- tiff's action and incidental demand, and held, that on failure of testamentary executors to render an account, the heirs of the testator have no direct action against them for alleged balances in their hands ; that their proper re- course would be by an action for account, which should embrace the whole of the admin- istration of the succession of the execfutors, and could not be restricted to particular or isolated matters ; that a demand for provi- sional possession (envoie en possession), of a testamentary succession against an executor who has had the administration thereof should implead all the heirs as plaintiffs, and that failure in the joinder of any one of them would be fatal, and the defendant could not be compelled to call them in as parties to the action, and further, that, in a case where there were several executors, such actions must be brought against them jointly, and could not be validly instituted against one of them even with the extra judicial consent of the others. — The Supreme Court of Canada affirmed the decision of the Court of Queen's Bench, and dismissed the appeal with costs. Cream et al. v. Davidson, 1st May, 1897, xxvii., 362. 9. Will — Powers of executors — Promissory note — Advancing legatee's share.} — M.. who was a merchant, by his will gave special direc- tions for the winding up of his business and the division of his estate among a number of his children as legatees, and gave to his exe- cutors, among other powers, the power " to make, sign, and indorse all notes that might be required to settle and liquidate the affairs of his succession." By a subsequent clause in his will he gave his executors "all neces- sary rights and powers at any time to pay to any of his' said children oveii the age of thirty years the whole or any part of their share in his said estate for their assistance either in establishment or in case of need, the whole according to the discretion, pruuence and wis- dom of said executors," &C. In an action against the executors to recover the amount of promissory notes given by the executors and discounted by them as such in order to secure a loan of money for the purpose of ad- vancing the amount of his legacy to one of the children who was in need of funds to pay per- sonal'debts. Held, affirming the judgment ap- pealed from, that the two clauses of the will referred to were separate and distinct provi- sions which could not be construed together as giving power to the executors to raise the loan upon promissory notes for the purpose of ad- vancing the share of one of the beneficiaries- under the will. Banque J acques-C artier v. Gratton, xxx., 317. 10. Donatio mortis caustt — Ratification 'by will — F!ci::in — Payment of legacy — Sale of land — Charges — Action hypothecaire.'] — On appeal the Supreme Court affirmed the iudg- ment of the Court of Queen's Bench (Q. R. 8 Q. B. 511). in an hypothecary action by which it was also asked that a discharge by executors should be set aside. C. sold land to A. W. M. and C. B. M. for $150,000 secured by privilege of 'bailleur de fonds, of which $50,000 was payable to respondent after ven- dor's death. C. afterwards by his will ratified the donation and delegation of payment. A. W. M. and C. B. M. being named testamen- tary executors. The C. C. Co. acquired the land assuming the obligation of paying this $50,000. The executors discharged the debt and the hypothec by which it was secured. It was held by the court below, that even if the delegation were null on account of the donatio mortis causa by acte entre vifs, the will validated it and the credit passed to the respondent with all its accessories including the hypothec and special privilege of hailleur de fonds; and further, as the executors were seized only for the execution of the will, and there was no necessity to use this credit to pay debts of the succession, they had no power to grant the discharge. Consumers Cordage Co. v. Converse, xxx., 618. 11. Appeal — Jurisdiction — Matter in con- troversy — Removal of executors — Acquiesc- ence in trial court judgment — Right of appeal — R. S. C. c. 135, s. 29.] — The Supreme Court of Canada has no jurisdiction to entertain an appeal in a case where the matter in Contro- versy has become an issue relating merely to the removal of executors though, by the ac- tion, an account for over $2,000 had been de- manded and refused by the judgment at the trial against which the plaintiff had not ap- pealed. Hoel V. Chevrefils (30 Can. S. C. B. 327) followed; Laherge v. The EquitaMe Life Assurance Society (24 Can. S. C. R. 59) dis- tinguished. Donohoe v. Donohue, xxxiii., 134. 12. R. S. N. S. U ser.) c. 96, s. 41— Death of party to suit — Adding administrator as party iefore trial — Competence of surviving party to give testimony — Evidence of agree- ments with deceased party. See Evidence, 3. 13. Execution of trusts — Insufficiency of income — Power to mortgage or sell — Anr- nuities — Charges upon corpus. See Will, 8. 599' EX POST -FACTO LEGISLATION. 600 14. Hypothecary deits — Charge upon estate — Special devise — Art. 889 G. C, See Will, 57. 15. Conservatory acts — Acts of administra- tor — Acceptance of insolvent succession — Arts. 646, 650 C. G. * See Fbatjd, 1. 16. Powers — Unlimited discretion conferred by will — Indorsement of accommodation notes. See Bills and Notes, 15. 17. Aid to civil power — Payrnent of troops — Suit by administrator of commanding of- ficer. See MiLiTABT Law, 1. 18. Will — Powers — Sale of land — Vnsur- veyed lot — Unknown quantity — Contract — Specific performance — Breach of trust. See Sale, 1. 19. Administration of agent- Misappropriation — Mandate. See Trttsts, 9. -Negligence — 20. Trust estate — Purchase at sheriff's sale — Possession — Statute of Limitations — Evi- dence. See Title to Land, 118. 21. Appointment to carry on administra- tion — Constructive trust — Negligence — Ac- count — Interest — Contrainte. See Tutorship, 2. 22. Removal of executors hy codicil — Re- ference to revoked wiU-^Intention to revive. See Will, 55. 23. Trustee — Accounts — Jurisdiction of Probate Court — Res judicata. See Tktists, 14. 24. Trustees and executors — Legacy in trust — Discretion of trustee — Vagueness or uncertainty as to beneficiaries — Poor relatives — Public Protestant charities — Charitable uses — Persona designata. See Will, 46. 25. Nova Scotia Probate Act—R. S. N. S. (5 ser.) c. 100 and 51 Vict. (N. 8.) c. 26 — License to sell lands — Estoppel — Res judicata. See Res Judicata, 11. 26. Provisions of will tion — Premature action. See Will, 20. Deferred distribu- EXEMPTIONS. 1. Succession duties — Property exempt — Sale under will — Duty on proceeds — Costs^- Proceedings by or against the Crown.] — De- bentures of the Province of Nova Scotia are, by statute, " not liable to taxation for pro- vincial, local or municipal purposes " in tne province. L. by his will, after making certain bequests, directed that the residue of his pro- perty, which included some of these deben- tures, should be converted into money to be invested by the executors and held on certain specified trusts. This direction was Carried out after his death, and th* Attorney-General claimed succession duty on the whole estate JETeid. affirming. the judgment -appealed against (35 iSr. S. Bep. 223), Sedgewick and Mill? JJ., dissenting, that although the debentures themselves were not liable to the duty either in the hands of the executors or of the pur- chasers, the proceeds of their sale when pass- ing to legatees were.^^Josts will be given for or against the Crown as in other cases. Lovitt V. Atty.-Gen. for Nova Scotia, xxxiii. 350. ' 2. Exemptions from customs duties — For- eign built ships — Dutiable goods — Customs Tariff Act. See Customs Duties, 4. 3. Exemptions from customs duties — Duti- able goods — Customs Tariff Act — Lex fori-^ Lex loci — Interest on duties improperly levied- — Mistake of law — Repetition — Presumption as to good faith. See Customs Duties, 5. And see Assessment and Taxes TIONS. EXECU- EXFEBTISE. Builder's privilege — Proc^s-verbal — Arts. 1695. 2013. 2103 C. G.—Art. 3S3 et seq. C. G. P. — Error in valuation: See Lien. 8. And see Experts. EXPERTS. 1. Expert opinions — Evidence — Hearsay — Extra judicial statements — Assessor's re- ports.] — Where there is diirect contradiction between equally credible witnesses the evi- dence of those who speak from facts within their personal knowledge should be preferred to that of experts giving opinions based upon extra judicial statements and municipal re- ports. Crawford v. City of Montreal, xxx.,. 406. 2. Assessment of damages — Evidence incom- plete — Record remitted for expertise. See Sale, 103. 3. Evidence of experts — Opinions — Infer- ences. See Evidence, 58-62. And see Expertise. EXPLOSION. Condition of policy — Loss by explosion — Fire caused by explosion. See Insurance, Fire, 32. EX POST FACTO LEGISLATION. Special taxes — Warranty — Montreal local improvements. See Municipal Corporation, 124. 601 EXPEOPEIATION OP LANDS. 603 EXPRESS COMPANY. Bailees — Common carriers — Receipt for money parcel— Conditions precedent — Formal notice of claim — Pleading — Money had and re- ceived — Special pleas. See Action, 21. EXPROPRIATION OF LANDS. 1. By the Crown, 1-7. 2. By Municipal Authorities, 8-20. . 3. Foe Railways, Tramways, &c., 21-32. 1. By the Crown. 1. Town plot sui-division — Valuation — Assessment of damages — Government railway — Crossings.] — The claimant , contended that the land was held for sale as building lots. It had not been sub-divided prior to expro- priation, and none of it had been sold for building purposes. There was, however, a re- mote probability that the land would become available for such purposes upon the exten- sion of the limits of an adjoining town. — The absence of a crossing prevented access to the shore, and caused claimant loss in the use and occupation of the remaining property. — The Exchequer Court (2 Ex. C. R. 21), decided that while remote probability added some value to the property, compensation should not be based on any supposed value for building purposes at the time of expropriation, and also, that claimant was entitled to compensa- tion in respect of damage resulting from the want of a Crossing. — On appeal by claimant, the Supreme Court of Canada, Held, that the amount of compensation awarded should be increased, on the ground that it did nijt ap- pear that such compensation was assessed in view of the future damage that might result from the want of a crossing. Kearney v. The Queen, Cass. Dig. (2 ed.) 313. 2. Petition of right — PuhJic work — -Injury to property — Obstruction of canal — Use of canal.'i — The appellant, claiming to be owner of the Shubenacadie Canal in Nova Scotia, brought suit by petition of right to recover damages from the Crown for expropriating part of his property in construction of public works and for obstrncting the use of the canal. The Exchequer Court (4 Ex. C. R. 130), without deciding as to the title of appellant, which was disputed, held that expropriation had not been proved, and refused damages for obstruction on the ground that the canal was not open for traflSc. The judgment included a declaration that appellant was entitled, whenever it should be so opened and the traffic obstructed by the public work, to have the obsti-uction removed. — The Supreme Court of Canada affirmed the judgment of the Exche- quer Court, and dismissed the appeal with costs. Fairbanks v. The Queen, xxiv., 711. 3. Expropriation of land — Damages — Valu- ation — Evidence.'] — The Crown expropriated land of L. and had it appraised by valuators who assessed it at $11,400, which sum was tendered to L., who refused it and brought suit by petition of right for a larger sum as compensation. The Exchequer Court award- ed him $17,000. On appeal by the Crown. — Held, reversing the judgment appealed from, Girouard, J., dissenting, that the evidence given on the trial of the petition shewed that the sum assessed by the valuators was a very generous compensation to L. for the loss of his land and the increase by the judgment ap- pealed from was not justified. — The court, while considering that a less sum than that fixed by the valuators should not be given 'in this case expressly stated that the same course would not necessarily be followed in future cases of the kind. The King v. Likely xxxii., 47. 4. Laying out and ascertaining ordnance lands — PuMic works — Reversion of lands not used for canal purposes. See RiDEAu Canal Lands, 2. 5. Intercolonial Railway lands — Appellate court amending award — Speculative values. See Arbitrations, 11. 6. Public work — Government contractor — Entry on lands — Notice of action — JfJf Vict, c. Ho, s. 109 — Conditions precedent. See Crown, 64. 7. Tender of compensation — Award of of- ficial arbitrators — Costs — Findings of fact — Setting aside award. See Appeal,, 223. And see Public Works. 2. By Municipal Authorities. 8. Expropriation — Award of arbitrators — Interference on appeal.] — In a matter of ex- propriation, the decision of the majority of the arbitrators, men of more than ordinary business experience, upon a question merely of value, should not be interfered with on ap- peal. Lemoine v. City of Montreal; Allan v. City of Montreal, xxiii., 390. 9. Municipal corporation — Expropriation proceedings — Negligence — Interference with proprietary rights — Abandonment of proceed- ings — Damages — Servitudes establislied for public utility — Arts. 406, 401, 1053 C. C. — Eminent domain.] — Where, under authority of a statute, authorizing the extension of a street, a servitude for public utility was es- tablished on private land which was not ex- propriated and the extension was subsequent- ly abandoned, the owner of the land was not, in the absence of any statutory authority therefor, entitled to damages for loss of pro- prietary rights while the servitude existed. Perrault v. Gauthier et al. (28 Can. S. C. R. 241) referred to. The Chief Justice dissented. Hollester v. City of Montreal, xxix., 402. 10. Expropriation of land — Lands injuri- ously affected — Damages — Interest — Award.] — If in the construction of a public work land of a private owner is injuriously af- fected and the compensation therefor is de- termined by arbitra,tion, interest cannot be al- lowed by the arbitrator on the amount of damages awarded. Leak v. City of Toronto, XXX., 321. 11. Municipal corporation — Widening streets — Abandonment of proceedings — Reinti- grande — Measure of damages.] — The city commenced expropriation proceedings and forthwith took possession of plaintiff's land. '6DS BXPEOPEIATIOlSr OF LANDS. 604 constructed works thereon and incorporated it with a public street. Subsequently, in virtue of a statute granting permission to do so, the city abandoned the expropriation pro- ceedings without paying indemnity or return- ing the lands so occupied and used. — Held, that the plaintiff had been illegally dispos- sessed of his property and was entitled to have it returned to him in the state in which it was at the time it had been so taken pos- session of and also to recover compensation for the illegal detention. Held, further, that, in the present case, the measure of damages, as representing the rents, issues and profits of the lands usurped by the city, should be the interest upon the value of the property dur- ing the period of its illegal detention. (Judg- ment appealed from, Q. R. 8 Q. B. 534, varied). City of Montreal v. Hogan, xxxi., 1. 12. Municipal corporation — Montreal City cTuirter — Local improvements — Expropria- tion for widening street — Action for in- demnity — 52 Yict. 0. 79 (Que.) — 54 Vict. c. 78 (Que.)— 59 Vict. c. 49 (Que.) — Assess- ment of damages.] — ^Where the City of Mon- treal, under the provisions of 52 Vict. c. 79, s. 213, took possession of land, for street widening, in October, 1895, under agreement with the owner, the fact that the price to be paid remained subjecft to being fixed by com- missioners to be appointed under the statute was not inconsistent with the validity of the cession of the land so effected and, notwith- standing the subsequent amendment of the statute in December of that year, by 59 Vict. c. 49, s. IT, the city was bound, within a rea- sonable time, to apply to the court for the appointment of commissioners to fix the amount of the indemnity to be paid, to levy assessments therefor and to pay over the same to the owner, and, having failed to do so, the owner had a right of action to recover in- demnity for his land so taken. Hogan v. City of Montreal (31 Can. S. C. R. 1) distinguish- ed. — The assessment of damages by taking the average of estimates of the witnesses ex- amined is wrong in principle. Grand Trunk Ry. Co. V. Goupal (28 Can. S. C. R. 531) followed. Fairman v. City of Montreal, xxxi., 210. 13. Assessment of damages— Reservation of recourse for future damages — Expropriation —Res judicata — Right of action.'\ — A lessee of premises used as an ice-house recovered in- demnity from the city for injuries suffered in consequence of the expropriation of part of the leased premises and, in his statement of claim, had specially reserved the right of fur- ther recourse for damages resulting from the expropriation. In an action brought after his death by his universal legatee to recover dam- ages for loss of the use of the ice-house during the unexpired term of the lease : Held, af- firming the judgment appealed from, that the reservation in the first action did not preserve any further ri^ht of action in consequence of the expropriation and, therefore, the plain- tiff's action was properly dismissed by the courts below, as, in such cases, all damages capable of being foreseen must be assessed once for all and a defendant cannot be twice sued for the same cause. The City of Mon- treal V. McGec (30 Can. S. C. R. 582), and The Ghaudiire Machine and Foundry Go. v. The Canada Atlantic Ry. Go. (33 Can. S. C. R. 11) followed. Anctil v. City of xxxiii., 847. 14. Powers of Town of Levis — Special charter — Railway aid — Expropriation of right of way — U d 4S Vict. c. %0, a. 2 (Que.). See Municipal Coepoeation, 105. 15. Lost record — Old statute — Dedication — Presump tion — User. See Highway, 1. 16. Street railway — Municipal ownership Notice — Arbitration. See Municipal Ooepoeation, 116. 17. Arbitration — Award hy majority — In- terference with on appeal. See Aebitbations, 55. 18. Assessments — Local impi-ovements — Future rights — Jurisdiction. See Appeal, 71. 19. Expropriation — Widening street— ^As- sessment — Excessive valuation. See Municipal Ooepoeation, 8. 20. Local improvement — Rating in propor- tion to benefit. See Assessment and Taxes, 53. 3. PoK Railways, Tramways, &c. 21. Land tahen for railway purposes — Award — Riparian rights — Obstruction — Ac- cis et sortie — Tort.'] — In an award for lanfi expropriated for railway purposes where there is an adequate and sufficient description, with convenient certainty of the land intended to be valued, and of the land actually valued, such award cannot afterwards be set aside on the ground that there is a variation be- tween the description of the land in the no- tice of expropriation and in the award. — A riparian proprietor on a navigable river is entitled to damages against a railway com- pany for any obstruction to his rights of accis et sortie, and such obstruction without parliahientary authority is an actionable wrong: Pion v. North Shore Ry. Co., (14 App. Gas. 612) followed. — ^Taschereau, J., was of opinion that the award in this case included compensation for the beach lying in front of plaintiff's property, which belongs to the Crown, and, for that reason, should be set aside. Bigaouette v. North Shore Ry. Co., xvii., 363. 22. Railway — Estimating damages — Pro- specti/ve capahUities — Unity of possession — Increased advantages — l^own plot — Set-off.] — In assessing damages for expropriation re- gard should be had to the prospective cap- abilities of the lands arising from situation and character, and in awarding compensation the Value to the owner should be considered, not that to the authority making the expro- priation. — The unity of the estate should also be considered, and if, by the severance of one of several lots so situated that the pos- session and control of each gives an enhanced value to them all. the remainder is depreci- ated in value, such depreciation is substantive ground for compensation. — Advantages to a paper town from being made the terminus of a Government railway, with station-houses and other buildings constructed within its limits, should be taken into account by way of set-off under 50 & 51 Vict. c. 16, s. 31.— 605 FAITS ET ARTICLES. 606 Judgment appealed from (2 Ex. C. R. 149) aflSrmed. Paint v. The Queen, xviii., 718. 23. Railway expropriation — Award — Additional interest — Confirmation of title — Diligence — The Railway Act, ItiSS, ss, 126, no, i72.] — On a petition to the Superior Court, praying that a railway company be ordered to pay into the hands of the pro- thonotary of the Superior Court a sum equiva- lent to six per cent, on the amount of an award previously deposited in Court under s. 170 of the Railway Act, and praying further that the company should be enjoined and or- dered to proceed to confirmation of title, with a view to the distribution of the money, the company pleaded that the court had no power to grant such an order, and that the delays in proceeding to confirmation of title had been caused by the petitioner, who had unsuccessfully appealed to the higher courts for an increased amount. Held, reversing the judgment of the Court below, that by the terms of s. 172 of the Railway Act it is only by the judgment of confirmation that the ques- tion of additional interest can be adjudicated upon. Held, further, that assuming the court had jurisdiction, until a final determination of the controversy as to the* amount to be distributed, the railway company could not be said to be guilty of negligence in not ob- taining a judgment in confirmation of title. (Railway Act. s. 172). Fournier, J., dissent- ing. The Atlantic and North-west Ry. Go. v. Judah, xxiii., .231. 24. Railway — Expropriation of land- — Title to land — Tenants in common — Pro- priitaires par indivis — Construction of agree- ment — Misdescription — Plans and books of reference — Satisfaction of condition as to in- demnity — Registry laws — Estoppel — R. S. Q. arts. 5163, 5164— Art. 1590 C. C.]— In mat- ters of expropriation where the railway com- pany has complied with the directions and conditions of arts. 5163 and 5164, Revised Statutes of Quebec, as to deposit of plans and books of reference, notice and settlement of indemnity with the owners, or with at least one-third of the owners par indivis, of lands taken for railway purposes, the title to the lands passes forthwith to the company for the whole of the property by mere operation of the statute, even without the consent of the other owners par indivis, and without the necessity of formal Conveyance by deed or compliance with the formalities prescribed by the Civil Code as to registration of real rights. The Quebec, Montmorency and Charlevoix Ry. Co. v. Gibsone; Gibsone v. The Quebec, Montmorency and Charlevoix Ry. Co., xxix., 840. 25. Railways — Construction of statute — Tramway for transportation of materials — Expropriation — 51 Vict. c. 29, s. 114 (-0.) — 2 Edw. VII. c. 29 (£».)]— The place where materials are found referred to in the one hundred and fourteenth section of " The Rail- way Act " means the spot where the stone, gravel, earth, sand or water required for the construction or maintenance of railways are naturally situated and not any other place to which they have been subsequently trans- ported. — Per Taschereau and Girouard, JJ. The provisions of the one hundred and four- teenth section of " The Railway Act " confer upon railway companies a servitude consisting merely in the right of passage and do not confer any right to expropriate lands requir- ed for laying the tracks of a tramway for the transportation of materials to be used for the purposes of construction. Quebec Bridge Co. v. Hoy, xxxii., 572. 26. Railway — Objection to aivard — De- scription of lands — 43 & Itly Vict. c. 4:i, s. 9 (Que.). See Aebiteations, 42. 27. Railway lands — Increase of award — Appellate court receiving additional testi- mony — Appreciation of evidence. See Appeal, 12. 28. Gravel pit — Estimating compensation — Farm crossings. See Railways, 26. railway — Farm, 29. Severance of land crossings — Compensation. See Railways, 27. 30. Land required for railway extension — Deviation from line — : Completion of railway — Filing plans — Condition precedent. See Railways, 28. 31. Prohibition — Railways — Expropria- tion — Arbitration — Death of arbitrator pending award — 51 Vict. c. 20, ss, 158, 157 — Lapse of time for making award — Construc- tion of statute — Art. 12 C. C. — Appeal— Juris- diction — 54 d 55 Vict. c. 25, s. 2. Sec Akbitbations, 5. 32. Construction of railway — Crossing and using highways — Compensation to munici- pality — Terminus " at or near " point named. See Railway, 152. EXTRADITION. Appeal — Habeas corpus — Necessity to giiash.'i — By s. 31 of the Supreme and Ex- chequer Courts Act (R. S. C. c. 135, s. 31), " no appeal shall be allowed in any case of proceedings for or upon a writ of habeas corpus arising out of any claim for extradi- tion made under any treaty." On application to the ■ court to fix a day for hearing a mo- tion to quash such an appeal. Held, that the matter was coram non judice and there was no necessity for a motion to quash. In re Lazier, xxix., 630. And see Criminal Law. FACTORS. Mandate — Agency — Pledge — Notice Arts. 1739. 1740, 1742, 1975 C. C. See Paetneeship, 43. And see Beoker. FACTTJMS. See Practice of Supreme Court. FAITS ET ARTICLES. Negative averments — ■ Perjury dence. See Criminal Law, 4. And see Interrogatories. Evi- 607 FINDINGS OF FACT. '608 FAI.SE ABBEST. See Maucious Prosecution. FALSE BIDDING, BESALE FOB. Sale ty sheriff — Folle enohere — Resale for false bidding — Art. 690 et seq. G. C. P. — Questions of practice — Appeal — Art. 688 0. G. P. — Privileges and hypothecs — Sherii's deedr— Registration of — Absolute nullity — Rec- tification of slight errors in judgment — Duty of appellate court. See Appeal, 394. And see Sheriff. FAULT. See Negligence. FEAB. See Duress. FELONY. See Criminal Law. FELLOW^-VrOBKMAN. See Master and Servant — Negligence. FENCES. 1. Cattle straying on highway — Railway fencing — Protection at watercourses — Gul- vert — Injury by train — "Negligence. See Railways, 45. 2. Location of railway — Laying out boun- daries — Construction of deed- — Estoppel by conduct — Riparian rights — Possession — Prescription — Title to land. See Railways, 153. FEBBIES. 1. License — Construction — Disturbance ■ — Long user — Mstablishment of limits.] — The Crown granted a license to the Town of Belleville (in 1858), to ferry "between the Town of Belleville to Ameliasburg." Held, a sufficient grant of a right of ferriage to and from the two places named. — Under this license the Town of Belleville leased to the plaintiff granting the francJhise " to ferry to and from the Town of Belleville to Ameliasburg," a township having a water frontage of about ten or twelve miles, directly opposite to Belle- ville, such lease providing for only one land- ing place on each side, and a ferry was es- tablished within the limits of Belleville on the one side, to a point across the Bay of Quints, in Ameliasburg, within an extension of the east and west limits of Belleville. The defendants established another ferry across another part of the Bay of Quintg, between Ameliasburg and a place in the Township of Sidney, which adjoins Belleville, the termini being on the one side two miles from the western limits of Belleville, and on , the Ameliasburg shore about two miles west from the landing place of the plaintiffs ferry. Held, reversing the judgment appealed from (7 Ont. App. R. 341), that the establishment and use of the plaintiff's ferry within the limits aforesaid for many years had fixed the termini of the ferry, and that the defendants' ferry was no infringement of the plaintiffs' right. Anderson v. Jellett. Ix., 1. 2. Ferry license — Interference — Tortiom breach of contract — Bridges within ferry limits. — H. S. C. c. 97.1 — On appeal the Su- preme Court aflBrmed the judgment of the Ex- chequer Court of Canada (6 Ex. 0, R. 414). which held that the granting of leases and other privileges by the Crown of land for the purpose of building and utilizing railway bridges and the extension of railway tracks to connect with railways across the Ottawa River, did not constitute a breach of the con- tract on the part of the Crown arising out of the grant of a ferry license, including with- in its limits the localities in question, be- tween the City of Ottawa and the City of Hull, and that the construction of the bridges, with approaches and track extensions, did not constitute an interference with the ferrv rights of the suppliant which would entitle hini to recover damages against the Crown. Brigham v. The Queen, xxx., 620. 3. Municipal tax — Legislati/oe powers — S9 Vict. 0. 52 (Que.) — Navigation — Montreal harbour — Jurisdiction of commissioners — Double tax. See Constitutional Law, 53. 4. Bridge — Franchise — Future rights — Interference — Damages. See Tolls. 1. 5. Constitutional law — Municipal corpora- tion — ■ Powers of Legislature — License — Monopoly — ■ Highways and ferries -—Na/oi- gable streams — By-laws and resolutions — Intermunicipal ferry — Tolls — Disturbance of licensee — North-West Territories Act, R. S. G. c. 50. 'ss. IS and U—B. N. A. Act (1867) s. 92. ss. 8. 10 and 16— Rev. Ord. N. W. Ter. (1888) c. 28— Ord. N. W. T. No. 7 of 1891-92, s. i-^Companies, club associations and partnerships. See Constitutional Law, 27. FIDEI-GOMMISSAIBE. See Trusts. FINDINGS OF FACT. 1. Reversal on appeal — Manner of hearing evidence in court below — Appreciation of evir dence — Interference by appellate "ourt.! Where the trial judge has seen and heard tne witnesses and there is evidence to support ms findings thev will not be interfered with upon appeal. Queens Election Case, vu.. /» ■ Russell V. Lafrancois, viii., 335 ;. ^"f^S Election Case, ix., 93; Megantto Mectwm 609 FISHERIES. 610 Case, ix., 279; Parker v< Montreal City Pas, By. Co.. Cass. Dig. (2 ed.) 731; Caasells v. Burns, xlv., 256 ; Kyle v. The Canada Co.) XV., 188 ; Mislop v. 2'own of McOUlwray, xv., 188; The Queen v. Gharland, xvi., 721; Schwervenski v. Vineherg. xix.. 243 : Bickford V. Hoicfcww. xix.. 362 : Bowker v. Lo«ntei«ter. xXi, 175: SSi Santanderino v. FoJiiJer*. xxiii.. 145; Meadford v. MoOlary Mfg. Co., xxiv., 291 ; North British and Mercantile Ins. Co. V. Tourville, xxv., 177; iafce £We d; D. R. Ry. Co. V. SoJes, xxvi., 663 ; Montreal Gas Go. V. St. Laurent, xxvi., 176 ; City of St. Henri v. St. Laurent, xxvi., 176 ; Malzard v. ffort, xxvii., 510; Demers j. Montreal Steam Laundry Co.. xxvii.. 537 : Lefeunteum v. Beaudoin. xxviii.. 89 ; Para- dis V. Municioality of Limoilou, xxx., 405 ; Village of Oranby v. Menard, xxxi., 14 ; Do- minion Cartridge Co. v. McArthur, xxxi., 392 ; Dominion^ Goal Co. v. 8S. Lake Ontario, xxxii.. 507 ; D' Avignon v. Jones, xxxii., 650 ; McKelvey v. Le Roi Mining Co., xxxii.. 664. And see Appeal. 202-273. 2. Jury trial — Questions of fact^-Ver- diot.] — When questions of fact have been properly left to a jury their findings thereon must be accepted by a court of appeal. Baloh & Peppard v. Romhough, 12th June, 1900. 3. Verdict of jury — ■ Duress. See JUET. 46. FIRE INSURANCE. See INSUEANCE. FlKB. FISHERIES. 1. Canadian waters — Three-mile limit — Territorial jurisdiction — Bay of Ghaleurs — The Fisheries Act, 31 Vict. c. 60 (D.)—lJt & 15 Vict. c. 63 (Imp.) — Seizure ^ Fishery officer — • " On view."] — Under the statute 14 & 15 Vict. c. 63 (Imp) defining the boundary between Canada and New Bruns- wick, the whole of the Bay of Chaleurs is within the nresent boundaries of Quebec and New Brunswic'k, within the Dominion of Canada and subject to The Fisheries Act, 31 Vict. c. 60 (D.) and. therefore, drifting for salmon in the Bay of Chaleurs, although more than three miles from either provincial shore, is a drifting in Canadian waters and within the prohibition of the last mentioned Act and the regulations hiade in virtue thereof. — 2. The term " on view " in s.-s. 4 of s. 16 of the Fisheries Act. is not to be limited to seeing the net in the water while in .thfe very kct of drifting. If the p&rtj acting " on view " sees what, if testified to by him, would be sufficient to convict of the offence Charged, that is sufficient for the purposes of the Act. Judgment of the Supreme Court of New Brunswick (3 P. & B. 252) reversed. Mowdtt V. McFee, v.. 66. 3. Regulation and proiectiOn^^Sl Vict. c. 60 0.)—B. N. A. Act, ISST, ss. 91. 92, 109 — License to fish — Riparian proprietors — Un- gfithted lands^^Right of fl,shing=^Navigable stream.'i — On January Isf. 1874, the Minister &f Marine and Fisheries under s. 2. c. 60. 31 Vict.i executed to the suppliant a Tease of fishery, whereby Her Majesty leased ioi 9 s, G. B.=^20 years a, portion of the South-west Miramichi Kiver. N. B.. for fly-fishing for salmon there» in, the loous in Quo being thus described in the special case : — " Price's Bend is about 40 or 45 miles above the ebb and flow of the tide. The stream for the greater part from this point upward is navigable for canoes^ small boats, flat-bottomed scows, logs and tim- ber. Logs are usually driven down the river in high water in the spring and fall. The stream is rapid. During summer it is in some places, on the bars, very shallow." — Some persons who had conveyances of a portion of the river, and claimed the exclusive right of fishing in such portion, interrupted suppliant in the enjoyment of his fishing under the lease, and put him to expenses in endeavouring to assert and defend his claim to the ownership of the fishing of that portion of the river in- cluded in his lease. — The Supreme Court of New Brunswick decided adversely to his ex- clusive right to fish in virtue of the lease, and he filed a petition of right, and claimed com- pensation for loss of fishing privileges and expenses incurred. The Exchequer Court Held, inter alia, that an exclusive right of fishing existed in the persons who held the conveyances, and that the minister conse- quently had no power to grant a lease or license under s. 2 of the Fisheries Act of the portion of the river in question, and in answer to the Question. "Where the lands (above tide water) through which the said river passes -are ungranted, could the Minister of M. and F. lawfully issue a lease of that por- tion of the river?" Held, that the Minister could not lawfully issue a lease of the bed of the river, but that he could lawfully issue a license to fish as a franchise apart from the ownership of the soil in that por- tion of the river. — On an appeal on the main question, whether or not an exclusive right of fishing did so exist ; Held, affirming the judgment of the Exchequer Court, 1. That the general power of regulat- ing and protecting the fisheries under the B. N. A. Act, 1867, s. 91, is in the Parliament of Canada, but that the license granted by the Minister of the locus in quo was void, because said Act only authorizes the granting of leases " where the exclusive right of fishing does not already exist by law," and in this case the exclusive right of fishing belonged to the owners of the land through which that por- tion of the Miramichi River flows. — 2. That although the public may have in a river, such as the one in question, an easement or right to float rafts or logs down, and a right of passage up and down, wherever the water is sufficiently high to be so used, such right is not inconsistent with an exclusive right of fishing nor with the right of the owners of property opposite their respective lands ad m,edium filum aauce. — 3. That the rights of fishing in a fiver, such as in that part of the Miramichi from Price's Bend to its source, are an incident to the grant of the land through which such river flowSi and where such grants have been made, there is no authority given by the B. N. A. Act. 1867,, to grant a right t^ fish, and the Dominion Parliament has no right to give such licehse.^=Per Ritchie, C.J.i and Strong. Fournier and Henry, JJ.. revers- irg the judgment of the Exchequer Court oh the question submitted, that the ungranted lands in the Province of New Brunswick be- ing in the Crown for the benefit of the peo- ple of New Brunswick, the exclusive right to fish follows as an incident, and is in the Grown as trustee for the benefit of the neo- ple of the province, and therefore a licehsg €11 . FISHBEIES. 612 by the Minister of Marine and Fisheries to fish - in streams running through provincial property would be illegal. The Queen v. Boi- ertson. vi.. 52. 3. Riparian ownerahip — Fishery officer — Trespass— SI Vict. c. 60. ss. 2, 19 (D.)— No- tice — Exclusive damages — New trial.'] — Three actions for trespass and assault were brought by riparian proprietors of land front- ing on rivers above the ebb and flow of the tide, against V.. for forcibly seizing and tak- ing away their fishing-rods and lines, while they were fly-fishing for salmon in front ot their respective lots. V. was a fishery officer, under 31 Vict. c. 60 (D.) and justified seiz- ure on the ground that plaintiffs were fishing without licenses in violation of an order-in- coundil of 11th June, 1879, in pursuance of s. 19 of the Act. prohibiting " fishing for salmon, except under licenses from the De- partment of Marine and Fisheries." V. was armed and in company with a sufficient num- ber to have enforced the seizure if resistance had been made. Ttiere was no actual injury, but damages were recovered for $1,500, $1,200 and $1,000 respectively by the plaintiffs. (See 22 N. B. Rep. 639). Seld. that ss. 2 and 19 of the Fisheries Act, and the order-in-council did not authorize V.. as inspector of fisheries, to interfere with the exclusive rights of the ri- parian proprietors to fish at the locus in quo ; but that the damages were in all the cases excessive, and therefore new trials should be granted. Held. also. Gwynne, J., dissenting, that when V. conxmitted the trespasses com- plained of. he was acting as a Dominion of- ficer, under the instructions of the Depart- ment of Marine and Fisheries, and wAs not entitled to notice of action under 0. S. N. B. c. 89. s. 1. or c. 90. s. 8. Venning v. Stead- man, Hanson and Spurr, ix., 206. 4. Maritime law — Foreign vessel within British waters — Fishing within three mile limit — License — Forfeiture — R. 8. G. c. 9Jt, s. 3 — Evidence — Onus proiandi.'] — Section 3 of the " Act resperting Fishing by Foreign Vessels" (R. S. C. c. 94), prohibits fishing by foreign vessels in British waters within three marine miles of the coasts of Canada, without a license from the Governor-in-Couu- cil, on pain of forfeiture. In an action in fern in the Nova Scotia Admiralty District, the local judge (McDonald C.J.), of the Ex- chequer Court of Canada, Admiralty Side, ad- judged the condemnation and forfeiture of the vessel in question, her furniture and cargo, with costs (4 Ex. C. R. 419), and held, that where the Crown alleged in the petition in an action in rem for condemnation and forfei- ture, that a certain vessel had violated the provisions of the above mentioned Act by fish- ing in prohibited waters without the neces- sary license, but offered no evidence in sup- port of such allegation, the burden of proving the license to fish was upon the defendant. — On appeal to the Supreme Court of Canada, the decision of the Exchequer Court was af- firmed and the appeal dismissed with costs. The " Herwy L. Phillips " v. The Queen, 18th February, 1895; xxv.. 691. 5. Canadian waters — Property in teds — Public harbours — Erections in navigable v)aters — Interference with navigation — Right of fishing — Power to grant — Riparian pro- prietors — Great lakes and navigable rivers — Operation of Magna Charta — Provincial legis- lation— R. S. 0. (1887) c. U, s. 47—55 Vict. c. 10, ss. 5 to 13, 19 and 21 (0.)—R. S. Q. arts. 1375 to 1378.1 — Riparian proprietors be- fore confederation had an exclusive right of fishing in non-navigable, and in navigable non- tidal lakes, rivers, . streams, and waters, the beds of which had been granted to them by the .Crown. Robertson v. The Queen (a Can S. C. R. 52) followed.— The rule that ripa- rian proprietors own ad medium filum agues does not apply to the great lakes or navi- gable rivers. — Where beds of such waters have not been granted the right of fishing is public and not restricted to waters within the ebb and flow of the tide. — Where the provi- sions of Magna Charta are not in force, as in thfe Province of Quebec, the Crown, iu right 01 the province, may grant exclusive rights of fishing in tidal waters, except in tidal public harbours in which, as in other public harbours, the Crown in right of the Dominion may grant the beds and fishing rights. Gwynne, J., dis- senting. — Per Strong, C.J., and King and Girouard, J J. The provisions of Magna Charta relating to tidal waters would be in force in the provinces in which such waters exist (except Quebec), unless repealed by leg- islation, but such legislation has probably been passed by the various Provincial Legis- latures ; and these provisions of the charter so far as they affecft public harbours have been repealed by Dominion legislation.^ihe Do- minion Parliament cannot authorize the giv- ing by lease, license or otherwise the right of fishing in non-navigable waters, nor in navi- gable waters, the beds and banks of which are assigned to the provinces under the Bri- tish North America Act. The legislative au- thority of Parliament under s. 91, item 12, is confined to the regulation and conservation of sea-coast and inland fisheries under which it may require that no person shall fish in public waters without a license from the De- partment of Marine and Fisheries, may im- pose fees for such license and prohibit all fish- ing without it, and may prohibit particular Classes, such as foreigners, unconditionally from fishing. • The license as required will, however, be merely personal conferring quali- fication, and gave no exclusive right to fish in a particular locality; — Section 4 and other portions of c. 95, Revised Statutes of Canada, so far as they attempt to confer exclusive rights of fishing in provincial waters, are ultra vires. Gwynne, J., contra. — Per Gwynne, J. Provincial Legislatures have no jurisdiction to deal with fisheries. Whatever comes with- in that term is given to the Dominion by the British North America Act, s. 91. item 12, including the grant of leases or licenses for exclusive fishing. — Per Strong, C.J., Tas- chereau. King and Girouard, JJ. R. S. 0. c. 24, s. 47, and ss. 5 to 13 inclusive of the On- tario Act of 1892, are intra vires, but may be superseded by Dominion legislation. — R.. S. Q. arts. 1375 to 1378 inclusive, are intra mres.— Per Gwynne, J. R. S. O. c. 24, s. 47 is ultra vires so far as it assumes to authorize the land covered with water within public har- bours. — ^The margins of navigable rivers ana lakes may be sold if there is an understanding with the Dominion Government, for Projection, against interference with navigation. The Act of 1892, and R. S. Q. arts. 1375 tp 1378 are valid if passed in aid of a Dominion Act tor protection of fisheries. If not, they are uKro vires. In re Jurisdiction over Provtneuu Fisheries, xxvi., 444. . « -i Varied on appeal by the Privy Council, [1898] A. 0. 700. 6. Constitutional law— Convention o( 181S -Construction of treaty — Construction oj statute —.Three mile limit — Forewn fishm vessels — " Fishing " — 59 Geo. HI.. P. »» (Imp.)-R. S: C. cc, 94 & 95.]-Where 6* v-j 1 — „ onninspd in a seine more than tnree 613 POEESHOEE. 614 marine miles from the coast of Nova Scotia, and the seine pursed up and secured to a foreign Vessel, and the vessel was afterwards seized with the seine still so attached within the three mile limit, her crew then being en- gaged in the act of baling the fish out of the seine: — Held, Strong, O.J., and Gwynne, J., dissenting, affirming the decision of the court below, that the vessel when so seized was " fishing " in violation Of the Convention of 1818 between Great Britain and the United States of America, and of the Imperial Act, 59 Geo. III., c. 38, and the Revised Statutes of Canada, c. 94, and consequently liable with her cargo, tackle, rigging, apparel, furniture, and stores to be condemned and forfeited. Ship " Frederick Gerrvng, Jr." v. The Queen, xxvii., 271. nXTTIRES. 1. Mortgage — Mining machinery — Regisira- tion — Interpretation of terms — Btll of sale — Personal chattels — Delivery. See MoETGAGE, 43, 2. Property, real and personal — Jm- moveables by destination — Moveables in- corporated with the freehold — Sever- ance from realty — ■ Contract resolutory con- dition — Conditional sale — Arts. S79. WIT, 2085, 2089 C. G. — Hypothecary creditor -Unpaid vendor. See Contract, 66. And see Immoveable Property. FLOATABIiE -AVATEBS. See Fisheries — Rivers and Streams Watercourses. FOIiLE ENCHEBE. Sheriff's sale — Re-sale against co-adjudioa- taires — Petition by adjudicataire participating in default — Security for amount of adjudica- tion. See Sale, 87. And see False Bidding — Sheriff. FORCE. See Duress. FOBECIiOSVBE. 1. Mortgage by testator — Decree for sale — Conveyance by purchaser. See Title to Land, 56. 2. Devise of mortgaged lands — Release iy mortgagee — Action, to eject purohasei Sta- tutory title. See Title to Lands, 56. FOBFEITUEE. Mines and minerals — Lease of mining areas ^Rental agreement — Payment of rent — Con- struction of statute — Assignment of lease — In- solvency. See Leasp, 7, 19. And see Escheat. FOBEIGN CORPOBATIONS. Constitutional law — Winding-up Act — R. S. C. c. 129, s. 3.]— Section 3 of "The Winding- up Act" (R. S. C. c. 129) which provides that the Act applies to incorporated trading companies doing business in Canada whereso- ever' incorporated is intra vires of the Parlia- ment of Canada. Judgment appealed from (16 Q. L. B. 79) affirmed. Allen v. Hanson; In re Scottish Canadian Asbestos Co., xviii., 667. "And see Comity — Company Law. FOBEIGN JUDGMENT. Bar to action — Estoppel — Res judicata — • Judgment obtained after action' begun — R. 8. N. S. (5 ser.) c. lOJt, s. 12, s.-s. 7; orders 24 and 70; rule 2;^ order 35, rule 38.]— A judg- ment of a foreign court having the force of res judicata in the foreign country has the like force in Canada.— Unless prevented by rules of pleading a foreign judgment can be made available to bar a domestic action begun before such judgment was obtained. The Delta (1- P. D. 393) distinguished. — The combined effect of orders 24 and 70. rule 2, and s. 12, s.-s. 7 of c. 104, R. S. N. S. (5 ser.), will permit this to be done in Nova Scotia. — The provision of R. S. N. S. (5 ser.), c. 104, order 35, rule 38, that evidence of a judgment recovered in a foreign country shall not, in an action on such judgment in Nova Scotia, be conclusive of its correctness, but that the defendant may defend such suit as fully as if brought for the original Cause of action, can- not be invoked in favour of the defendant in Nova Scotia who has brought an unsuccessful action in a foreign court against the plaintiff. Law V. Hansen, xxv., 69. FOBEIGN -LAW. Forum having jurisdiction . Presumption sx contractu. See Contract, 165. And see Comity. FOBESHOBE. 4:4 Viet. ,c. 1, s. 18 — Powers, of Canadian Pacific Railway Company to take and use , foreshore — 49 Vict. c. 32 (B.C.) — City of Vancouver — Right to extend streets to deep water — Crossing of raUway—rJus publicum—^ Implied extinction- by statute— plnjunction.]^- By 44 Vict, c. 1, s. 18, the Canadian Pacific Railway Company " have the right to take, use and hold .the beach and land belovr high water mark, in any stream, lake, navigable water, gulf or sea in so far as the same shall be vested in the Crown, and, shall, not be re^ quired by the. Grown, to such extent as , shall be required by the company for. its railway and other works as shall be exhibited by a map or plan thereof deposited an the office of 615 PEAUD. 616 the Minister of Railways." By 50 & 51 Victi c. 56, s. 5, the location of the company's line of railway between Port Moody and the City of Westminster, including the foreclosure of Burrard Inlet at the foot of Gore Avenue, Vancouver City, was ratified and confirmed. The Act of Incorporation of the City of Van- couver, 49 Vict. c. 82 s. 213, (B.C.), vests in the city all streets, highways &c., and in 1892 the city began the construction of works extending from the foot of Gore Avenue, with the avowed objecft to cross the railroad track at a level, and obtain access to the harbour at deep water. — On an application by the rail- way company for an injunction to restrain the city corporation from proceeding with their work of construction and crossing the rail- way : — Held, afiirming the judgment of the court below, that as the foreshore forms part of the land required by the railway company, as shewn on the plan deposited in the office of the Minister of Railways, the jus publicum to get access to and from the water at the foot of Gore Avenue is subordinate to the rights given to the railway company by the statute, 44 Vict. c. 1. s. 18 (a), on the said foreshore, and therefore the injunction was properly granted. City of Vancouver v. Can- adian Pacific By-., Go., xxiii., 1. FORGERY. Fraud — Breach of trust — Ratification — F See Bills and Notes, 19. And see Criminal Law. FRANCHISE. Controverted election — Preliminary oijeb- iions — Status of petitioner — Dominion fran- chise — " Quehec Elections Act " — Construc- tion of statute — Right to vote. See Election Law, 98i FRAUD. 1. Artifice to secure acceptance of insolvent succession — Acts of administration — Conser- vatory acts — Notary — Arts. 646, 650 C. C. — Illiteracy .'\ — A., who had a claim against an insolvent estate, purchased a right of redemp- tion which the insolvent had at the time of his death and in order that his children might, by assuming to act as heirs, be deemed to have accepted the insolvent succession he caused to be prepared by a notary a deed of assignment of this right of redemption to B. et al., who, a few days after the death of their father, had been induced for a sum of $50 to consent to redeem. The notary prepared, the deed Without the knowledge of B. ei al., but re- turned it to A., not wishing to receive the deed because he believed that in signing it B. et al. would make themselves heirs, and he believed that if thfey knew that iii sigping the deed they accepted the succession and re- sponsibility for the debts, they would not sign. Another notary residing at a distance was sent for by A., to whom he gave the deed as prepared, and the notary then went to the Residence of B. et ah, read the deed to the parties, and without any explanation what^ ever pasised and executed iti , On being in- formed of the legal effect of their signatureSj B. et al. formally renouhced the succession There was evidence (hat B. et al. had done some conservatory acts and acts of adminis^ tration for their mother, but it was not proved that in any of these transactions they had taken the quality of heirs. Held, affirming the judgment appealed from (3 Dor. Q. B. 123), that when an acceptance of. an insolvent succession is the result of artifices practised by an interested party, it is null and without effect; tha,t in this Case, as A. had Obtained the signatures to the deed in question by de- ceit and artifice, the defendants did not there- by ]become burthened with the debts of their insol'vent father. Held, also, that it is the duty of a notary when executing a deed to explain to an illiterate grantor the legal and equitable obligations imposed by the deed, and consequent on its execution. (Henry, J., dis- sented.) Ayotte V. Boucher, ix., 460. 2. Rescission of contract^— Title to land — Evidence of deceit.] — A party who seeks to set aside a Conveyance of land executed in pursu- ance of a contract of sale, for misrepresents.^ tion relating to a matter of title, is bound to establish fraud to the same extent and degree as a plaintiff in an action for deceit. Bell v. Macklin, xv., 576. 3. Preferences — Badge- of fraud — Author- ity.'} — ^In an assignment for benefit of credi- tors authority to the assignee not only to pre- fer parties to accommodation paper but also to pay all " costs, charges, and expenses to arise in consequence " of such paper is a badge of fraud. Kirk v. Chisholm, xxvi., 111. 4. Donation^ — Insolvency < — Revocation — Arts. 803, lOSJt G. G. See Donation, 1. 5. Prospectus ■' — Misrepresentation — Gon- cealment-^Promotion, of joint stock company — Bond fide statements -^ Subscriptions for shares — Rescission — Waiver. See Company Law, 11. 6. Agreement to give hire receipt — Includ- ing goods subsequently acquired. Se/e Chattel Mortgage, 17. 7. Promissory note made in fraud of paH- ners — Notice to indorsee — Inquiry. See Partnership, 36. 8. Award — Concealment of evidence — Reconsideration — Reference back to arbitra- tors. See AEBlTRAriuNS, SI. 9. Ratification — Breach of trust — Forgery. See Bills and Notes, 19. 10. Removal of executrix — Questionable transaction. See Executors and Administrators, 6-. 11. Simulated hypothec — Scheme to obtain credit — Inadequate security. See Sale, 32; 12. Misrepresentations-Sale of land — Re- scission of deed^-Recovery of price. See Sale, 75. 13. Misrepresentation ^^ Eatecuted contract — Rescission — Evidence. ^ee CoNTBAct, li9. 61'!' FEAUDULENT CONVEYAJSTCES. 618 14. Reguete civile — Nullity.- ^tt^- Bond to sheriff- — Opposition — Revocation of judgment. See Shebiff, 10. 15. Partnership — r Simulated dissolution — Fraud — Husband and wife — Benefit con- ferred during marriage. See Pabtnbrship, 39. 16. Sale of goods b-y insolvent — Bona fides — Estoppel. See Insolvency, 22. 17. Fraudulent statement — Proof of fraud — Pres-umptiovr^Assignment of policy-^Fraud by assignor- — Reversal on question of faet. * See iNsuKAjsrcE, Fike, 67. 18. Trustees and administrators — Fraudu- lent conversion — Past due bonds — Negotiable securit-y — Commercial paper — Debentures transferable tiy' delivery — Equity of previous holders — Estoppel — Brokers and factors-^ Pledge — Implied notice — Innocent- holders for value — Principal and agent. See Pledge, 7. 19. Debtor and creditor — Composition and discharge — Acquiescence in — New agreement of terms of settlement — Waiver of time clause — Principal and agent — Deed of discharge — Notice of withdrawal from agreement ■ — Fraudulent preferences'. See Debtor and, Okeditob, 6. 20. Conveyance of land in name of trustee — Debtor and creditor — Parties in pari de- licto. See Trusts, 20. 21. Misrepresentations — Artifice — Con- sideration of contract — Rescission — Laches. See Vendor and Purchaser, 26. 22. BUls and notes — Conditional indorse- ment — Principal and agent — Knowledge by agent — Constructive notice — Deceit by bank manager. See Bills and Notes, 26. _^ 23. Infringement of trade-mark — Use of corporate name — Fraud and deceit — Evidence. See Trade-marks, 6. rRAXJDUI-ENT CONVEYANCES. 1. Insolvency ■ — Assignment for benefit of creditors— R. S. O. (1887) c. 124, s. 2— Pre- ference — Intent — Pressure — Criminal lia- bility.']— R. S. O. (1887) c. 124, s. 2 makes void any Conveyance of property by _ a person in insolvent circumstances made " with intent to defeat, delay or prejudice his creditors, or to give to any one or more of them a preference over his other creditors or over any one or more of them, or which has such effect." Held, af- firming the judgment appealed from (16 Out. App. R, 323), (Fournier and Patterson, J J., dissenting ) , that the words " or which has such effect " in this section apply only to the case of " giving any one or more of ( his creditors) a preference over his other credi- tors or over any one or niore of them." — Fur- ther, that the preference provided against in the statute is a voluntary preference and a conveyance obtained by pressure from the grantfee would not be within its terms.-^W. having become insolvent, and wishing to se- cure of an estate of which he was an executor monies which he had used for his own pur- poses gave his co-executors a mortgage on his property for the purpose, and proceedings were taken by a creditor to set aside this mortgage under the above section. Held, Fournier and Patterson, JJ., dissenting, that the mortgage was not 'void under the statute. — Per Strong, Taschereau and Gwynne, JJ., that there was no preference under the statute as the persons for whose benefit the security was given were not creditors of the grantor, but they stood in the relation of trustee and cestui que trust. — Per Strong and Taschereau, JJl, that the grantor being criminally responsible for mis- appropriating the money of the estate of which he was executor, the fear of penal con- sequences was sufficient pressure on him to take from the mortgage the character of a voluntary preference. Molsons . Bank v. Halter., xviii., 88. See No. 2, infra. 2. Debtor and creditor — Insolvency — Pre- ference — Pressure — 1^9 Vict. c. Jf5. s. 2 (Man.)] — By 49 Vict. c. 45, s. 2 (Man.), " Every gift, conveyance, &c., of goods, chat- tels or effects . . . made by a person at a time when he is in insolvent circumstances . . . with intent to defeat, delay or prejudice his creditors, or to give to any one or more of them a preference over his other creditors or over any one or more of them, or which has such effect, shall as against them be utterly void." Held, reversing the judgment appealed from (6 M. L. R. 496). Patterson, J., dissenting, that the word " preference " in the Act imports a voluntary preference, and does not apply to a case where the transfer has been induced by pressure; and further, that a mere demand by the creditor without even a threat of legal proceedings, is sufficient pressure to rebut presumption of preference. — The words " or which has such effect " in the Act apply only to a case where that had been done indirectly which, if it had been done directly, would have been a preference within the statute. — The preference mentioned in the Act being a voluntary preference, the instru- ments to be avoided as having the effect of a preference are only those which are the spon- taneous acts of the debtor. Molsons Bank v. Halter (18 Can. S. 0. R. 88) approved and followed. — Held, per Patterson, J., that any transfer by an insolvent debtor which has the effect of giving one creditor a priority over the others in payment of his debt, or which is given with the intent that it shall so operate, is void under the statute whether or not it is the voluntary act of the debtor or given as the result of pressure. Stephens v. McArthur, xix., 446. 3. Composition — Loan to effect payment — Default — Secret agreement — Mortgage — Limi- tation of action — Arts. 1082. 1039 & lOlfi, 0. 0.] — On 20th December, 1883, the credi- tors of L. resolved to accept a composition payable by his promissory notes at 4, 8, and 12' months. At the time L. was indebted to the Exchange Bank (in liquidation), which did not sign the composition in $14,000. B. et al. the appellants, were at that time accommoda- tion indorsers for $7,415 of that amount, but held ' as security a mortgage dated 5th Sep- tember, 1881, on L.'s real estate. The bank having agreed to accept $8,000 cash for its claim B. et al. on 8th January, 1884, advanced $3,000 to L. and took his promissory notes and a new mortgage registered on 13th Janu- ary for the amount, having discharged and released on the same day the previous mort- gage of 5th September, 1881. This new trans- action was not made known to D. et al., the 619 PEAUDULENT PEEFBEENCE, ' 620 respondents, wh6 on 14th January, 1884, ad- vanced $3,000 to L. to enable liim to pay, ofE the Exchange Bank and for which they ac- cepted L.'s promissory notes. L., having failed to pay the second instalment of his notes, D. et al., who were not original parties to the deed of composition, brought an action to have the transaction between L. and appellants set aside and the mortgage declared void on the ground of having been granted in fraud of the rights of the debtor's creditors. Held, revers- ing the Court of Queen's' Beneh, Ritchie, C.J., and Taschereau. J., dissenting, that the agree- ment by the debtor with appellants was valid, the debtor having at the time the right to pledge a part of his assets to secure the pay- ment of a loan made to assist in the payment of his composition. — Per Fournier, J. The mortgage having been registered on 13th Jan- uary, 1884, the respondent's right of action to set aside the mortgage was prescribed by one year from that date. Brossard v. Dupras, xix., 531. 4. Insolvency — Debtor and creditor — Simu- lated sale.'] — ^Action instituted in 1883, by L. to annul a deed of sale made by G., one of the defendants, to R., the other defendant, of all real estate belonging to G.. in the City of Quebec, for $54,000, on 23rd February, 1878. G. had been for several years previous to the action. Carrying on business at Quebec in partnership with the uncle and tutor of L. who lent money belonging to his ward to the firm of G. L. & Co., of which he was a mem- ber, and credit in the books of that firm was given to L. for the loan. — In April, 1883, G. L. & Co. became insolvent whilst owing L. $26,759.75, for which he recovered Judgment. L. contended that in February. 1878, when the sale by G. to R. was made, the firm was hope- lessly insolvent, that R. was aware of this in- solvency and that the sale to him, though nominally for $54,000 in cash, was in reality collusively made for the purpose of covering the debt of the firm to R. Appellant pleaded that the .firm was represented to him at the time of the sale to be solvent, that he had reason to believe that this statement was true, that he land fide paid the price in notes, which he afterwards took up, and , that the whole transaction was in good faith and caused no loss to the creditors of G. or to the firm. After a long and contradictory enguete. the action was, on 7th June, 1886, maintained and the deed set aside as a collusive transac- tion for the purpose of giving a preference to a creditor. The judgment was aflirmed by the Queen's Bench, Church. J., dissenting. — On appeal, the Supreme Court of Canada (Ritchie, C.J., dissenting), took the view of the evidence adopted by Church, J., in the Queen's Bench, that there was not sufficient evidence to establish that the sale was simu- lated, nor that it was intended illegally and fraudulently to give R. an advantage over the other creditors of G. L.. & Co., nor that R. knew on 23rd February, 1S78, of the insol- vency of the firm; and the appeal was allowed and the action dismissed with costs. Boss v. Laird, Cass. Dig. (2 ed.) 351. 5. Estoppel — Conveyance by married wo- man — Agreement — Recital — Bona fides.] — ^B., a married woman, in order to carry out an agreement between her husband and his cre- ditors consented to convey to the creditor a farm, her separate pi-operty, in consideration of the transfer by her husband to her of the stock and other personal property on it and of indemnity against her personal liability on a mortgage against said farm. The convey- ance, agreement and bill of sale of the chat- tels were aH executed on the same day, the agreement, to which B. was not a party,' con- taining a recital that the husband was owner of the said chattels but giving the creditor' no security upon them. The chattel's having sub- sequently been seized under execution against the husband it was claimed, on Interpleader proceedings, that the bill of sale was in fraud of the creditor. Held, affirming the decision of the Court of Appeal, that the recital in the agreement worked no estoppel as against B. • that as it appeared that the husband expressly refused to assign the chattels to his creditor there ,was nothing to prevent him from trans- ferring them to his wife, and that the Court of Appeal rightly held the transaction an honest one, and B. entitled to the goods and to indemnity against the mortgage. Boulton V. Boulton, xxviii., 592. 6. Voluntary conveyance of land — IS Eliz. c. 5 (Imp.) — Solvent vendor — Action iy mortgagee.^ — A voluntary conveyance of land is void under 13 BJjz. c. 5 (Imp.) as tending to hinder and delay c'reditors though the ven- dor was solvent when it was made if it results in denuding him of all his property and so rendering him insolvent thereafter. — A mort- gagee wjhose security is admittedly insufficient may bring an action to set aside such convey- ance and that without first realizing his secur rity. — Judgment appealed from (7 B. C. Bep. 189) reversed, Gwynne, J., dissenting. Sun Life Ass. Co. v. Elliott, xxxi., 91. 7. Annulling deed — Action by assignee — See Assignments, 2. 8. Purchase by fiduciary ■ agent — Conflict with public use — Maintena/nce. See RiDEATT Canal Lands, 2. ,9. Registration of assignment — Defective jurat — Evidence. See Bill of Sale, 1. 10. Insolvent assigning property — Charge to jury — Misdirection. See New Teial, 74. 11. Banhs and banjcing — Advances on se- curity — Chattel mortgage — Insolvent debtor — Bank Act, s. 74 — Conversion. See Banks and Banking, 21. FRAUDUIiENT PB.EFERENCE. 1. Judgment in default of appearance — Fo-. cilitating recovery — R. S. 0. (1877) c. 11.8^ Premature eweoution — Irregularity — Nulljiy — Ontario Judicature Act, 1883.] — On the 28th March, 1882, a writ was issued by C. against M.. for $32,1.55.33, indorsed, in ac- cordance with the Judicatute Act, with par- ticulars of claim on account stated and_ settled between C. and M... such amount being bi- rived at by allowing to M. a discount of o per cent." for an unexpired balance of the term of credit on purchase of goods. No ap- pearance was entered, and on the 8th Apnl judgment was recovered for the amount, ana writs of execution issued. The appellants, creditors of M., instituted an action agamsfc him on the 8lh April, 1882, and obtained judg- ment on the 14th April, and on the same day 631 FRAUDULENT PEEFEEBNCE. 622 writs of execution were issued. — The stock- in-trade was sold by the sheriff at public auc- tion, under all the executions in his hands, to C, the highest bidder. — On an interpleader issue to try whether or not appellants' execu- tion was entitled to priority over that of C, and whether or not C.'s judgment was, void for fraud,, and as being a preference ; and whether or not C.'s executions were void as against appellant's, on account of having is- sued before the expiration of eight days from the last day for appearance. Armour, J., di- rected judgment to be entered in favour of the appellants. That judgment was reversed by the Queen's Bench Division, whose judg- ment was affirmed by the Court of Appeal for Ontario (10 Out. App. R. 92). Beld, affirm- ing the judgment appealed from, that what the debtor did in this Case did not constitute a fraudulent preference prohibited by R. S. O. c. 118, and that the premature issue of the execution of the respondents was only an ir- regularity, and not a nullity. Macdonald v. Crombie , xi., 107. 2. Security for debt — Simulation — Insol- vent company — Chattel mortgage — Preference over other creditors— R. 8. 0. (1811) c. 118 — Bona fides — Pressure.'] — The Hamilton Knitting Co. being indebted to L., and be- lieving that their charter did not permit them to give a mortgage to secure an overdue debt, gave a chattel mortgage in consideration of an advance by L. of more than the debt, .the actual amount being returned to the mort- gagees, and the balance of the amount ad- vanced on the mortgage, after paying the debt, was put into the business of the company. — At the time this was done the company be- lieved that by getting time from these credit- ors they would be able to carry on their busi- ness and avoid failure. This hope was not realized, however, and they shortly after stop- ped payment, and in consequence, certain of their creditors, the respondents, obtained judgments and Issued executions. The pro- perty secured by the chattel mortgage was seized under these executions, and an inter- pleader issue brought to test the title. — The chancellor gave judgment for the execution creditors, holding the mortgage void under the statute relating to fraudulent preferences, R. S. O. (1877) c. 118, and the Court of Appeal affirmed this judgment -by an equal division. Beld, reversing the judgment appealed from (12 Out. App. R. 137), that as the company Z)0»4 fide believed that by getting an extension of time from L. they would be able to con- tinue their business, it could not have been given with a view of preferring the appellants and of defrauding the other creditors, and therefore the appellants were entitled to judg- ment. Long V. Sancock, xii., 532. 3. Chattel mortgage — Security for debt — Insolvency — Suit by creditors to set aside mortgage — Parties plaintiffs — Trust deed not attacked.] — Where a trader who was in in- solvent Circumstances had given a chattel mortgage on his stock-in-trade to secure a debt, and shortly after executed an assign- ment in trust for the benefit of ,his creditors. ^Held, affirming the judgment appealed from (12 Ont. App. R. 593), that the mortgage was void under the statute, and that certain simple contract creditors of such trader could maintain a suit, on 'behalf of themselves and all other creditors except the mortgagees, to set aside the mortgage without including the mortgagees as plaintiffs, and without attack- ing the assignment in trust. McCall v. Mc- Donald, xiii., 247. 4. Capias — Petition for discJiarpn — Fiiinl judgment — Judicial proceeding — Appeal, R. S. C. c. 135. s. 28— Arts. 819-821 G. G. P.— Secretion — Art. 198 G. G. P. — Pronmsori/ note discounted — Arts. 1036, 1953 C. G. — Remedy by indorser.] — ^A writ of capias hav- ing been issued against M. under art. 7!)8 C. C. P. he petitioned to be discharged under art. 819 C. C. P., and issue having been joined on the pleadings under art. 820 C. C. P., the petition was dismissed by the Superior Court, that judgment being affirmed by the Queen's Bench (15 R. L. 84). Held, that the judgment was a final judgment in a judicial proceeding within the meaning of R. S. C. c. 135, s. 28, and there- fore appealable — Taschereau, J., dissenting. Stanton v. Canada Atlantic Ry. Co. (Cass. Dig. 2 ed. 37), reviewed. On the merits it was : — Held, per Ritchie, C. J., Pournier and Taschereau, JJ.. that a fraudulent prefer- ence to one or more creditors is a secretion within the meaning of art. 798 C. C. P. Also, that an indorser of a note discounted by a bank has the right under art. 1953, C. C. to avail himself of the remedy provided by art. 798, C. C. P. if the maker fraudulently dis- poses of his property. Strong, Henry, and Gwynne, JJ., contra. — The court being equally divided the appeal stood dismissed without costs. Mackinnon v. Keroack, xv., 111. 5. Insolvent debtor — Assignment for benefit of creditors— Book debts— R. 8. O. 1811, c. lis — 48 Vict. c. 26, s. 2 (0.)] — N. owed defendants money which he was unable to pay in full, and assigned to them all his book debts and accounts, providing that the book debts should be placed in the hands of finan- cial agents for collection, who should account to the defendants for the proceeds less the commission, and whatever remained in de- fendants' hands after their debts were paid should be paid over to N. Plaintiffs, judg- ment Creditors of N., brought action to set aside this assignment as having the effect of hindering, delaying and defeating them in the recovery of their claim and giving defendants a preference over other creditors, and so be- ing void under R. S. O. 1877, c. 118 as amended by 48 Vict. c. 26, s. 2 (Ont.). Held, affirming the judgment appealed from (15 Ont. App. R. 324), Gwynne, J., dissenting, that N. being unable to meet the demands of his creditors for payment must be deemed in- solvent within the meaning of tl(e said Act ; that book debts are a species of property included in the provisions of 48 Vict. c. 26, s. 2 ( Ont. ) , and that the assignment by N. to the defendants was void, under that section. Klwpfer V. Warnock, xviii., 701. 6. Deitor and creditor — Insolvency — Mortgage — Pressure — R. S. O. (1881) c. 12Jf, s. 2.] — A mortgage given by a debtor who knows that he is unable to pay all his debts in full is not void as a preference to the mortgagee over other creditors if given as a result of pressure and of a bond fide debt and if the mortgagee is not aware of the debtor being in insolvent circumstances. Molsons Bank v. Halter (18 Can. S. C. R. 88) and Stephens v. McArthur (19 Can. S. C. R. 446) followed. Judgment appealed from (18 Ont. App. R. 159) affirmed. Gibbons v. Mc- Donald, XX., 587. 623 FEAUDULE>fT PREFEEENCB. 631 7. Mortgage by insolvent — Bona fide ad- vance — Consideration partly had — Effect on whole instrument— R. 8. 0. 188T, c. I'U. s. 2 ^Statute of Eliz.J — R. being in insolvent cir- cumstances applied to P., his uncle, for a loan of $5,000, which he received, P. mort- gaging his house for part of the amount and giving his note for the balance which R. had discounted. The security for this loan was a chattel mortgage on R.'s stock of goods in his store. The money was applied by R. chiefly in taking up notes made by him and indorsed by his relatives. P. knew when he advanc'ed the loan that R. was insolvent, but it was not shewn that he knew how the money was to be applied. — R. gave another chattel mortgage to M. for another loan of money ap- plied in the same way, but it was shewn that part of the loan was R.'s own money though alleged to have been advanced by his wife. — An action was brought on behalf of R.'s creditors to have these mortgages set aside as being void under R. S. O. (1887) c. 124, s. 2, and both were set aside'. 'The Court of Ap- peal reversed the decision setting aside the mortgage to P., and affirmed that setting aside the mortgage to M., holding as to the latter, following Commercial Bank v. Wilson (3 E. & A. Rep. 2.57), that the mortgage being void in part for illegal consideration the whole in- strument was void. Held, affirming Campbell V. Patterson (18 Ont. App. R. 646, sub nom. Campbell v. Roche), that the mortgage to P. being given for an actual bond fide advance the provisions of R. S. O. (1887) C. 124, s. 2, did not apply to it especially as P. was not shewn to have knowledge of R.'s motive in procuring the loan. Held, also, overruling Mader v. McKinnon (18 Ont. App. R. 646. sub nom. McKinnon v. Roche), in so far as Commercial Bank v. Wilson was followed, that that case was decided under the Statute of Bliz. and is not now law under the Ontario statute, and a mortgage may be set aside as to part and maintained as to the remainder, but affirming the judgment of the Court of Appeal on the ground that the evidence shew^ ed the whole of the consideration for M's mortgage to be illegal and bad. Appeals dis- missed with costs. Campbell v. Patterson; . Mader v. McKinnon, Cass. Dig. ( 2 ed.) 122. 8. Sheriff — Trespass =^ Sale of goods by insolvent — Bona fides — ^ Judgment of in- ferior tribunal — Estoppel — Bar to action — Res judicata — Pleading. ^^^Ji.. was a trad- er, and in insolvent circumstances when he sold the whole of his stock-in-trade to D. At the time of this sale D. was aware that two of D.'s creditors had recovered judgments against him. The sheriff afterwards seized the goods so sold, under executions issued upon judgments subsequently obtained, and upon an interpleader issue tried in the County Court the jury found that K. had sold the goods with intent to prefer the creditors who held the prior judgments, but that D. had purchased in good faith and without knowing of such intention on the part of the vendor. Judgment was thereupon entered against D. in the County Court, and the judgment was affirmed by the Supreme Court of British Co- lumbia en banc. — In an action afterwards brought by D. against the sheriff for trespass in seizing the goods he obtained a verdict, which was, however, set aside by the court en banc, a majority of the judges holding that the County Court judgment was a Com- plete bar to the action. — On appeal to the Supreme Court of Canada : Held, reversing the judgment of the Supreme Court of Brit- ish Columbia, that as the evidence shewed that the goods had been purchased in good faith by D. for his own benefit, the sale was not void under the statute respecting fraudu- lent preferences ; that the County Court judg- ment, being a decision of an inferior tribunal of limited jurisdiction, could not operate as a bar in respect of a cause of action in the Supreme Court, beyond the jurisdiction of the County Court, and further, that even if such judgment could be set up as a bar, it ought to have been specially pleaded by way of estoppel, by a plea setting up in detail all the facts necessary to constitute the estoppel, and that from the evidence in the case it ap- peared that no such estoppel could have been established. Taschereau, J., dissented. Davies X. Mc^Ulan, 1st Ma?, 1893. O-jpfuXI^ 9.' Assignment for benefit Pof creditors — Preferences — R. S. N. 8. c. 92, ss. 4, 5, 10 — Chattel mortgage — Statute of Elis.] — An assignment is void under the Statute of Eliza- beth as tending to hinder or delay creditors if it gives a first preference to a firm of which the assignee is a member and provides for al- lowance of interest on the claim of the said firm until paid, and the assignee is permitted to continue in the same possession and Con- trol of business as he previously had, though no one of these provisions taken by itself would have such effect. — ^A provision that " the assignee shall only be liable for such moneys as shall come into his hands as such assignee unless there be gross negligence or fraud on his part " will also avoid the as- signment under the Statute of Elizabeth. Kirk V. Chisholm, xxvi.. 111. 10. Insolvency — Pressure ^— of expected) profits — Statute of Elizabeth- Assets exigible in execution.'i — The appeal was from the judgment of the Court of Ap- peal for Ontario, affirming the judgment of Street, J., in the High Court of Justice, which dismissed the action of the plaintiff with costs. The action was brought to set aside an assignment, by way of security, to the defendant of an interest in the profits expect- ed to be earned under a contract for the per- formance of work, on the ground that it was made to defeat, hinder, defraud, delay and prejudice the creditors of the assignor, (who was insolvent), and to give the assignee an unjust preference. In the trial court the de- cision in favour of the defendant was based on the ground that the assignment had been made under pressure, and was therefore valid. The Court of Appeal affirmed this judgment, but upon other grounds, holding that as the subject of the assignment did not consist of assets which could be reached by creditors at the time when it was made, the assign- ment did not come within the Act Respecting Assignments and Preferences (24 Ont. App. R. 153). — The Supreme Court of Canada dis- missed the appeal with costs, adopting the reasoning of the judges in the Court of Appeal for Ontario. Blakely v. Oould, xxvii., 682. 11. Insolvency — Assignment — Prefer- ence — Payment in money — Cheque of third party — R. 8. 0. c. 124. s. S.]— Appeal from, a judgment of the Court of Appeal for Ontario (28 Ont. App. R. 439), which held that m- dorsing and giving a creditor the unaccepted cheque of a third person in the debtor's favour is not a payment of money to the creditor within the meaning of the third section of 635 FEAUDULENT PEEFERENCE. 636 chapter 124 of the Revised Statutes of On- tario (1887), and overruling Armstrong v. Hemstreet (22 O. R. 366). — The Supreme Court of Canada affirmed the decision of the Court of Appeal and dismissed the appeal with costs. Eraser v. Davidson & Hay, xxviii., 272. 12. Debtor and creditor — Insolvency — Fraudulent preferences — Chattel mortgage — Advances of money — Solicitor's knowledge of circumstances — R. 8. O. (1887) c. 12Jf — 54 Vict. c. 20 iOnt.)—58 Vict. c. 23 {Ont.)] — In order to give a preference to a par- ticular creditor, a debtor who was in insolvent circumstances, executed a chattel mortgage upon his stock-in-trade in favour of a, money- lender by whom a loan was advanced. The money, which was in the hands of the mort- gagee's solicitor, who also ad:ed for the pre- ferred creditor throughout the transaction, was at once paid over to the creditor who, at the same time, delivered to the solicitor, to be held by him as an escrow and dealt with as circumst9.nces might require, a bond in- demnifying the mortgagee against any loss under the chattel mortgage. The mortgagee had previously been consulted by the soli- citor as to the loan, but was not informed that the transaction was being made in this manner to avoid the appearance of violating the Acts respecting Assignments and Prefer- ences and to bring the Case within the ruling in Gihions v. Wilson (17 Out. App. R. 1). Held, that all the circumstances, necessarily known to his solicitor in the transaction of the business, must be assumed to have been known to the mortgagee and the whole af- fair considered as one transaction contrived to evade the consequences of illegally prefer- ring a particular creditor over others, and that, under the Circumstances, the advance made was not a bona fide payment of money within the meaning of the statutory excep- tions. Burns <& Lewis v. Wilson, xxviii., 207. 13. Assignment for benefit of creditors — Preferred creditors — Money paid under void- able assignment — Levy and sale under ewe- cution — Statute of Elizabeth.] — Where an as- signment has been held void as against the statute, 13 Eliz., c. 5, and the result of such decision is that a creditor who had subse- quently obtained judgment against the assign- or and, notwithstanding the assignment, sold all the debtor's personal property so trans- ferred, becomes entitled to all the personal property of the assignor levied upon by him under his execution, such creditor has no legal right and no equity to an account or to fol- low moneys received by the assignee or paid by him under such assignment in respect to which he has not secured a prior claim by taking the necessary proceedings to make them exigible. Cummings & Sons v. Taylor, xxviii., 337. 14. Debtor and creditor — Transfer of pro- perty — Delaying or defeating creditors -rr^ 13 Eliz. c. 5.] — A transfer of property to a creditor for valuable consideration, even with intent to prevent it being seized under execu- tion at the suit of another creditor, and to delay the latter in his remedies or defeat them altogether, is not void under 13 Eliz.,. c. 5, if the transfer is made to secure an existing debt, and the transferree does not, either di- rectly or indirectly, make himself an instru- ment for the purpose of subsequently benefit- ing the transferror. Mulcahy v. Archibald, xxviii., 523. 15. Assignm,ent for benefit of creditors — Fraudulent preference — Bribery — Promis- sory note — Illegal consideration — 'Nullity ■ — Costs.'] — A secret arrangement whereby the provisions of the Code of Civil Procedure re- specting equal distribution of the assets of insolvents are defeated and advantage given to a particular unsecured creditor is a fraud upon the general body of creditors notwith- standing that the agreement for the additional payment may be made by a third person who has no direct interest in the insolvent's busi- ness. A promissory note given to secure the amount of the preference payable under such an arrangement is wholly void. Brigham v. Banque J aoques-0 artier, xxx., 429. 16. Money paid — Voluntary payment — • Insolvency of de'btor — Action by assignee — Status.] — S., a trader, in August, 1899, pro- cured the consent in writing of his creditors to payment of his debts then due and matur- ing by notes at different dates extending to the following March. V., one of the creditors, insisted on more prompt payment of part of his claim, and took from S, notes aggregating in amount $708. all payable in September, which S. agreed in writing to pay at matur- ity, and did pay. In November, 1899, S. as- signed for benefit of his creditors when the arrangement between him and V. first became known and the assignee and other creditors brought an action to recover the said sum of $708 from V. as part of the insolvent estate. iSeld, affirming the judgment of the Court of Appeal (3 Ont. L. R. 5), and that at the trial (32 O. R. 216), that S. having paid the notes voluntarily without oppression or Co- ercion could not himself have recovered back the amount and his assignee was in no better position. — Held, per Taschereau, J. As any- thing recovered by the assignee would be for the benefit of his co-plaintiffs only who would thus receive what would have been an unjust preference if stipulated for by the agreement for extension the plaintiffs had no locus standi in curia. Langley v. VanAllen, xxxii., 174. 17. Debtor and creditor — Collusion — Pres- sure— B. S. B. C. cc. 86. 87— The Bank Act. s. 80 — Company law — Mortgage by directors — Ratification — B. C. Companies Acts, 1890, 1892, 1894-] — The action was to set aside a mortgage by an incorporated company to the bank, an assignment of book debts and judg- ment by the bank against the company on grounds : ( 1 ) that the mortgage was volun- tary, fraudulent and void under the Statute of Eliz. > (2) void as a fraudulent preference; (3) not executed in accordance with the Companies Act; (4) that the assignment was void for same reasons and contrary to the Bank Act; and (5) the judgment voluntary, fraudulent and void under the Statute of Elizabeth. It was contended that moneys re- ceived by the bank were exigible under plain- tiffs' executions and an order asked accord- ingly. The judgment appealed from (8 B. C. Rep. 314) affirmed the trial judgment and held that there was good consideration for the mortgage, that it was given under pres- sure and should not be set aside although comprising the whole of the debtor's property and given under insolvent circumstances to the knowledge of the mortgagee and deprived the other creditors of their remedy ; also, that the mortgage given by the company's direct- 627 GAOLS. 628 ors without proper authority had been legally ratified by subsequent resolution of the share- holders. The Supreme Court afSrmed the judgment appealed from, Gwynne, J., taking no part in the decision, and subsequently the Privy Council refused leave for an appeal (8 B. C. Rep. 337). Adams d Burns v. The Bank of Montreal xxxii., 719; 18. Acts in contemplation of bankruptcy — Onus of proof — Insolvent Act of 1875. See MoETGAGE, 9. 19. Security for indorsement — Deposit to credit of indorser — Acts in contemplation of insolvency. See PuEDGE, 1. 20. Assignment — Power to sell on credit — R. 8. 0. (1877) 0. 118, s. 2. See Assignments, 1. 21. Mortgage in contemplation of insolv- ency — Insolvent Act of 1875, s. 133 — Gon- flict of statutes — Merchants' Shipping Act, 1854 (Imp.) See Insolvency, 21. 22. Assignment for lenefit of creditors — Preferences — Statute of Elizaieth — Dn- reasonaile conditions — Resulting trusts. See Assignments, 3. 23. Advances to insolvent railway — Pledge of property — Registration — Priority. See Lien, 7. 24. Hire receipt — Including after acquired See Chattel Mortgage, 17. 25. Insolvency — • Preferential mortgage — Prejudice of creditors — Art. 2023, G. G. See Mortgage, 13. 26. Insolvency — Transfer of insolvent's property to creditor — Knowledge of creditor —Arts. 1035, 1036, 1169, G. G. See Debtor and Creditor, 25. 27. Assignment for the lenefit of creditors — Preferred creditors — Money paid under voidable assignment — Liability of assignee — Statute of Elizabeth — Hindering and delaying creditors. See Assignments, 6. FRAUDS, STATXTTE OF. See Statute of Pkauds. FUTURE RIGHTS. 1. Gharge on land — Instalments of church rates — Appellate jurisdiction. See Appeal, 21. 2. Appeal — Expropriation of lands — As- sessments — Local improvements — R S G r 135, s. 29 (b)—56 Vict. c. 29, s. 1 (D.)' See Appeal, 71. 3. Action en bornage — Title to lands R S. G. c. 135. s. 29 {b)—54 & 55 Vict, c 25 s. 3 (D.)—56 Vict. c. 29, s. 1 (D.). ' See APPEALJ 72. 4. Appeal — Jurisdiction — Appealable amount — Future rights ■ — Alimentary al- lowance — " Other matters and things " — R S. G. 0. 135, s. 29 {b)—56 Vict. c. 29 (D.). ' See Appeal, 74. GAME I.AWS. Province of Quebec — Oame killed out of sea- son — Seizure of furs — Search warrant-— Jus- tice of the peace— Jurisdiction — Writ of pro- hibition — R. S. Q. arts. U05, i^OS.]— Under art. 1405 read in connection with art. 1409 R. S. Q., a game keeper is authorized to seize furs on view on board a schooner, without a search warrant, and to have them brought before a justice of the peace for examination. — A writ of prohibition will not lie against a magistrate acting under arts. 1405-1409 R. S. Q. in examination of the furs so seized where he clearly has jurisdiction ,and the only com- plaint is irregularity in the seizure. Com- pany of Adventurers of England v. Joannette, xxiii., 415. GAMING. Griminal Gode, s. 575 . — Persona designata — Officers de facto and de jure — Chief con- stable — Common gaming house — Confiscation of gaming instruments, moneys, dc. — Evidence — The Canada Evidence Act, 1893, se. 2, S, 20 and 21.] — Section 575 of the Criminal Code, authorizing the issue of a warrant to seize gaming implements on the report of " the chief constable or deputy chief con- stable " of a city or town does not mean that the report must come from an ofiBcer having the exact title mentioned, but only fr6m one exercising such functions and duties as will bring him within the designation used in the statute. Therefore, the warrant could pro- perly issue on the report of the deputy high constable of the City of Montreal. Girouard, J., dissenting. — ^The warrant would be good if issued on the report of a person who filled de facto the ofiice of deputy high constable though he was not such de jure. — In an ac- tion to revendicate the moneys so seized the rules of evidence in civil matters prevailing in the province would apply, and the plaintifE could not invoke " The Canada Evidence Act, 1893," so as to be a competent witness in his own behalf in the Province of Quebec. — Per Strong, C.J. A jud^ent declaring the forfei- ture of money so seized cannot be collaterally impeached in an action of revendication. O'NeU V. Attorney -General of Canada, xxvi., 122. GAOI.S. R. 8. Jf. 8. Removal from shire town (5 ser.) c. 20, s. 1. See Municipal Cokporations, 81 629 GIFT. 630 GARNISHMENT. 1. Common Law Procedure Act, (P. E. I.) —Promissory note overdue in hands of payee — Payment 'by garnishee — Discharge of maker.} — ^An overdue promissory note in the hands of the payee is liable to be attached by a judgment creditor under the Common Law Procedure Act, (P. B. I.), and payment by the garnishee of the amount to the judgment creditor of the payee, in pursuance of a judge's order, is a valid discharge. Rohlee v. Rankin, xi., 137. 2. Representation of indebtedness — Equit- able assignment. See Estoppel, 8. 3. Husband and wife — Purchase of land by wife — Re-sale — Garnishee of purchase mdney on — Debt of husband — Statute of Elisabeth — Hindering or delaying creditors. See Practice, 60. GAS COMPANY. Construction of contract — Construction of statute — 12 Vict. c. 183, s. W — 'Notice to cancel contract — Gas supply shut off for non- payment of gas bill on other premises — Man- damus.] — An agreement to furnish gas con- tained an express provision that either of the contracting parties should have the right to cancel the contract by giving twenty-four hours' notice in. writing. Notices were sent in writing to the coasumer that his gas would be shut off, at a certain number on a street named, unless he paid arrears of gas bills due upon another property. Held, that such notices could not be considered as notices given under the contract for the purpose of cancelling it. — ^The Act to amend the Act incorporating the New City Gas Company of Montreal and to extend its powers (12 Vict, e. 181) , provides : — " That if any person or persons, company or companies, or body cor- porate supplied with gas by the company, should neglect to pay any rate, rent or charge due to the said New City Gas. Company, at any of the times fixed for the payment there- of, it shall be lawful for the company or any person acting under their authority, on giv- ing twenty-four hours' previous notice, to stop the gas from entering the premises, service pipes, or lamps of any such person. Company or body, by cutting ofE the service pipe or pipes, or by such other means as the said company shall see fit, and to recover the said rent or charge due up to such time, together with the expenses of cutting off the gas, in any competent court, notwithstanding any contract to furnish for a longer time, and in all cases where it shall be lawful for the said company to cut off and take away the sup- ply of gas from any house, building or premises, under the provisions of this Act, it shall be lawful for the company, their agents and workmen, upon giving twenty-four hours previous notice to the occupier or person in charge, to enter into any such house, building or premises, between the hours of nine o'clock in the forenoon and four .in the afternoon, making as little disturbance and inconveni- ence as possible, and to remove, take and carry away any pipe, meter. Cock, branch, lamp, fittings or apparatus, the property of and be- longing to the said company." Held, Tasche- reau, J., dissenting, that the powers given by the clause quoted are exorbitant and must be construed strictly ; that the company has not been thereby vested with power to shut off gas from the buildings and premises of the same proprietor or occupant, when he be- comes in default for the payment of bills for gas consumed in one of them only ; and that the provision that the notice to cut off must be given " to the occupier or person in charge," indicates that only premises so occu- pied and in default should suffer. Cadieux v. Montreal Gas Co.. xxviii., 382. [The Privy Council reversed this judgment ; (1898) A. C. 718; (1899) A. C. 589.] GAZETTE. Mining law — Dominion Lands Act — Publi- cation of regulations — Renewal of license — Payment of royalties — 'Voluntary payment — B. S. C. c. 5Ji, ss. 90, 91. See Mines and Minerals, 13. GIFT. 1. Gift — Confidential relations — Evidence — Parent and child — Public policy — Principal and agent.'] — The principle that where confi- dential relations exist between donor and donee the gift is, on grounds of public policy, presumed to be the effect of those relations, which presumption can only be rebutted by shewing that the donor acted under independ- ent advice, does not apply so strongly to gifts from parent to child or from principal to agent. Thus, in case of a gift to the donor's son, for benefit of the latter's children, when said son had for years acted as manager of his father's business, when he was the only child of the donor having issue, and *hen the donor, nine years before his death, had evi- denced his intention of making the gift by signing a promissory note in favour of the son, by renewing it six years later and by voluntarily paying it before he died, such pre- sumption does not arise. — Judgment of the Court of Appeal (2 Out. L. R. 251) reversing that of the Divisional Court (31 0. R. 414) affirmed, Sedgewick and Davies, JJ., dissent- ing. Trusts and Guarantee Co. v. Hart, xxxii., 553. 2. Donatio mortis causd — Deposit receipts — Cheques and orders — Delivery for bene- ficiaries — Corroboration — Construction of sta- tute.'] — McD., being ill and not expecting to recover, requested his wife, his brother being present at the time, to get from his trunk a bank deposit receipt for $6,000 which he then handed to his brother telling him that he wanted the money equally divided among his wife, brother and sister. The brother then, on his own suggestion or«that of McD., drew out three cheques or orders for $2,000 each payable out of the deposit receipt to the re- spective beneficiaries which McD. signed and returned to his brother who handed to McD.'s wife the one payable to her and the receipt, and she placed them in the trunk from which she had taken the receipt. McD. died eight days afterwards. Held, affirming the judg- ment appealed against (35 N. S. Rep. 205), Sedgewick and Armour, JJ., dissenting, that this was a valid donatio mortis causd of the deposit receipt and the sum it referred to not- withstanding there was a small amount for 631 GUARANTEE. ' a interest not specified in the gift. — By R. S. N. S. [1900] c. 163, s. 35, an interested party in an action against the estate of a deceased person cannot succeed on the evidence of him- self or his wife or both unless it is corrobor- ated by other material evidence. Held, that such evidence may be corroborated by circfum- stances or fair inferences from facts proved. The evidence of an additional witness is not essential. McDonald v. McDonald, xxxiii., 145. 3. Marriage covenant — Universal com- munity — Don mutuel — Registry laws — Arts. 80T, 819, nil C. G. — Construction of con- tract.'] — A marriage contract contained the following clause : — '' Les futurs epoux se sont faits et se font par ces presentes an survivant d'eux ce acceptant, donation viagfere, mutuelle, egale et recipro.que de tons les biens meubles et immeubles, acquets, conquSts, prepres et autres biens gengralement quelconques qui se trouveront §tre et apparteiir au premier mourant au jour de son deces de quelque nature qu'ils soient, et 9. quelque lieu qu'ils soient situes, pour par le dit survivant en jouir en usufruit sa vie durant a sa caution juratoire et gardant viduit§." It was admitted that the only thing affected consisted of pronerty belonging to the community., j^JJeZdoj^irp- ing the judgment appealed froag xcra.r me'cMn- ation was one witnm the provisions of art. 1411 C. C. and, as such, did not require re- gistration as the clause is divisible and the stipulation in question as to universal com- munity merely a simple marriage covenant and not subject to the rules and formalities applicable to gifts. Huot v. Bienvenu, xxxiii., 370. And see Donation — Don Mutuel — Will. GOODWII.I.. Dissolution of firm — Misconduct of partner -Expulsion — Notice— ^Waivei — Forfeiture. See Partnership, 23. GREAT SEAL OF NOVA SCOTIA. See Constitutional Law, 64. GROSSES REPARATIONS. Title to land — Life estate — Construction of statute — • Preferred claim — Improvements made on lands grevi de substitution — Charge on lands. /See Substitution, 8. GUARANTEE. 1. Construction of agreement — Ouarantee.] — A., a wholesale merchant, had been supplying goods to C. & Co. when, becoming doubtful as to their credit, he insisted on their account being reduced to $5,000, and security for fur- ther credit. W.. who had indorsed to secure a part of the existing debt, thereupon gave A. a guarantee in the form of a letter, as fol- lows : — " I understand that you are prepared to furnish C. & Co. with stock to the extent of $54)00 as a current account, but want a guarantefe for any amount beyond that sum. In order not to impede their operations I have consented to become responsible to you for any loss you may sustain in any amount upon your current account in excess of the said sum of five thousand, but the total amount not to exceed eight thousand dollars including your own credit of five thousand, unless sanc- tioned by a future guarantee." ... A. then continued to supply C. & Co.. with goods] and in an action by him on this guarantee:— Held, affirming the decision of the Court of Appeal, Gwynne, J., dissenting, that there could be no liability on this guarantee unless the indebtedness of C. & Co. to A. should ex- ceed the sum of $5,000, a;nd at the time of action brought such indebtedness, having been reduced by payments from C. & Co. and divi- dends from their insolvent estate to less than such sum, A. had no cause of action. Alex- ander V. Watson, xxiii., 670. 2. Patent of invention — Business agreement to manufacture under — Letter of guarantee — Failure of scheme — Liahility of guarantor.] — The chief object of an agreement between A. and B. was the profitable manufacture and sale of wares under a patent of invention is- sued to A., and in consideration of advances by B. to an amount not exceeding $6,000, C. by a letter of guarantee agreed " to become a surety to B. for the re-payment of the $6,000 within 12 months from the date of the agreement if it should transpire that, for the reasons incorporated in said agreement, it should not be carried out."-^On action brought by B. against C. for $6,000 it was proved at the trial that the manufacturing scheme broke down through defects of the invention. Held, affirming the judgment of the court below, that C. was liable for the amount guaralnteed by his letter. Angus v. Union Gas and OtJ Stove Co., xxiv., 104. 3. Principal and surety — Guarantee J)ond-^ Default of principal — Non-disclosure hy cre- ditor.] — W. was appointed agent of a com- pany in 1891 to sell its goods on commission, and gave a bond with sureties for faithful discharge of his duties. His appointment was renewed year after year, a new bond with the same sureties being given to the company on each renewal. His agreement with the com- pany only authorized W. to sell for cash, but at the end of each season he was in arrear in his remittances, which he attributed to slow collections, and which he settled by giving an indorsed note, retiring the same before the bond for the next year was executed. After the season of 1894 the company discovered that W. had collected moneys of which he had made no return and brought an action to re- cover the same from the sureties. Held, re- versing the decision of the Court of Appeal, that each year there was an employment of W. distinct from, and independent of, those of preceding years ; that the position of the sureties on re-appointment was the same as if other persons had signed the bond of the pre- ceding year ; and that the company was under no obligation, on taking a new bond, to in- form the sureties that W. had not punctually performed his undertakings in respect of pre- vious employment, nor did the non-disdosure imply a representation to the sureties when they signed a new bond that they had been punctually performed. Niagara District Fruit Growers' Stock Co. v. Walker, xxvi., 629. 633 HABE]AS COEPIJS. 634 4. Guarantee of honesty of emplopee^^ Guarantee policy — Notice of defalcation, See Stjbetyship, 7. 5. Insolvency -^ Assignment for benefit of creditors— ^8ale of assets to wife of insolvent — Guarantee hy creditor and inspector-^ Trustees-Action for account of profits. See Insolvency, 48. 6. Loan to promoter of company^— Personal Uahility. See Company Law, 23. 7. Statutory prohibition — Penal statute — Wholesale purchase — Validity of contract — Porfeiture^-N ova Scotia Liquor License Act ^^Practice, See GoNTEACTj 166. 8. Contract — Drainage ^^ Inter-municipal works — Continuing liahUity. See Damages, 13. 9. Garantie simple — Contract ^^ Suh-con- traot^-^Connexiti. See CONTBACT, 147. And see StfBETYSHip. HABEAS CORPUS. 1. Questions of fact — Conviction iy J. P.-^ Arrest on warrant — Inquiry as to evidence — Jurisdiction — Certiorari — Supreme and Ex- chequer Courts Act, s. 49 — Supreme Court Amendment Act, 1876, s. 31,— R. S. O. {187T) c. 70.] — The Chief Justice, in chambers, dis- missed an application on behalf of a person arrested on a warrant issued on conviction by a magistrate, for a writ of habeas corpus and for certiorari to bring up the proceedings based on lack of evidence to warrant the con- viction. — On appeal, Held, Henry, J., dissent- ing, that the conviction having been regular, and made by a court in exercise of its author- ity, and within its jurisdiction, the only ob- jection being that the magistrate erred on the facts, and that the evidence did not justify the conclusion which he arrived at as to the guilt of the prisoner, the Supreme Court could not go behind the conviction, and inquire into the merits of the case by the use of a writ of habeas corpus and thus- constitute itself a court of appeal from the magistrate's decisioh. — The pnly appellate power conferred on the court in criminal cases, is by s. 49 of the Su- preme and Exchequer Courts Act, and it could not have been the intention of the legislature, while limiting appeals in criininal cases of the highest importance, to impose upon the court the duty of revision in matters of fact of summary coiivictions by niagistrates. — Sec- tion 34 of the Supreme Court Amend- ment Act, 1876, does not in any case authorize the issue of a writ of certiorari to accompany a writ of habeas corpus, granted by a judge of the Supreme Court in chambers ; and, as the proceedings before the full court on habeas corpus arising oiit of a criminal chai-ge Sre only by, way of appeal from the decision Of sutih judge in chambers^ that section does hot authofiiie the court to issUe a writ of cerlio- ra/ri in Sudh prbcesditigs ; to do so, would be to assume appellate jurisdiction over the inferior court.— Se»rt6ie,_ per Ritclhie, O.J., that R. S. D. (1877) Ci 70, relating to habeas corpus. does not apply to the Supreme Court of Can- ada. In re Trepanier, xii.. 111. 2. Conviction for murder — Appeal — Special session — Judge im chambers — Supreme and Exchequer Courts Act, s. 51 — Ultra vires — ^ Writ improvidently issued — Appropriate remedy — Jurisdiction to quash — Control of court over its own process — Crimes at com- mon law — CivU matters — Supreme Court of B. C. — Constitution — Commission to judge presiding — Trial of prisoner — Change of venue — Provision for increased expenses — Practice — Absence of prisoner — Evidence — Return to writ.'] — Section 51, Supreme and Exchequer Courts Act, does not interfere with the inherent right which the Supreme Court of Canada hsts, in common with every su- perior court incident to its jurisdiction, to in- quire into and judge of the regularity or abuse of its process, and to quash a writ of habeas corpus and subsequent proceedings thereon when, in the opinion of the court, such writ has been improvidently issued. — That section does not constitute the individual judges of the Supreme Court of Canada separate and independent courts, nor confer on the judges a jurisdiction outside of and independent of the court, and obedience to a writ issued under said section cannot be enforced by the judge but by the court, which alone can issue an attachment for contempt in not obeying its process. (Fournier and Henry, JJ., dis- senting). — Per Strong, J. The vfords of s. 51 expressly giving an appeal when the writ of habeas corpus has been refused or the priso- ner remanded, must be attributed to the ex- cessive caution of the legislature to provide all due protection to the subject in the matter of personal liberty, and not to an intention to deprive the court of the right to entertain appeals from, and revise, rescind and vary orders made under this section. — The right to issue a writ of habeas corpus being limited by s. 51 to " an inquiry into the cause of commit- ment in any criminal case under any Act of the Parliament of Canada," such writ cannot be issued in a case of murder, which Is a case at common law. (Fournier and Henry, JJ., dissenting). — Per Fournier and Henry, JJ. The restriction imposed by s. 51 to " an in- quiry into the cause of commitment in any criminal case under any Act of the Parliament of Canada," is merely intended to exclude in- quiry into the cause of commitment for the infraction of some provincial law ; and the words " in any criminal case " were inserted to exclude the habeas corpus in civil matters ; it is sufficient to give jurisdiction if the com- mitment be in virtue of an Act of the Parlia- ment of Canada. — Quwre. Is s. 51, Supreme and Exchequer Courts Act, ultra vires? — Semble, That when a judge in a province has the right to issue a writ of habeas corpus re- turnable in term as well as in vacation, a judge of the Supreme Court might make the writ he authorizes returnable in said court in term as well as immediately (Fournier and Henry, JJ., dissenting). — An application to the court to quash a. writ of habeas corpus as improvidently issued may be entertained in the absencfe of the prisoner (Henry, J., dis- senting) . — After a conviction for a felony by a .court having general jurisdiction over the offence charged, a writ of habeas corpus is an inappropriate remedy. — If the record of a su- perior court, produced on an application for a writ of habeas corpus, contains the recital of facts requisite to confer jurisdiction, it is conclusive and cannot be contradicted by ex- trinsic evidence (Henry, J., dissenting) i^^A. 635 HABEAS COEPUS. 636 return by the sheriff to the writ setting out such convirtion and sentence , and the aflBrma- tion thereof by the court of error is a good and sufficient return. If actually written by him or under his direction the return need not be signed by the sheriff (Henry. J., dissent- ing.) — The Supreme Court of British Col- umbia is clothed with all the powers and jur- isdiction, civil and criminal, necessary or essential to the full and perfect administration of justice, civil or criminal, in the province; it has powers as full and ample as those known to the common law and possessed by the superior courts of England. — ^The various statutes of British Columbia providing for the holding of courts of oyer and terminer and general gaol delivery render unnecessary a commission to the presiding judge. — Per Strong, J. The power of issuing a commis- sion, if necessary, belonged to the Lieutenant- Governor of the province (Henry. J., contra). — ^An order made. pursuant to Dominion sta- tute 32 and 33 Vict. c. 29, s. 11, directing a change of venue, would be sufficient, although containing no reference to any provision for expenses, when the indictment has been pleaded to and the trial proceeded with without objec- tion and, even in a court of error, there could be no valid objection to a conviction founded on such order. — Even if a writ of habeas corpus in this case had been rightly issued, the prisoner was not entitled to his discharge on the materials before the judge, but should have been remanded. In re Sprovle, xii., 140. See No. 5 infra. 3. Appeal — Procedure — Time for filing cose.] — In habeas corpus appeals the first step is the filing of the case with the registrar — This must be done within 60 days from the pronouncing of judgment appealed from. In re Smart, xvi.. 396. 4. Appeals — Criminal matters — Section 51, Supreme Court Act — Jurisdiction — Court of Appeal for Ontario — Presence of prisoner — Short notice of hearing — 32 & 33 Vict. c. 32, s. 19 — -38 Vict. c. Jfl — Legislative jurisdiction — Summary trial by police magistrate.} — On the 16th January, 1879, the prisoner, was charged for that he did " unlawfully and ma- liciously cut and wound one Mary Kelly with intent then and there to do her the said Mary Kelly grievous bodily harm," and being tried summarily before the police magistrate at Ottawa was found guilty, and sentenced to the central prison at Toronto, at hard labour for one year. On being brought before the Court of Queen's Bench for Ontario upon a writ of habeas corpus issued from that court, the prisoner was remanded ; whereupon he appealed to the Court of Appekl for Ontario; which dismissed his appeal. (8 Ont. Pr. R. 20.) Notice was given of appeal from this judgment to the Supreme Court of Canada, and the case in appeal was received too late to be set down for hearing at the May ses- sions, whereupon application was made to Pournier, J., for leave to bring the appeal on for hearing and to give short notice of hear- ing, which was refused, on the ground that no appeal would lie in such a Case to the Su- preme Court of Canada. An application was then made for a writ of habeas corpus to Gwynne, J., who held that the application should be refused for two reasons : 1st. The applicant was. convicted of an offence, being a misdemeanour as stated sufficiently in the conviction, which could not be avoided for matter of form ; the misdemeanour of which he was so convirted was an offence cognizable by the Court of General Sessions of the Peace and for such offence the statute of 1875 au- thorized a punishment to be inflicted such as the Court of General Sessions could award for the like offence, and the punishment awarded was such as the Court of General Sessions might have awarded. 2ndly. The decision of the Court of Appeal should be considered conclusive, and should not be inter- fered with by a single judge of any court sitting in chambers, but the applicant must be left to any recourse he might have against the adjudication of the Court of Appeal for Ontario (19th June, 1879.) On 23rd June an application for a writ of habeas corpus was made to Henry, J., who granted an order for a writ, returnable before the Chief Justice or any judge of the Supreme Court in chambers, such order providing that, counsel for the prisoner consenting, the actual presence of the prisoner should be dispensed with, and provid- ing also for service of the order on the At- torney-General of the Province, or his deputy, or his agent at Ottawa. The writ was re- turned before Ritchie C. J., in chambers ' on 5th July, 1879. The Chief Justice held that he could not deal with the matter without the prisoner being brought before him according to the exigency of the writ, but was also of opinion that the prisoner should not be dis- charged on habeas corpus; and he therefore refused the application for his discharge. On 18th September, 1879, another application was made to Henry, J., in chambers, who granted an order for the writ, retiu-nable before him- self in chambers, dispensing with the actual presence of the prisoner on the return of the writ (counsel for the prisoner consenting), and providing for service of the order on the Attorney-General of the Province. On 1st October, 1879, upon the return of the writ, after hearing counsel for the prisoner and the Attorney-General, Henry, J., held, 1st. That the police magistrate derived his power to try the prisoner as he did from 38 Viet. c. 47, but reference to 32 & 33 Vict. c. 32 was neces- sary to decide upon the nature of the charge and the convicftion. In the information the prisoner was charged in the very words of the first clause of s. 19 of 32 & 33 Vict. c. 32, and, the punishment awarded was that war- ranted by the terms of the enactment, and the additional words as to the intent should be considered nothing more than surplusage. 2ndly. That 38 Vict. c. 47, giving power to police and stipendiary magistrates to try in a summary manner felonies and misdemeanours, was intra vires of the Dominion Parliament. Srdly. That it was necessary to consider the point whether the prisoner should be brought before him according to the exigency of the vsrrit, no objection having been taken, and his judgment being unfavourable to the prisoner on the other grounds. Application to discharge the prisoner refused. Applica- tion was then made to Fournier, J., in cham- bers, for leave to bring the appeal on for hear- ing at the next session of the Supreme Court of Canada, and to serve short notice of hearing, but it was refused because sufficient grounds were not shewn to take the case out of the regular course of procedure. — On 10th No- vember, 1879, application was renewed before the full court, but being made ex parte and without notice the court refused to hear It. — On 15th November, 1879, application was again made to the full court, when the At- torney-General of Ontario shewed cause, ana it was Held, that no appeal could lie in such a case to the Supreme Court " of C&nada, but ,637 HABEAS CORPUS. 638 even If it did, under all the circumstances and delays that had occurred, the court should not go out of its way to exercise any discretion as to granting leave. — Per Ritchie, C.J. As re- gards habeas corpus in criminal matters, the court has only a concurrent jurisdiction with the judges of the Superior Courts of the vari- ous provinces, and not an appellate jurisdic- tion, and there is no necessity for an appeal from the judgment of any judge or court, or any appellate court, because the prisoner can come direct to any judge of the Supreme Court individually and, upon that judge re- fusing the writ or remanding the prisoner, he could" take his appeal from that judgment to the full court. Application refused. In re Boucher, Cass. Dig. (2 ed.) 325; Cass. S. C. Prac. (2 ed.) 54. 5. Murder — Crimes at common law — Statu- tory offences.'l — In a case of commitment by a coroner for murder, application was made to Strong, J., for a writ of habeas corpus- Held, that under the Supreme and Exchequer Courts Act, s. 51. the writ is to be issued for the purpose of an inquiry into a commitment only " in any criminal case under any Act of the Parliament of Canada," and the Act of the Parliament of Canada (1869) does not Create the offence of murder, but only defines the punishment which may be awarded for such offence. Writ refused. In rePoitvin, Cass. Dig. (2 ed.) 327; Cass. S. C. Prac. (2 ed.) 54. See No. 2, ante. 6. Application for writ — Imprisonment of execution debtor — Discharge — R. S. N. S. (5 ser.) s. 118 — Examination of debtor — Fraud — Remand for six months — Order dated on Sunday — New order — Costs on appeal.'\ — J. was in custody on execution for debt, and applied to a County Court judge under R. S. N. S. (5 ser.) c. 118 to be examined as to his affairs with a view to obtaining his dis- charge. The examination was held by the judge who, on 23rd January, 1886, made an order 'to the effect that J. was adjudged guilty of fraud in respect to the delay of payment of his debt to the execution creditors, and m regard to the disposal of his property, and by such order remanded J. to jail, without privi- lege of jail limits, for a further period of six months from date of remand. When the order was drawn up it was dated 24th Janu- ary, 1886 which was Sunday, and directed that J. be' confined in the county jail for six months from that date. — J. was taken back to jail, the order dated on Sunday being de- livered to the jailer, and counsel for the exe- cution creditors on Monday, Kth January, procured from the judge another order dated the 25th ordering J. to be imprisoned for six months from 23rd January. — ^An application to the Supreme Court (N. S.) for discharge on habeas corpus, was refused, the maoority of the court holding that he was rightly held in Custody, if not on the order of the County Court judge, then on the original Cause of his detention, the writ of execution. — An ap- peal to the Supreme Court of Canada was dismissed without costs. In re Johnson, Cass. Dig. (2 ed.) 329. 7. Jurisdiction — Form of commitment — Territorial division — Judicial notice— Jurisdic- tion in matters of habeas corpus — R. 8. C. c. 135, s. 32.] — ^A warrant of commitment was made by the stipendiary magistrate for the police division of the _^ municipality of the County of Pictou, in Nova Scotia, upon a con- viction for an offence stated therein to have been committed " at Hopewell, in the County of Pictou." The County of Pictou appeared to be of a greater extent than the munici- pality of the County of Pictou, — there being also four incorporated towns within the county limits — and it did not specifically ap- pear upon the face of the warrant that the place where the offence had been committed was within the municipality of the County of Pictou. The Nova Scotia statute of 1895 re- specting county corporations (58 Vict. c. 3, s. 8), contains- a schedule which mentions Hopewell as a polling district in Pictou County entitled to return two councillors to the county council. Held, that the court was bound to take judicial notice of the territorial divisions declared by the statute as establish- ing that the place so mentioned in the warrant was within the territorial limits of the police division. Held, also, that the jurisdiction of a judge of the Supreme Court of Canada In matters of habeas corpus in criminal cases is limited to an inquiry into the cause of im- prisonment as disclosed by the warrant of commitment. Ex parte Macdonald, xxvii., 683. 8. Appeal — Change of position of parties.'] — Upon the calling for hearing of the appfeal (which was from a judgment of the Supreme Court of British Columbia, refusing a writ of habeas corpus for the possession of Quai Sing, a Chinese female under age), counsel for the respondent produced to the court an order of the Supreme Court of British Col- umbia, dated subsequently to the judgment appealed from, by which it appeared that the respondent, the matron of a rescue home, had been appointed by that court as guardian to the infant in question, whereupon the Chief Justice intimated that, under the circum- stances, it was useless to proceed with the hearing of the appeal, it being impossible that any order could be made thereon respecting the possession of the infant being given to the appellant. — ^The appeal was consequently dis- missed with costs. Seid Sing Kaw v. Bowes, 17th May, 1898. 9. Appeal — Habeas corpus — Extradition — Necessity to quash.} — By s. 31 of the Supreme and Exchequer Courts Act (R. S. C. c. 135, s. 31), "no appeal shall be allowed in any case of proceedings for or upon a writ of habeas corpus arising out of any claim for ex- tradition made under any treaty." On appli- cation to the court to fix a day for hearing a motion to quash such an appeal. Held, that the matter was coram non judice and there was no necessity .for a motion to quash. In re Lazier, xxix., 630. 10. Practice — Habeas corpus — Binding effect of judgment in prqvincial cQwri.]— An application for a writ of habeas corpus wa.s referred by the judge to the Supreme Court of the province and, after hearing, the appli- cation was refused. On application subse- quently made to a judge of the Supreme Court of Canada, in . chambers : — Held, that under the circumstances it would be improper to in- terfere with the, decision of the provincial court. In re White, xxxi., 383. 11. Certiorari — Jurisdiction of Supreme Court of Canada or judge thereof— Issuer of writ. „ „ See Ceetiobaei, 2. 639 HEIRS. 640 12. Appeal on mere question of costs =^ Prisoner at large. See Costs, 1 — Pbactice of Supeeme Court, 66, and No. 6, ante. " HANSARD." 1. Civil service — Officials of Bouse of Commons ^— Extra salary — Additional re- muneration — Permanent employees — 51 Tici. c. 12, s. 51. See Statutes, 63. 2. Canada Evidence Act, 1893 — Construc- tion of statute — Method of interpretation --^ Reference to debates in House of Commons. See Cbiminal Law, 25. HARBOURS. 1. Canadian waters — Grant under great seal of P. E. I- — ForesTiore in public harbour — ,B. IV. A. Act, 1861, s. 108—25 Vict. c. 19 (P. E. I.) —Title to land.] — Under s. 108, B. N. A. Act, 1867, the soil and bed of the foreshore in the harbour of Summerside, P. E. I., belongs to the Crown, as representing the Dominion of Canada, as it is comprised in and forms part of a public harbour and, therefore, a grant of foreshore lands between high and low water mark therein made by the Province of Prince Edward Island is void and inoperative. Holman v. Green, vi.. 707. [Note. — Followed in Re Provincial Fish- eries (26 Can. S. C. R. 444.)] 2. Canadian waters — Property in beds — Public harbours — Erections in navigable waters — Interference with navigation . — Right of fishing — Power to grant — Rip- arian proprietors — Great lakes and navi- gable rivers — Operation of Magna Charta — Provincial legislation — R. S. 0. (1887) c. 2J,, s. J,1—55 Vict. c. 10, ss. 5 to 13, 19 and 21 (0.)—R. S. Q. arts. 1375 to 1378,]— The beds of public harbours not granted before confederation are the property of the Do- minion of Canada. Holman v. Green (6 Can. S. C. R. 707) followed. The beds of all other waters not so granted belong to the respective provinces in which they are situate, without any distinction between the various classes of waters. — Per Gwynne, J. The beds of all waters are subject to the jurisdiction and control of the Dominion Parliament so far as required for creating future harbours, erecting beacons or other public works for the benefit of Canada, under the British North America Act, s. 92, item 10, and for the administration of the fisheries. — R. S. C. c. 92, " An Act respecting certain works con- structed in or over navigable rivers " is intra vires of the Dominion Parliament.^ — The Do- minion Parliament has power to declare What shall be deemed an interference with navi- gation and to require its sanction to any work in navigable waters. — A province may grant land extending into a lake of river fot the purpose of there being built thereon a wharf, warehouse or the like, and the grantee on obtaining the sanction of the Dominion may build thereon subject to compliance with R. S. C. c. 92. — Where the provisions of Magna Charta are not in force, as in Quebec, the Crown in right of the province may grant exclusive rights of fishing in tidal waters except in tidal public harbours, in which, as in other public harbours^ the Crown in right of the Dominion, may grant the beds and fish* ing rights. Gwynne, J., dissenting.=^Pef Gwynne, J. R. S. O. c. 24, s. 47, is ultra vires so far as it assumes to authorize the sale of land covered with water within public harbours.^-The margins of navigable rivers may be sold if there is an understanding with the Dominion Government for protection against interference with navigation.^The Act of 1892 and R. S. Q. arts. 1375 to 1378 are valid if passed in aid of a Dominion Act for protection of fisheries. If not they are ultra vires. In re Jurisdiction over Proving cial Fisheries, xxvi., 444. Varied on appeal by Privy Council : [18981 A. C. 700. 3. Obstructions ^= Title to land ^^ Un- authorized grant ^-^ Trespass -^ Low water mark - — Nuisance. See Navigation, 1. 4. Provincial grant of foreshore — B. N. A. Act, 1867 — Act confirming title — Pleading^^ See TiTUB to Land, 132. HARBOUR COMMISSIONERS. Jurisdiction — Montreal harbour —, Muni- cipal by-law — Tax on ferry boats — Naviga- tion.] — ^The jurisdiction of the Montreal Har- bour Commissioners does not exclude the right of the City of Montreal to tax or control ferries, within its limits. LongueuU Naviga^ tion Co. V. City of Montreal, xv., 566. HEIRS. 1. Construction of will ^^ " Own right heirs " — Limiting testamentary powers of de- visee ^ Conditional limitations — Appeal —=■ Acquiescence by appellants in judgment ap- pealed from — GostS' — Vesting of estate.] — ^Un- der a devise to the testator's " own right heirs " the beneficiaries would be those who would have taken in the case of intestady unless a contrary intention appears, and where there was a devise to the only daughter of the testator conditionally upon events which did not occur, and, under the circumstances, could never happen, the fact of such a deyisS was not evidence of such contrary intentioni and the daughter inherited as the right heir of the testator. In re Ferguson, Turner V; Bennett; Carson v. Coatsworih, xxviii., 38. 2. Construction of statute — Estates tail-^ Executory devise over — " Dying tvithout ts- sue " — " Lawful heirs " — " Heirs of ihe body " — Estate in remainder expectant-^Stv- tutory title — i'itle by will ^- Conveyance li tenant in tail. See Wnx, 18. 3. Will "- Construction of =_ 'Words oi/a'^ turity ^^ Life estate -^ Joint lives — TitAe for ascertainment of class -—^ Suf^vgr d^ing without tggite-^" Lawful fieir." See Wnx, 34. 641 HIGHWAYS. 642 4. " Heir " — Will — Codicil — Testament- ary succession — Arts. 596, 59t, 831, SJfit 864 C. G. H Geo. III. c. 83, s. 10 (Imp.) — Jlil Geo. III., c. y, (L.C). See WilL, 19. And see Successions — Wills. HIGHWAYS. 1. Dedication, 1-5. 2. Feret License, 6. 3. Franchises, 7-9. 4. Local Improvements, 10, 11. 5. Negligence, 12-25. 6. Opening Roads, 26, 27. 7. Railways and Tramways, 28-31. 8. Repairs, 82. 9. Title to Way, 33-35. 10. Tolls, 36, 37. 1. Dedication. 1. Lost record — Dedication — PuMic highway — Expropriation — Presumption ■ — User.] — K. brought an act;on for trespass to his land in laying pipes to carry water to a public institution. The land had been used as a public highway for many years and there was an old statute authorizing its expropria- tion for public purposes, but the records of the municipality, which would contain the proceedings on such expropriation if any had been taken, were lost. Held, reversing the judgment appealed from (20 N. S. Rep. 95), that in the absence of any evidence of dedica- tion of the road it must be presumed that the proceedings under the statute were rightly taken and K. could not recover. Dickson v. Kearney, xiv., 743. 2. PuMic highway — Registered plan — De- dication — User — Statute, construction of — Retrospective statute 46 Tict. v. 18 (O.I — Estoppel.] — ^The right vested in a municipal corporation by 46 Vict. c. 18 (O.) to convert into a public highway a road laid out by a private person on his property can only be exercised in respect to private roads to the use of which the owners of property abutting thereon were entitled. Oooderham v. City of Toronto, xxv., 246. 3. Municipal corporation — Highways — Old trails in Rupert's Land — Substituted roadway — R. S. C. c. 50, s. 108 — Reserva- tion in Grown grant — Dedication — User — Estoppel — Assessment of lands claimed as highway- — Evidence.'] — The user of old trav- elled roads or trails over the waste lands of the Crown in the North- West Territories of Canada, prior to the Dominion Government survey thereof, does not give rise to the pre- sumption that the lands over which they passed were dedicated as public highways. — The land over which an old travelled trail had formerly passed, leading to the Hudson Bay Trading Post at Edmonton, N. W. T., had been closed by the owner, divided into town lots and assessed and taxed as private pro- perty by the municipality, and a new street substituted therefor, as shewn upon registered plans of subdivision and laid out upon the ground, had been adopted as a boundary in the description of lands abutting thereon in s. c. D. — ^21. the grants thereof by letters patent from the Crown. Held, reversing the decision of the Supreme Court, N. W. T., that under the cir- cumstances there could be no presumption of dedication of the lauds over which the old trail passed as a public highway either by the Crown or' by the private owner, notwithstanding long user of the same by settlers in that district prior to the Dominion Government survey of the Edmonton Settlement. Heiminck v. Town of Edmonton, xxviii.. 501. See No. 4, infra. 4. Old trails in Rupert's Land — Crown grant — Squatter's plan of subdivision — Sub- stitution of new way — Dedication — High- way — Adopting new street as a boundary.] — A squatter in possession of public' lands near the old Hudson Bay Trading Post at Edmonton, who afterwards became patentee of the greater part of the lands he occupied, had made a plan of subdivision thereof into town lots which shewed a new roadway or street laid down in the place of the old travel- led trail across said lands leading to the trad- ing post, and subsequently, the Crown, in making grants, described several parcels of the lands in the patents as being bounded and abutting upon the said street or roadway, so laid down on the plan. Held, affirming the judgment appealed from (1 N. W. T. Rep. pt. 4, p. 39), that the space as shewn upon the plan, as laid out for a street, had been adopted and dedicated by the Crown as and for a public street and highway in substitu- tion of the old travelled trail or roadway across said lands. Brown v. Town of Ed- monton (24th May, 1894), xxviii., 510. See No. 8, ante. 5. Dedication — User — Evidence.] — In order to establish the existence of a public highway by dedication it must appear that there was not only the intention on the part of the owner to dedicate the land for the purposes of a highway but also that the public accepted such dedication by user there- of as a public highway. — In a case where the evidence as to user was conflictory and the jury found that there had been no public user of the way in question, the trial judge disregarded this finding and held that dedica- tion was established by a deed of lease filed in evidence, and this decision was affirmed by the full court. Held, that as such decision did not take into account the necessity of establishing public user of the locu^. It could not stand. Judgment of the Supreme Court (N. B.) reversed. Moore v. Woodstock Wool- len Mills Co., xxix.. 627. 2. Ferry License. 6. Constitutional law — Municipal corpo- ration — Powers of legislature — License — Mo- nopoly — Highways and ferries — Navigable streams — By-laws and resolutions — Inter- munidpal ferry — Tolls — Disturbance of licensee — North-West Territories Act — Com- panies, club associations and partnerships. See Municipal Corporation, 170. 3. Franchises. 7. Waterworks — Repairs — Injunction — R. S. Q. art. 41,85. See Injunction, 4. 643 HIGHWAYS. 644 8. Title to portion of highway— Legislative grant of soil — Oas pipes — Fixtures — As- sessment — Exemptions — 11 Vict. o. H {Can.) — 55 Vict. c. Jf8 (0.) — "Ontario Assessment Act, 1892." See Assessment and Taxes, 13. 9. Constitutional law — Administration of Yukon — Franchise over Dominion lands — Tolls. See CoNSXiTTJTiONAi. Law, 78. 4. LocAi, Improvements. 10. Repair of streets — Pavements — As- sessment on property ownei — Double taxation —2If Vict. c. 39 (N. S.)—5S Vict. c. 60. s. U {N. S.)] — By s. 14 of the Nova Scotia Statute, 53 Vict. c. 60, the City Council of Halifax was authorized to borrow money for paving the sidewalks of the city with con- crete or other permanent material, one-half the cost to be a charge against the owners of the respective properties in front of which the work should be done, and to be a first lien on such properties. A concrete sidewalk was laid under authority of this statute, in front of L.'s property, and he refused to pay half the cost on the ground that his predeces- sor in title had in 1867, under the Act 24 Vict. e. 39, furnished the material to con- struct a brick sidewalk in front of the same property, and that it would be imposing a double tax on the property if he had to pay for the concrete sidewalk as well. Beld, re- versing the judgment appealed from (28 N. S. Rep. 268), that there was nothing dubious or uncertain in the Act under which the con- crete sidewalk was laid ; that it authorized no exception in favour of property owners who had contributed to the cost of sidewalks laid under the Act of 1861 ; and that to be called upon to pay half the (?ost of a concrete side- walk in 1891 would not be paying twice for the same thing because in 1867 the property had contributed bricks to construct a side- walk which, in 1891, had become worn out, useless and dangerous. City of Halifax v. Lithgow, xxvi., 836. 11. Municipal corporation — Expropriation ■ — Widening^ streets — Assessments — Exces- sive valuation — 52 Vict. c. 79, s. 228 (Que.). See Municipal Coepokation, 8. 5. Negligence. 12. Obstruction on highway — Repair of municipal streets — Negligence.^ — The Su- preme Court of Canada aflSrmed the judg- ment appealed from (33 N. S. Rep. 291), which held that permitting a mound of earth about eight inches in height to remain at a filling over a trench dug to lay a pipe across a public street was not a serious or unusual obstruction dxJe to neglisrence on the part of the municipality and holding the plaintiff guilty of want of proper care in approaching during the darkness the dangerous place which he had previously seen by daylight in the same condition. Messenger v. Town of Bridgetown, xxxi., 379. 13. Lawful use of street — Defective side- walk — Damages — Contributory negligence — New trial. ' See Negligence, 39. 14. Sidewalk — Crossina — Elevation above street level — Negligence. See Negligence, 185. 15. Control of streets — Altering grades — ^4 Vict. e. 11 {N. B.)—J,5 Vict. c. 61 y assured — Basis of contract — Warranty — Misdirection.] — An applica- tion for life insurance contained the fol- lowing declaration after the applicant's answers to the questions submitted : — " I, the said G. M. (the person whose life is to be insured), do hereby warrant and guarantee that the answers given to the above questions (all of which questions I hereby declare that I have read or heard read) are true, to the best of my knowledge and belief; and I do hereby agree that this proposal shall be the basis of the Contract between me and the said association, and I further agree that any mis- statements or suppression of facts made in the answers to the questions aforesaid, or in my answers to be given to the medical ex- aminer, shall render null and void the policy of insurance herein applied for, and forfeit all payments made thereon. It is also further agreed that should a policy be executed under this application, the same shall not be delivered or binding on the association until the first pre- mium thereon shall be paid to a duly author- ized agent of the association during my life- time and good health. I (the party in whose favour the insurance is granted) do also hereby agree that this proposal and declaration shall be the basis of the contract between me and the said association." Held, affirming the judgment appealed from (14 Ont. App. R. 218), that this was not a warranty of the ab- solute truth of the answers of the applicant, but that the whole declaration was qualified by the words " to the best of my knowledge and belief." — At the trial the jury were charged that if there was wilful misrepresent- ation, or such as to mislead the company, they should find for the defendants, but that if the answers were reasonably fair and truthful to the best of the knowledge and belief of the applicant, their verdict should be for the plaintiffs. Held, a proper direction. Con- federation Life Association v. Miller, xiv., 330. 25. Mutual society — Bond of membership — Warranty — Concealment — Misstatement — Pleading.] — On application for insurance in a mutual assessment insurance society applicant declared and warranted that if in any answers there should be any untruth, evasion or Con- cealment of facts, any bond granted on such application should be null and void. In an action on a bond so issued, it was shewn that insured had mis-stated date of birth, giving 19th instead of 23rd February, 1835 ; that he had given a slight attack of apoplexy as the only disease with which he had been afflicted, and the society contended that it W£(S, in fact, a severe attack ; that he had stated that he was in " perfect health " at date of applica- tion, which was claimed to be untrue ; that he had suppressed the fact of his being subject to severe bleeding at the nose, and that the at- tack of apoplexy, which he admitted occurred 5 years before application, in fact occurred within 4 years. The trial judge found that the mis-statement as to date of birth was im- material, as it could not have increased the number of years on which premiums were calculated ; that the attack of apoplexy was a slight, not a severe attack ; that applicant was in " good " if not " perfect " health when ap- plication was made ; that the bleeding at the nose to which insured was subject, was not a disease and not dangerous to his healtn; but that mis-statement as to time of occur- 705 INSUEANCE, LIFE. 706 rence of attack of apoplexy was material, and on this last issue found for the society, and on all others for the plaintiff. The court en ianc reversed this decision and gave judgment for plaintiff on all issues, holding that as to the issue found by the trial judge for the society, there was a variance between the plea and the application which prevented the society from taking advantage of the mis-statement. Held, Gwynne and Patterson, JJ., dissenting, that the decision of the court en 'banc (20 N. S. Rep. 347) was right, and should be af- firmed. Mutual Relief Society of N. 8. v. Welster, xvi., 718. 26. Application — ■ Reference, to application in policy — Warranty — Mis-statement — Incom- plete answer.} — The bond of membership in an insurance society insured the members holding it " in consideration of statements made in the application hereof," &c., and in a declaration annexed to the application the in- sured agreed that the bond should be void if the statements and answers to questions in the application were untrue. Held, that the application was a part of the contract for in- surance and incorporated with the bond. — The declaration warranted the truth of answers to questions and of statements therein, and agreed that if any of them were not true, full and complete, the bond should be null and void. One of the questions to be answered was : " Have you ever had aify of the fol- lowing diseases ? Answer, opposite each, yes or ' no." The names of the diseases were given in perpendicular columns, and at the head of each column the applicant wrote " no," plac- ing under it and opposite the disease named marks like inverted commas. On trial of ac- tion on bond pursuant to this application it was found that applicant had had a disease opposite to which one of these marks had been placed. Held, affirming the judgment appealed from (21 N. S. Rep. 274), that whe- ther applicant intended this mark to mean " no " and thus deny that he had had such disease, or intended it as an evasion of the question, the bond was void for want of a true answer to the question. Fiturandolph v. Mu- tual Relief Society of N. S., xvii., 333. 27. Conditions and Warranties — Indorse- ments on policy — Inaccurate statements — Mis- representations — Latent disease — Material facts — Cancellation of policy — Return of pre- mium — Statute, construction of — 55 Vict. c. 39, s. S3 iOnt.)] — The provisions of s.-s. 2, s. 33 of " The Insurance Corporations Act, 1892," (Out.), limiting conditions and war- ranties indorsed on policies providing for the avoidance of the contract by reason of untrue statement in the applications to cases where such statements are material to the contract, do not require the materiality of the state- ments to appear by the indorsements, but the contract will be avoided only when such statements may subsequently be judi- cially found to be material as provided by s.-s. 3. — Misrepresentations upon an applica- tion so found to be material will avoid the policy notwithstanding that they may have been made in good faith and in the consci- entious belief that they were true. Venner v. Sun Life Ins. Go. (17 Can. S. C. R. 394) followed. Jordan v. Provincial Provident In- stitution, xxviii., 554. 8. Mistake. 28. Death or endowment policy — Mistake — Amount insured — Premium — Parol evidence.] S. 0. D.— 23 — ^Action on a policy of life insurance for $2,000, payable at the death, or at the expira- tion of eight years. The premium mentioned was $163.44, to be paid annually, partly in cash and partly by B.'s notes. The company pleaded that insurance had been effected for $1,000 only, but the policy had by mistake been issued for $2,000; that as soon as dis- covered, a policy for $1,000 had been offered, and that previous to action the company ten- dered $832.97, the amount due, which sum, with $25.15 for costs (which had not been tendered) was brought into Court. Since October, 1869, when a new policy was of- fered, the premiums were paid and accepted under an agreement that rights would not thereby be prejudiced, and that the company would abide by the decision of the court after the insurance should have become payable. Parol evidence was given to shew how the mis- take occurred, and it was established that the premium paid was in accordance with the company's rates for a $1,000 policy. Held, reversing the judgment appealed from (20 L. C. Jur. 286), that the insurance effected was for $1,000 only and that the policy had by mistake been issued for $2,000. JEtna Life Ins. Co. V. Brodie, v., 1. 9. Peemiiths and Assessments. 29. Premium notes — Non-payment — Forfei- ture — Conditions — Collateral agreements.^ — Assured gave the company to cover the first annual premium upon a policy of life insur- ance, two agreements in the form of promis- sory notes payable in 3 and 6 months from the date of the policy, each of which contained an undertaking or Condition by the assured, should default be made in payment at ma- turity, that the policy should thereby become void. The policy contained no condition as to forfeiture for non-payment of premiums. The first note was not paid at maturity and, while it remained unpaid and before the second note fell due, the assured died. Held, aflirming the decision appealed from (20 Ont. App. R. 564). that, by non-payment of the portion of premium payable three months after date of policy, as agreed, the policy had become void. Franh v. Sun Life Assur. Co., 22nd May, 1894. 30. Condition in policy — Note given for pre- mium — Non-payment — Demand of payment after maturity — Waiver.] — A condition in a policy provided that if any premium, or note, &c., given therefor was not paid when due, the policy should be void. Held,' affirming the decision appealed from (26 Ont. App. R. 187), that where a note given for a premium under said policy was partly paid when due, and re- newed, and the renewal was overdue and un- paid at the death of the assured, the policy wag void. Held, further, that a demand for payment after maturity of the renewal was not a waiver of the breach of the condition so as to keep the policy in force. McGeachie v. North American Life Ins. Co., xxiii., 148. 31. Benefit association — Payment of assess- ments — Forfeiture — Waiver — Pleading.] — A member of a benefit association died while suspended from membership for non-payment of assessments. In an action by his widow for the amount of his benefit certificate it was claimed that the forfeiture was waived. Held, reversing the judgment of the Court of Appeal ( Ont. ) , that the waiver, not having been 707 INSUEANCE, MARINE. 708 pleaded, could not be relied on as an answer to the plea of non-payment. Allen v. Mer- chants' Marine Ins. Go. (15 Can. S. C. R. 488) followed. Knights of Maccabees v. Hilli- ker, xxix., 397. 32. Life insurance — Condition of policy — Payment of premium — Delivery of policy — Evidence — Art. 1233 G. (7.] — A production from the custody of representatives of the in- sured of a policy of life insurance, raises a prima faeie presumption that it was duly de- livered and the premium paid, but where the consideration of the policy is therein declared to be the payment of the first premium upon the delivery of the policy, parol testimony may be adduced to shew that, as a matter of fact, the premium was not so paid and that the delivery of the policy to the person therein named as the insured was merely provisional and conditional. — The reception of such proof cannot, under the circumstances, be considered as an admission of oral testimony in contra- diction of a written instrument, _ and in the Province of Quebec, in commercial matters, such evidence is admissible under the provi- sions of art. 1233 of the Civil Code. Mutual Life A.ssurance Go. of Canada v. Giguire, xxxii., 348. INSURANCE, MARINE. 1. Abandonment, 1-9. 2. AVEBAGE, 10. 3. Baeeatbt, 11. 4. Conditions, 12-16. 5. contkact, 17-28. 6. Deviation, 29, 30. y. insukable interest, 31-33. 8. Losses, 34^47. 9. misbephesentation and concealment, 48-50. 10. Wabeanty, 51-58. 1. Abandonment. 1. Total loss — Notice of abandionment — Waiver.] — The underwriters' agent refused to accept a notice of abandonment, given by owners. Owners telegraphed captain that they had abandoned and for him to proceed under best advice, and he repaired at much less cost than report estimated. Held, revers- ing the judgment appealed from (23 N. B. Rep. 160), that the telegraph did not consti- tute a waiver of the notice of abandonment. MillvUle Mutual Marine Ins. Co. v. DriscoU, xi., 183. 2. Aiandonment hy agent — Special author- ity.] — An agent effecting insurance under au- thority for that purpose only may, in case of loss, give notice of abandonment to the under- writers without any other or special authority. — Judgment appealed from (26 N. B. Rep. 339) affirmed. Merchants' Marine Ins. Co. v. Barss, xv., 185. 3. Trover — Conversion of vessel — Joint owners— A'bandonment — Salvage.] — A vessel, partly insured, was wrecked and the ship's husband abandoned her to the underwriters who sold her and her outfit to one K. The sale was afterwards abandoned and the under- writers notified the ship's husband that she was not a total loss, and requested him to take possession. He paid no attention to the notice and the vessel was libelled by K. for salvage and sold under decree of court. The owner of twenty-four uninsured shares in the vessel brought an action against the underwriters for conversion of her interest. Held, affirming the decision appealed from (32 N. B. Rep. 191), that the ship's husband was agent of the uninsured owner in respect of the vessel, and his conduct precluded her from bringing the action ; that he might have taken possession before the vessel was libelled; and that the insured owner was not deprived of his interest by any action of the underwriters, but by the decree of the court under which she was sold for salvage. Rourke v. Union Ins Co., xxiii., 344. 4. Abandonment — Repavrg — "Boston clause " — Findings of jury — Setting aside verdict.] — In three cases, tried together, the Supreme Court (N. S.) (30 N. S. Rep. 480) affirmed the decision of the trial court upon a verdict in favour of plaintiff. Action on policy containing the " Boston clause " stipu- lating that " the acts of the assured or in- surers in recovering, saving and preserving the property insured, in case of disaster, shall not be considered a waiver or acceptance of the abandoniyent." The " Hattie Louise " left Trinidad for Vineyard Haven laden with molasses, encountered heavy weather and put into St. Thomas, W. I., leaking. Survey re- sulted in an order to discharge and store cargo and repair, but before anything was done, plaintiff's agent arrived at St. T., also J. B., agent for insurance companies on the risk. Several interviews resulted in disagreement, plaintiff's agent insisting that the cargo should be transshipped and the ship taken to a north- ern port after making temporary repairs, but J. B. insisting on permanent repairs at St. T. and carrying Cargo forward. Notice of aban- donment was given 28th December, plaintiff's agent withdrew from the project of repairing and the work was proceeded with by J. B. After the ship came off the slip, cargo was re- loaded and she was still leaky and unsea- worthy and it was considered necessary again to discharge the cargo. Disbursements so far were $4,014.48, and the ship (valued at $6,000 originally) had not been re-metaled or re- classed. A loan on bottomry failed, con- signees refused to allow the cargo to be dis- charged a second time till Claims were paid and she was sold for claims. The jury found that there was acceptance of abandonment. On appeal to the Supreme Court of Canada a new trial was ordered upon terms as to costs (29 Can. S. C. R. 449) (21st November, 1898), and after judgment upon the new trial, resulting in favour of the plaintiff, on an- other appeal to the Supreme Court of Canada, the judgment was affirmed, the decision of the court being delivered by 'Taschereau, J., who said, referring to the order for new trial:— " In order that the insurance companies might have full opportunity of adducing^ further evi- dence which had not been received at the former trials, we indulged them by granting new trials- to enable them to produce letters in respect to the transactions which took Place at St. T., then said to be in possession of wit- nesses there. This indulgence was granted at their own expense and they were given du days in which to make settlement of these costs, otherwise the appeals wefe to stand ois- missed." After the hearing on the appeal from the judgment on the new trials, it was 709 INSUEANCE, MAEINE. 710 considered that the new evidence so produced shewed nothing to justify interfei-ence with the judgment appealed from. Ins. Go. of North America v. lIcLeod; Western Ins. Co. V. McLeod; Nova Scotia Marine Ins. Co. v. McLeod, xxix., 449 ; and 15th, May, 1901. 5. Notice of abandonment — Art. 254i C. G. — Constructive total loss. See No. 38, iiifra. 6. Constructive total loss — Repairs by un- derwriters. See No. 39, infra. 7. Loss of voyage — Constructive total loss of ship — Sale iy mortgagee — Diligence. See No. 42, infra. 8. Constructive total loss — Necessity of sale iy master — Notice of abandonment. See No. 44, infra. 9. Waiver — Acceptance of, abandonment — " Boston clause " — Repairs. See No. 4, ante. 2. Average. 10. Salvage — General average — Insurance on hull — Cost of saving uninsured cargo — ■ Average bond."] — A vessel loaded with coal stranded and was abandoned. Notice of aban- donment was given on the hull. The owners of cargo, not insured, offered to take it out of the vessel but the underwriters preferred to do it themselves and an average bond was ex- ecuted by the underwriters and owners by which they respectively agreed to pay the loss according to their several shares in the vessel, her earnings as freight and her cargo, the same to be stated and apportioned in accord- ance with the established usage and law of the province in similar cases by a named ad- juster. Efforts having been made to save both vessel and cargo, resulting in a portion of the latter being taken out but the remain- der and the vessel being abandoned, the ad- juster apportioned the loss making tlie greater part payable by the owners of the cargo. In an action on the bond. Held, aflSrming the judgment appealed from (19 Ont. App. R. 41), that the owners of Cargo were only liable, under the bond, to pay what would be legally due according to the principles of the law re- lating to general average ; that the cargo and • vessel were never in that common peril which is the foundation of the right to claim for general average, that the money expended, be- yond what was the actual cost of the salvage of the cargo saved, was in no sense expended for the benefit of the cargo owners ; and the defendants having paid into court a sum suffi- cient to cover such adtual cost the under- writers were not entitled to a greater amount. Western Assurance Co. v. Ontario Coal Co., xxi., 383. 3. Babratkt. 11. Exceptions in policy — Barratry — Proxi- mate cause of loss — Perils of the seas.] — In- surance in a marine policy against loss " by perils of the seas," does not cover a loss by barratry. — It is not necessary that barratry should be expressly excepted in a marine I policy to relieve the insurers from liability for such a loss. — Per Strong, J., dissenting. If the proximate cause of the loss is a peril of the seas covered by the policy the underwriter is liable, though the primary cause may have been a barratrous act. Judgment appealed from (20 N. S. Rep. 514) affirmed. O'Connor V. Merchants' Marine Ins. Co., xvi., 331. 4. Conditions. 12. Condition of policy — Prosecution of claims — Prescription — Limitation of liability — Renunciation — Art. 2184 C. G. — Waiver — Pleading — Appeal.] — A condition in a marine policy that all claims under such a policy shall be void unless prosecuted within one year from date of loss, is a valid condition not Contrary to art. 2184 C. C. and all claims under such a policy will be barred if not sued on within one year from the date of the loss. — The plain- tiff cannot rely on appeal on a waiver of the condition, unless such waiver has been pro- perly pleaded. — Per Taschereau, J. The debtor cannot stipulate for enlargement of the time limited for prescription, but the creditor may stipulate for a shorter limitation. Judg- ment appealed from (M. L. R. 3 Q. B. 293) affirmed. Allen v. Merchants' Marine Ins. Co., XV., 488. 13. Limitation of time — Commencement of action — Defective protest.] — A clause in the policy required action to be brought within 12 months from date of depositing claim for loss or damage at the office of the assurers. A protest was deposited accompanied by a de- mand for the insurance. The protest was de- fective and some months later an amended claim was deposited. Held, affirming the judgment appealed from (20 N. S. Rep. 15), that an action begun more than 12 months after the original, but less than 12 months after the amended claim was deposited, was too late. Robertson v. Pugh, xv., 706. 14. Breach of condition — Additional insur- ance — Cancellation of policy — ■ Premium re- tained.] — ^Plaintiffs insured in the St. Law- rence Insurance Association, of which defend- ant was the broker and an underwriter, $2,000 on their schooner " Nimrod " for 12 months. In the application were the words " insurance elsewhere not to exceed $2,000." The policy issued, dated 25th October, 1870, without any reference to this condition. On the day ap- plication was made plaintiffs insured further $2,000 in tlie Mutual Insurance Association of PiCtou. In November afterwards another $2,000 was insured in the Union Marine In- surance Company. After all the insurances had been effected, the schooner proceeded on her voyage and was, as was long afterwards ascertained, abandoned at sea as a total wreck on 19th February, 1871.— On 20th February 1871, defendant's association (none of the parties having had any intimation of the loss), cancelled their policy on account of the insur- ance in the Mutual Marine Insurance Com- pany, charging plaintiff's premium up to that date and remitting the portion payable after that date.— The Supreme Court (N.S.) di- rected judgment to be entered for the defend- ants. Held, reversing the judgment appealed from (3 R. & C. 276), that the cancellation operated only from the 20th February, 1871, up to which date the premium was charged, and not from November, 1870. McDonald v. Doull, Cass. Dig. (2 ed.) 384. 711 IFSUEANCE, MAEINE. 712 15. Condition not to load more than regis- tered tonnage with stone, &c., without agent's consent — Breach — Agency — Loading with phosphate rock — Evidence — Consent 6y agent — Proof of contract — Prior insurance — Find- ing of }urv.'\—A voyage policfy on plaintiff's vessel " Pretty Jemima," contained, inter alta, the following clauses: — "Warranted not to load more than registered tons with stones, marble, lead, ores or brick, without the con- sent of the agent of the Providence Washing- ton Insurance Company. Provided always, and it is hereby further agreed, that if the said assured shall have made any other assur- ance upon the premises aforesaid, prior in date to this policy, then the said Providence Washington Insurance Company shall be ans- werable only for so much as the amount of such prior insurance may be deficient towards fully covering the premises hereby assured."_ — It appeared that the vessel was loaded with phosphate rotfk, and plaintiff gave evidence of a conversation with the company's agent in which the latter wanted to charge more pre- mium than on a previous policy, because the vessel was going to carry phosphate. He also cautioned plaintiff about loading the vessel; how to lay the floor so as to distribute the weight over the ship. Plaintiff's evidence on this matter closes as follows : " R. (the agent) said I could load down to the mark, the load line, same as if loading coal." It also appeared that there was $1,100 prior insurance on one- eighth of the vessel, which plaintiff had bought, but of which he had never received the title. Eeld, aflBirming the judgment ap- pealed from (19 N. B. Rep. 28), Gwynne, J., dissenting, that the agent's consent had been obtained to the loading of the vessel beyond her registered tonnage, and there was conse- quently no breach of the ahove condition of the policy. — Held, also, that the defendants were liable, up to the amount insured, only for so much of the assured value as was. not covered by the prior insurance of $1,100. — Per Gwynne, J. 'That the consent of the agent should have been alleged by plaintiff in his pleading and, not having been so alleged, could not be set up as an answer to the de- fendant's pleas. 'That the jury sj^uld have been requested to find whether or-not phos- phate rock was stone within the mea^iing of such condition, and that there should be a new trial to have such a finding by the jury. — The policfy was signed by R., as the company's agent; he issued and countersigned it as agent, received the premium and acted throughout as such agent, and was so recognized by the presi- dent of the company. iieW, that this was suffi- cient in the first instance, if uncontradicted, to justify the jury in finding that R. was the agent of the company. Rghertson v. Provin- cial M. & O. Ins. Go. (8 N. B. Rep. 379) followed. Appeal dismissed with costs. Pro- vidence Washington Ins. Co. v. Chapman, Cass. Dig. (2 ed.) 386. See No. 23, infra. 16. Navigation — Delays — Deviation ■ — Enhancement of risk — Implied condition. See No. 29, infra. 5. CONTEACT. 17. Description of voyage — Deviation — Question for jury — Misdirection — Waiver^ Defective case — Amendment of record — Prac- tice.] — Policy on a ship for a voyage from Melbourne to Valparaiso for orders, thence to a loading port on the western coast of South America, and thence to a port of discharge in the United Kingdom. The ship went from Valparaiso to Lobos, an island from 25 to 40 miles off the coast of South America and was afterwards lost. Held, that whether or not Iiobos was a loading port on the western coast of South America within the policy was a question for the jury, and as this question had not been submitted to them, a new trial was ordered ^n the ground of mis- direction. — • After judgment application was made to vary or reverse the judgment on affi- davits shewing that the question was submit- ted and answered. Held, that the application was too late, as the court had to determine the appeal case transmitted, and the respond- ent had allowed the appeal to be argued and judgment rendered without taking any steps to have the case amended. — Judement appeal- ed from (28 N. B. Rep. 485) affirmed. Pro- vidence Washington Ins. Go. v. Gerow xiv 731. See No. 19, infra. 18. Average — Constructive total loss — Par- tial loss — Adjustment — " Cost of repairs " — One-third new for old — Vessel not repaired.] — A policy had a clause : — " In case of repairs, the usual deduction of Vs will not be made until after six months from date of first re- gistration, but after such date the deduction will be made; the insurers shall not be liable for constructive total loss of the vessel in case of abandonment or otherwise, unless the cost of repairing the vessel under an adjustment, as of partial loss according to the terms of this policy, shall amount to more than half of its value, as declared in this policy." The ship, disabled at sea, put into port for repass. It was found that cost of repairs and ex- penses would exceed more than half the value declared in policy if usual deduction of % al- lowed in adjusting partial loss under terms of policy was not made, but not if it was made. Held, affirming the judgments appealed from (27 N. B. Rep. 513), Patterson, J., dissent- ing, that the cost of repair" in the policy meant the net amount after allowing % of the actual Cost in respect of new for old, accord- ing to the rule usually followed in adjusting partial loss, and not the estimated amount of the gross costs of the repairs forming the basis of an average adjustment in case of claim for partial loss, and therefore the cost of repairs did not amount to half the declared value. Gerow v. British American Ins. Co.; Gerow v. Royal Canadian Ins. Co., xvi., 524. 19. Construction of policy — Deviation — Loading port — Commercial usage.] — ^The voy- age specified included " a loading port on the western coast of South America," and pay- ment of a loss under the policy was resisted on the ground of deviation, the vessel having loaded at Lobos, one of the Guano Islands. 25 to 40 miles off the coast. Evidence was given by ship-owners and mariners to the ef- fect that, according to commercial usage, the description in the policy would include the Guano Islands, and there was evidence that when the insurance was effected a reduction of premium was offered for an undertaking that the vessel would load guano. The jury found, on an express direction by the court, that the island where the vessel loaded was on the western coast of South America within the meaning of the policy. Held, affirming the judgment appealed from (28 N. B. Kep. 435), that the words in the policy must be taken 713 INSUEANCE, MAKINB. 714 to have been used in a commercial sense and as understood by shippers, ship-owners and un- derwriters ; and the jury having based their verdict on the evidence of what such under- standing would be, and the company being aware of a guano freight being Contemplated, ' the finding should not be disturbed. Provi- dence Washington Ins. Co. v. Oerow, xvii., 387. See No. 17, ante. 20. Insurance " on advances " — Wording of policy — Insurable interest.l — A policy provid- ed that L., on account of owners, In case of loss to be paid to L. do cause to be insured, lost or not lost, the sum of $2,000, on ad- vances, upon the body, &c., of the " Lizzie Perry." The rest of the policy was applic- able to insurance on the ship only. L. was managing owner, who had expended Consider- able money in repairs on the vessel. The insurers claimed that the insurance was on advances by the owners which were not insur- able. Held, affirming the judgment appealed from (23 N. S. Rep. 537), that the instru- ment must, if possible, be construed as valid and effectual and to do so the words " on ad- vances " might be treated as surplusage or as merely a reference to the inducement which led the owners to insure the ship. British America Assur. Go. v. Law, xxi., 325. 21. Contract — Application for insurance — Negligence — Escrow — Trover.'^ — B. to in- sure his vessel " U. O. Chandler " went to brokers, who filled out an application and sent jt'by a clerk to K., agent for a foreign marine insurance company. The vessel was valued at $2,500 and rate of premium fixed at 11 per cent. K. refused to forward the application unless the valuation was raised to $3,000 — or 12 per cent, premium was paid. This was not acceded to by the brokers, but K. filled out an application with the valuation increas- ed and forwarded it to the head office of his Company. On the day it was mailed the ves- sel was lost and four days after K. received a telegram from the attorney of the company at the head office as follows : " 'Chandler ' having been in trouble we have telegraphed you declining risk, but had previously mailed policy ; please decline risk and return policy." The policy was received by K. next day and he returned it at once ; he did not shew it to the brokers or to B., nor inform them of its receipt. B. sued K. in damages for neglect in not forwarding the application promptly, with a count in trover for Conversion of the policy. Held, affirming the judgment appealed from (31 N. B. Rep. 417), that as K. was never authorized nor requested to forward the application which he did forward, namely, that in which the vessel was valued at $3,000, and had refused to forward the only applica- tion authorized by the brokers on behalf of B., the latter could maintain no action found- ed on negligence. Held, further, that the pro- perty in the policy prepared at the head of- fice and sent to K. never passed out of the company and was at the most no more than an escrow in the hands of K., the agent, and therefore trover could not lie against K. for its conversion. Buch v. Knowlton, xxi., 371. 22. Construction of policy — Promissory rep- resentation ■ — Coasting voyages — • Time pol- «cy.] — A time policy issued on a slip contain- ing the words : " Voyage at and from date to 31st December, coasting principally Canso to Halifax; using Prince Edward Island and Newfoundland." The exceptions on the time risks were : " Prohibited from the River and Gulf of St. Lawrence and ports in Newfound- land, and between the 1st November and 1st May." Sealing voyages and voyages to Green- land and Iceland were also excepted, and "not to use the ports of Schooner Pond, Blockhouse Mines and Chimney Corner, except during the months of June, July and August, the use of such waters, not to vitiate this policy, except during the time such waters are used." The vessel was lost on a voyage from Baltimore to St. Thomas. Held, reversing the judgment appealed from (4 Russ. & Geld. 50), that, taking the slip and policy together, a perfect- ly consistent contract of assurance could be made out, namely, a contract -to assure the vessel for the time named, provided she was confined to coasting voyages, and did not, while so employed, use any of the prohibited waters, Henry, J. dissenting. McKenzie v. Corbett, Cass. Dig. (2 ed.) 384. 23. Condition of policy — Counter-signa- ture iy agent — Waiver — Overloading — Stone or ores — Phosphate rock — Demurrer.'] — A policy of marine insurance contained the reservation : " Policy shall not be valid unless countersigned by R., the said company's duly authorized agent, at his office in St. John, N. B." It was not countersigned by B. Re- spondent gave evidence to shew that it was issued by R. and sent by him, as directed by respondent, to a person in Nova Scotia. A verdict was given for the plaintiff at the trial, and the company moved for a nonsuit on the ground, inter alia, that the policy was invalid on account of not being so countersigned. The nonsuit was refused. Held, Pournier and Henry, JJ., dissenting, that the appeal must be allowed and a nonsuit entered. — The pol- icy, as set out in the declaration contained a stipulation that the vessel was not to load more than register tonnage with stone, ores, &c. Defendants pleaded to this count that she did load more than her register tons with stone or ores, namely, phosphate rock. Con- trary to such condition. Plaintiff replied that phosphate rock was not stone or ore within the meaning of such condition ; the de- fendants demurred to the replication, and, on argument on the demurrer, the replication was held good. (19 N. B. Reps. 28). Delaware Mutual Ins. Go. v. Chapman, Cass. Dig. (2 ed.) 387. See No. 15, ante. 24. Voyage policy — " At and from " a port — Construction of policy — Usage.} — A ship was insured for a voyage " at and from Syd- ney to St. John, N. B. there and thence," &c. She went to Sydney for orders, and with- out entering the limits of the port as de- fined by statute for fiscal purposes, brought up or near the mouth of the harbour and hav- ing received her orders by signal attempted to put about for St. John but missed sta,ys and was wrecked. In an action on the policy evi- dence was given establishing that Sydney was well known as a port of call that ships go- ing there for orders never entered the har- bour, and that the insured vessel was within the port according to a Royal Surveyor's Chart furnished to navigators. Held, affirm- ing the decision appealed from (33 N. B. Rep. 105), that the words "at and from Sydney" meant at and from the first arrival of the ship ; that she was at Sydney within the terms of the policy ; and that the policy had attach- ed when she attempted to put about for St. John. St. Paul Fire and Marine Ins. Co. v. Troop, xxvi., 5. 715 INSUEANCE, MAEIKE. 716 25. Goods shipped and insured in lulk — Loss of portion — Toial or partial loss — Con- struction of policy.']— yi. shipped on a schoon- er a cargo of railway ties, for a voyage from Gaspe to Boston. Policy on Cargo provided that " the insurers shall not be liable for any claim for damages on . . . lumber . . . but liable for a total loss of a part if amounting to 5 per cent, on the vchole aggregate value of such articles." A certifi- cate given by the agents of the insurers when the insurance was effected had on the margin the following memo., in red ink : " Free from partial loss unless caused by stranding, sink- ing, burning, or collision with another vessel, and amounting to 10 per cent." On the voy- age part of cargo was swept off the vessel during a storm, the value of which M. claimed under the policy. Held, reversing the decision appealed from (33 N. B. Rep. 109), Tascher- eau, J., dissenting, that Ji. was entitled to recover ; that though by the law of insurance the loss would only have been partial, the in- surers, by the policy, had agreed to treat it as a total loss ; and that the memo, on the certificate did not alter the terms of the policy, the words " free from partial loss " referring not to a partial loss in the ab- stract applicable to a policy in the ordinary form, but to such a loss according to the con- tract, embodied in the terms of the policy. Held, further, that the policy, certificates and memo, together constituted the contract and must be so construed as to avoid any repug- nance between their provisions and that any ambiguity should be Construed against the in- surers, from whom all the instruments ema- nated. Mowat V. Boston Marine Ins. Co., xxvi., 47. 26. Voyage policy — Warranty — Insur- aUe interest — Perils insured against. See No. 36, infra. 27. Construction of policy — Trading voy- age — Goods insured — Insurable interest. See No. 31, infra. 28. Agreement to insure for advances — Construction of contract — New issues. See Contract, 10. 6. Deviation. 29. Navigation — Departure from usual course — Delay in prosecuting voyage — Devia- tion — Enhancement of risk.] — ^There is an im- plied condition in a contract of marine in- surance, not only that the voyage shall be ac- complished in the ordinary track or course of navigation, but that it shall be commenced and completed with all reasonable and ordin- ary diligence ; any unreasonable or inexcusable delay, either in commencing or in completing the voyage, alters the risk and absolves the un- derwriter from liability from subsequent loss. • — In case of deviation by delay, as in case of departure from the usual course of naviga- tion, it is not necessary to shew that the peril has been enhanced in order to avoid the pol- icy.— Judgment appealed from (21 N. S. Rep. 244) afiBrmed. Spinney v. Ocean Mutual Ma- rine Ins. Co., xvii., 826. 30. Construction of policy — Duration — Loading port — Commercial usage. See No. 19, ante. 7. iNstTRABu; Intekest. 31. Construction of policy — Goods insured — Trading voyage — Insurable interest.] — ^The plaintiffs arranged with the master of the schooner " Mabel Claire " for a trading voyage from Nova Scotia to Labrador and back. They were to furnish the greater part of the cargo and have complete control of all goods put on board until return. The return cargo was to be disposed of by ' them, to re-pay them for advances, and they were to pay any balance to S. ; in trading on the voyage S. was not to dispose of goods on credit, but to bring back goods not disposed of, so as to obtain a return Cargo in lieu thereof! The plaintiffs put on board at. Halifax mer- chandise exceeding $6,000, and upon the day the vessel sailed from Halifax, effected the policy sued upon as follows : " R., J. & Co. have this day effected an insurance to the ex- tent of $2,000 on the undermentioned pro- perty, from Halifax to Labrador and back to Halifax on trading voyage. Time not to ex- ceed four months, shipped in good order and well conditioned on board the schooner "Mabel Claire," whereof M. is master this present voyage. Loss, if any, payable to R., J. & Co. Said insurance to be subject to all the forms, conditions, &c., in the policies of the company. Description of goods insured, merchandise un- der deck, amount $2,000, rate 5 per Cent., premium $100, to return 2 per cent., if risk ends 1st October, and no loss claimed ; addi- tional insurance of $5,000 ; warranted free from capture, seizure, and detention, the con- sequences of any attempt thereat." It Was contended that plaintiffs were merely unpaid vendors and had no insurable interest; that goods previously put on board at Liverpool, N. S., were not covered by this policy, and that it was not to cover the return cargo. Held, affirming the judgment appealed from (4 Russ. & Geld. 220), that the policy cov- ered not only goods put on board at Halifax, but all the merchandise under deck shipped in good order on board said vessel during the period mentioned in the policy. Held, also, that there was sufficient evidence to shew that the plaintiffs had an insurable interest in all the goods obtained and loaded on the vessel. Merchants' Marine Ins. Co. v. Rumsey, ix., 577. 32. Insurable interest — Representation.] — The part owner of a vessel may insure the shares of other owners with his own, without disclosing the interest really insured, under a policy issued to himself insuring the vessel " for whom it may concern." — Judgment ap- pealed from (26 N. B. Rep. 339) aflSrmed. Merchants' Marine Ins. Co. v. Barss, xv., 185. . 33. Mortgage — Collateral security — In- suraile interest. See No. 36, infra. 8. Losses. 34. Stranding — Diligence — Evidence — Constructive total loss — Sale ty master -- Notice of abandonment.] — In an action as for a total loss, it apeared that the vessel strand- ed 6th July, 1876, near Port George, N. &• The owner resided at Guysboro, N. S. The master employed surveyors, and on their re- commendation, confirmed by his judgment, 717 INSTJEANCE, MAEINE. 718 the vessel was advertised foi' sale the follow- ing day, and sold on the 11th July for $105. The master did not give notice of iibandomnent nor endeavour to get the vessel off. The pui- chasers immediately got the vessel off, had her made tight, taken to Pictou, repaired, and afterwards used her in trading and carrying passengers. Held, reversing the judgment ap- pealed from (1 Russ. & Geld. 279), that the sale was not justifiable, and the evidence fail- ed to shew any excuse for the master failing to communicate with his owner so as to re- quire him to give notice of abandonment, if he intended to rely upon the loss as total. — Per Gwynne, J. It is a point fairly open to in- quiry in a court of appeal, whether or not, as in the present case, the inferences drawn from the evidence by the judge who tried the case without a jury, were the reasonable and proper inferences to be drawn from the facts. Oallagher v. Taylor, v. 368. 35. Actual total loss —r Gonstructive total loss — Notice — Abandonment — Sale by master — " Stringent necessity."] — C, as as- signee of W., was insured upon the schooner " janie R." by a voyage policy. On the 14th February, 1879, she had been in Shelbourne harbour since the 7th February, and left with a cargo of potatoes to pursue the voyage, but forced by stress of weather put back to Shel- bourne, and on 15th she went ashore, when the tide was about its height. On 17th no- tice of abandonment was given and not ac- cepted, and on 18th the master, after survey, sold her. The next day the purchaser, with- out much difficulty, with assistance of a vessel in the harbour, and by the use of casks for floating her (appliances of which the master did not avail himself), got her off. There was no evidence whatever of the vessel having been so wrecked as to have 'been worthless to repair, or so damaged that she would not have been worth, after repair, more than the money expended for that purpose. The vessel afterwards made several voyages, and was sold by the purchasers for $1,560. In an ac- tion tried without a jury verdict was given for $1,913, which was sustained. Held, reversing the judgment appealed from (3 Russ & Geld. 109). — 1. That the sale by the master was not justified in the absence of evidence to shew " stringent necessity " for sale after failure of all available means to rescue the vessel. — 2. That the undisputed facts disclosed no evi- dence whatever of an actual total loss, and did not constitute what in law could be pro- nounced either an absolute or a constructive total loss. — Per Strong, J. The right to aban- don must be tested by the condition of the vessel at the time of action brought, and not by that which existed when notice of aban- donment was given. Providence Washington Ins. Co. V. Corhett, ix., 256. 36. Voyage policy — Mortgage — Collateral security — Insurable interest — Actual total loss — Constrvctive total loss — Notice — Aban- donment — Warranty — Goneealment — Right of action.'] — The barque " Charley " at Cochin, on a voyage to Colombo, and thence to New York by way of Alippee, sailed on 22nd April, 1879, arrived at Colombo, left there on 13th May, and while on her way to Alippee struck hard on a reef and was dam- aged and put back to Colombo. The master cabled to the ship's husband at New York, 23rd May, and receivsd orders to exhaust all available means and do the best he could for all concerned. The repairs needed were extensive, it was impossible to get them done there, and Bombay, 1,000 miles distant, was the nearest port. After proper surveys and cargo discharged, oh 10th June the vessel was stripped and the master sold the materials in lots at auction. On 21st May, K., a mort- gagee of forty-six sixty-fourths, (who had as- signed his mortgage to a bank by indorse- ment, as collateral security for a pre-existing debt), being aware of the charter from Cochin to New York, insured his interest, the nature of the risk being : " Upon the body of the barque ' Charley ' beginning the adven- ture (the said vessel being warranted by the insured to be then in safety), at and from Cochin via Colombo and Alippee to New York." In an action for a total loss, defend- ant pleaded, 1st. that plaintiff was not inter- ested ; 2ndly, that the ship was not lost by perils insured against ; 3rdly, concealment. A consent verdict for plaintiff was taken, subject to opinion of the court upon points reserved, and upon the understanding that everything which could be settled by a jury should, upon the evidence, be' presumed to be found for the plaintiff. (3 Russ. & Geld. 402). Held, 1st. That this was a voyage policy, and that the warranty of safety referred entirely to the commencement of the voyage and not to the time of the insurance. — 2ndly, That the assign- ment as collateral security" to a creditor did not divest plaintiff of all interest so as to dis- entitle him to recover. — ^3rdly, That the vessel in this case being so injured that she could not be taken to a port at which the necessary repairs could be executed, the morrgagee was entitled to recover for an actual total loss, and no notice of abandonment was necessary. — Per Strong, J. A mortgagee, upon giving due notice of abandonment, is not precluded from recovering for a constructive total loss. Anchor Marine Ins. Co. v. Keith, ix., 483. 37. Total loss — Notice — Abandonment — Waiver.] — A ship bound from Porto Rico to New Haven, sustained damage and put into St. Thomas. A survey was held and report made that the cost of putting her in good condition would exceed her value. The captain, under instructions from owners to proceed under best advice, advertised and sold vessel, and purchaser had her repaired at a cost much less than the report, and sent her to sea. Held, that there was no evidence to justify the jury in finding that the vessel was a total loss. — Owners of vessel gave notice to agent of un- derwriters that they would abandon, which agent refused to accept. Owners telegraphed to captain that they had abandoned and for him to proceed under the best advice. Held, that this act of telegraphing to the captain did not constitute a waiver of the notice of abandon- ment. Judgment appealed from (23 N. B. Rep. 160) reversed. Millville Mutual Marine & Fire Ins. Go. v. DriscoU, xi., 183. 38. Constructive total loss — Perils insured against — Abandonment — Arts. 25.38. 2o'il, 25U, C. C. — Notice.] — On 28th September, 1875, a steam barge, loaded with sand, sank while at anchor near Chateauguay. It was raised by the insurers under the salvage clause of the policy, and floated within a week after the disaster. It was shewn that on the star- board side there was an auger hole in the bilge of the barge which had been plugged up with a little wooden plug, and that the plug had come out. On 1st October there was a formal protest at request of master and of- ficers of the barge, setting forth all details of 719 INSUEAN-CE, MAEINE. 730 the wreck. On 6tli December, 1875, the insur- ers were notified that the vessel was abandon- ed, the notice concluding : " It is hardly ne- cessary for me, after your taking possession of the vessel, to make any further declaration of abandonmentj but I now do so in order to put that fact formally on record, and now again give you notice thereof." The vessel was eventually sold by consent of all part'es interested for $150. — In an action on the pol- icy for a total loss. Held, reversing the judg- ment appealed from (33 L. C. Jur. 301; 15 R. L. 449), that there was not sufiBcient evi- dence to enable plaintiffs to recover as for a total or constructive total loss of the vessel. — Per Fournier, J. That the notice of abandon- ment was not given in conformity with the art. 2544 C. C, and not made within a reason- able time. Western Assur. Co. v. Scanlan, xiii., 207. 39. Freight insurance — Constructive total loss — Abandonment — Repairs by under- writers.^ — ^A vessel on a voyage from Arecibo to Acquim and thence to New York, encoun- tered heavy weather, was dismasted and towed into Guantanamo. The underwriters of the freight sent an agent to Guan- tanamo to look after their interests, and the master, under advice from the owners, abandoned her to the agent, and refused to assist in repairing damage, and complete the voyage. The agent had the vessel repaired and brought her to New York, with the cargo. — In an action to recover insurance on freight, Held, reversing the judgment appealed from (6 Russ & Geld. 323), Strong, J. dissenting, that there being a constructive total loss of the ship the action of the underwriters, in making the repairs and earning the freight, would not prevent the assured from recover- ing. Troop V. Merchants' Marine Ins. Co., xiii., 506. 40. Detention by ice — Perils insured against — Ordinary perils of the seas.] — A vessel on her way to Miramichi, was chartered for a voyage from Norfolk, Va., to Liverpool with cotton. She arrived at Miramichi 25th, and sailed for Norfolk on 29th November. Owing to the lateness of the season, however, she could not get out of the river and remained frozen in all winter and had to abandon the cotton freight. Held, reversing the judgment appealed from (24 N. B. Rep. 421), Henry, J., dissenting, that the loss occasioned by the detention from the ice was not a loss by " perils of the seas " covered by an ordinary marine policy. Great Western Ins. Go. v. Jordan, siv., 734. 41. Stranding — Notice of abandonment — Total loss — Evidence — Findings by jury — Recovery for partial loss.} — A vessel insured for a voyage from Newfoundland to Cape Breton went ashore on 30th October at a place where there were no habitations, and the master had to travel several miles to com- municate with owners. On 2nd November a tug came to the place, but the master of the tug, after examining the situation, refused to try and get her off. On the 16th November one of the owners and the captain went to the vessel and caused a survey to be had, and the following day she was sold for a small amount, the purchaser eventually stripping her and taking out the sails and rigging. No notice of abandonment was given to the underwriters, and an action on the policy claimed a total loss. At the trial the captain related what the tug had done and, in his opinion, the vessel was too high on the rocks to be got off. The jury found, in answer to questions, that the vessel was a total wreck in the position she was in and that a notice of abandonment would not have benefited the underwriters (28 N. B. Rep. 45.) Held, per Ritchie, O.J., and Strong, J., that there was evidence to' justify the trial judge in leaving to the jury the question whether or not the vessel was a total loss, and the finding of the jury that she was a total loss being one which reason- able men might have arrived at it should not be disturbed. — Per Tascherean, Gwynne and Patterson, JJ., that the vessel having been stranded only, and there being no satisfac- tory proof that she Could not have been rescued and repaired, the owners could not claim a total loss. — Per Gwynne, J., dis- senting, that there being evidence of some loss under the policy, and the owner being en- titled, in his action for a total loss, to re- cover damages for a ^partial loss, a nonsuit could not be entered, but there should be a new trial unless the parties agreed on a re- ference to ascertain the amount of such dam- ages ; also, that plaintiff could not recover damages for a partial loss of which he offered no evidence at the trial, but rested his claim wholly upon a total loss. Phwniae Ins. Co. v. MoGhee, xviii., 61. 42. Abandontnent — Loss of voyage — Con- structive total loss of ship — Sale by mort- gagees — Facilities for repairs — Diligence.'] — In the course of her voyage, on Saturday, 3rd August, 1882, the " John 0. Tupper " went ashore on Phinney's Point, Bay of Fundy, in a very dangerous position, and was much in- jured. An anchor was got out ready for the tide. When the tide came in the pumps were sounded, and there were 14 inches of water. Half an hour after the first sounding there were 3 or 4 feet of water, but by the aid of the kedge 'anchor and starboard anchor the vessel was hove off and floated and anchored. The witness who details this, says : " I piloted her up to Port Williams ; I was at the wheel ; we made sail and thought she would fill: the pumps were going all the time; we did not set the upper sail ; I kept as close to the shore as I could in case she filled and rolled over with her deck-load; at Port Williams she ran aground about 100 feet from the break- water ; we could not swing her closer ; she was then lying on the beach of the Bay of Fundy; some of the deals of the deck-load were thrown over at Phinney's Point." — ^At Port Williams the vessel floated once every day. The master on Monday discharged the cafgo deck-load and hauled the vessel into toe pier. — There were no facilities for repairing vessels of this class at Port Williams, but there were near at hand, at St John, which Could be seen on a fine day from Port Wil- liams. The captain made no efforts to take the vessel to St. John, nor inquiries in refer- ence thereto, but on 20th August, notified the shipper that the voyage was at an end. The vessel was sold at auction (T., one of the mort- gagees, acting as auctioneer) and transferred . by bill of sale dated 4th September to the put- chaser, who thereupon, immediately after the sale, without the slightest apparent difficulty, with her original crew, sailed her to St. John, repaired her there, and in the course of 4 or 5 weeks sent her in a seaworthy Condition on a voyage to the We^t Indies with a cargo. Held, affirming the judgment appealed from (7 Russ. & Geld. 731 INSUEANCE, MAEINE. 723 298), in view of the fact that there never was any pressing necessity for the sale, nor any time when the ship was unnavigable without any reasonable hope of repair, that the dam- age never was so great that the owner could not have put her in a state of repair necessary for pursuing the voyage at a convenient and suitable place, and at an expense less than the value of the ship, and that the cargo was not in a perishable condition, but in a place of safety, there was no ground for saying there was either an actual or a constructive total loss, nor that there ought to have been a loss of the voyage; and therefore no question of abandonment arose. Patch v. Pitman, Cass. Dig. (2 ed.) 389. 43. Stranding — Constructive total loss — Sale of vessel — Repairs' — Value.] — ^Action for insurance on freight. On the voyage from Boston to St. Pierre, the vessel sprung a leak and put into Glasgow harbour, near Cape ■Canso, where a survey was held, some repairs made, and, in accordance with recommenda- tion of surveyors, she proceeded to Port Hawkesbury for further repairs. On the day she left Port Hawkesbury she went ashore, and when the tide ebbed, fell over on her side ; part of the cargo was damaged and sold, and the rest taken by the Boston underwriters; the vessel sustained further damage while lying on the shore. The captain made no iond, fide efforts to get her off, and after being sev- eral times advertised she was finally sold for $140 ; she was got ofE at a cost of $70, by the purchasers, repaired for considerably less than her value and sailed for two years, when she was again sold for $1,800. In the policy she had been valued at $1,500, and two years be- fore had sold for $2,000. Held, reversing the judgment appealed from (4 Russ. & Geld. 533 ) , that the vessel was not a constructive total loss. Providence WasMngton Ins. Co. V. Corlett (9 Can. S. C. R. 256) approved. Providence Washington Ins. Co. v. Almon, Cass. Dig. (2 ed.) 390. 44. Constructive total loss — Notice of atandonment — Sale of vessel by master — ■ Necessity for sale.'] — If a disabled ship can be taken to a port and repaired, though at an expense far exceeding its value, unless notice of abandonment has been given there is not even a constructive total loss. — If the ship Is in a place of safety, but cannot be repaired where she is, nor taken to a port of repairs, and if instructions from the owner cannot be received for some weeks, the expense of pre- serving her, the danger of her being driven on shore and the probability of great deteriora- tion in value during the delay will justify the master, when acting 6onS fide and for the benefit of all concerned, in selling without waiting for instructions, and the sale will excuse notice of abandonment. Nova Scotia Marine Ins. Co. v. Churchill, xxvi., 65. 45. Partial loss on cargo — Stranding — Evi- dence — Jury trial.] — On a voyage from Porto Rico to Halifax, the " Donzella " put into Barrington, N. S., for shelter, the wind being south-east with a heavy snow storm prevail- ing. She was anchored near the lightship with one anchor out. but, as the wind in- creased, a second anchor was put out. Sub- sequently, during a heavy gale that sprang up from the north-west, with thick snow, both ehams parted. The vessel was then on a lee shore, studded with -reefs and shoals, and the tide low. She was abandoned by the master and crew, and the following morning was not visible from shore. Some time afterwards she was picked up at sea by salvors, and was brought into port and put upon the slip and repaired. When brought in she had four feet of water in her hold, and her cargo was badly damaged. On being put upon the slip it ap- peared that twelve feet of the shoe were off abaft the main Chains, and another twelve feet, about off, forward, under the main chains. The butts on the bottom were open. The keel was more or less chafed and broken. The rudder was damaged and the rudder braces started off. There was a scar on the bilge on the port side, which looked as if the vessel had dragged or pounded on something. The sides of the keel were bruised more or less, and pieces off of it. The main keel was broomed up. The flying jib-boom and main- boom were broken, and the fore-boom was split. The Supreme Court (N.S.), en ianc, dismissed a motion for a new trial, and held, that there was sufiicient evidence to warrant the jury in coming to the conclusion that the vessel had been on shore, and beating on the rocks for some time, and on which they Could properly find a verdict for the plaintiff, and that the trial judge had acted properly, under the circumstances, in refusing to withdraw the case from the jury. — On appeal to the Su- preme Court of Canada, the judgment ap- pealed from (30 N. S. Rep. 380) was affirmed, and the appeal dismissed with costs. British and Foreign Marine Ins. Co. v. Rudolf, xxviii., 607. 46. Constructive total loss — Average — Par- tial loss — Adjustment — One-third new for old. See No. 18, ante. 47. Goods shipped and insured in hulk — Loss of portion — Total or partial loss — Con- struction of policy. See No. 25, ante. 9. MlSEEPEESENTATION AND CONCEALMENT. 48. 'Vessel grounding — Knowledge liy appli- cant before application — Concealment—Mate- rial facts — Receipt of premium and issue of policy after knowledge by insurer — 'Waiver.] — The appellant (defendant) is a member of the Halifax Marine Insurance Association. — On 13th August, 1880, plaintiffs, through their agent, applied to the association for insurance on the cargo of S S. " Waldensian," on a voy- age from Montreal to Glasgow via port or ports, and the risk was accepted the same day by appellant and other underwriters, but no policy was issued or premium paid at the time. The " Waldensian " left Montreal 11th August, 1880; she got aground that afternoon about four o'clock, but succeeded in getting off the same day and proceeded to Quebec, where she arrived about six o'clock, leaking badly, and was there grounded to prevent further damage to cargo. Plaintiff knew on 13th Au- gust of the accident to the steamship, but this fact was not disclosed to the underwriters when the insurance was applied for on the day following. Appellant became aware of the accident a day or two after the applica- tion for insurance, and a policy was after that issued dated 13th August, and the premium settled in account with the broker of the asso- ciation. Appellant contended there was no evidence that he or any of the underwriters. 723 IXSUEAXCE, MARINE. 724 or their broker, knew at the time that the policy was issued or premium paid that the accident was known to plaintifE at the time the insurance was effected, and Concealed from the underwriters. The action was for damage to cargo by the leaking of the ship in conse- quence of her getting aground as stated. The trial judge found that when the insurance was applied for, and the contract completed, the plaintifE was aware of the facts above stated, and concealed them from appellant, also that they were not then known to appellant, and were material to the risk; also, that before the policy was issued or premium paid appel- lant became aware of said facts an'd elected to treat the contract as binding, and a verdict was given for plaintifE. A rule nixi to set aside the verdict was discharged. Held, re- versing the judgment appealed from (5 Russ. & Geld. 322), that the evidence shewed that at the time of the payment of the premium appellant did not know that the accirlent was known to the plaintiff, and the policy was therefore void for concealment of material facts, and there could be no waiver of the omission to communicate the information material to the risk, for the appellant could not waive that which he did not know. — ^Ap- peal allowed with costs. Smith v. Royal Can- adian Ins. Co., Cass. Dig. (2 ed.) 385. 49. Representation — Application Tiy ship's husliand — Mortgage — Insured for " ienefit of all concerned " — Ratification — Nationality of vessel-— Concealment of material facts — War- ranty. '\ — ^A ship's husband, who held a power of attorney from the owners authorizing liim to insure on their behalf, and who was also a mortgagee of the vessel, insured " for the benefit of all concerned," and the insurance was accepted by the owners. When insurance was effected the vessel was sailing under the Haytien fiag, and neither that fact, nor the fact of the insured having a mortgage interest, was communicated to the underwriters. The vessel was lost and insured realized more than the amount of the mortgage from a prior insurance. One of the underwriters resisted payment on the ground of such prior insur- ance Covering all the interest of the insured, and also of concealment of the above facts. Held, affirming the judgment appealed from (3 Russ. & Geld. 207), that the underwriters were liable, the owners having authorized, or subsequently ratified, the insurance effected by the ship's husband, who was under no obli- gation to disclose his individual interest, in a policy for the benefit of all concerned, nor to disclose the nationality of the vessel, there being no representation or warranty required respecting it by the policy, and no circum- stances within his knowledge attaching to the national character of the vessel exposing her to detention and capture. West v. Seaman, Cass. Dig. (2 ed.) 388. 50. Misrepresentation — Yessel "when 'built" — Repairs to old vessel — Change of name — Register.'] — Where payment of an insurance risk is resisted on the ground of misrepre- sentation it ought to be made very clear that such misrepresentation was made. — Misrepre- sentation made with intent to deceive vitiates a policy however trivial or immaterial to the risk it may be ; if honestly made it only viti- ates when material and substantially incor- rect. — Representation in a marine policy that the vessel insured was built in 1890, when the fact was that it was an old vessel, extensively repaired, and given a new name and register but containing the original engine, boiler and machinery with some of the old material, is a misrepresentation and avoids the policy whe- ther made with intent to deceive or not. Tas- chereau, J., dissenting. — Judgment appealed from (25 N. S. Rep. 210) reversed. 3?oi!o Scotia Marine Ins. Co. v. Stevenson, xxiii 137. 10. Waekantt. 51. Conditions — Warranty — At and from Quebec to Greenock — " Vessel to go in tow."] — The company issued a policy of marine in- surance for $3,000 upon a cargo of wooden goods laden on board, on a voyage from Que- bec to Greenock in favour of " .1. C, as well in his own name as for and in the name and names of all and every other person and per- sons to whom the same doth, may or shall appertain, in part or in all, doth make insur- ance and cause $3,000 to be insured, lost or not lost, at and from Quebec to Greenock, vessel to go out in tow." The vessel was towed from her loading berth in the harbour into the middle of the stream near Indian Cove, which forms part of the Harbour of Que- bec, and was abandoned with cargo, by reason of the ice, four days after leaving the harbour and before reaching the Traverse, 'to which it is customary to tow all vessels leaving Que- bec harbour late in the fall as the minimum distance. Held, Fournier and Henry, JJ., dissenting, that the words " from Quebec to Greenock, vessel to go out in tow," meant that she was to go out in tow from the limits of the Harbour of Quebec on said voyage, and the towing from the loading berth to another part of the harbour was not a compliance with the warranty. — Judgment appealed from (1 Legal News 33) reversed. Provincial Ins. Go. V. Connolly, v., 258. 52. Policy — Default in payment of premium — Premium note — Guarantee -^ Insolvency — Condition precedent — Arbitration — Award — " Matters in difference."] — A policy contained the clause : — " In case the premium, or the note, or other obligation given for the pre- mium, or any part thereof, should be not paid when due, this insurance shall be void at and from such default; but the full amount of premium shall be considered . as earned, and shall be payable, and the insured shall be en- titled to recover for loss or damage which may have occurred before such default. Should the person or any of the persons liable to the company for the premium, or on any note or obligation given therefor, or any part thereof, fail in business, or become bankrupt or insol- vent before the time for payment has arrived, this insurance shall at once become and be void, unless and until before loss the premium be paid or satisfactorily secured to the com- pany." There was also an arbitration clause affecting any difference which might arise be- tween the company and the insured as to the loss or damage, or any other matter relat- ing to the insurance," in accordance with tne terms and conditions of the policy and tne laws of Canada, and obtaining the decision ot arbitrators was a condition precedent to ac- tion. A note given for the premium was noi due when the insured became insolvent; ana the plaintiff was appointed assignee. A guar- antee was accepted by the company as ^ecu rity for the premium. The note was not paia when due, and was unpaid at the date ot loss. The dispute was submitted to arbitrators, wno awarded $5,769.29. Held, affirming the judg- ment appealed from (2 Russ. & Geld. 6toi, 735 INTEEEST. 726 Strong, J., dissenting, that the premium hav- ing, on insolvency, been satisfactorily guar- anteed to the company, the policy was thereby kept in full force and effect, and did not be- come void on non-payment of the premium note at maturity. — That the award was bind- ing on the company, the question as to the payment or default in payment of the pre- mium being a difference " relating to the in- surance " within the meaning of the policy, and the award not appearing on its face to be bad from any mistake of law or otherwise. Anchor Marine Ins. Go. v. Goriett, ix., 73. 53. Voyage 'policy — Sailing directions — Time of entering gulf — Breach of warranty.] — Action on a voyage policy containing clause " warranted not to enter, or attempt to enter, or to use the Gulf of St. Lawrence, prior to the 10th May, nor after the 13th October (a line drawn from Cape North to Cape Ray, and across the Strait of Canso; to the north- ern entrance thereof, shall be Considered the bounds of the Gulf of St. Lawrence sea- ward)," The captain said : " The voyage was from Liverpool to Quebec', and ship sailed on 2nd April. Nothing happened until we met with ice to the southward of Newfoundland, shortened sail and dodged about for a few days trying to work our way around it. ■ One night ship was hove to under lower main-top- sail, and about midnight she drifted into a large field of ice. There was a heavy sea on at the time, and the ship sustained damage. We were in the ice three or four hours ; laid to all the .next day ; could not get any further along on account of the ice. In about twenty- four hours we started to work up towards Quebec." The log book shewed that the ship got into the ice on 7th May, and an expert examined at the trial swore that from the en- tries in the log book of the 6th, 7th, 8th and 9th May, the captain was attempting to enter the Gulf of St. Lawrence". A verdict was taken for the plaintiff by consent, with leave for the defendants to move to enter a nonsuit or for a new trial, the court below to have the power to mould the verdict, and also to draw inferences of fact the same as a jury. The Supreme Court (N.B.) sustained the verdict." Held, reversing the judgment appealed from (24 N. B. Rep. 39), Henry, J., dissenting, that the clause was applicable to a voyage policy, and that there was evidence to go to the jury that the captain was attempting to enter the gulf contrary to warranty. Taylor V. Moran, xi., 347. 54. Warranty in policy — Time of sailing — Action on policy — Limitation, of time — Defec- tive proof — Amended claim^Rechoning time.] — ^A vessel insured for a voyage from Char- lottetown to St. Johns, Nfld., left the wharf at Charlottetown 3rd December, with the lona fide intention of commencing her voyage. After proceeding a short distance, she was obliged by stress of weather to anchor within the limits of the Harbour of Charlottetown and remained there until 4th December, when she proceeded on her voyage. Held, that this was a compliance with warranty to sail not later than 3rd December, but a breach of war- ranty to sail from the port of Gharlottetown not later than 3rd December. — Judgment ap- pealed from (20 N. S. Rep. 15) affirmed. Robertson v. Pugh, xv., 706. 55. Warranty — ■ Promissory representation —" Would tow up and back."] — On applica- tion for insurance in a foreign port, answers to the questions : " Where is the vessel ? When to sailV" were , as follows: "Was at Buenos Ayres or near port, 3rd February, bound up river ; would tow up and back." The vessel was damaged in coming down the river not in tow. It was admitted that towing up and down the river was a matter material to the risk. Held, affirming the judgment appealed from (22 N. S. Rep. 5), that the words, " would tow up and back " in the application did not express a mere expectation or belief on the part of the assured, but amounted to a promissory representation that the vessel would be towed up and down, and this repre- sentation not having been carried out the policy was void. Bailey v. Ocean Mutual Marine Ins. Go., xix., 153. 56. Warranted no other insurance — Gon- struction of policy.] — The application had, on its face, " no other insurance," and the policy issued in favour of J. B. & Co. on account of whom it might concern contained the words " warranted no other insurance." Declaration in the usual form averred interest in the firm of J. B. & Co., and H. W., or some or one of them. Defence rested solely on the conten- tion that the warranty meant there should be no other insurance on the vessel during the continuance of the risk. After the policy is- sued, H. W., being indebted to S. for assist- ance in building the vessel, instructed S. to effect insurance on the vessel to cover his debt, which S. did, on behalf of whom it might concern, and both policies were in full force at the time of the loss. — Held, affirming the judgment appealed from (5 Russ. & Geld. 301), that the words "no other insurance," and " warranted no other insurance," meant that there should be no other insurance on the vessel during the continuance of the risk. Butler V. Merchants' Marine Ins. Go., Cass. Dig. (2 ed.) 390. 57. Voyage policy — Warranted safe — Perils insured against. See No. 36, ante. 58. Misrepresentation — Concealment — In- surable interest — Nationality. See No. 49, ante. INTERDICTION. Authorization by interdicted husband — Marriage laws — Registry laws — Sheriff's sale — Warranty — Succession — Renunciation — ■ Donation by interdict.] — Semble, that volun- tary interdiction, even prior to the promulga- tion of the Civil Code of Lower Canada, was an absolute nullity and that the authorization to a married woman to bar her dower is not invalidated by the fact that her husband had been so interdicted at the time of such author- ization. Rousseau v. Burland, xxxii., 541. INTEREST. 1. Joint emecutors — Liahility jor m.oneys received — Uncollected debts — Art. 913 G. G. — Taking accounts — Legal rate of interest.] — Testamentary executors cannot be Charged a greater rate than six per cent, per annum for interest on moneys collected by them, after an account has been demanded, unless there is proof that a higher rate was realized by them through the use of such moneys. Darling v. Brown, ii., 26. See 21 L. C. Jur. 169. 737 IFTEEBST. 738 2. Rate of interest on judgment — Rate on note — Covenant in mortgage — Collateral secu- rity.'] — ^A note dated 11th January, 1862j pay- able to and indorsed by S. H., was for $3,000 ■with interest at 2 per cent, per month until paid. By a covenant for payment contained in a mortgage deed of the same date, given by the defendant to the plaintiff as a collateral security for the payment of this note, the defendant covenanted to pay " the said sum of $3,000 on the 11th day of July, 1862, with interest thereon at the rate of 24 per cent, per annum until paid." A judgment was recovered upon the note, but not upon the covenant. The master allowed for interest in respect of this debt 6 per cent, only from the date of the recovery of the judgment. Held, that the proper construction of the terms of both the note and covenant as to payment of interest was that interest at the rate of 24 per cent, should be paid up to the 11th July, 1862, and not that interest should be paid at that rate after such day if the principal should then remain unpaid. St. John v. Rykert, x., 278. 3. Mortgage — Rate of interest — Fixed time for re-payment — Contract — Rate after ma- turity.] — A mortgage of real estate provided for payment of the principal secured on or before a fixed date " with interest thereon at the rate of 10 per centum per annum until such principal money and interest shall be fully paid and satisfied." Held, afiirming the judgment appealed from (17 Ont. App. R. 85), that the mortgage cfarried interest at the rate of 10 per cent, to the time fixed for pay- ment of the principal only, and after that date the mortgagees could recover no more than the statutory rate of 6 per cent, on the un- paid principal. St. John v. Rykert (10 Can. S. C. K. 278) followed. People's Loan and Deposit Co. V. Grant, xviii., 262. 4. Damages against the Crown — Govern- ment contract.] — M. by petition of right claimed damages for breach of contract for parliamentary and departmental printing for a specified period. The alleged breach con- sisted in the Government giving a portion of the printing to others, the suppliants Claiming that, by the terms of the contract, they were entitled to the whole of it. The Crown de- murred, and, as to the departmental printing, the demurrer was overruled (8 Can. S. 0. R. 210). The petition subsequently came on for hearing in the Exchequer Court, and a refer- ence was made to the Registrar and Queen's Printer to ascertain and report as to the pro- fit lost to the suppliants by not being allowed to do the departmental printing. The referees found a certain sum as the profit lost to sup- pliants, stating in their report, that the sup- pliants claimed interest on the amount, but that the referees were of opinion they had no power, under the order of reference to Con- sider the question of interest. — No exception was taken to the report, and suppliants moved for judgment for the amount found with inter- est, as damages under the petition of right. Henry, J., gave judgment for the amount found by the referees with interest at 6 per cent., to be computed on the aggregate of the sums which, according to the report, the sup- pliants up to the 81st December in each year durmg the currency of the contract, would uave received as profit. — On appeal as to the allowing of interest. Held, Henry, J., dissent- ing, that the suppliants were not entitled to interest on the amount found by the re- ferees for loss of profits. ( See 4 Ex. C. R. 257.) The Queen v. MacLean, Cass. Die (9 ed.) 399. ^ 5. Stay of judgment — Allowance of interest — Discretion of court.] — ^The question of al- lowing interest for the time judgment has been stayed pursuant to s. 6 of the Supreme and Exchequer Courts Act is a matter which the court will dispose of ex mero motu. McQueen V. Phcenix Mutual Fire Ins. Co., Cass Die. (2 ed.) 688; Cass. S. C. Prac. (2 ed.) 87. 6. Inter,est against the Crown — Supreme Court Act — Practice — Consent to reversal.] — In a case before the Exchequer Court for re- turn of duties improperly imposed, judgment against the claimants, affirmed by the Su- preme Court, was reversed by the Privy Council and judgment ordered to be entered for the claim with costs. The Exchequer Court judgment was then entered for the principal only, interest being fefu'sed, and ap- peal was taken to the Supreme Court. In the meantime, a petition by the Crown to the Privy Council for a declaration that the claimants were not entitled to interest under their Lordships' judgment, was dismissed, their Lordships stating that as interest had been claimed and the question not argued in any of the courts, it should be allowed. The Crown thereupon consented, under s. 52, Supreme and Exchequer Courts Act, to a reversal of the Exchequer Court judgment as to interest. (See 4 Ex. C. R. 262; 25 Can. S. C. R. 24; [1896] A. C. 551.) Toronto Ry. Co. v. The Queen, Cass. S. C. PraC. (2 ed.) 87. 7. Contracts binding the Crown — Goods sold and delivered — Errors and omissions — Interest^Arts. 1061 & 1011 C. C.]— Where a claim against the Crown arises in the Pro- vince of Quebec, and there is no contract in writing, the thirty-third section of " The Ex- chequer Court Act," does not apply, and in- terest may be recovered against the Crown, according to the practice prevailing in that province. — Judgment appealed from (6 Ex. C. .R. 39) affirmed. The Queen v. Henderson, xxviii., 425. 8. Expropriation of land — Lands injuri- ouslti affected — Damages — Interest — Award.] — If in the construction of a public work land of a private owner is injuriously affected and the compensation therefor is determined by arbitration, interest cannot be allowed by the arbitrator on the amount of damages awarded. — Judgment appealed from (26 Ont. App. R- 351) affirmed. Leale v. City of Toronto, xxx., 321. 9. Charging interest — Debt certain and time certain — 3 d 4 Wm. IV. c. 42, s. 28 (Imp.)]— To entitle a creditor to interest under 8 & 4 Wm. IV. c. 42, s. 28 (Imp.) the written in- strument under which it is claimed must shew by its terms that there was a debt Certain payable at a certain time. It is not sufficient that the same may be made certain by some process of calculation or some act to be per- formed in the future. Sinclair v. Preston, xxxi., 408. 10. Duties on export of lumher-^Improper levy — Payment of interest — LialUity of Crown for further interest.] — The petition of right was to recover unpaid interest on duties exacted by the Government of New Bruns- wick for export duties for taking lumber cut 739 INTBENATIONAL LAW. 730 under licenses from the Dominion of Canada, on lands in dispute between the provinces and eventually found to belong to Canada. The interest was claimed as both provinces and Dominion had paid interest and other- wise admitted liability therefor. The Crown claimed that it paid as a matter of grace and without liability by statute or express con- tract, and that the interest could not be re- covered by suit. The Supreme Court held that there was no liability of the Crown for interest, there having been no statutory lia- bility nor express contract therefor, and that none arose on account of payments of interest from time to time or on the account stated as claimed. Dunn v. The King, 12th Nov. 1901. 11. Deposit in court — Order on office to pay over interest received on deposit — Rule iy third party entitled to moneys im, court. See Pkaotioe and Peocedueb, 40. 12. Adding prescribed interest in claim to give appellate jurisdiction — Supreme Court Act — Amount in dispute. See Appeal, 20. .13. Taxation — Penalty — Addition to de- linquent taxes — Legislative powers — B. N. A. Act (1867) ss. yi, 92—19 Vict. c. .52 (Man.) — Constitutional law. See Constitutional Law, 68. 14. Rate of interest — Open accounts — Con- tract. See Banks and Banking, 17. 15. Settlement of minutes of judgment — Allowance of interest. See Practice of Supeeioe Cotj^t, 173. 16. Stay of judgment — Motion for allow- ance of interest — Matter for court ex mero mota. See Peactice of Sup. Couet, 165, 166. 17. Expropriation by railway — Award — Additional interest — Confirmation of title — Diligence in obtaining — Railway Act, 188S, ss. 162, no. m. See ExpEOPEiATioN of Lands, 23. 18. Vendor and purchaser — Agreement to pay interest — Delay — , Default of vendor. See Vendok and Puechaseb, 30. 19. Contract for purchase of land — Agree- ment to pay interest — Wilful default of ven- dor — Deposit of purchase money in banlc. See Vendoe and Puechasbe, 31. 20. Debt of Province of Canada to Do- minion — Subsidies — Half-yearly payments — Deduction of interest — B. N. A. Act, ss. 112, lllf, 115, 116. 118—36 Vict. c. 30 (D.) — 47 Vict. c. 4 (D.). See Constitutional Law, 3. 21. Appeal from Court of Review — Appeal to Privy Council — Appealable amount — Addition of interest — G. G. P. arts. 1115, 1118, 1178 (a)—R. S. Q. art. 2311—54 S 55 Vict. (D.) c. 25, s. 3, s.-s.3 —54 Vict. (Que.) c. 48 (amending art. 1115 G. G, P.) See Appeal, 69. 22. Mortgage — Loan to pay off prior in- cumbrance — Assignment of mortgage — Pur- chase of equity of redemption — Accounts. See Mobtqagb, 64. 23. Bonus — Usury laws — G. S. G. s. 58 — Arts. 1785 G. C. See Building Society, 3. 24. Default clause in mortgage ■ — Principal falling due — Proviso as to arrears — Rate of interest. See Moetgage, 69. 25. Contract with unlawful consideration — Repetition de I'indu — Trade combination — Public policy — Conspiracy account. See Conteact, 165. 26. Public work — Breach of contract — Appropriation of plant — Damages. See Contract, 21. 27. Customs duties improperly levied — In- terest on rebate — Lex loci — Lex fori — Repeti- tion — Presumption of good faith — Mistake — • Arts. 1047, 1049 C. G. See Customs Duties, 5. 28. Contract for construction of works — • Reductions for portions omitted- — Partial can- cellation of contract — Arts. 1065, 2691 C. C. — Deferred payments — Computation of interest — -Payments in advance — Rebates. See Contract, 170. INTERLOCUTORY PROCEEDINGS. 1. Hypothecary claims — Assignment — Notice— Arts. 20, 144, 161 G. C. P.— Action to annul deed — Parties in interest — Incidental proceedings — Collocation and distribution.'] — The appeal from judgments of distribution under art. 761 C. C. P. is not restricted to the parties to the suit, but extends to every per- son having an interest in the distribution of the moneys levied under the execution. — The provisions of art. 144 C. 0. P. that every fact of which the existence or truth is not expressly denied or declared to be unknown by the plead- ings filed shall be held to be admitted, applies to incidental proceedings upon an appeal in the Court of Queen's Bench. — The nullity of a deed of assignment can only be invoked by proceedings to which all persons interested in the deed have been made parties. Guertin v. Gosselin, xxvii., 514. 2. Appeal — Interlocutory ordei Trial by jury — Final judgment — R. 8. C. c. 135, s. 2i —Arts. 348-350 C. G. P. See Appeal, 195. INTERNATIONAL LAW. 1. Construction of statute — Winding-up Act — Foreign corporation — Conflict of laws. See Winding-up Act, 1. 2. Foreign corporation — Contract in Can- ada — Monopoly — Public policy. See Comity. 731 JOINT STOCK COMPAXY. 732 INTERPIiEADER. 1. Levy under execution — Charging lands under Territories Real Property Act — In- demnity to sheriff — Pleading joint pleas.'] — In a suit against the sheriff and an execution creditor in respect of alleged irregular levy under a writ of execution, the sheriff is not obliged to interplead, but may be joined pro- perly in a defence with the execution creditor. Taylor v. Bolertson, xxxi., 615. 2. Lands taken or sold under execution — Lien — Application of proceeds. See Saie, 66. Ajstd see Practice and Procedure. INTERPKETATION. Words and (See CONTEACT — Statute Terms. INTERROGATORIES. 1. Evidence — Faits et articles — Judicial admissions — Arts. 221-225 C. G. P.] — The constructive admission of a fact resulting from a default to answer interrogatories upon ar- ticulated facts recorded under art. 225 C. C. P., cannot be invoked as a juditfial admission in a subsequent action of a different nature between the same parties. — ^Judgment appealed from (Q. R. 6 Q. B. 458) affirmed. Durocher V. Durocher, xxvii., .363. 2. Articulated facts — Evasive answers — Taken pro confessis — Arts. 228, 229 G. G. P. See Evidence, 159. 3. Faits et articles — Taking pro confessis — Art. 229 G. G. P. — Motion in trial court. See Evidence, 160. INTERROGATORY, COMMISSION. See Commission. INTERVENTION. 1. Right to intervene — Vagueness and un- certainty as to beneficiaries — " Poor rela- tives " — " PnMic Protestant charities " — Gharitaile uses — Persona designata.] — In 1865 J. G. E., a merchant of Quebec, whilst temporarily in New York made a holograph will as follows : — " I hereby will and tjequeath all my property, assets or means of any kind to my brother Frank, who wHl use o"e-half of them for public protestant charities in Quebec and Carluke, say the Protestant Hos- pital Home, the French-Canadian Mission, and amongst poor relatives as he may judge best, the other half for himself and for his own use, excepting two thousand pounds which he will send to Miss Mary Frame, Overton Farm. — James G. Ross." In an action to have the will declared invalid interventions ■n'cre filed by Morrin College, an institution where youth are instructed in the higher branches of learning and especially young men intended for the ministry of the Presbyterian Church in Canada, who are entitled to receive a free general and theological education, and are assisted by scholarships and bursaries to complete their education ; by the Finlay Asylum, a corporate institution for the relief of the aged and infirm, belonging to the communion of the Church of England ; and by W. R. R., a first cousin of the testator, claim- ing as a poor relative. Held, that Morrin College did not come within the description of a charitable institution according to the ordinary meaning of the words, and had there- fore no locus standi to intervene : Sedgewick, J., dissenting ; that Finlay Asylum came with- in the terms of the will as one of the Chari- ties which F. E. might select as a beneficiary, and this gave it a right to intervene to sup- port the will. Held, further, that in the gift to " poor relatives " the word " poor " was too vague and uncertain to have any meaning" attached to it, and must therefore be rejected, and the word " relatives " should be construed as excluding all except those whom the law, in the case of an intestacy, recognized as the proper class among whom to divide the pro- perty of a deceased person, and W. R. R. not coming within that Class his intervention should be dismissed. Held, per Fournier and Taschereau, JJ., that the bequest to " poor relatives " was absolutely null for uncer- tainty. — Judgment appealed from (Q. R. 2 Q. B. 413) affirmed. Ross v. Ross, xxv., 307. 2. Plaintiff's intervention — Cause en dS- liberg—Art. 151t C. G. P. See Substitution, 1. INTESTACT. Devise defeated by paramount rule of law — Inheritance following course directed by law ab intestat. See Will, 25. And see Paktition — Successions. INVENTION. See Patent or Invention. IRRIGATION. Adjoining lands — Threatened damage to one — Right of owner to guard against with- out reference to neighbour — Sic utere tuo nt alieniim non loedas.'] — ^^'here the owner of land is threatened with damage by waterused fop irrigation purposes coming from a higher level he has a right to protect himself against such injury by all lawful means without re- gard to any damage that may result to land of his neighbour from the measures he adopts. McBryan v. Canadian Pacific Ry. Co., xxii., 359. And sec Drainage — Rivers and Streams- Watercourses. JOINT STOCK COMPANY. See Company Law. 733 JUDGMENT. 734 JOINT TENANTS. 1. Survivorship — Action — Life estate — Remainder. See Title to Land, 79. 2. Joint negotiations — Deed of land to one only — Resulting trust. See Title to Land, 117. 3. Devise of lands — Joint charges in will — Severance of tenancy. See Tenants in Common,' 1. 4. Construction of devise — Life^ estate — Joint lives — Remainder — Survivor dying without issue. See Will, 34. JUDGE. 1. Trial without jury — findings of fact — Reviewing evidence on appeal. See Appeal, 210. 2. Appointment — Provincial courts — County Court judges — C. 8. B. C. c. 25 — 53 Vict. c. S {B. C). See Constitutional Law, 22. 3. Collision — Rule of the road — Opinion of assessors — Delegation of judicial func- tions. See Admibaltt Law, 1. 4. Disqualifieation — Appeal — Quorum in such case — 52 Vict. c. 37, s. 1 — Practice. See Quorum, 1. 5. Dispensing with notice of action — Dis- cretion of trial judge — Review on appeal. See Negligence, 191. 6. Disqualifieation — Resignation of judge — Re-hearing of appeal. See Pbaotice or Sup. Court, 156. 7. Construction of statute — Special leave to appeal — " Judge of court appealed from " —Jurisdiction — R. S. C. 0. 135, s. Jt2. See Appeal, 33G. JUDGMENT. 1. Appealable Judgments and Orders, 1-12. 2. Collusion and Fraud, 13-14. 3. Entry of Judgment, 15-19. 4. Estoppel, 20-27. 5. Final Judgments and Orders, 28-33. 6. Foreign Judgments, 34-37. 7. Impeachment of Judgment, 38-39. 8. Registration, 40. 9. Revocation, 41, 42. 1. Appealable Judgments and Ordeks. 1. Appeal — Collocation and distribution — Art. 761 C. C. P. — Hypothecary claims — As- signment — Notice — Registration — Prete- nom — Arts. 20 and Uf^ G. G. P. — Action to annul deed — Parties in interest — Incidental proceedings.'] — The appeal from iudgments of distribution under art. 761 C. C. P. is not restricted to the parties to the suit, but ex- tei:^ds to every person having an interest in the distribution of the moneys levied under the execution. — The provisions of art. 144 C. C. P. that every fact of which the existence or truth is not expressly denied or declared to be unknown by the pleadings filed shall be held to be admitted, applies to incidental pro- ceedings upon an appeal in the Court of Queen's Bench. — The nullity of a deed of as- signment can only be invoked by proceedings to which all persons interested in the deed have been made parties. Guertin v. Oosselvn, xxvii., 514. 2. Appeal — Jurisdiction — Reference to court for opinion — 54 Vict. c. 5 (B. C.) — R. S. C. c. 135, ss. 2i and 28.]— The Supreme Court of Canada has no jurisdiction to enter- tain an appeal from the opinion of a provin- cial court upon a reference made under a provincial statute, for hearing and consider- ation of any matter which the Lieutenant- Governor-in-Counc'il may think fit, although the statute provides that such opinion shall be deemed a judgment of the court. Union Colliery Co. v. Attorney-Oeneral of B. C, xxvii., 637. See [1899] A. C. 580 and 33 Can. Gaz. 418 for judgment of Privy Council on appeal sub- sequently taken direct from the decision of the Supreme Court of British Columbia. 3. Appeal — Court of Review — Right of appeal to Privy Council — Construction of statute — Final judgment — R. S. C. c. 135, ss. 24 ij), 28 & 29—54 & 55 Vict. c. 25, s. 3 (D.)] — Certain ratepayers of the City of Montreal having objections to one of the com- missioners named in proceedings taken, for the expropriation of land required for the im- provement of a public street, in which they were interested, presented a petition to the Superior Court demanding his recusation. The petition was dismissed ; on an appeal to the Court of Review, the judgment dismissing the petition was affirmed, and further appeal was then taken to the Supreme Court of Canada. On motion to quash the appeal for want of jurisdiction : Held, that no appeal de piano would lie from the judgment of the Court of Review to Her Majesty's Privy Counc'il. and consequently there was no appeal therefrom to the Supreme Court of Canada under the provisions of the Act, 54 & 55 Vict. c. 25, s. 3, amending The Supreme and Exchequer Courts Act. Held, further, that the judgment of the Court of Review was not a final judg- ment within the meaning of s. 29 of The Su- preme and Exchequer Courts Act. (See Q. R 12 S. C. 134.). Ethier v. Swing, xxix., 446. 4. PuUic street — Ohstruction — Building " upon " or " close to " line — Petition for re- moval — Variance. See Practice and Procedure, 68. 5. Appeal — Time limit — Commencement of — Pronouncing or entry of judgment — Security — Extension of time — Order of judge —Vacation— R. S. C. c. 135, ss. 40, 42. 46. See Appeal, 430. 735 JUDGMENT. 736 6. Appeal — Time limit — Commencement of — Pronouncing or entry of judgment — Security — Extension of time — Order of judge— R. 8. G. c. 135, ss. 40, 42, 46. See Appeal, 431. 7. Opposition to judgment — Reasons — ■ False returns of service ■ — Arts. 18, 89 et seq., 483, 489 0. 0. P. — Bescisoire and rescindant. See Opposition, 11. 8. Appeal — Jurisdiction — 52 Vict c. 37, s. 2 (D.) — Appointment of presiding officers — County Court judges ■ — 55 Vict. c. 48 (0)1*.)— 57 Vict. c. 51, s. 5 (,Ont.)—58 Vict. c. 4'f (Ont.) — Construction of statute — Ap- peal from assessment — Final judgment — " Court of Last Resort." See Statute, 62. 9. Appeal — Jurisdiction — Discretionary order — ■ Default to plead — R. 8. C. c. 65 — Ontario Judicature Act, rule 135, ss. Z4 (o) and 27— R. 8. c. 44, s. 796. See Appeal, 196. 10. Appeal from Court of Review — Trial judgment varied — Right of appeal. See Appeal, 289. 11. Appeal — ■ Jurisdiction — Final judg- ment — Plea of prescription — Judgment dis- missing plea — Costs — R. 8. C. c. 135, s. 24 — Art. 2^67 C. G. See Appeal, 290. 12. Appeal — Special leave — 60 d 61 Vict, c. 34 (e) — Error in judgment — Concurrent jurisdiction — Procedure — Mandamus. See Appeal, 337. 2. Collusion and Fbaub. 13. Setting aside judgment — Collusion — Cognovit.] — ^S., a judgment creditor of N., sr., applied to the Supreme Court (N. B.) on affidavits, to have a judgment of N., jr., against N., sr., his father, set aside as ob- tained by collusion and fraud, and to cover assets of N., sr. The statements in the affida- vits were : that a cognovit vpas given and judg- ment signed the same day ; that no account v?as rendered of the debt ; that no entries were made by N., jr., against his father ; that the account for which the cognovit was given was made up from calculation and not from books ; that the father had offered to have the judgment discharged on payment of a much smaller sum ; that on an examination of the matter for disclosure he would not swear that he owed his son the amount and that he had no settlement of accounts. The affidavits in answer stated how the debts had accrued, giving details ; that there was no collusion between the father and son ; that the son fre- quently asked his ' father for a settlement but could not get it; and that he had never been a party to or authorized any settlement. The court below held that the applicant had failed to shew fraud and refused to set aside the judgment. The decision of the court below was affirmed. Snowiall v. Neilson, xvi., 719. 14. Tierce opposition — Want of parties — 'Prescription escheat — Collusion — Cham- perty — Litigious rights. See Title to Land, 131. 3. Entbt op, Judgment. 15. Mistake in settling minutes — Amend- ment — To ie read nunc pro tunc — Applica- tion in court.] — Where an error has occurred in drawing up the minutes of its judgment, the Supreme Court of Canada amended the min- utes to make them conform to the intention oi the court and the principles upon which the decision was based, and the judgment so amended was ordered to be read nunc pro tunc. (The application was by petition presented in court before five of the judges, who were pre- sent at the delivery of the judgment so amend- ed, Strong, J., being absent.) Smith v. Goldie, 9th December, 1885; Cass. Dig. (2 ed.) 689; Cass. S. C. Prac. (2 ed.) 86, 149. (See 9 S. C. Rep. 46.) 16. Case under consideration — Death of party after hearing — Entry of judgment nunc pro tunc. See Practice of Sup. Court, 227. 17. Mistake in calculation — Amendment of error — Transmission of record for correc- tion — Order on court ielow. See Practice op Sup. Court, 179. 18. Rectification of slight errors in judg- ment — Duty of appellate court. See Appeal, 394. 19.^ Varying minutes — Special recital — Certificate of proceedings — Appeal to Privy Council. See Privy Council, 4. 4. Estoppel. 20. Bar to action — Foreign judgment — • Estoppel — Res judicata — Judgment ohtained after action — R. 8. 2f. 8. (5 ser.) c. IO4, s. 12 s.-s. 7; orders 24 and 70, rule 2; order 35, rule 38.] — A judgment of a foreign court hav- ing the force of res judicata in the foreign country has the like force in Canada. Unless prevented by rules of pleading a foreign judg- ment can be made available to bar a domestic action begun before such judgment was ob- tained. The Delta (1 P. D. 393) distin- guished. — The combined effect of orders 2a and 70, rule 2, and s. 12, s.-s. 7 of c. 104 R. S. N. S. (5 ser.), will permit this to be done in Nova Scotia. — The provision of R. S. N. S. (5 ser.) c. 104, order 35, rule 38, that evi- dence of a judgment recovered In a foreign country shall not be conclusive of its correct- ness, in an action on such judgment in Nova Scotia, but that the defendant may defend such suit as fully as if brought for the original cause of action, cannot be invoked in favour of the defendant in Nova Scotia, who has brought an unsuccessful action in a foreign court against the plaintifiE. Law v. Hansen, XXV., 69. 21. Judgment against firm- — Liaiility of re- puted partner — Action on judgment.] — In an action upon a note against M. I. & Co., as makers, and J. I. as indorser, judgment went by default against the firm, and verdict in fa-vour of J. I., as he indorsed without con- sideration for accommodation of holders, and upon agreement that he should not be liable upon the note. In a subsequent action on the judgment to recover from J. X. as a member of the firm who had made the note, Held, af- firming the judgment appealed from (22 Ont. 737 JUDGMENT. App. R. 12), that the verdict in the former suit was conclusive in his favour, the said agreement meaning that he was not to be liable either as maker or indorser. Isbester V. Ray, Street & Co., xxvi., 79. 22. Vltra vires contract — Consent judgment — Action to set asiie.'] — If a company enters into a transaction which is ultra vires, and litigation ensues in the course of which a judgment is entered by consent, such judgment is as binding on parties as one obtained after a contest, and will not be set aside because the transaction was beyond the power of the company. Gharleiois v. Delap, xxvi., 221. 23. Evidence — Admissions — Nullified instru- ments.] — ^A will, in favour of the husband of the testatrix, was set aside in an action by the heir-at-law, and declared by the judgment to be un acte faux, and therefore to be null and of no effect. In a subsequent petitory action between the same parties: Held, af- firming the judgment appealed from (Q. R. 5 Q. B. 458), Girouard, J., dissenting, that the judgment declaring the will faum was not evi- dence of- admission of the title of the heir-at- law by reason of anything the devisee had done in respect of the will, first, because the will having been annulled was for all pur- poses unavailable, and secondly, because the declaration of faux, contained in ihe judg- ment, did not shew any such admission. Durocher v. Durocher, xxvii., 363. 24. Form of draft— Art. Jf73 0. 0. P.— In- scription en faux. See Title to Land, 76. 25. Judgrnent interlocutory in part — Final judgment on merits — Yoluntary execution — Waieer of right to appeal — Res judicata. See Appeal, 162. 26. Consent judgment — Action against in- corporated company — Forfeiture of charter- Estoppel- — Compliance with statute — Res judi- cata. See Res Judicata, 15. 27. Prescription — Arts G. C. — Waiver — Failure to plea limitation — Defence supplied ly court — Reservation of re- course for future damages — Judicial admission — Interruption of prescription — Novation — Costs. See Acton, 47. 5. Pinal Judgments and Oedees. 28. Order vacating — " Final judgment " — Section 17, Supreme and Exchequer Courts Act— Jurisdiction to hear appeal. See Appeal, 157. 29. Court of last resort — Demurrer sus- tained on appeal — Final judgment. See Appeal, 161. 30. Interlocutory as to part — Final upon merits — Binding on lower court — Voluntary execution — Res judicata — Waiver of right to See Appeal, 162. s. c. D. — ^24 31. Quashing writ of appeal — Mat procedure — Interlocutory order — Refere take accounts — " Final judgment." See Appeal, 170. 32. Equal division of judges on ap Withholding decision — Final judgm Appeal. See Appeal, 182. 33. Appeal — Interlocutory order — judgment— Arts. 348-350 C. C. P—Tr jury. See Appeal, 195. 6. FoEEiGN Judgments. 34. Order hy foreign tribunal — Wino of company — Galls — Contriiutories — Ai D eclaratiok — Demurrer. See Winding-up Act, 11. 35. Lex loci — Lex domicilii — Foreign — Jurisdiction — Decree in New Tork- in Quehec — Change of domicile — Aut tion to sue. See DivoECE. 36. Foreign judgment obtained after — Bar to action — Estoppel — Res judica See No. 20, ante. 37. Foreign judgment— ^Original con tion — Counts in declaration — Ont. Jud. See Pleading, 8. 7. Impeachment of Judgment. 38. Criminal Code, s. 575 — Confiscai gaming instruments, moneys, &c. — Aci recover.'] — In an action to revendicate i seized and confiscated under the provis: s. 575 of the Criminal Code. Hel Strong, C.J., that a judgment declari forfeiture of moneys so seized cannot ' laterally impeached in an action of revi tion. O'Neil v. Attorney-General of C xxvi., 122. 38a. Defective case — Application t record — Re-hearing.] — An application judgment in appeal to vary a decision aj from, upon affidavits, comes too late a to amend any defect should be taken argument and decision of the appeal. dence Washington Ins. Co. v. Oerou 731. 39. Practice — Habeas corpus — Bindi feet of judgment in provincial court.] application for a writ of habeas corp- referred by the judge to the Supreme of the province and, after hearing, the cation was refused. On application quently made to a judge of the Suprem( of Canada, in chambers ; Held, that un circumstances it would be improper tc fere with the decision of the provincial In re White, xxxi., 383. 8. Registeation. 40. Registration — Charge on la Priority. See Registry Laws, 24. 739 JUEISDICTION. 740 .' 9. Revocation. 41. Petition in revocation — Beguete civile — Concealment of evidence — Jurisdiction — Art. 1177 C. P. Q.—R. S. C. c. 135, s. 67.] — Where judgment on a case in appeal has been rendered by the Supreme Court of Canada and certified to the proper officer of the court of original jurisdiction, the Supreme Court has no jurisdiction to entertain a petition (re- quete civile) for revocation of its judgment, on the ground that the opposite party suc- ceeded through the fraudulent concealment of evidence. Durocher v. Durocher. xxvii., 634. 42. Default judgment in term — Opposition afin d'annuler — Disavowal — Remedy by re- quete civile. ' See Opposition, 3. JUDICATURE ACTS. 1. Constitutional latv — Section J/S, Ontario Judicature Act, 1881 — Security allowed under Supreme Court Act — 42 Vict. c. 39, s. 31(?).] — An appeal to the Court of Appeal for On- tario by defendants was dismissed, the matter in controversy amounting to $576.30, exclusive of costs. Defendants' application under s. 43 of the Judicature Act for special leave to appeal to the Supreme Court of Canada being refused, application was made to Fournier, J., in chambers, for leave to appeal within thirty days after judgment, and Fournier, J., re- ferred it to the full Court. — In the course of the argument the court expressed great doubts as to the constitutionality of s. 43 of the On- tario Statute, but it was ordered, that the defendant be at liberty to give security to pro- secute an appeal, and that appellant might pay $500 into the Supreme Court to the credit of the registrar as security for the costs of the appeal. Forristal v. McDonald (18 C. L. J. 421) ; Cass. Dig. (2 ed.) 422, 698, 768; Cass. S. O. Prac. (2 ed.) 50. [Note. — In Clarkson v. Ryan (17 S. C. R. 251 ) , s. 43, Ontario Judicature Act, is ex- pressly declared to be ultra vires.} 2. Ontario Judicature Act, 1881 — Contro- verted election — Petition — Constitution of court. See BiECTiON Law, 101. 3. Ontario Judicature Act — Practice — Added parties — Orders ^6 and 48. See Practice and Procedure, 100. And see Pleading — Practice of Supreme Court — Practice and Prooedueb. JUDICIAL PROCEEDING. 1. Appeal — Jurisdiction — Judicial proceed- ing — Opponition to judgment — C C. P. arts. 48H93—B. 8. G. c. 135, s. 29 — Appealahle amount — 5^ & 55 Vict. c. 25, s. 3, s.-s. 4 — Re- trospective legislation.] — An opposition filed under the provisions of arts. 484 and 487 of the Code of Civil Procedure of Lower Canada, for the purpose of vacating a judgment en- tered by default, is a " judicial proceeding " within the meaning of s. 29 of " The Supreme and Exchequer Courts Act," and where the appeal depends upon the amount in contro- versy, there is an appeal to the Supreme Court of Canada when the amount of principal and interest due at the time of the filing of the opposition under the judgment sought to be annulled, is of the sum or value of $2 000 Turcotte v. Dansereau, xxvi., 578. ' JURAT. See ApFiDA-sriT. JURISDICTION. 1. Administration proceedings — Jurisdiction of referee — General directions.} — A referee before whom administration proceedings are taken has no authority to make an order de- priving a solicitor of his lien for costs on a fund in court on the ground that adverse par- ties had a prior claim on such fund for costs which said solicitor's client had been person- ally ordered to pay, the administration order not having so directed the referee and there being no general order permitting such inter- ference with the solicitor's prima facie right to the fund. (16 Ont. P. R. 835, reversed). Bell V. Wright, xxiv., 656. 2. Prohibition — Domestic tribunal — Powers —Arts. 3504 et seq. R. 8. Q.—58 Vict. e. 36 (Q.)] — ^A writ of prohibition will not lie to prevent the execution of the sentence of an inferior tribunal where there has not been ab- sence or excess of jurisdiction in the exercise of its powers. Honan v. Bar of Montreal, XXX., 1. 3. Petition — Separate trial — Jurisdiction — R. 8. C. c. 9, ss. SO and 50. See Election Law, 15, 140. 4. Court of probate — Accounts of executors and trustees — Res judicata. See Trusts, 14. 5. Action for redemption — Foreign lands — Lea) rei sites — Action in personam. See Court, 1. 6. Action — Jurisdiction to entertain — Mort- gage of foreign lands — Action to set aside — Secret trust — Lex rei sitce. See Lex Rei Sit^, 1. 7. Form of commitment — Territorial divi- sion — Judicial notice — R. S. 0. c. 1S5, s. St See Habeas Corpus, 7. 8. B. K. A. Act (1867) s. Ill— Exchequer Court of Canada — Petition of right — Debt of Province of Canada. See Constitutional Law, 8. 9. "Quebec Pharmacy Act" — 'Unlicensed sale of drugs — Suit for joint penalties in Su- perior Court. See Statute, 42. 10. Expiration of time limited for appeal- Forfeiture — Ouster of jurisdiction — Waiver. See Appeal, 432. 11. Domicile — Delivery of goods soli — Con- tract by correspondence — Indication of place of payment — Cause of action. See Contract, 134. 741 JUEY. 743 12. Habeas corpus — Practice of Supreme Court of Canada — Binding effect of judgment in provincial court. See Habeas Cokpus, 10. 13. Title to land — Troulles de droit — Evic- tion — Issues on appeal — Parties — Ouster. See Appeal, 397. 14. Parties on appeal — Practice — Proceed- ing in name of party deceased — Amendment in Court of Review — Interference with discretion on appeal. See Appeal, 139. 15. Criminal law — Perjury — Judicial pro- ceeding — De facto tribunal — Misleading jus- tice — Construction of statute — R. 8. Q. arts. 5551, 5561 — Criminal Code, s. 1^5. See Ceiminal Law, 24. 16. Injury from public worh — 'Negligence of Crown officials — Right of action — Liability of the Crown^SO & 51 Vict. c. 16, ss. 16, 23, 58— Jurisdiction of Exchequer Court — Pre- scription — Art. 2261 G. C. See Action, 113. And see Appeal — Courts. JURISPBUDENCB. Binding effect of Supreme Court decisions- Election petition — Preliminary objections. See Election Law, 104. JURY. 1. Challenges, 1, 2. 2. Findings of Fact, 3-23. 3. Impkoper Influence, 24. 4. Misdirection, &c. ; New Trials, 25-41. 5. Order foe Jury Trial, 42. 6. Verdict, 43-48. '1. Challenges. 1. Summoning of jury — Personation of juror — Irregularity cured by verdict — R. S. C. c. 114, ss. 248, 259. See Criminal Law, 7. 2. Criminal procedure — Crown challenges — Standing aside a second time. See Criminal Law, 10. 2. Findings of Pact. 3. Defective snow-plough and bridge — De- railment of train — Contributory negligence — Findings of jury — Failure to answer questions — Act of incorporation — Change of name — TSIew tnal.^ — A locomotive engineer in the company's employ was killed through the de- railing of a snow-plough and consequent breaking of a bridge. The jury found that the derailing was the proximate cause of the accident ; that deceased was guilty of contri- butory negligence : that the snow-plough and bridge were defective and that the train crew was insufficient. They answered " we do not know " to the questions, as to whose negli- gence caused the accident ; whether or not the defects were known to defendant before or at the time of accident, or could have been dis- covered by careful inspection ; whether de- fendant was aware of insufficiency of the crew ; whether different construction of the bridge would have secured the safety of the train ; whether deceased knew the train was off the track before it reached the bridge, and if by reasonable care of the deceased or crew, the accident could have been prevented. The court below were equally divided as to neces- sity for a new trial. The trial judge instruct- ed that the proximate cause was what caused the accident and not that without which it would not have happened, and there was a question as to the parties, plaintiffs in the action. The court below were also divided in opinion on these points. The Supreme Court of Canada ordered the new trial and affirmed the holdings of the judgment appealed from (27 N. S. Eep. 498) in other respects. Pud- sey V. Dominion Atlantic Ry. Co., xxv., 691. 4. Negligence — Matters of fact — Finding of jury.'\ — W. was working on a vessel in port when a boom had to be taken out of the crutch in which it rested and he pointed out to the master that this could not be done un- til the rigging supporting it, which had been removed, was replaced, which the master un- dertook to do. When the boom was taken out it fell to the deck and W. was .injured. In an action against the owners for damages the jury found that the fall of the boom was ow- ing to the said rigging not being secured, but that this was not occasioned by the negligence of the owners or their servants. Held, af- firming the judgment of the Supreme Court of Nova Scotia (30 N. S. Rep. 548), Gwynne, J., dissenting, that the first part of the find- ing did not necessarily mean that the rigging had never been secured, or that if secured ori- ginally it had become insecure by negligence of defendants, and the jury having negatived negligence their finding should not be ignored. Williams v. Bartling, xxix., 548. 5. Assessment of damages — Verdict- eral damages and loss of rent. See Negligence, 1. -Gen 6. Negligence — Legal crossing — Questions — Judge's charge — Findings of fact — Verdict. See Railwats, 101. 7. Questions submitted — Verdict — Evidence ■ — Findings. See Negligence, 204. 8. Findings of fact — Judgment non obstante — Occupation of risk — Hazardous business — Condition in policy of insurance. See Insurance, Fire, 22. 9. Drawing inferences — Presumption — Running of railway trains — Cause of fire — Defective engine. See Evidence, 8. 10. Findings of fact — Commercial usage — ■ Inferences from nature of cargo. See Insurance, Marine, 19. 743 JUEY. 744 11. Appeal on questions of fact — Verdict of jury — Findings by trial judge — Appreciation of evidence. See Appeal, 210. 12. Direction — Condition precedent — New trial — Findings upon evidence — Benefits ac- crued. See Contract, 59. 13. Findings of fact — Reversal on appeal. See Title to Land, 100. 14. Finding on question of fact — Interfer- ence with on appeal. See Master and Servant, 15. 15. Evidence — Relevancy — Inferences — ■ Collateral facts. See BviDBNCE, 18. 16. Accident insurance — Renewal of policy — Payment of premium — Promissory note — Agent's authority — Findings. See Instirance, Accident, 3. 17. Marine insurance — Partial loss on cargo — Stranding — Evidence — Jury trial. See Evidence, 176. 18. Negligence — Findings of jury — Evi- dence — Concurrent findings of courts appealed from. See Negligence, 217. 19. Marine insurance — Aiandonment — Re-- pairs — " Boston clause " — Findings of jury — Setting aside verdict. See Insurance, Marine, 4. 20. Answers to questions—Verdict — Negli- gence — Shunting raUway cars — Evidence. See Negligence, 2^1. 21. Negligence — Vse of dangerous materials — Proximate cause of accident — Injuries to workmen — Employers' liability — Presumptions — Findings of jury sustained by courts below. See Negligence, 144. 22. Answers to questions — Judgment en- tered on findings — Reversal on appeal. See Negligence, 51. 23. Findings of jury — Weight of evidence — Verdict. See Appeal, 243. 3. Improper Influence. 24. Trial of felony — Attendance at church -^Remarks of preacher — Influence on jury — See Criminal Law, 6. 4. Misdirection, &c. ; New Trials. 25. Charge to jury — Refusal to define fraud — rakmg accounts:— Jury unable to deal with accounts.] — Counsel for plaintiff requested the judge to instruct the jury as to what consti- tuted fraud under the Statute of Elizabeth and also urged that an account should be taken of certain dealings. The judge refused to define fraud as requested and the jury stated that they were unable to deal with the accounts. Held, that the judge's refusal amounted to misdirection and there should be a new trial, and that the accounts should have been taken in order properly to decide the case. Oriffiths v. Boscovitz, xviii., 718. . 26. Negligence — Trial of action — Contribu- tory negligence— Findings of jury— New trial -Evidence.] — On the trial of an action against a street railway company for damages in consequence of injuries received through the negligence of the company's servants, the jury answered four questions in a way that would justify a verdict for the plaintiff. To the fifth question, " Could Kowan by the ex- ercise of reasonable care and diligence have avoided the accident?" the answer was, " We believe that it could have been possible." Held, reversing the judgment of the Court of Appeal, that this answer did not amount to a finding of negligence on the part of the plain- tiff as a proximate cause of the accident which would disentitle him to a verdict. Held, fur- ther, that as the other findings established negligence in the defendant which caused the accident which amounted to a denial of con- tributory negligence ; as there was no evidence of neglipence on plaintiff's part in the record ; and as the court had before it all the mate- rials for determining the questions in dispute, a new trial was not necessary. Rowan v. Toronto Ry. Co., xxix., 717. 27. Negligence — Action for damages — Im- proper evidence — Misdirection — 60 Vict. c. 2i, g. 370 (N.B.) ]— By 60 Vict. c. 24, s. 370 (N. B. ) "A new trial is not to be granted on the ground of misdirection, or of the improper admission or rejection of evidence unless in the opinion of the court some substantial wrong or miscarriage has been thereby occa- sioned in the trial of the action." On the trial of an action against the Electric; Street Railway Company for damages on account of personal injuries, the Vice-President of the company, called on plaintiff's behalf, was asked on direct examination the amount of bonds issued by the company, the counsel on opening to the jury having stated that the company was making large sums of money out of the road. On cross-examination the witness was questioned as to the disposition of the proceeds of debentures and on re-exam- ination plaintiff's counsel interrogated him at length as to the selling price of the stock on the Montreal Exchange, and proved that they sold at about 50 per cent, premium. Tie judge in charging the jury directed them to assess the damages as " upon the extent of the injury plaintiff received independent of what these people may be, or whether they are rich or poor." The plaintiff obtained a verdict with heavy damages. Held, that on cross- examination of the witness by defendant's counsel the door was not open for re-examlna- tion as to the selling price of the stock ; that in view of the amount of the verdict it was quite likely that the general observation of the judge in his charge did not remove its effect on the jury as to the financial ability of '{j^ company to respond well in damages. — The injury for which plaintiff sued was his foot being crushed, and on the day of the accident the medical staff of the hospital where he had been taken held a consultation and were divid- ed as to the necessity for amputation. Dr. W. who thought the limb might be saved, was, four days later, appointed by the company, at 745 JUEY. 746 the suggestion of the plaintiff's attorney, to co-operate with plaintiff's physician. Event- ually the foot was amputated and plaintiff made a good recovery. On the trial plaintifiE's physician swore to a conversation with Dr. W. four days after the first consultation, and three days before the amputation, when Dr. W. stated that if he could induce plaintiff's attorney to view it from a surgeon's stand- point, and not use it to work on the sympa- thies of the jury, he might consider more fully the question of amputation. The judge in his charge referred to this conversation and told the jury that it seemed to him very important if Dr. W. was using his position as one of the hospital staff to keep the limb on when it should have been taken off, and that he thought it very reprehensible. JSeld, Strong, C.J., and Gwynne, J., dissenting, that as Dr. W. did not represent the company at the first consultation when he opposed amputation ; as others of the staff took the same view and there was no proof that amputation was de- layed through his instrumentality ; and as the jury would certainly consider the judge's re- marks as bearing on the contention made on plaintiff's behalf that amputation should have taken place on the very day of the accident, it must have affected the amount of the ver- dict. — To tell a jury to ask themselves " If I were plaintiff how much ought I to be paid if the company did me an injury?" is not a pro- per direction. Hesse v. Saint John Ry. Co., XXX., 218. The judgment appealed from (35 N. B. Rep. 1) was varied, the order for new trial being restricted to the question of damages and the appeal dismissed without costs. 28. New trial — Verdict — Finding of jury — Question of fact — Misapprehension.] — Where a case has been properly submitted to the jury and their findings upon the facts are such as might be the conclusions of reasonable men, a new trial will not be granted on the ground that the jury misapprehended or misunder- stood the evidence, notwithstanding that the trial judge was dissatisfied with the verdict. Fraser v. Drew, xxx., 241. 29. Non-direction^ — Trial of question of in- terest — Reference to master. See BviDENCE, 4. 30. Misdirection — Questions for jury — Ac- tion of trover. See Sheriff, 4. 31. Fair direction — WUful misrepresenta- tion — Policy of insurance — Mew trial refused. See iNstTBANCB, Life, 24. 32. Yerdiet against evidence — Misdirection — Trespass on wild lands — Isolated acts. See Pbesoeiption, 15. 33. Mis-trial — Insufficient answers — Final judgment — New trial — Jurisdiction. See Appeal, 174. 34. Equity case — Dispensing with jury — Disposal of whole case on motion for new trial. See New Tbial, 73. .35. Lihel — General issue — PuWic affairs — Fair comment — Justification — Pleading — Rejection of evidence — General verdict — Dis- regard of material question. See New Trial, 33. 36. Malicious prosecution — Findings of fact — Inferences — Functions of judge — Pro- bable cause — Nonsuit. See New Trial, 34. 37. Answers to questions — Railway com- pany — Negligence. See No. 3, ante. 38. Negligence — Question for jury — With- drawal of case from jury — New trial. See Evidence, 163. 39. Negligence — Common fault — Assign- ment of facts — Inconsistent findings — Misdi- rection. See New Trial, 93. 40. Contract — Oral agreement — Evidence — ■ Withdrawal of questions from jury — New trial. See Evidence, 228. 41. E-eidencc — Malice — Privileged com- munication — Judge's charge — Unfriendly relations of parties. See Libel, 7. 5. Order for Jury Trial. 42. Appeal — Interlocutory order — Trial y jury — Final judgment — R. S. G. c. 135, s. If— Arts. 348-S50 C. C. P. See Appeal, 195. 6. Verdict. 43. Disagreement — • Verdict — Manitoba Libel Act.] — By s. 11 of the Libel Act (50 Vict. c. 22, Man.), actual malice or culpable negligenc'e must be proved in an action for libel, unless special damages are claimed. Held, that such malice or negligence must be estab- lished to the satisfaction of the jury, and if there is a disagreement as to these issues the verdict cannot stand. Ashdown v. Manitoba " Free Press " Co., xx., 43. 44. Verdict .unwarranted — Promissory note ■ — Consideration — Accommodation — Dis- charge — Agreement — New trial.] — The ap- peal was from a decision of the Supreme Court of New Brunswick, affirming, by an equally divided court, the verdict for defendant at the trial. The action was on a promissory note indorsed by defendant, who pleaded that it was indorsed on the express understanding that he was not to be called upon to pay it, and that he was discharged by the bank sub- sequently taking security from the makers. At the trial the defendant had a verdict, the jury finding that the bank, on taking security, had agreed that the note in suit should be paid out of the proceeds of collateral held by the bank. On motion, pursuant to leave re- served, for judgment for plaintiffs or a new trial, the court en banc was equally divided, and the verdict stood. — The Supreme Court of Canada, Gwynne, J., dissenting, ordered a new trial, on the ground that the finding of the jury did not warrant the verdict for the de- fendant. St. Stephen's Bank v. Bonness, xxiv., 710. 747 JUSTICE OF THE PEACE. 748 4:5. Municipal drains — Continuing trespass — Limitation of action ex delictu — 58 Vict. c. 4, s. 295 CN. 8.) — Verdict.'] — Action was for trespass by the corporation constructing and maintaining a drain through plaintiff's land. The jury found that the drain had been con- structed in 1886 " by virtue of the streets commissioner's power of office." Plaintiff, al- though aware of the existence of the drain at the time, made no objection till 1896 when the land caved in. The Supreme Court affirm- ed the judgment appealed from (33 N. S. Rep. 401 ) which held that the jury had found that the defendant had constructed the drain by its agent and that the trespass, being a continuing one, was not barred by the limita- tion provided in the " Towns' Incorporation Act of 1895 " for actions ex delictu against towns. Town of Truro v. Archibald, xxxi., 380. 46. Promissory note — Duress — Verdict of jury.] — In an action against the maker of a promissoify note, the local manager of the plaintiff bank, the defence was that he had been coerced by the head manager, under threats of dismissal and criminal prosecution, into signing the notes to cover up deficits in customers' accounts in which he had no per- sonal interest. His evidence at the trial to the same effect was denied by the head man- ager. Held, that the jury having believed the defendant's account and given him a verdict which the evidence justified, such verdict ought to stand. , Western Bank of Canada v. Mc- Gill, xxxii., 581. 47. Irregular panel — Personation of juror —Effect of verdict— B. 8. C. c. Ilk, ss. 2^6, 259. See Ceiminal Law, 7. 48. Operation of railway — Negligence — Sufficiency of evidence — Findings of jury — Defective machinery — Sparks from engine — Setting aside verdict. See Negiigence, 101. JUS PUBLICUM. 1. Foreign corporation — Telegraph mo- nopoly — Puhlic policy — Operation of rail- way telegraph lines — Contract in restraint of trade — Comity of nations. See Company Law, 2. 2. Extinction iy statute — 4^. Vict. c. 1, s. is (D.) — Foreshore of harhour — Right of C. P. R. Company to use. See Foreshore. ^ 3. Puhlic street — Oistruction — Dedica- tion — Right of owner or occupier to com- pensation. See Dedication, 1. JUSTICE OF THE PEACE. 1. Commitment upon another's conviction — Canada Temperance Act, 1878, s. 105 — Ab- sence — • Wrongful arrest — Justification.] — A. and B., justices of the peace, were sued in damages for issuing a warrant of commit- ment under which B. was imprisoned upon a conviction before two other justices under the Canada Temperance Act, 1878. The prosecu- tion was commenced before A. and B., but on return of the summons they were served with a subpoena, to give evidence for the defend- ant ; whereupon two other justices at the re- quest of A.' and B., under s. 105 of the Act, heard the case and convicted the appellant! A. and B. though present in the court room as witnesses took no part in the proceedings. — The Supreme Court of New Brunswick or- dered a nonsuit to be entered.— ^On appeal to the Supreme Court of Canada. Held, affirming the judgment of the court below, Henry and Taschereau, JJ., dissenting, that, as the con- viction was good on its face, it was, until set aside, a justification for the commitment. Meld, also, that upon the facts disclosed A. and B. were " absent," within the meaning of s. 105 of the Canada Temperance Act, 1878. Byrne v. Arnold, Cass. Dig. (2 ed.) 107. 2. Jurisdiction — Form of commitment — 'Territorial division — Judicial notice — R. 8. G. 0. 135, s. 32.] — A warrant of commitment was made by a stipendiary magistrate for the police division of the municipality of the County of Pictou, in Nova Scotia, upon a conviction for an offence stated therein to have been committed " at Hopewell, in the County of Pictou." The County of Pictou ap- peared to be of a greater extent than the municipality of the County of Pictou, there being also four incorporated towns within the county limits — and it did not specifically ap- pear upon the face of the warrant that the place where the offence had been committed was within the municipality of the County of Pictou. The Nova Scotia Statute of 1895 respecting county corporations (58 Vict. c. 3, s. 8) , contains a schedule which mentions Hopewell as a polling district in Pictou County, entitled to return two councillors to the county council. Held, that the court was bound to take judicial notice of the territorial divisions declared by the statute as establish- ing that the place so mentioned in the war- rant was within the territorial extent of the police division. Held, also, that the jurisdic- tion of a judge of the Supreme Court of Can- ada in matters of habeas corpus in criminal cases is limited to an inquiry into the cause of imprisonment as disclosed by the warrant of commitment. Ex parte Macdonald, xxvii., 683. 3. Appeal — Certiorari — Merchants' Ship- ping Act ■ — ■ Seaman's wages — Jurisdiction — Final judgment.] — Quwre. Where the Mer- chants' Shipping Act of 1854 provides that every order of two justices in an action for seaman's wages shall be final, will certiorari lie to remove the proceedings into a superior court? The Queen v. Sailing Ship "Troop Co., xxix., 662. 4. Requisition calling out militia — Form. See Military Law, 1. 5. Vindictive damages — Abuse of official position — Elements for consideration. See Damages, 50. 6. Malicious prosecution — Destruction of liquor had in vicinity of public works — D«- sealed conviction — Certiorari — Action for damages — Notice. See Malice, 4. 749 LANDLORD AND TENANT. 750 7. Canada Temperance Act — Search war- rant — Magistrate's jurisdiction — Constable — Justification of ministerial officer — Goods in custodia legis — Replevin — Estqppel — Res judicator— Judgment inter partes. See Canada Temperance Act, 6. 8. Game laws — Game killed out of season — Seizure of furs — Jurisdiction — R. 8. Q. arts. IJfOS-HOQ — Writ of prohibition. See Prohibition, a. 9. Hiova Scotia Liquor License Act, 1S95 — Conviction — Jurisdiction — Affidavit on certiorari — Powers of Provincial Legislature — Matter of procedure. See Certiorari, 4. LACHES. 1. Equity suit — Specific performance — Agreement to convey landr— Possession.'] — In a suit for specific performance of an agree- ment by the devisee of land to convey to P., it appeared that the agreement of sale to P. was executed in 1884, and the suit vpas not instituted until four years later. P. was in possession of the land during the interval. Held, thaf as the evidence dearly shewed that P. was only in possession as agent of the trustees under the will and caretaker of the land, and as by the terms of the agreement time was to be of the essence of the contract, the delay was a sufficient answer to the suit. Porter v. Hale^ xxiii., 265. 2. Crown — Suretyship — Postmaster's bond — Penal clause — Lex loci contractus — Negligence — Laches of Grown officials — Re- lease of sureties — Arts. 1053, lOSJf, 1131, 1135, 1927, 1929, 1265, G. C-]— The rule of law that the Crown is not liable for the laches or negligence of its officers obtains in the Pro- vince of Quebec except where altered by sta- tute. (6 Ex. 0. R. 236 affirmed). Black v. The Queen, xxix., 693. 3. Sale by agent — Simulated purchase — Fraudulent conveyance — Title to land. See Trusts, 1. 4. Want of diligence — Engineer's certifi- cate — Railway construction. See Contract, 54. 5. Trustee — Administrator of estate — Release by next of kin — Recession of release — Laches — Estoppel — Delays. See Trusts, 13. 6. Action in warranty — Joint speculation — Partnership of ownership pas indivis — Neglect to withdraw collections. See Negligence, 152. 7. Agent lending moneys — " Neglect to obtain sufficient security — Responsibility for losses — Measure of damages. See Principal and Agent, 49. 9. Fraudulent alteration of marked cheque — Payment by mistake — Necessity of taking, precautions. See Banks and Banking, 11. 10. Delay in bringing action to rescind con-, tract — Artifice — Misrepresentation — Con- sideration — Challenging — Test suit — Estoppel — Waiver. See Vendor and Purchaser, 26. 8. Carelessness in warehousing ■ damp grain into storage. See Warehouseman, 3. Taking LANDLORD AND TENANT. 1. Contract, 1-4. 2. Determination of Tenancy, 5-7. 3. Distress, 8-11. 4. Eviction, 12. 5. Mortgaged Premises, 13, 14. 6. Negligence, 15-20. 7. overholding tenants, 21-24. 8. Renewal of Lease, 25-27. 9. Tenants at Will or by Suffrance, 28-30. 1. Contract. 1. Attornment — Creation of tenancy by mortgage — Demise to mortgagor — Rent re- served — Distress — 8 Anne c. H—rStatute of Frauds — R. S. O. (i887) c. 100. s. 8— Ten- ant at will — Locus standi of third parties."] — A mortgage of lands for $20,000 payable with interest at 7% per annum as follows . $500 on 1st December, 1883; $500 on 1st June and 1st December in each of the four following years ; and $15,500 on 1st June, 1888 ; contained the provision : " And the mortgagees lease to the mortgagor the said lands from the date hereof until the date herein provided for the last payment of any of the moneys hereby secured, undisturbed by the mortgagees or their assigns, he, the mortgagor, paying therefor in every year during the said term, on each and every of the days in the above proviso for redemption appointed for payment of the moneys hereby secured, such rent or sum as equals in amount the amount payable on such days respectively according to the said proviso, without any deduction. And it is agreed that such payments when so made shall respectively be taken, and be in all respects in satisfaction of the moneys so then payable according to the said proviso." The mortgage did not contain the statutory distress Clause, or provide for possession by mortgagor until default and it was not exe- cuted by the mortgagees. The mortgagor was in possession of part of the premises and his tenants of the remainder, and such possession continued after the mortgage was executed. The goods of the mortgagor having been seized under execution the mortgagee claimed a year's rent under the Statute of Anne. Held, reversing the judgment appealed from (16 Out. App. R. 255), (Ritchie, C. J., and Taschereau, J., dissenting), that the deed failed to create between the mort- gagor and mortgagees the relation of land- lord and tenant, so as to give the mortgagees the right to distrain for arrears of rent, un- der the provisions of 8 Anne, c. 14, as against an execution creditor of the mortgagor; be- cause, even if the deed could operate as a i lease although not signed by the mortgagees, 751 LANDLOED AND TENANT. 752 the rent reserved was so unreasonable and ex- cessive as to shew conclusively that the parties could not have intended to create a tenancy and that the arrangement was unreal and fic- titious. — The right to impugn the validity of a lease between a mortgagor and mortgagees on the ground that it is merely fictitious and colourable is not to be confined to any par- ticular class such as assignees in bankruptcy, but may be exercised wherever the interests of third parties may be involved. — Per Strong, J. The execution of the deed by the mort- gagoi; estopped him from disputing the ten- ancy, and the mortgagees were also estopped by their acceptance of the mortgagor as their tenant, evidenced by their accepting the deed, advancing their money upon the faith of it and permitting the mortgagor to remain in possession. — The mortgage deed, although exe- cuted by the mortgagor only, operated in any event to create a tenancy at will, at the same rental as that expressly reserved by the de- mise clause. Section 3 of 8 and 9 Vict. c. 106 (K. S. O. 1887, c. 100, s. 8), has not the effect of repealing the words of the Statute of Frauds which make the lease required by that statute to be in writing signed by the lessor so far effectual as to create a tenancy at will. — Per Gwynne and Patterson, JJ. The mortgage deed not having been signed by the mortgagees failed to create even a tenancy at will. — Per Gwynne, J. The form adopted for the demise clause is such that by the mort- gagees executing the deed it would operate as a lease, and by their not executing it the clause would be simply inoperative. — Per Ritchie, C..I., and Taschereau, J. The execution of the mortgage by the mortgagor and his continuing in possession under it amounted to an at- tornment and the relation of landlord and tenant was created. The deed was intended to operate as an immediate lease with intent to five the mortgagees an additional remedy by distress and was a iona ^de contract for se- curing the payment of principal and interest, and in the absence of any bankruptcy or in- solvency laws there was nothing to prevent the parties from making such a contract. Sohis V. Ontario Loan d Debenture Co., xviii., 483. 2. Notice to quit — Lease for eleven months — Monthly or yearly tenancy — Overholding.'i — R. & Co. made the following offer in writ- ing to the owner of the premises mentioned therein : — " We are prepared to rent that store where the ' Herald ' oflBce used to be and will give $400 a year for the whole of the ground floor as well as the cellar. We will rent for 11 months from the 1st August next at the rate of ?400 per year." . . . This offer having been accepted R. & Co. occupied the premises for a year and seven months, no new agreement being made after the 11 months expired, paying their rent monthly during said period. They then gave a month's npticu and quitted the premises. The landlord claim- ing that the tenancy ' was from year to year brought an action for rent for the two months after the tenancy ceased according to the no- tice. Held, affirming the judgment appealed from, that the tenancy was one from month to month after the original term ended and the month's notice to quit was sufficient. Eastman v. Richard & Co., xxix., 438. 3. Lease — Covenant — Forfeiture — Com- pany ■ — Shareholder — Personal Ualility — Waiver.] — A lease to a joint stock company provided that in case the lessee should assign for the benefit of creditors six months' rent should immediately bec'ome due and the lease should be forfeited and void. The two lessors were principal shareholders in the company and while the lease was in force one of them at a meeting of the directors, moved, and the other seconded, that a by-law be passed auth- orizing the company to make an assignment which was afterwards done, the lessors execut- ing the assignment as creditors assenting thereto. Held, reversing the judgment of the Court of Appeal (1 Out. L. R. 172) that the lessors and the company were distinct legal persons and the individual interests of the former were not affected by the above action. Salomon v. Salomon & Co. ([1897] A. C. 22) followed. — ^The assignee of the company held possession of the leased premises for three months and the lessors accepted rent from him for that time and from sub-lessees for the month following. Held, also reversing the judgment appealed from, that as the lessors had claimed the six months' accelerated rent under the forfeiture clause in the lease and testified at the trial that they had elected to forfeit ; as the assignee had a statutory right to remain in possession for the three months and collect the rents ; as the evidence shewed that the receipt by the lessors of the three months' rent was in pursuance of a Com- promise with the assignee in respect to the adceleration ; and as the month's rent from the sub-tenants was only for compensation by the latter for being permitted to use and oc- cupy the premises and for their accommoda- tion ; the lessors could not be said to have waived their right to claim a forfeiture of the lease. — Mortgagees of the premises having notified the sub-tenants to pay rent to them the assignee paid them a sum in satisfaction of their claim with the assent of the lessors against whose demand it was charged. Held, that this also was no waiver of the lessors right to claim a forfeiture. — Quwre, Was a covenant by the Company to supply steam and power to its sub-tenants anything more than a personal covenant by the company, or would it, on suriender of the original lease, have bound the lessor and a purchaser from him of the fee? Soper v. Littlejohn, xxxi., 572. 4. Attornment in mortgage — Tenancy at will — Distress for arrears of interest — Land- lord's, privilege. See MOBTQAQE, 56. 2. Deteemhstation of Tenancy. 5. Condition of lease — Payments out of rental — Destruction hy force majeure — Determination of contract — Rendering an- count— Art. 19, G. G. P.]— When a lease has been determined by force majeure, an obliga- tion previously undertaken by the lessor to make payments out of moneys received as rent for the premises destroyed ceases and will not effect a subsequent lease to another tenant.—^- Tlie fact of plaintiffs having styled themselves the "duly named trustees to S.'s creditors, did not give him the right to bring a personal action for S.'s creditors, the action, ii any, belonging to the individual creditors ot »• under art. 19 O. C. P. Brown v. Pvnsorir neault, iii., 102. [Note. — This decision was ovewuled in Porteous v. Reynar (13 App. Cas. 120). J 753 LANDLOED AND TENANT. 754 6. Lease for eleven months — Notice to quit — Monthly tenancy. See No. 2, ante. 7. Covenant — Forfeiture — Company — Personal liability of shareholder. See No. 3, ante. 3. Distress. 8. Distress for rent — Agreement with house-furnisher — Waiver of privilege.'^ — W. let an unfurnished house to M., and signed the following agreement, which was delivered to P. by M. : — " The bearer, M., being about to purchase some furniture from Wm. F. & Son, and my rent being guaranteed, I hereby agree not to take the furniture so to be fur- nished by F. for any rent that may become due." F. then delivered the furniture to M., to be paid for 'by monthly payments, and " to remain the property of P. till paid for in full." W. levied upon the furniture, P. re- plevied and obtained a verdict, which the Supreme Court of Nova Scotia refused to set aside. On appeal. Held, affirming the judg- ment appealed from (2 R. & C. 337), that the agreement signed by W. constituted a binding contract with F. not to distrain. Wallace v. Fraser, li., 522. _ 9. B. S. O. (.1887) c. US, s. 28— Construc- tion of statute — Distress — Ooods of person holding " under " tenant.'^ — ■ The Ontario Landlord and Tenant Art (R. S. O. [188?] c. 343, s. 28), exempts from distress for rent, the property of all persons except the tenant or person liable. The word tenant includes a sub-tenant, assignees of the tenant and any person in actual occupation under or with con- sent of, the tenant. Held, reversing the judg- ment appealed from (23 Ont. App. R. 517), that persons let into possession by a house agent appointed by assignees of a tenant for the sole purpose of exhibiting the premises to prospective lessees, and without authority to let or grant possession of them, were not in occupation " under " the said assignees, and their goods were not liable to distress. — Farwell v. Jameson, xxvi., 588. 10. Attornment in mortgage — Tenancy at will — Distress for arrears of interest — Land- lord's privilege. See MoETGAGE, 56. 11. Creation of tenancy by mortgage — At- tornment — Demise to mortgagor — Distress — Rent reserved — Statute of Anne — Sta- tute of Frauds — Tenancy at will — Locus standi of third parties. See No. 1, ante. 4. Eviction. 12. Eviction — Entry iy lessor to repair — Intent to deprive tenant of benefit ■ — Sus- pension of rent — Construction of lease.] — A lease of business premises provided that the lessor could enter upon the premises for the purpose of making repairs and alterations at any time within two months after the 1st May, beginning of the term, but not later, except with the consent of the lessee. An ac- tion for rent under the lease was resisted on the ground that the lessor had been in posses- sion of part of the premises after the specified time without the necessary consent whereby the tenant had been deprived of the benefi- cial use of the property and had been evicted therefrom. The jury found that no consent had been given by the lessee for such occupa- tion and that the lessee had no beneficial use of the premises while it lasted. Held, revers- ing the judgment appealed from (25 N. B. Rep. 440; 28 N. B. Rep. 300), RitchTe, C.J., and Strong, J., dissenting, 1. that the evidence did not justify the finding of no assent ; that an express consent was not required, but it could be inferred from the acts and conduct of the lessee. — 2. The two months' limitation in the lease had reference to the entry by the lessor to commence the repairs and not to his subsequent occ'upation of the premises, and the lessor having entered upon the premises within the prescribed period, he had reason- able time to complete the work and his sub- sequent occupation was not wrongful. — Per Taschereau and Gwynne, JJ., that assuming assent was necessary the evidence clearly shewed that the lessor was on the premises after the 1st of July with the assent of the lessee; he had a right, therefore, to remain until such assent was revoked, which was never done. — Per Patterson, J., that interfer- ence by a landlord with his tenant's enjoy- ment of demised premises, even to the extent of depriving the tenant of the use of a portion, does not necessarily work an eviction ; a ten- ant may be deprived of the benefldal occupa- tion of the premises for part of his term, by an act of the landlord which is wrongful as against him, but unless the act was done with the intention of producing that result it would not work an eviction. — Per Ritchie, C.J., and Strong, J., dissenting, that the jury having negatived consent by the lessee, and the evi- dence shewing that the acts of the landlord were of such a grave and permanent character as to indicate an intention to deprive the ten- ant of the beneficial enjoyment of a substantial part of the premises, they amounted to an eviction of the tenant which operated as a sus- pension of the rent. Ferguson v. Troop, xvii., 527. 5. MOETGAGED PREMISES. 13. Attornment in mortgage — Tenancy at will — Distress for arrears of interest — Landlord's privilege. See Mortgage, 56. 14. Creation of tenancy by mortgage — At- tornment — Demise to mortgagor — Distress — Bent reserved — Statute of time — Statute of Frauds — Tenancy at will — Locus standi of third parties. See No. 1, ante. 6. Negligence. 15. Destruction of leased premises — Red- dendum — Covenant "by lessee — Accident by fire — Arts. 1053, 1627. 1629, C. 0.]— Lessees covenanted to return the leased premises at the expiration of their lease " in as good order, state, &c., as the same were at the commence- ment thereof, reasonable wear and tear and accidents by fire excepted." Subsequently the lessor alleging a fire had been caused by the negligence of the lessees brought action 755 LANDLORD AND TENANT. 756 against them for the cost of reconstructing the premises and restoring them in good order and condition less insurance. Held, affirming the judgment appealed from (31 L. C. Jur. 307; M. L. R. 3 Q. B. 325), Ritchie, C.J. and Taschereau, J., dissenting, that the lessees were not responsible for the loss, as the fire was an accident within the terms of the ex- ception contained in the lease, and therefore arts. 1053, 1627, 1629, C. C. were not ap- plicable. Evans v. Skelton, xvi., 637. 16. Dangerous material — Negligence — Fire —Arts. 105Jt, 16tt, 1629 G. 0.]— Defendant was, on 7th April, 1873, in occupation of a varnish fartory which he had leased from the plaintiff, when a fire originating in the fac- tory consumed it as well as adjoining premises belonging to plaintiff, who brought action for damages occasioned by the fire, alleged to have taken place through negligence of defendant and his employees. — The Superior Court found that no fault could attach to defendant or his employees, and dismissed action. — The Queen's Bench (Ramsay and Tessier, J J., dissenting) reversed this finding and awarded plaintiff damages and costs, holding the defendant liable under art. 1054. Held, affirming the judgment appealed from, Henry, J., dissenting, 1.' as to the part of the building leased to defendant, there was no doubt as to his responsibility, as he had failed to account for the fire ac- cording to arts. 1627, 1629 C, C— 2. As to the buildings of plaintiff in his own occupa- tion the defendant might be considered as a trespasser, on account of ^ross negligence in the use of dangerous materials and neglect of the most simple precautions to guard against the accident. Jamieson v. Steel, Cass. Dig. (2 ed.) 465. 17. Loss hy fire — Cause of fire — Negli- gence — Civil responsibility — Legal pre- sumption ■ — Rebuttal of — Onus of proof — Hazardous occupation — Arts. 105S, 1064, 1071, 1626, 1627, 1629 C. C.]— To rebut the presumption created by art. 1629 C. C, it is not necessary for the lessee to prove the exact or probable origin of the fire, or that it was due to unavoidable accident or irresistible force. It is sufficient for him to prove that he has used the premises leased as a prudent admin- istrator (en bon pire de famille) , and that the fire occurred without any fault that could be attributed to him, or to persons for whose acts he should be held responsible. — Judgment appealed from (Q. R. 5 Q. B. 88) affirmed. Strong, C.J. dissenting. Murphy y. Labbi, xxvii., 126. 18. Loss by fire — Negligence — Legal pre- sumption — Rebuttal of — Orms of proof — Con- struction of agreement — Covenant to return premises in good order — Art. 1629 C. C] — A steam sawmill was totally destroyed by fire, during the term of the lease, whilst in the possession, and being occupied by the lessee. The lease contained a covenant by the lessees " to return the mill to the lessor at the close of the season in as good order as could be ex- pected considering wear and tear of the inill and machinery." The lessees, in defence to the lessor's action for damages, adduced evi- dence to shew that necessary and usual pre- cautions had been taken for the safety of the premises, a night-watchman kept there making regular rounds, that buckets filled with water were kept ready, and force-pumps provided for use in the event of fire, and tney submitted that, as the origin of the fire was mysterious and unknown, it should be assumed to have occurred through natural and fortuitous causes for which they were not responsible. It appeared, however,, that the night-watch- man had been absent from the part of the mill where the fire was first discovered for a much longer time than was necessary or usual for the making of his rounds, tliat during his absence the furnaces were left burning with- out superintendence, that sawdust had been allowed to accumulate for some time in a heated spot close to the furnace where the fire was actually discovered, that on discover- ing the fire the watchman failed to make use of the water buckets to quench the incipient flames, but lost time in an attempt to raise additional steam pressure to start the force- pumps before giving the alarm. Held, affirm- ing the judgment appealed from (Q. R. 7 Q. B. 9), that the lessee had not shewn any law- ful justification for their failure to return the mill according to the terms of the covenant ; that the presumption established by art. 1629 C. C. against the lessees had not been rebut- ted, and that the evidence shewed culpable negligence on the part of the lessees, which rendered them civilly responsible for the loss by fire of the leased premises. Murphy v. Labbe (27 Can. S. C. R. 126), approved and followed. Klock v. Lindsay; Lindsay v. Klock, xxviii., 453. 19. Lease of wharf to agent for use of prin- cipals — Possession by principals — Control of premises. See Negligence, 15. 20. Contract — Monthly or yearly tenancy — Lease for eleven months — Notice to quit. See No. 2, ante. 7. OVEBHOLDING TENANTS. 21. Possession fraudulently obtained — Ejectment — Landlord's title — Estoppel — Evi- dence.^ — Where a third party, by misrepre- senting title obtained possession of leased pre- mises fraudulently from the tenant, it was Held, that he was estopped from disputing the title of the landlord. (See 29 Gr. 338). White V. Nelles, xi., 587. 22. Overholding — Verbal lease — Expiration — Notice to quit — Sub-tenancy — Possession by sub-tenant after expiry of original lease— - Subsequent distress.] — M. verbally leased premises to a tenant who sub-let a portion. After the original tenancy expired, on 15th November, 1887, the sub-tenant remained in possession and in March, 1888, received notice to quit from M. " In June, 1888, M. issued a distress warrant for rent due by the original tenant, and the sub-tenant paid the amount claimed as rent due, but not from herself to such original tenant. More than six months after the notice to quit was given proceedmgs were taken by M. to recover" possession of the premises from the sub-tenant. Held, affirm- ing the judgment appealed from (17 Out. App. R. 27) , Fournier, J., dissenting, that the no- tice to quit given to the sub-tenant, and the distress during the latter's possession on suf- france, did not work estoppel against the land- lord as the tenancy had always been repudi- ated. Oilmour v. Magee, xviii., 579. 23. Overholding tenant — Recovery of leased premises — Art. 1624 0. C. — Claim for use and occupation— Arts. 887, 888 G. G. P.—Jwa- 757 LAECENY. 758 diction — B. S. C. art. 5977.] — An action by the lessor under arts. 887, 888 C. C. P. to re- cover possession of leased premises from an overholding tenant where a demand of $4G is joined for their use and occupation since the expiration of the lease must be brought in the Circuit Court, the amount claimed being un- der $100. Judgment appealed from (M. L. R. 6 Q. B. 273) affirmed, Fournier, J., dis- senting. Blackford v. McBain, xx., 269. , See Appeal, 34. 24. Contract — Lease for eleven months — Overholding tenant — 'Notice to quit. See No. 2, ante. 8. Renewal op Lease. 25. Lease — Surrender — Covenant for re- newal — Option of lessor — Second term — Pos- session ij/ lessee after expiration of term — Specific performance — Statute_ of Frauds.] — A lease for a term of years provided that when the term expired any buildings or im- provements erected by the lessees should be valued and it should be optional with the less- ors either to pay for the same or to continue the lease for a further term of like duration. After the term expired the lessees remained in possession for some years when a new inden- ture was executed which recited the provisions of the original lease and, after a declaration tliat the lessors had agreed to continue and extend the same for a further term of 14 years from the end of the term granted there- by at the same rent and under the like cove- nants, conditions and agreements as were ex- pressed and contained in the said recited in- denture of lease, and that the lessees had agreed to accept the same, it proceeded to grant the further term. This last mentioned inden- ture contained no independent covenant for renewal. After the second term expired the lessees continued in possession and paid rent for 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 perform- ance of the agreement implied in the original lease for renewal of the second term at their option. Held, affirming the judgment appeal- ed from (28 N. B. Kep. 1), Ritchie, C.J., and Taschereau, J., dissenting, that the lessors were not entitled to a decree for specific per- formance. — Per Gwynne, J., that the provision in the second indenture granting a renewal under the like covenants, conditions and agree- ments as were Contained in the original lease, did not operate to incorporate in said inden-' ture the clause for renewal in said lease which should have been expressed in an independent covensint. — Assuming that the renewal clause was incorporated in the second indenture the lessees Could not be compelled to accept a re- newal 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. — The re- newal clause was inoperative under the Sta- tute of Frauds which causes leases for three years and upwards, not in writing, to have the effect of estates at will only, and consequently there could be no second term of 14 years ex- cept by a second lease executed and signed by the lessors. — Per Gwynne and Patterson, JJ. The option of the lessors could only be exer- cised in case there were no buildings to be valued erected during the term granted by the instrument containing such clause ; and if the second indenture was subject to renewal the clause had no effect as there were no buildings erected during the second term. — Per Ritchie, C.J., and Taschereau, J. The occupation by the lessees after the terms expired must be held to have been under the lease and to signify an intention on the part of the lessees to accept a renewal for a further term as the lease provided. Sears v. City of St. John, xviii., 702. 2t). Construction of - deed — Laying out boundaries — Riparian rights — Possession — Prescription.] — Where a railway built fences above tne water line of a non-navigable stream, which was stated as the boundary of lands conveyed to the company, the possession of the strip of land left unenclosed and of the stream ad medium filum by the vendor and his assigns, after the conveyance to the company, is not a possession animo domini as required for the acquisitive prescription of ten years under art. 2251 C. C, but merely an occupation as ten- ant by sufErance upon which no such prescrip- tion Could be based. Massawippi Valley By. Co. V. Reed, xxxiii., 457. 27. Attornment in mortgage — Tenancy at will — Distress for arrears of interest — Land- lord's privilege. See Mortgage, 56. 9. Tenants at Will or by Suefbance. 28. Bight of action — Prescription — Use and occupation of land — Booming and storing logs —Claim for rent—Arts. 1608, 2188, 2250 G. C] — The mode of proceeding given by C. S. L. C. C. 51, did not exclude the right to pro- ceed by ordinary action. — Persons who make use of riparian lands by suffrance of the owner for the purpose of booming and storing logs floated in a public stream are, under art. 1608 C. C., considered as lessees and subject to all the rules concerning leases and the an- nual value of their occupation should be con- sidered the rent reserved, none having been fixed by the parties. The claim therefor is subject to the prescription of five years under art. 2250 C. C., and this prescription in virtue of art. 2188 C. C, is one which the tribunals are bound to give effect to although not plead- ed, and only set up for the first time on appeal. The judgment appealed from (7 Q. L. R. 286; 15 R. L. 514) was varied. Breahey v. Carter, Cass. Dig. (2 ed.) 463. 29. Creation of tenancy hy mortgage — At- tornment — Demise to mortgagor — Distress — Bent reserved — Statute of Anne — Statute^ of Frauds — Tenancy at wUl — Locus standi of third parties. See No. 1, ante. 30. Acquisitive prescription — Notice of prior title. See Railwats, 152. And see Lease. tion — LARCENY. See Criminal Law. 759 LEASE. 760 I.EASE. 1. Accidents by Fiee, 1-4. 2. Assignments, 5-8. 3. Chattel Lease, 9. 4. Contract; Covenants, 10-16. 5. Ceown Lands, 17, 18. 6. Deteemination, 19-22. 7. DiSTUEBANCE, 23-27. 8. Emphyteusis, 28, 29. 9. Lease foe Lives, 30. 10. Renewal of Lease, 31. 11. Sale of Leased Peopeety, 32-34. 12. Stjb-lease, 35. 1. Accidents by Fiee. 1. Covenant liy lessee — Reddendum — De- struction of leased premises — Accident iy fire —Arts. 1053, 1627, 1629 C. C.I—By notarial lease the lessees covenanted to return leased premises at the expiration of their lease " in as good order, state, &c., as the same were at the commencement thereof, reasonable wear and tear and accidents by fire excepted." IJessor alleging destruction of the leased pre- mises by fire which had been caused by negli- gence of lessees brought action for the cost of re-construction in good order and condition less the insurance. Held, affirming the judgment appealed from (31 L. C. Jur. 307; M. L. R. 3 Q. B. 32o), Ritchie, C.J., and Taschereau, J., dissenting, that the lessees were not respon- sible for the loss, as the fire was accidental within the exception in the lease, and there- fore arts. 1053, 1627 and 1629 C. C. were not applicable. Evans v. Skelton, xvi., 637. 2. Dangerous material — Negligence — Fire —Arts. 1054, 1S27, 1629 C. C.]— Defendant was, on 7th April, 1873, in occupation of a varnish factory which he had leased from the plaintiff, when a fire originating in the fac- tory consumed it as well as adjoining premises belonging to plaintiff, who brought action for damages occasioned by the fire, alleged to have talten place through negligence of defendant and his employees. — ^The Superior Court found that no fault could attach to defendant or his employees, and dismissed action. — The Queen's Bench (Kamsay and Tessier, J J., dissenting) reversed this finding and awarded plaintiff damages and costs, holding the defendant liable under art 1054. Held, affirming the judgment appealed from, Henry, J., dissenting, 1. As to the part of the building leased to defendant, there was no doubt as to his responsibility, as he had failed to account for the fire ac- cording to arts. 1627, 1629 C. C— 2. As to the buildings of plaintiff in his own occupa- tion the defendant might be Considered as a trespasser, on account of gross negligence in the use of dangerous materials and neglect of the most simple precautions to guard against the accident. Jamieson v. Steel, Cass. Dig. (2 ed.) 465. 3. X/Oss 6j/ fire — Cause of fire ■ — Neglir gence — ■ GivU responsibility — Legal pre- sumption — Rebuttal of — Onus of proof — Hazardous occupation — Arts 1053, 106i. ion, 1626, 1627, 1629 C. 0.]— To rebut the presumption created by art. 1629 C. C, It is not necessary for the lessee to prove the exact or probable origin of the fire, or that it was due to unavoidable accident or irresistible force. It is sufficient for him to prove that he has used the premises leased as a prudent administrator (en bon pire de famille), and that the fire occurred without any fault that could be attributed to him, or to persons for whose acts he should be held responsible. Judgment appealed from (Q. R. 5 Q. B. %8) affirmed, Strong, C. J., dissenting. Murvhu V. Labbi, xxvii., 126. " 4. Loss by fire — Negligence — Legal pre- sumption — Rebuttal of — Onus of proof — Cotir struction of agreement — Covenant to return premises in good order — Art 1629 C. C] — A steam sawmill was totally destroyed by fire, during the term of the lease, whilst in the possession, and being occupied by the lessee. The lease contained a covenant by the lessees " to return the mill to the lessor at the close of the season in as good order as could be ex- pected considering wear and tear of the mill and machinery." The lessees, in defence to the lessor's action for damages, adduced evi- dence to shew that necessary and usual pre- cautions had been taken for the safety of the premises, a night-watchman kept there making regular rounds, that buckets filled with water were kept ready, and force-pumps provided for use in the event of fire, and they submitted that, as the origin of the fire was mysterious and unknown, it should be assumed to have occurred through natural and fortuitous causes for which they were not responsible. It appeared, however, that the night-watch- man had been absent from the part of the mill where the fire was first discovered for a much longer time than was necessary or usual for the making of his rounds, that during his absence the furnaces were left burning with- out superintendence, that sawdust had been allowed to accumulate for some time in a heated spot close to the furnace where the tire was actually discovered, that on discover- ing the fire the watchman failed to make use of the water buckets to quench the incipient flames, but lost time in an attempt to raise additional Steam pressure to start the force- pumps before giving the alarm. ifeJd, affirm- ing the judgment appealed from (Q. E. 7 Q. B. 9; , that the lessees had not shewn any law- ful' justification for their failure to return the mill according to the terms of the covenant; that the presumption established by art. 1629 C. C. against the lessees had not been rebut- ted, and that the evidence shewed culpable negligence on the part of the lessees, which rendered them civilly responsible for the loss by fire of the leased premises. M-u/rphy v. 1,066^ (27 Can. S. O. R. 126), approved and followed. Klock v. Lindsay; Lindsay v. Klooh, xxviii., ^^3. 2. Assignments. 5. Mortgage — Leasehold premises — Terms of mortgage — Assignment or sUb-lease.] — A lease of real estate for 21 years with a cove- nant for a like term or terms was mortgaged by the lessee. The mortgage after reciting the terms of the lease, proceeded to convey to the mortgagee the indenture and the benefit of all covenants and agreements therein, the leased property by description and "all ana singular the engines and boilers which now are or shall at any time hereafter be brought and placed upon or affixed to the said pre- 761 LEASE. 763 raises, all of which said engines and boilers are hereby declared to be and form part of the. said leasehold premises hereby granted and mortgaged or intended so to be, and form part of the term hereby granted and mortgaged;" the habendum of the mortgage was, " To have and to hold unto the said mortgagees, their successors and assigns, for the residue yet to Come and unexpired of the term of years cre- ated by the said lease less one day thereof, and all renewals, &c." Held, reversing the judgment appealed from (23 Ont. App. R. 602), that the premises of the said mortgage above referred to contained an express assign- ment of the whole term, and the habendum, if intended to reserve a portion to the mort- gagor, was repugnant to the said premises, and therefore void ; that the words " leasehold premises " were quite sufficient to carry the whole term, the word " premises " not mean- ing lands or property but referring to the re- cital which described the lease as one for a term of 21 years. Held, further, that the habendum did not reserve a reversion to the mortgagor ; that the reversion of a day gen- erally without stating it to be the last day of the term is insufficient to give the instrument the character of a sub-lease. Jameson v. Lon- don and Canadian Loan and Agency Go., xxvii., 435. 6. Assignment of lease — Mortgage — Dis- charge — Abandonment of security.'] — ■ The mortgagee of a lease may relieve himself from liability to the lessor on the assignment by way of a mortgage with the latter's consent, by releasing his debt and re-Conveying the security. (26 Ont. App. R. 116 affirmed) Jamieson, v. London and Canadian Loan and Agency Co., xxx., 14. 7. Assignment by lessee — Covenant in lease — Forfeiture — Company — Shareholder — Per- sonal liability.'] — ^A lease to a joint stock com- pany provided that in case the lessee should assign for the benefit of creditors six months' rent should immediately became due and the lease should be forfeited and void. The two lessors were principal shareholders in the company and while the lease was in force one of them, at a meeting of the directors moved, and the other seconded, that a by-law be passed authorizing the company to make an assignment which was afterwards done,_ the « lessors executing the assignment as creditors assenting thereto. Held, reversing the judg- ment of the Court of Appeal (1 Ont. L. R. 172), that the lessors and the company were distinct legal persons and the individual in- terests of the former were not affected by the above action. Salomon v. Salomon & Co. ([1897] A. C. 22) followed. Quaire, Was a covenant by the company to supply steam and power to its sub-tenants anything more than a personal covenant by the company or would it, on surrender of the original lease have bound the lessor and a purchaser from him for the fee? Soper v. Littlejohn, xxxi., 572. See Landlord and Tenant, 3. 8. transfer of lease — Emphyteusis — Alien- ation for rent — Bail d longues annies — Droit mobilier — Cumulative demand — Incompatible pleadings — Reintegrande — Dinonciation de nouvel (Euvre. See Action, 120. 3. Chattel Lease. 9. Lease of chattels — Property, real and personal — Immoveables by destination — Move- ables incorporated with freehold — Severance from realty — Contract — Resolutory condition — Conditional sale ■ — Hypothecary creditor — Unpaid vendor— Arts. S19, 2017, 2083, 20S5, ms9 C. C. See CONTBACT, 66. 4. Contract ; Covenants. 10. Hire of tug — Conditions — Repairs — Negligence — Compensation.] — The company chartered the tug " Beaver " from K., by writ- ten contract, dated at Quebec, 22nd May, 1895, in the words foUowiag : " Tt is agreed between the undersigned that Mr. Kaine charters the tug Beaver for not less than one month from date, at forty-five dollars per day of twenty-four hours. If kept longer than a month the rate of forty dollars per day. Mr. Kaine to furnish tug, crew, provisions, oil, &c., and everything necessary, except coal and pilots above Montreal. The tug to leave here to-morrow morning's tide, the tug to be dis- charged in Quebec." — The company took pos- session of the tug; put her in charge of their pilot (who assumed the control, employment and navigation of the vessel), and used the tug for their purposes until 8th July, 1895, when, while still in their possession, the pilot took her, in the daytime, into waters at the foot of the Cornwall rapids, in the River St. Lawrence, where she struck against some sub- merged hard substance and sunk. She was rai.sed a few days afterwards, towed to port and placed in dock for repairs at Montreal. The orders were to make the necessary re- pairs to put the vessel in the same condition as she was immediately before the accident, and on 30th July, K. was notified that the repaij:s were completed, that the tug would be put out of dock the following day. and he was requested to receive the tug at Montreal. K. answered that the discharge was to be made at Quebec, that she was not in as good condition as when leased, and requested the company to join in a survey, which, however, they declined to do. The survey was made by a naval architect, who reported that, in ad- dition to the repairs already made, it would cost $2,494.90 to restore the vessel to the same condition as when leased to the company. On 1st August, K. took possession of the tug, un- der protest, and brought the action for the amount of this estimate, in addition to the rent accrued with fees for survey and protest. The company admitted the rent due, and ten- dered that portion of the claim into court. The Superior Court rendered judgment for the amount of the tender, dismissing the ac- tion as to the remainder of the claim, on the ground that K. had been sufficiently compen- sated by the repairs which had been made by the charterers. The Courts of Review and Queen's Bench increased the verdict to the full sum claimed, $4,909.90, by adding the amount of the surveyor's estimate and the fees. — On appeal, Held, that the contract between the parties was a contract of lease; that the taking of the vessel, in the daytime, into the waters where she struck was primA facie evi- dence of negligence on the part of the com- pany, and that as the company did not adduce evidence sufficient to rebut the presumption 763 LEASE. 764 of fault existing against them, they were re- sponsible, under the Civil Code of Lower Can- ada, for the damages caused to the vessel dur- ing the time it was controlled and used by them. Held, further, that the proper estimate of damages under the circumstances, is the cost of the repairs which should be assumed to be the measure of the depreciation in value occasioned by the accident, and that no sub- stantial error arose from regarding the condi- tion and value of the vessel at the commence- ment of the lease as that in which she ought to have been discharged. — Girouard, J., dis- sented, and was of opinion that the Superior Court judgment should be restored. Collins Bay Rafting Go. v. Kaine, sxix., 247. 11. Mining rights — License to worh mines — Construction of deed — 8 Anne c. H, s. 1 — Lien. See Mines and Minebals, 3. 12. Attornment hy mortgagor — Demise iy mortgagee — Colourahle process — Statute of Anne — Distress for rent — Statute of Frauds — Locus standi of third parties. See Landlord and Tenant, 1. 13. Lease for lives — Renewal — Insertion of new life — Evidence — Counterpart of lease — Custody — Duration of life — Presumption. See No. 31, infra. 14. Lease for 11 months — Monthly or yearly tenancy — Overholding. See Landloed and Tenant, 2. 15. Transfer of lease — Alienation for rent ■ — Emphyteusis Bail a rente — Bail a longues annees — Droit mohilie) — Cumulative demand • — Incompatible pleadings — Riintegrande — Denonciation de nouvel wuvre — Arts. 567, 572, 1593 C. C.—Arts. 176, 177 (6), 1064, 1066 C. P. Q. See Action, 120. 16. Assignment by insolvent lessee — Forfei- ture — Shareholder in company — Personal lia- bility. See No. 7, ante. 5. Crown Lands. 17. Dominion license to cul timber — Dis- puted territory — Implied covenant — Warranty of title — Quiet enjoyment. See Crown, 92. 18. Staking mineral claims — Placer mining — Hydraulic concessions — Annulment of prior lease — Volunteer plaintiff — Right of action — Status of adverse claimants — Trespass. See Mines and Minerals, 14. And see Crown, Nos. 77-108. 6. Determination. 19. Mines and minerals — Lease of mining areas — Rental agreement — Payment of rent- Forfeiture — R. S. N. S. (5 ser.) c. 7 — 52 Vict. c. 2.i (^..^.l]— By R. S. N. S. (5 ser.) c. 7, the lessee of raining areas in Nova Scotia was obliged to perform a certain amount of work thereon each year on pain of forfeiture of his lease, which, however, could only be effected through certain formalities. By an amendment in 1889 (52 Vict. c'. 23), the lessee is permitted to pay in advance an annual rental in lieu of work, and by s.-s. (c), the owner of any leased area may, by duplicate agreement in writing with the Commissioner of Mines, avail himself of the provisions of such annual payment, and " such advance payment shall be construed to commence from the nearest recurring aniiiversary of the date of the lease." By s. 7 all leases are to con- tain the provisions of the Act respecting pay- ment of rental, and its refund in certain cases, and by s. 8 said s. 7 was to come into force in two months after the passing of the Act. Before the Act of 1889 was passed a lease was issued to E. dated 10th June, 1889, for twenty-one years from 21st May, 1889. On 1st June, 1891, a rental agreement under the amending Act was executed, under which E. paid the rent for his mining areas for three years, the last payment being in May, 1893. On 22nd May, 1894, the commissioner declar- ed the lease forfeited for non-payment of rent for the following year, and issued a prospect- ing license to T. for the same areas. E. ten- dered the year's rent on 9th June, 1894, and an action was afterwards taken by the Attor- ney-General, on relation of E. to set aside said license as having been illegally and im- providently granted. Held, affirming the judgment appealed from, that the phrase " nearest recurring anniversary of the date of the lease" in s.-s. (c) of s. 1, Act of 1889, is equivalent to " next or next ensuing anniver- sary," and the lease being dated on 10th June, no rent for 1894 was due on 22nd May of that year, at which date the lease was de- clared forfeited, and E.'s tender on 9th June was in time. Attorney-General v. Sheraton (28 N. S. Rep. 492) approved and followed. Held, further, that though the amending Act provided for forfeiture without prior formali- ties of a lease in case of non-payment of rent, such provision did not apply to leases existing when the Act was passed in cases where the holders executed the agreement to pay rent thereunder in lieu of work. The forfeiture of E.'s lease was, therefore, void for want of formalities prescribed by the original Act, Temple v. Attorney-General 'of 'Sova Scotia, xxvii., 355. 20. Mining rights — Covenants — Payment of rent — Quality and quantity of ore found — Right of lessee to determine lease. See Mines and Minerals, 4. 21. Sub-tenant — Overholding — Notice to quit — Subsequent distress. See Landlord and Tenant, 22. 22. Lease for lives — Renewal — Insertion of new life — Duration of life — Recovery of premises. See No. 31, infra. 7. Disturbance. 28. Operation of telegraph system — Lessor and lessee— Arts. 1612, leiJj, 1618 C. C— Dis- turbance of lessee's use — Reduction of rent — Trespass — Trouble de droit.] — By agreement with the Montreal Telegraph Co., the G. N. W. Telegraph Company undertook for 97 7G5 LEASE. 766 years, from 1st July, 1881, to work, manage | and operate the system ot telegraph lines owned and operated by the Montreal Telegraph ] Co., including telegraph lines erected along i the S. E. Railway and other railways, and to ' pay the Montreal Telegraph Co. quarterly during the arrangement a sum equal to a dividend at 8 per cent, upon the capital of i the Montreal Telegraph Co. (.$2.(J00,000) , with the further yearly sum of $5,000 to meet office expenses. — The G. N. W. Telegraph Company brought action for troubles in their enjoyment of the system of telegraph lines by the C. P. liailway Company which had constrncted and were operating lines of telegraph along the S. E. Railway and other railways in contraven- tion of the agreements may by such railways with the Montreal Telegraph Co. The G. N. W. Telegraph Company claimed a reduction of rent and damages under the articles of the Code of Civil Procedure relating to lessors and lessees, and arts. 1G12 et seq. C. C. — Held, af- firming the judgment appealed from (M. L. R. 6 Q. B. 257), and adopting the reasons for judgment of Wurtele, J., in the Superior Court (M. L. R. 6 S. C. 94), that the alleged interference by the C. P. Railway Company was a mere trespass which did not constitute a trouble de droit and did not authorize an action for a reduction of rent under arts. 1616 and 1618 C. C. Held, also, per Strong, Four- nier, Taschereau and Patterson, JJ., adopt- ing the view of the merits taken by Dorion, C. J.(M. L. R. 6 Q. B. 258), that the G. N. W. Telegraph Company by the agreement having assumed all risk of diminished income in the working of the telegraph lines trans- ferred to them and having entered into the agreement after the C. P. Railway Company had obtained authority from Parliament to establish ■ telegraph lines for the transmission of messages for the public, the action should be dismissed. Great North-Western Tele- graph Co. v. Montreal Telegraph Co., xx., 170. 24. Conditions of lease — Construction of deed — Eviction.'] — Where a written lease of ■lands provides for the payment of indemnity to the lessees in case they should be dispos- sessed by the lessor before the expiration of the term of the lease, the lessees are entitled to claim the indemnity upon being so dispos- sessed although the eviction may be for cause, inasmuch as the lessor could not, under the lease, dispossess the lessee except for breach of the conditions therein mentioned. The Queen v. Poirier, xxx., 36. 25. Pew-holder's rights — Disturbance in possession — Action for tort -~ Measure of See Action, 41. 26. Construction of deed — Entry to repair — Intent to deprive tenant of benefit — Sus- pension of rent. See Landloed and Tenant, 12. 27. Covenant for quiet enjoyment — Sale of premises — Determination of lease — Misrepre- sentation. See No. 33, infra. 8. Emphyteusis. 28. Emphyteusis — Alienation — Petitory action — Damages — Bight of action.] — The plaintiff had leased lands for 999 years and brought a petitory action to recover them from a third party in adverse occupation. A demand was also made for damages alleged to have been caused to certain of the leased lands by the defendant. On question raised as to the plaintiffs' right of action to recover the lands and for the damages, it was Held, affirming the judgment appealed from, that the lease amounted to an emphyteutic lease assigning the domaine utile, reserving, how- ever, the domaine direct, and, consequently, the plaintiffs had the right of bringing the ai'tion ail petitoiic which lies in the party hav- ing the legal estate, although the right of ac- tion for the damages, if any, sustained would belong to the leasees, ilussawippi Valley By. Go. V. Beed, xxxiii., 457. 29. Transfer of lease — Emphyteusis — Alien- ation for rent — Bail a tongues annfes — Droit mobiticr — Cum illative demand — Incompatible piciidiiigs — h'l'iiilcgrande — Dinonciaiion de nouvel wuvre.] — An instrument by which lands were leased for sixteen years at an an- nual rental, subject to renewal for a further term of twelve years, pro\ided for the Con- struction of certain buildings and improve- ments by the lessee upon the leased premises, and hypothecated these contemplated amelior- ations to secure payment of rent and perform- ance of the obligations of the lessee. The leased premises were transferred by the lessee by deed of sale and, on disturbance, an action with both ijetitory and possessory conclusions was brought by the transferee against an al- leged trespasser, who pleaded title and pos- session in himself without taking objection to its cumulative form. Meld, affirming the judgment appealed from, that under the cir- cumstances the action should be treated as petitory only ; that the contract under the instrument described was neither emphyteusis nor a hail a rente (lease in perpetuity), but merely an ordinary contract of lease which did not convey a title to the land nor real rights sufficient to confer upon the transferee the right of instituting a petitory action in his own name. Held, also, that the transfer by the deed of sale of such leased premises would not support the petitory action, as the lessee could not convey proprietary rights which he did not himself possess. Price v. LeBlond, xxx., 539. 9. Lease fok Lives. 30. Lease for lives — Beneival — Inxertion of new life — Evidence — Counterpart of lease — Custody — Duration of life — Presumption. See No. 31, infra. 10. Renewal of Lease. 31. Lease for lives — Bcncwnl — Insertion of new life — Evidence of insertion — Counterpart of lease — Custody of — Duration of life — Pre- sumption.] — In 1805, F. demised premises to C, to hold for the lives of the lessee, his bro- ther and his wife, " and renewable forever." The lessee covenanted that on the fall of any of said lives he would, within twelve months, insert a new life and pay a renewal fine, otherwise the right of renewal of the life fallen should be forfeited, and if any question should arise it would be incumbent on the one 767 LEGAL MAXIMS. 768 interested in the premises to prove the person on whose death the term was made terminable to be alive, or in default such person would be presumed to be dead. In 1884 a purchaser from the assignees of the reversion entered into possession, and in 1890 an action was brought by persons claiming through the lessee to recover possession, and for an account of mesne profits. On the trial a counterpart of the lease, found among the papers of the de- visee of the lessor, was received in evidence, upon which was an indorsement dated in 1852, and signed by such devisee, by which a new life was inserted in place of one of the original lives, and receipt of the renewal fine was acknowledged. Beld, affirming the decision appealed from (26 N. S. Rep. 410), that the words " renewable forever," in the habendum, taken in conjunction with the lessee's cove- nant to pay a fine for inserting a new life in place of any that should fall, conferred a right to renewal in perpetuity notwithstanding there was no covenant by the lessor so to re- new ; that the indorsement was an operative instrument, though found in possession of the owner of the reversion, or at all events it was an admission by their predecessor in title binding on defendants and entitled plaintiffs to a renewal for a new life so inserted, but the right to further renewal was gone, exact compliance with the requirements of the lease in the payment of the fines being essential and the evidence having shewn that the original lessee was dead, and the proper assumption being that his brother, the third life, who was a married man in 1805, was also dead in 1884, even if the lease itself had not provided that death would be presumed in default of proof to the contrary. Held, per Gwynne, J., dis- senting, that the term granted was for the joint lives of the three persons named, and ceased upon the falling of any one life with- out renewal as provided; and the fines not having been paid on the death of the lessee and his brother, there was a forfeiture which entitled defendants to enter. — ^The person in possession pleaded that he was a purchaser for value without notice and entitled to the benefit of the Registry Act, R. S. N. S. (5 ser.) c. 84. Held, that the memorandum in- dorsed on the lease was not a deed within s. 18 of the Act, nor a lease within s. 25 ; that if a speculative purchaser having just siich an estate as his conveyance gave him, the person in possession would not be within the protection of the Act; and that there was sufficient evidence of notice. — Semlle, that s. 25 of the Nova Scotia Act, R. S. N. S. (5 ser.) c. 84 applies only to leases for years. Clinch V. Pernette, xxiv., 385. 11. Sale of Leased Property. 32. Vendor and purchaser — -Sale of leased premises — Termination of lease — Damages — Art. 1663 0. C.]— The Queen's Bench (Q. R. 7 Q. B. 293), reversed the decision of the trial court, and held that the purchaser of real estate to be delivered forthwith could not require the vendor to eject the tenants, the existence of leases being no impediment to immediate delivery of the premises sold, and every sale being subject to existing leases up to the time of the expiration of the cur- rent term, and further, that if the purchaser refused to carry out the agreement for sale on the ground of the existence of such leases, he could not have the sale set aside {rescir U4e), with damages against the vendor — On appeal, the Supreme Court of Canada af- firmed the judgment appealed from for the rea- sons stated in the court below and dismissed the appeal with costs. Alley v. Canada Life Assur. Co., xxviii., 608. 33. Provision for termination — Sale of premises — Parol agreement — Misrepresen- tation — Quiet enjoyment.] — ^A lease of pre- mises used as a factory contained this provi- sion "Provided that the event of the lessor disposing of the factory the lessees will va- cate the premises, if necessary, on six months' notice.' Held, reversing the judgment ap- pealed from, (26 O. B. 78), and that at the trial (29 O. B. 75), that a parol agreement for the sale of the premises, though not en- forceable under the Statute of Frauds, was a " disposition " of the same under said pro- vision entitling the lessor to give the notice to vacate. Held, further, that the lessor hav- ing, in good faith, represented that he had sold the property, with reasonable grounds for be- lieving so, there was no fraudulent misrepre- sentation entitling the lessee to damages even if no sale within the meaning of the provision had actually been made, nor was there any eviction or disturbance constituting a breach of the covenant for quiet enjoyment. Lum- iers V. Oold Medal Furniture l^fg. Co., xxx., 55. 34. Bights of lessee — Mortgage — Fore- closure — Sale of mortgaged premises. See Mortgage, 27. 12. STIB-I.EASE. 35. Mortgage of leased premises — Terms of deed — Assignment or suh-lease. See No. 5, ante. liEGACT. See Will. LEGAL MAXIMS. 1. Res magis valeat quam pereat — Ap- plication — Veria fortius accipiuntur contra proferentem — Patent amUguity.] — The in- tention of the parties to a deed is paramount, and must govern regardless of consequences. — Res magis valeat quam pereat is only a rule to aid in arriving at the intention, and does not authorize the court to override it. — ^Where there is an ambiguity on the face of a deed incapable of being explained by extrinsic evi- dence the maxim verba fortius acdpivntur contra proferentem cannot be applied in fa- vour of either party. Barthel v. Scotten, xxiv., 367. 2. " Locus regit actum " — Lex domicilii — • Lex rei sitm — Holograph will executed abroad — Form of ioill.]—In 1865 J. G. E., a merchant, then and at the time of his death domiciled in the City of Quebec, whilst tem- porarily in the City of New York, made the following will in accordance with the law re- lating to holograph wills in Lower Canada: 769 LBGISLATIOlSr. 770 " I hereby will and bequeath all my property, assets or means of any kind, to my brother Frank, who will use one-half of them for pro- testant charities in Quebec and Carluke, say the Protestant Hospital Home, French-Can- adian Mission, and amongst poor relatives as he may judge best, the other half to himself and for his own use, excepting £2,000, which he will send to Miss Mary Frame, Overton Farm." A. R. and others, heirs-at-law of the testator, brought action to have the will declared in- valid. Held, Tasohereau, J., dissenting, that the will was valid. Held, further Fournier and Taschereau JJ., dissenting, that the rule locus regit actum was not in the Province of Quebec, before the Code, nor since under the Code itself (art. 7), imperative, but permis- sive only. Held, also, Taschereau, J., dis- senting, that the will was valid even if the rale locus regit actum did apply, because it sufficiently appeared from the evidence that by the law of the State of New York the will would be considered good as to moveables wherever situated, having been executed ac- cording to the law of the testator's- domicile, and good as to immoveables in the Province of Quebec, having been executed according to the law of the situation of those immoveables. Boss V. Ross, XXV., 307. 3. " The King can do no wrong." See Ratlwats, 100. 4. " Falsa demonstratio non nocet." See Insurance, Fieie, 77. 5. " Sio utere tuo ut alieno ne losdas." See Negligence, 3. 6. " Partus sequitur ventrem." See Chattel Mortgage, 16. 7. " Volenti non fit injuria " — Reasonatle care — • Breach of duty — Risk voluntarily' incurred — Negligence. See Negligence, 5 and 120. 8. Omnia prwsnmuntur contra spoliatorem — Evidence — Presumptions. See Evidence, 165. 9. De minimis non curat lex. See Canada Temperance Act, 6. 10. Veria fortius accipiuntur contra pro- See Municipal Corporation, 138. 11. Sic utere tuo ut alienum non Iwdas. See Nuisance, 3. 12. Qui jure sue utitur neminem Imdit. See Nuisance, 3. 18. In jure non remota causa sed proxima spectatur. See Carriers, 16. 14. Cujus dare ejus est disponere. See Composition and Discharge. 15. Volenti non fit injuria. See Master and Servant, 12. IG. Le rescindant et le rescissoire sont ac- cumulailes. See Opposition, 11. s. c. D. — 25 17. Usurpateur n'acquiert que pied A pied, See Arbitrations, 18. 18. Veria chartarum fortius accipiuntur contra proferentem. See Insurance, Accident, 4. 19. Nemo plus juris transferre protest quam ipse haiet. See Insurance, Fire, 33. 20. "Sic utere tuo ut alienum non Iwdas," See Irrigation. 21. " Ignorantia juris non excusat." See Title to Land, 36. 22. Volenti non fi,t injuria. See Negligence, 47. 23. " Qui seiitit commodum sentire debet et onus." See Drainage, 7. 24. " Respondeat superior." See Principal and Agent, 32. LEGAL TENSER. Controverted election — Preliminary objec- tions — • Deposit of security B. 8. G. c. 9. s. 9 (A)] — The preliminary objection was that the security and deposit receipt were illegal and void, the receipt being : — " That the se- curity required by law had been given on be- half of the petitioners by a sum of $1,000 in a Dominion note, to wit, a bank note for $1,000 (Dominion of Canada) bearing the number 2914, deposited in our hands by the said petitioners. Constituting a legal tender under the statute of the Dominion of Canada now in force." The deposit was in fact a Do- minion note of $1,000. Held, affirming the judgment appealed from, that the deposit and receipt complied sufficiently with s. 9 {f) of the Dominion Controverted Elections Act. Argenteuil Election Case, Christie v. Mor- rison, XX., 194. LEGISLATION. 1. Revenue — Customs duties — Imported goods — Importation into Canada — Tariff Act — Construction — Retrospective legisla- tion — R. S. C. c. 32 — 57 & 58 Vict. c. S3 (.D.)~58 d 59 Vict. c. 23 (i3.)]— By 57 & 58 Vict. c. 33, s. 4, duties are to be levied upon certain specified goods " when such goods are imported into Canada." Held, reversing the judgment appealed from (5 Ex. C. R. 177), King and Girouard, JJ., dissenting, that the importation as defined by s. 150 of the Cus- toms Act (R. S. C. c. 32) , is not complete until the vessel containing the goods arrives at the port at which they are to be landed. — Section 4 of the Tarife Act, 1895 (58 & 59 Vict. c. 23), provided that "this Act shall be held to have come into force on the 3rd of May in the present year, 1895." It was not as- sented to until July. Held, reversing 5 Ex. C. R. 177, that goods imported into Canada on May 4th, 1895, were subject to duty un- der said Act. The Queen v. Canada Sugar Refining Co., xxvii., 395. [Affirmed by Privy Council (1898) A. C. 735.] 771 LETTIISTG AND HIEING. 773 2. Constitutional law — British North Am- erica Act, ss. 65, 92 — Act respecting the exe- cutive administration of the laws of the pro- vince — Provincial penal legislation.] — The local legislatures have the right and power to impose punishments by fine and imprison- ment as sanctions for laws which they have power to enact. B. N. A. Act, s. 92, s.-s. 15. Attorney-General of Canada v. Attorney- General of Ontario, xxiii., 458. 3. Power to repeal previous Acts — Rights in relation to education — Manitoba Consti- tutional Act — Appeal from Act or decision. See Constitutional Law, 69. 4. Powers — Sale of liquor — Prohibition —53 Vict. c. 56, s. 18 (0.)—5Jt Vict. c. i6 (O.) — Local option. See Constitutional Law, 45. 5. Powers — Prohibitory laws — Sale of liquor — Local option — Canada Temperance Act. See Constitutional Law, 46. 6. Constitutional law — Powers of execu- tive councillors — " Letter of credit " — Rati- fication by Legislature — Obligations binding on the province — Discretion of Government ■as to expenditures — Petition of right — Ne- gotiable instrument — " Bills of Exchange Act, 1S90 "— " The Bank Act," R. S. C. c. 120. See Constitutional Law, 26. 7. Constitutional law — Marital rights — Married woman —- Separate estate — Juris- diction of North-West Territories Legislature — Statute, interpretation of — JfO Vict. c. 7, s. 3, and amendments — R. S. C. c. 50 — N. W. Ter. Ord. No. 16 of 1889. See Constitutional Law, 76. 8. Canadian waters — ■ Property in beds — Public harbours — Erections in navigable waters — Interference with navigation , — Rights of fishing — Power to grant — Rip- arian proprietors — Great lakes and navi- gable rivers — Operation of Magna Charta — Provincial legislation — R. S. O. (1887) c. 24, s. 41—55 Viet. c. 10, ss. 5 to 13, 19 and 21 (0.)—R. S. Q. arts. 1315 to 1378. See Constitutional Law, 5. 9. Peremption d'instance — Retrospective legislation — Arts. 1 & 279 C. P. Q. — Art. m c. c. p. See Limitation of Actions, 13. 10. Government of Yukon Territory — Leg- islative jurisdiction of Governor-in-Council — Special appellate tribunal. See Constitutional Law, 79. LEGISLATUBES, PRIVILEGES OF. See Breach of Privilege. liESSOR AND LESSEE. 1. Crown lands — Arbitration and award -Use and occupation — Action for possession — Condition precedent.] — The appeal was from a decision of the Court of Appeal for Ontario affirming the judgment of the Queen's Bench Division, which had dismissed the ap- pellant's action. The Algoma Trading Com- pany, one of the appellants and plaintiffs leased certain Crown lands to the respondent Shea, the lease containing a covenant by Shea not to remove gravel or sand from the premises. Shea afterwards ascertained that no patent for the land had been issued to the company, and applied to the Crown Lands Department for a patent thereof to himself, and also sold gravel off the premises to the Canadian Pacific Railway Company. The Algoma Trading Company then pressed the claim they had previously made to the depart- ment and the Commissioner of Crown Lands ruled that it should issue to them on payment to Shea for his improvements. Shea refusing to agree to any terms of Compensation the company served him with a notice of arbitra- tion, and an award was eventually made which was not taken up as Shea refused to pay his share of the arbitrators' fees. The Al- goma Trading Company having assigned their patent to the plaintiff Boulton, an action was brought by him and the company against Shea claiming arrears of rent, payment for use and occupation, damages for breach of the covenant not to remove gravel and de- livery of possession. — The Supreme Court, Gwynne, J., dissenting, affirmed the decision of the Court of Appeal that plaintiffs were not in a position to bring the action until Shea had been paid for his improvements. Boulton V. Shea, xxii., 742. 2. Water lots — Filling in — " Buildings and erections " — " Improvements."] — The lessor of a water lot who had made crib-work thereon filled it in with earth to the level of adjoining dry lands, and thereby made the property avail- able for the construction of sheds and ware- houses, claimed compensation for the work so done under a proviso in the lease by the lessor to pay for "buildings and erections" upon the leased premises at the end of the term. Held, affirming the judgment of the Court of Appeal, that the crib-work and earth-filling were not '■ buildings and erections " within the mean- ing of the proviso. Adamson v. Rogers, xxvi., 159. 3. Emphyteutic lease — Domaine direct — Domains utUe — Right of action.] — The les- sor brought action to recover leased lands from a third party in occupa-tion and also for damages. Rcld, that he had a right to the petitory conclusions as holder of the legal estate although he Could not recover the dam- ages the right of action for which accrued only to the lessees as owners of the domaine utile (beneficial estate). Semble, that, if ne- cessary, the lessees might have been allowed to be added as parties, plaintiffs in" the ac- tion, in order to recover any damages which might have been sustained, if there had been any satisfactory proof that damages had been caused through the fault of the defendant. ilassawippi Valley Ey. Co. v. Reed, xxxni., 457. LETTING AND HIRING. Landlord and Tenant — Lease— Lessob AND Lessee. 773 LIBEL. 774 LEX DOMICIIill. Will, form of — Holograph will executed abroad — Quebec Civil Code, art. 7 — Locus regit actum — Lex rei sitw. See Will, 46. LEX FOBL 1. Contract — Lex loci — Lex fori — Fire insurance — Principal and agent ■ — ■ Payment of premium — Interim receipt — Repudiation of acts of sub-agent. See INSUEANCB, PiBB, 1. 2. Customs duties — Lex loci — Interest m duties improperly levied — Mistake of la^o — Repetition — Presumption of good faith — Arts. lOJtl, 10^9 C. C. See Customs Duties, 5. LEX LOCI. 1. Contract — Lex loci — Lex fori — Fire insurance — Principal and agent — Interim receipt — Repudiation of acts of sub-agent. See INSUBANCB, Fire, 1. 2. Customs duties — Lex fori — Interest on duties improperly levied — Mistake of law — Repetition — Presumption of good faith — Arts, mi, 1049 C. C. See Customs Duties, 5. LEX BEI SITAE. 1. Action — Jurisdiction to entertain — Mortgage of foreign lands — Action to set aside — Secret trust.l — A Canadian court cannot entertain an action to set aside a mort- gage on foreign lands on the ground that it was taken in pursuance of a fraudulent scheme to defraud creditors of the original owner through whom the mortgagee claimed title, it not being alleged in the action, and the court not being able to assume, that the law of the foreign country in which the lands were situate corresponded to the statutory law of the province in which the action was brought. Burns v. Davidson (21 O. R. 547) approved and followed. — Judgment appealed from (23 Out. App. R. 9) reversed. Purdom V. Pavey & Co., xxvi., 412. 2. Form of will — Holograph will executed abroad — Art. 7 G. G. locus regit' actum^Lex domiGilil. See Will, 4G. LIBEL. 1. Telegraph message — Liability of com- pany — Special damages — Evidence — Ex- cessive damages — New trial.] — The declara- tion alleged:- 1. That plaintiffs were whole- sale and retail merchants at Halifax. That the company wrongfully, falsely and mali- ciously, by their telegraph lines, transmitted, sent and published from their office at Hali- fax to their oflBoe in St. John, and there caused to be printed. Copied, circulated and published the false and defamatory message following ;—" John Silver & Co., wholesale clothiers, of Grenville street, have failed- lia- bilities heavy." 2. That same message was caused also to be published in other parts of the Dominion. 3. That the company agreed with the proprietor or publisher of the St. John •' Daily Telegraph " newspaper, and en- tered into an arrangement with him, whereby the company was to collect and transmit, by their telegraph lines, news dispatches to said newspaper from time to time; that the pub- lisher should pay for all such messages, and publish them in his newspaper, and that in pursuance of said agreement the company wrongfully, maliciously, and by means of said telegraph, transmitted, sent and published from their office in Halifax to their office in St. John and there falsely and maliciously caused to be written, printed, copied, circu- lated and published the above message, where- by many customers who had heretofore dealt with plaintiffs ceased to do so, and their credit and business standing and reputation were thereby greatly damaged. It was proved that the telegram published in the morning paper was corrected in the evening edition ; tliat the publisher's agreement was with one Snyder, an officer of the company, to furnish him news at so much for every' hundred words, but that he only paid for such as he used. The ori- ginal dispatch was not produced. The only evidence as to damage was of two witnesses, that by reason of the publication they ceased to do business with the plaintiffs as they had pi:eviously been accustomed to do. This evi- dence was objected to, but was received. The dealings of these witnesses with plaintiffs con- sisted in selling their exchange and sometimes discounting their notes. A motion for non- suit was refused, and the jury rendered a verdict for the plaintiffs with $7,000 dam- ages. Held, reversing the judgment appealed from (2 Russ. & Geld. 17), Taschereau and Gwynne, JJ., dissenting. 1. That the com- pany was responsible for the publication of the libel in question. 2. That the damages were excessive, and therefore a new trial ought to be granted. Ritchie, C.J., doubting, and Henry, J., dissenting. — Per Taschereau and Gwynne, JJ., dissenting. Assuming the agreement in question to be one within the scope of the purposes for which the company was incorporated, and that Snyder had suf- ficient authority to enter into it on behalf of the company, the evidence established that the company collected, compiled and transmittea the news for the proprietor of the newspaper, as his confidential agents and at his request, and that they were not responsible for the publication by the proprietor and publisher of said news, for which the damages were award- ed. Held, also, per Strong, Jaschereau and Gwynne, JJ. No special damages having been alleged in the declaration, the evidence as to such damages having been objected to, was inadmissible, and therefore a new trial should be granted. Dominion Telegraph Co. v. Sil- ver, X., 238. 2. Neipspaper publication — Innuendoes — Mis-trial — Misdirection — Excessive dam- ages — New trial.] — Action for libel in the following article published in defendant's paper : — " The McNamee-MitChell Suit. In the sworn evidence of Mr. McNamee, defendant in the suit of McKenna v. MoNamee, lately tried at Ottawa, the following passage occurs : ' Six of them were in partnership in the dry dock contract out in British Columbia, one of whom was the Premier of the province.' The 775 LIBEL. 776 Premier of the province at the time referred to was Hon. Ur. W., now a judge of the Su- preme Court. Mr. W.'s career on the bench has been above reproach. His course has been such as to win for him the admiration of many of his old political enemies. But he owes it to himself to refute this charge. We feel sure that Mr. McX. must be labouring under a mistake. Had the statement been made off the stand it would have been scouted as untrue ; but having been made under the sanctity of an oath it cannot be t/?ated light- ly nor allowed to pass unheeded, —ihe in- nuendoes alleged were :-l. That W. corrupt- ly entered into partnership with McN. while holding offices of public trust, and thereby un- lawfully acquired large sums of public money. •> That he did so under the cloak of his pub- Tic position, and by 'fraudulently pretendmg that he acted in the interest of the Govern- ment 3 That he committed criminal ot- fences punishable by law. 4. That he con- tinued to hold his interest "i the contract after his elevation to the bench. HeZd, that the article was susceptible of the first of the above innuendoes, but not of the others which should have been, but were not, distinctly withdrawn from the consideration of the ]u^ at the trial.— The ' jury found for plaintiff, with $2,500 damages. Held, per Strong, Fournierj Taschereau and Gwynne JJ., that the case was improperly left to the jury but the only prejudice sustained by the defendant thereby was that of excessive damages, and the verdict might stand on the plaintiff con- senting to the damages being reduced to $.300. Held, per Ritchie, C.J., that there had been a mis-trial, and the consent of both parties to such reduction was necessary. Higgins v. Walhem, xvii., 225. 3. Confidential communication — False in- formation — Negligence — Damages — Arts. 1033, 1054, 1~2T, C. 0.]— Persons carrying on a mercantile agency 'are responsible for the damages caused to a person in business when by culpable negligence, imprudence or want of skill, false information is supplied concern- ing his standing, though the information be communicated confidentially to a subscriber to the agency on his application therefor. (M. L. R. 5 Q. B. 42 reversed.) Cossette v. Dun, xviii., 222. 4. Malice — Negligence — Alanitoia Act relating to newspapers — Deposit of decla- ration — Publication — Joint stoch company — Affidavit — Affirmation — Jury disagree- ing — Verdict — Pleading — Special damages -^Loss of custom — 50 Vict. cc. %% anA 23' (Mam.)]— By 50 Vict. c. 22, s. 13 (Man.), " The Libel Act," no person is entitled to the benefit thereof unless he has complied with the provisions of 50 Vict. c. 23, " An Act re- specting newspapers and other like publica- tions." By s. 1 of the latter Act no person shall print or publish a newspaper until an affidavit or affirmation made and signed, and containing such -matter as the Act directs, has been deposited with the prothonotary of the Court of Queen's Bench or Clerk of the Grown for the district in which the newspaper is pub- lished ; by s. 2 such affidavit or affirmation shall set forth the real and true names, &c., of the printer or publisher of the newspaper and of all the proprietors ; by s. if the number of publishers does not exceed 4 the affidavit or affirmation shall be made by all, and if they exceed 4 it shall be made by 4 of them ; and s. 5 provides that the affidavit or affirmation may be taken before a justice of the peace or commis- sioner for taking the affidavits to be used in the Court of Queen's Bench. Held, 1. That 50 Vict. c. 23 contemplates, and its provisions apply to, the case of a corporation being the sole publisher and proprietor of a newspaper. — 2. That s. 2 is complied with if the affidavit or affirmation states that a corporation is the proprietor of the newspaper and prints and publishes the same. Gwynne, J., dissenting. — 3. That the affidavit or affirmation, in Case the proprietor is a corporation, may be made by the managing director. — 4. That in every proceeding under s. 1 there is the option either to swear or affirm, and the right to affirm is not restricted to members of certain religious bodies or persons having religious scruples. — 5. That if the affidavit or affirmation pur- ports to have been taken before a commis- sioner his authority will be presumed until the contrary is shewn. — By s. 11 of the Libel Act, actual malice or culpable negligence must be proved in an action for libel unless special damages are claimed. Held, that such malice or negligence must be established to the satis- faction of the jury, and if there is a disagree- ment as to these issues the verdict cannot stand. Held, further, that a general allega- tion of damages by loss of custom is not a claim for special damages under this section. — Per Strong, J. Where special damages are sought to be recovered in an action of libel, or for verbal slander where the words are actionable per se, such special damage must be alleged and pleaded with particularity, and in case of special damage by reason of loss of custom the names of the customers must be given, or otherwise evidence of the special damage is inadmissible. — Judgment appealed from (6 Man. L. R. 578) affirmed. Ashdowii V. Manitoia " Free Press " Co., xx., 43. 5. PuWication in newspaper — Defamatory plea — Incidental demand — Excessive damages — Keduction of verdict— New trial.] — Dam- ages were assessed by a jury at $6,000 for a newspaper libel and $4,000 additional on a further libel contained in a defamatory plea. Held, on appeal from the Court of Queen's Bench (M. L. K. 4 Q. B.'84), that the dam- ages were excessive ; that they should be reduced to a total of $6,000, and in the event of plaintiff's refusal to accept a reduced ver- dict for that amount a new trial should be al- lowed. Mail Printing Co. v. Laflamme, Cass. l>ig. (2 ed.) 493. 6. Malice — Libellous resolution — Summary dismissal of municipal official.] — ^A resolution by which a municipal council summarily dis- missed an official without any previous notice recited that he had committed a serious fault by making unfounded charges against his as- sistant ; that he was Charged with negligence towards his committee ; that he without cause, refused to recognize his assistant, and, by his Conduct tended to render the administration of his department inefficient. No malicious motive was shewn to have actuated the coimcu in passing the resolution. — Held, that there was nothing in the resolution of a nature to injure the official's character or reputation.— Judgment appealed from (Q. R. 6 Q. B. yijj affirmed. Davis v. City of Montreal, xxvu., 539. 7. Privileged communication — Malice —- Charge to 'jury — Evidence.] — On the trial oi 777 LICENSES. 778 an action claiming damages for a libel alleged to be contained in a privileged communication the judge charged the jury as to privilege and added " if the defendant made the communica- tion bonS, fide, believing it to be true, and the privilege existed that I have endeavoured to explain, then there would be no action against him." Beld, that plaintiff was entitled to a more explicit statement of the law on a point directly affecting the proof of an issue the burden of which was upon him. — One por- tion of the communication containing the al- leged libel might be read as importing a grave charge against the plaintiff or as an innocu- ous statement of fact. Meld, that as to prove malice the writer's knowledge of the falsity of the fact was the material point the sense in which he may have used the words was the governing consideration. — The judge's charge was not open to objection for want of an ex- plicit reference to pre-existing unfriendliness between the parties as proof of malice where the only eN'idence of unfriendliness consisted of hard things said of the defendant by the plaintiff. — Judgment appealed from (32 N. S. Kep. 129) affirmed, Gwynne and Sedgewick, JJ., dissenting. Green v. Miller, xxxi., 177. 8. Libel — Privilege — Proof of malice — Ad- missibility of evidence — Misdirection — Neio trial.] — a., local manager for Nova Scotia of the Confederation Life Association, of which M. had been a local agent, wrote to Mrs. Free- man, a policy-holder, the following letter : " I think you know that at the time of my recent visit to Bridgetown 1 relieved Mr. O. S. Miller of our local agency. As you and your hus- band have evidently taken a kindly interest in Mr. Miller, I might say to you without entering into details as to the causes which compelled me to take this action, an explana- tion of which would hardly be appropriate here, that we have tried for a considerable time past to get Mr. Miller to attend properly to our business, and that it was only because it was clearly necessary that the change was made. In order to give Mr. Miller an oppor- tunity to get the benefit of commissions on as much outstanding business as I could, I left the attention of certain matters in Mr. Mil- ler's hands on the understanding that he would attend to them and remit to me as our repre- sentative. 1 now find that he has collected money which, up to the present time, we have been unable to get him to report, and I am told that he is doing and saying all he Can against myself and the company, The receipt for your premium fell due May 30th, days of grace June 30th. If you have made settle- ment of the premium with Mi. Jliller your policy will, of course, be maintained in force, and we shall look to him for the returns in due course ; but I have thought that it would be part of the plan Mr. Miller at one time declared he would follow in order to cease as much of our business as possible, that he would allow your policy to lapse through inat- tention. As I have thought that you would not like to have it so I am prompted to write you this letter and shall be glad if you will advise us whether or not you have made set- tlement with Mr. Miller. If not, what is your wish in regard to continuing the policy V" In an action for libel it was shewn that he had not been dismissed from the agency but want- ed larger commissions in Continuing, which were refused, and that he was not a defaulter but was dilatory in making his returns. On the trial Mrs. Freeman gave evidence, subject to objection, of her understanding of the letter as imputing to M. a wrongful retention of money. Held, that such evidence was impro- perly received and there was a miscarriage of justice by its admission. — The judge at the trial charged the jury that " if the meaning of the first part of the letter is that he dis- missed the plaintiff, and you decide that he did not dismiss the plaintiff, and it was not a correct statement, that is malice beyond all doubt. The protection which he gets from the privileged occasion is all gone. He loses it entirely. 'The same way with the second part. If it is not true it is malicious and his pro- tection is taken away." Held, that this was misdirection, that the question for the jury was not the truth or falsity of the statements, but whether , or not, if false, the defendant honestly believed them to be true, so that it was misdirection on a vital point. — The ma- jority of the court were of opinion, Girouard and Davies, JJ., contra, that as defendant had asked for a new trial only in the court below this court could not order judgment to be entered for him and a new trial was grant- ed. — Judgment of the Supreme Court of Nova Scotia (35 N. S. Rep. 117) reversed. Green V. Miller, xxxiii., 193. 9. Malicious prosecution — Letispendency — Interruption of prescription — Arts. 2262, 2261 C. G. See Limitation of Actions, 6. 10. Newspaper article — Fair comment-- Public affairs — Justification — Pleading — Re- jection of evidence — Verdict. See New Tkial, 33. 11. Slander — Privileged statements — Pub- lic interest — Charging corruption against political candidate — Justification — Challenge to site — Costs. See Costs, 47. LICENSES. 1. Constitutional law -— Powers of provin- cial legislatures— Direct taxation— Manufac- turing and trading licenses — DiMnbuHon of taxes— Uniformity of taxation— 5o evidence, and that consequently no lien ex- isted. 'The jury, however, found a verdict for defendant, stating that they had adopted the defendant's statement as to the authority and instructions he had received from the plaintiff in regard to the instrument when it was left with the defendant. A rule for a new trial was discharged on application to the Supreme Court of Nova Scotia. Held, affirming the judgment appealed from (2 K. & C. 47), that the rule nisi for a new trial was properly dis- charged, and that as no fault was found with the work done and the amount demanded was not exorbitant, the respondent had a lien until his charges were paid. Webber v. Cogswell, ii., 15. 2. Vendor's lien — Sale of land — Notice.] — W S. agreed to transfer his timber limits to W. A. S. in case the latter should, within two .years, pay off a mortgage to K. and other liabilities, and in Case W. S. was obliged to pay any of such liabilities he was at liberty to sell such portion of said limits as would recoup him. At the same time W. S. wrote to R., authorizing him to transfer to W. A. S. said lands which he held as security on pay- ment of his claim. R. assigned his claim and the limits to B. who, by agreement with W. A. S. and the executors of W. S. continued to carry on the lumber business formerly owned by W. S. Certain of the liabilities of W. S. not having been paid his estate claimed a ven- dor's lien on such limits, and relied on the letter to R., and on notice to an attorney who prepared the agreement with B. to establish notice of lien in B. — Held, affirming the judg- ment appealed from (5 O. R. 1), that even if such lien existed B. Could not be said to be affected with notice of it. Seott v. Benedict, xiv., 735. 3. Materials for railway construction and operation — Receiver in possession — Priority — 43 & kk Vict. c. 1,9 (Que.)—U & 45 Vict. c. 43 — Privileged claim — Unpaid vendo-i — Im- moveables by destination — Arts. 1973, 199S, 1998, 2009, 20n C. G. — Current earnings- Current expenses.] — In virtue of a trust con- veyance granting a first mortgage executed under 43 & 44 Vict. c. 49, and 44 & 45 Vict. c. 43 (Que.), the trustees took possession of a railway. In actions against the trustees in possession, by appellants for the price of cars and rolling stock used for operating the road, and for work done, and materials delivered to the company after the trust deed, but be- fore trustees took possession. Held, 1, af- firming the judgments appealed from (M. L. E. 6 Q. B. 77, 91), that the trustees were not liable. 2. That the appellants lost their pri- vilege of unpaid vendors of the cars and roll- ing stock as against the trustees, because such privilege Cannot be exercised when moveables become immoveable by destination, as was the result with regard to the cars and rolling stock in this case, and the" immoveable to which the moveables are attached is in the possession of a third party or is hypothecated. 3. But even considered as moveables such cars and rolling stock became affected and charged by virtue of the statute and mortgage made thereunder as security to the bondholders, with priority over all other Creditors, includ- ing the privileged unpaid vendors. — Per Gwynne, J., the appellants might be entitled to an equitable decree, framed with due regard to other necessary appropriations of income in accordance with the provision of the trust indenture, authorizing payment by the trus- tees " of all legal claims arising from the oper- ation of the railway including damages caused by accidents and all other charges," but such a decree could not be made in the present action. — Per Strong, J. Quwre, Whether the principle as to the applicability of current earnings to current expenses, incurred either whilst or before a railway comes under the control of the court by being placed at the instance of mortgagees in the hands of a re- ceiver in preference to mortgage creditors whose security has priority of date over the obligation thus incurred for working expenses should be adopted by courts in this country? Wallbridge v. Farwell; Ontario Car and Foundry Co. v. Farwell, xviii., 1. 4. Advances to get out timbei — Priority — Account.] — Defendant (B.) and plaintiffs (S. & Co.) entered into a written agreement with J. G., a lumberer then manufacturing, under a contract to whom B. had already made ad- vances of nearly $4,000 for that purpose, and \A"as to complete his advance to !f4,000 ; and to enable G. to go on S. & Co. undertook to ad- vance him, on his own drafts, drawn on B., $7,000, "or so much as with the $4,000 would put the timber on track of railway free of all Claims." B. was then to furnish money to convey the timber so got out to Quebec ; S. & Co. to have a first lien for their advances, commission and interest. Subject to this lien, B. was to have the sale of the timber and to repay himself out of the proceeds, and the balance, if any, was to be paid over to ilcC The declaration set forth 1. that there was a balance of $8,000 due upon the whole of their advances, and that for that amount S. & Co. had a right to look to B. ; 2. that B. had ap- propriated to his own use timber of the value of $8,000, upon which S. & Co. under the agree- ment, had a first lien for $8,000, and that B. was bound to pay S. & Co. $8,000, of which they had been so deprived. — At the trial Mere- dith, C.J. , found (1) that S. & Co had made advances to G. to the extent of $23,881.83, for manufacturing the timber and its conveyance to Quebec, for re-payment of which out of the proceeds they had a first lien. (2) That after the timber reached Quebec, part was sold by S. & Co., that they received $18,000, and that there remained $900 of the price due by the purchasers. (3) That thus, when action was brought, there was $4,161 due S. & Co., bal- ance of their advances. (4) That of the tim- ber brought down B. received and convert- ed to his own use timber of the value of $4,322.93. (5) That for the value of this tim- ber B. was accountable to S. & Co. under the agreement, there being no personal liability whatever from him to them for the advances. (6) That B. was entitled to deduct from this sum $2,309.92, money laid out by him for S. & Oo.'s benefit, and that for the balance, $2,- 012, S. & Co. were entitled to judgment. (7) Further, while admitting that the convention- al lien, to which B. was a party, was limited to the advances made by S. & Co. towards manufacturing the timber and its delivery on the track, the Chief Justice held that they had a common law lien for their expenditure 783 LIEN. 784 ill bringing the timber to Quebec ; and on this ground, no attempt having been made to shew what part of the advance went for one object and what part for the other, considered them entitled to priority over defendant's expendi- ture for the whole of their own. The Queen's Bench affirmed the judgment and, on appeal, B. contended : — 1. That S. & Co. retained a portion of the timber for which they had not accounted ; 2. That contrary to agreement the advances had not been made on drafts drawn on B. who was therefore prevented from establishing and controlling advances ; 3. That $3,500 had been sent by B. to G. to pay freight, and this should have been credited to B., although it appeared that G. did not ac- count for it and S. & Co. were not aware of its having been advanced ; 4. That S. & Co.'s alleged advances were not established by evi- dence. — The judgment appealed from was re- versed, Ritchie, C.J., and Henry, J., dissent- ing, and it was Meld, per Strong, J. — The ad- vances not having been made in manner pre- scribed, on G.'s bills drawn on defendant, and defendant being thus deprived of the power to control the amount of advances, and there being no proof that the defendant ever ac- quiesced in a departure from the mode of mak- ing the advances prescribed by the agreement, or waived his strict rights under it, plaintiffs were not entitled to the prior lien which the agreement provided for in ease the money to be furnished by them was advanced according to the terms of the agreement. The defendant had therefore a right to retain an amount out of the proceeds of the timber equivalent at least to his advance of $4,000. — Per Strong, P'ournier and Gwynne, JJ. The defendant was also entitled to the $3,500 advanced to G. for the purpose of paying the railway charges, G. being the proper person to be en- trusted with tlie funds, and no negligence be- ing imputed to the defendant, who advanced the money to carry out his agreement. Fur- ther, plaintiff's action ought to be dismissed on the ground that they had failed to account lor the timber which came to their hands, or to prove the advances which they claimed to have made. Hew y. Shortreed Cass. Dig (2 ed.J 500. 5. iJcchanics' lien — Lapse of time limited — Action against prior mortgagee — R S O c. i20.]— The 90 days limited by the Me- chanics' Lien Act (R. S. O. e. 120, s. 21) for commencement of proceedings to enforce the lien applies to an action or proceeding against a mortgagee or other person claiming an in- terest in the lands, and it is the same whether proceedings have or have not been previously taken against the owner within the 90 days. — The assignee of a mechanics' lien brought ac- tion against the owner and a prior mortgagee, which was dismissed as against the mortgagee for non pros., and judgment recovered estab- lishing the lien against the owner. This ac- tion was then taken, after more than 90 days from filing the lieu, for declaration of pri- ority over the prior mortgagee to the extent that the work increased the selling value of the land. Meld, affirming the judgment ap- pealed ti-om (sub- num. Bank of Montreal v. Maffner, 10 Ont. App. R. 592), that the lien had ceased to exist as against the mortgagee 1 ? -?>^. ^■'<'™*'"eoi v. Worswick, Cass. Dig. (2 a Registration — Materials supplied to contractor — Payment by promissory note — huspensxon of lien — Waiwer.]— E. supplied a contractor with materials for building a house for W. and took the contractor's note for $1,100 at thirty days, which was discount- ed but dishonoured at maturity. E. took it up and registered a mechanics' lien against the property of W. While the note was running, W. paid the contractor $500 and afterwards $600 more. In an action to enforce the lien: Held, affirming the judgment appealed from (2 B. C. Rep. 82), that as the lien was sus- pended during the currency of the note it was absolutely gone, there being nothing in the Lien Act to shew that it could be abandoned for a time only, and this result would follow even if part of the amount only had been paid to the contractor. Edmonds v. Tiernan, xxi. 406. 7. Advances to insolvent railway company — Pledge of railway property — Anterior creditors — Fraudulent preference — Opposi- tion afin de conserver — Opposition afin de charge — Registration — Priority ,-^ Arts. 419, 1972, 1977, 2015 d 209k G. C— Appeal— J urisdictwn.i-hespoadent recovered judgment ' against the M. & S. Ky. Co. for $675 and costs and issued a writ of venditioni exponas against the railway property. Appellants, wJio were in possession and working the rail- way, claimed possession of the railway pro- perty pledged to them by written agreement for disbursements they had made on it, and tiled an opposition afin de charge for $35,000 which respondent contested on grounds of fraudulent preference and informality of the lease or pledge. The agreement was between the M. & S. Ry. Co and the appellant, and stated that " the SI. & S. Ry. Co. was burth- ened with debts and had neither money nor credit to place the road in running order, &c." The Superior Court (affirmed by the Court of Queen's Bench), dismissed the opposition. — Respondent moved to quash an appeal on the ground that the original juogment was the only matter in Controversy and was insuffici- ent in amount. The Supreme Court without deciding the question of jurisdiction, dismissed the appeal on the merits, and Held, 1. That such an agreement must be deemed in law to have been made with intent to defraud and was void as to anterior creditors of the M. & S. Ry. Co. — 2. That as the agreement grant- ing the lien or pledge affected immoveable pro- perty and had not been registered it was void against anterior creditors of the M. & S. Ry- Co.— 3. That art. 419, C. C, does not give to a pledgee of an immoveable who has not reg- istered his deed a right of retention as against the pledger's execution creditors for the pay- ment of his disbursements on the property pledged, but the pledgee's remedy is by an opposition afin de conserver to be paid out of the proceeds of the judicial sale. Qreat East- ern Ry. Co. V. Lambe, xxi., 431. 8. Builder's privilege — Arts. 1695, WIS, 2103 G. G. — Expertise — Proch verbal — Error in valuation — Art. 333, et seq., C.G- Pi.] — An expert, appointed under art. 2013, C. C, to secure a builder's privilege on an im- moveable is not required to give notices of his proceedings to the proprietor's creditors, ^cn proceedings not being regulated by arts. 3m, ot seq., C. C. P. — It is sufficient for such an expert to state in his second procis verm, made within the six months of the completion of the works, that the works in question had been executed, and had given to the immove- able the additional value fixed by him. If an expert includes in his valuation works for 785 LIMITATIONS OP ACTIONS. 786 which the 'builder had by law no privilege, such error will not be a cause of nullity, but will only entitle interested parties to a reduc- tion of the valuation. The judgment appealed from (Q. R. 1 Q. B. 330) was affirmed. Dufresne v. Prifoniaine; ValUe v. Pr6fon- taine, xxi., 607 ; also ilamilton v. Prefon- taine; Fortier v. Prefontaine, xxi., 630 (note.) 9. Consignment of goods against supplies a&oanced — Sale of fish in storage — Part delivery — Right to hold for unpaid purchase money — Trover. See Bailment. 10. Fraudulent foreclosure and sale — Pos- session — Sale to bond fide purchaser ■ — Suit to redeem — Privilege on proceeds of sale. See Limitations of Actions, 24. 11. Written contract — Parol agreement — Work and labour done — Security. See Evidence, 221. 12. License or lease — Worlcing mine on royalty — S Anne o. iJf, s. 1 — Construction of deed. See Mines and Minerals, 3. 13. Banking Act — Warehouse receipts — Realizing collateral — Distribution of sur- plus. See Banks and Banking, 115. 14. Halifax Assessment Act, 188S — Pri- ority — Mortgage made before Act. See Assessment and Taxes, 59. 15. Note-holders — Insolvent bank — Claim on assets — R. S. C. c. 120. See Constitutional Law, 80. 16. Reversion of toll bridge — Liability of Province of Canada — B. N. A. Act, 1867, ■s. Ill — 8 Vict. c. 90 (Can.) — Indemnity — Remedial process — Vendor's lien. See Statute, 154. 17. Mandate — Agency — Consignment of - Pledge — Factor — Right of action. See Partnekship, 43. 18. Banks and banking — Advances on se- curity — Chattel mortgage — Insolvent debt- or — Bank Act, 74 — Conversion. See Banks and Banking, 21. And see Assignments — Banks and Bank- ing — Bill of Sale — Chattel Mortgage — Mortgage. LIEUTENANT-GO VEEHOR. Representative of the Queen — Provincial Government.] — The Lieutenant-Governor of a province is as much the representative of Her Majesty the Queen for all purposes of provin- cial government as the Governor-General him- self is for all purposes of the Dominion Gov- ernment.— Judgment appealed from (4 Ex. C. R. 151) affirmed. Attorney-Oeneral of Canada v. Attorney-Oeneral of Ontario, xxiii.. And see Constitutional Law, 44. LIFE ESTATE. Construction of will — Death without issue — Executory devise over — Conditional fee — Estate tail. See Will, 17. LIFE INSURANCE. See Insurance, Life. LIGHT AND AIR. Boundary line — Windows overlooking ad- joining land — Waiver. Se6 Title to Land. 41. LIMITATIONS OF ACTIONS. 1. Interpretation of Statute, &c., 1-5. 2. Operation of Statute, &c., 6-20. 3. Pleading, 21-23. 4. Possession, 24-36. 5. Other Cases, 37-40. 1. Interpretation of Statute, «&o. 1. Interpretation of statute — 3 cf; 4 Wm. IV., c. 42— G. S. JV. B. c. 84, s. JfO; c. 85, ss. 1 & 6 — Covenant in mortgage — Payment by co-obligor.] — J. H. borrowed $4,000 from C. on 27th September, 1850, at which date J. H. & J. W. gave their joint and several bond to C, conditioned for the re-payment in five years, with interest quarterly, and to secure pay- ment two mortgages were given : by J. H. and wife on H.'s wife's property, and by J. W. and wife on W.'s property. Neither party executed the mortgage of the other. The mort- gage from J. W. contained a provision that upbn re-payment of £1,000, with interest, ac- cording to the condition of the bond, by J. AV. and J. H., then said mortgage should be void ; a similar provision being in- serted in the other mortgage. The bond and mortgages were assigned to L. in 1870, and the principal money was never paid. J. W. died in 1858, and devised all his re- siduary real estate, including the lands mort- gaged to G. W. and others. J. W. was, and, since his death, respondents have been, in possession of the premises so mortgaged by J. W.. Neither J. W., nor any person claim- ing through him, paid any interest on said bond and mortgage, nor gave any acknowledg- ment in writing of the title of C, or her as- signs. The co-obligor paid interest on the bond from its date to the 27th March, 1870. On the 20th January, 1881, under C. S. (N. B.), c. 40, a bill for foreclosure and sale was commenced by the appellants, and the Su- preme Court directed that it should stand dis- luiKsed with costs against the respondents. h eld, affirming the judgment appealed from (23 N. B. Rep. 591), Strong, J., dissenting, 1. That all liability of J. W.'s personal repre- sentatives and of his heirs and devisees to any action whatever upon the bond was barred by ss. 1 & 6 of c. 85 C. S. (N. B.), although 787 LIMITATIONS OP ACTIOlSrS. 788 payment by a co-obligor would have main- tained the action alive in its integrity under 3 and 4 Wm. IV. c. 42 (Imp.)— 2. That the right of foreclosure and sale of the lands in- cluded in the J. W. mortgage was barred by the Statute of Limitations in real actions, C. S. (N. B.), c. 84, s. 40.— Per Gwynne, J. The only person by whom a payment can be made, or an acknowledg-ment in writing can be signed, so as to stay the currency of the Statute of Limitations to a point which, be- ing reached, frees the mortgaged lands from all liability under the mortgage, must be either the original party to the mortgage contract, that is to say, the mortgagor, or some person in privity of estate with him, or the agent of one of such persons, and that moneys paid by J. H. in discharge of his own liability had none of the characteristics or quality of a payment made under the liability created by W.'s mortgage. Lewiii v. ^¥ilson, ix., ti37. [The Privy Council reversed the judgment 11 App. Cas. 639.] 2. Settlement of accounts — Appropria- tion of payment — Omission of overdue note.] — A decree directed that an account should be taken of all dealings between plaintiff and de- fendant. The master found $453.20 due to defendant by plaintiff ; disallowed to the plain- tiff the amount of a note for $510, and interest thereon as barred by the Statute of Limita- tions; and reduced the interest on $3,000 ad- vanced from 24 per cent, to 6 per cent, after judgment. The note of $510 was dated 18th November, 1861 and bore interest, at the rate of $10 per week from the 23rd November, 1861. On 6th March, 1867, defendant who had been sued by plaintiff for other claims, entered into an agreement with him to relieve him from pressure of execution debts, paid him $2,000 on the indebtedness, and got time for the balance. The plaintiff made no de- mand at the time to be paid this note, and did not instruct his attorney who acted for him to seek payment of it until 1870. Held, affirming the judgment appealed from (4 Out. App. R. 213), that the evidence shewed an appropriation of the $2,000 on account of the debts for which he was being pressed, and as the note for $510 was not included in such debts, the master was right in treating it as barred by the Statute of Limitations. St. John V. Rykert, x., 278. 3. Interruption of Statute of Limitations — Acknowledgment of deit.] — The following letters were written by a debtor to his credit- or : — "Hopewell, August 9th, 1876. — Dear Uncle Finlay, — I received a letter from you some time ago about your money. I delayed writing- because I did not know what to write. I did not know but something -would turn up that would enable me to pay you. I have a good deal of property — too much for these hard times — and I want to sell some of it, but cannot in the meantime, as times are that bad that people do not want to buy anything, only what they cannot do without. But this state of matters will not continue long, and when the times get better I will make some arrangement to pay you your money. Be not afraid of it, as I have but a small family and no boys, I will have plenty to pay my debts. I did get somewhat behind hand by railway affairs, but have recovered, and I am now in possession of a good deal of property and in a fair way of doing well whenever the times get better. I regret very much keeping it from you so long; however, I hope the time will soon come when I will be able to pay you. Yours very truly, Alex McDonald." — " Hope- well, June 19th, 1875.— Dear Uncle,— I am in receipt of yours of the 31st May about your money, and must say I am not astonished at you for wanting it. You ought to have had it long ago, and you would have had it, only 1 was unfortunate in a railroad contract I took, on the railroad between Truro and Pic- tou, in which I lost considerable money, and got largely in debt besides. After giving up the work I hired with the Government to carry on part of the work. At this time James and I commenced to build a cloth fac- tory on a small scale, in order to have some permanent work. I borrowed most of what I put in. The man who had your money on mortgage, after having it two years, left. I had to sell the property, which I took from him by deed, for one thousand dollars, losing by this likewise. I then got an offer from the Government to go to the Red River and Xorth-West Territory to explore there for two years among the Indians, and got back last winter. I have now my debt nearly paid and the amount of your claim secure in property, viz., land property, so that you will be as sure of your money in a short time as if you had it. Do not think, Pinlay, that I intend to do you, or any other body, out of one shill- ing. So rest assured that I have your money secured in a manner that you will get it, al- though I cannot send it now. You had good patience, so I hope you will have a little more, and I will put you all right. I believed I worked as hard and travelled far more than you did, and have been much more unfortu- nate than you since you left ; but since two years I have done well, and hope soon to do well by you. Now, Finlay, rest assured thai I have your money secured so that you will get it, whatever becomes of me. Very truly yours, Alex. McDonald. Mr. F. Thompson, IJort Ludlow, British Columbia." — The Su- preme Court of Canada affirmed the judgment appealed trom (23 N. S. Rep. 50), which had held that the letters took the debt out of the operation of the Statute of Limita- tions, cfrant v. Cameron, xviii., 716. 4. Easement — Necessary way — Implied grant — User — Obstructions of way — In- terruption of prescription — Acquiescence — B. S. N. S. (5 ser.) c. 112 — R. S. N. S. (4 ser.) c. 100 — 2 d S Wm. IV. {Imp.) c. 11, ss. 2 <£ i] — ^■ owned lands over which he had for years utilized a roadway for convenient pm-poses. After his death defendant became owner of the middle portion, the parcels at either end passing to plaintiff, who continued to use the old roadway, as a winter road, for hauling fuel from his wood lot to his residence, at the other end of the property. It appeared that though the three parcels fronted upon a public highway, this was the only practical means plaintiff had for the hauling ot bis winter fuel, owing to a dangerous hill which prevented him getting it off the wood lot to the highway. There was not any formed road across the lands, but merely a track upon the , snow, during the winter months, and the way was not used at any other season of the year. This user was enjoyed for over 20 years prior to 1891, when it appeared to have been first disputed, but from that time the way was obstructed from time to time up to March, 1894, when defendant buUt a fence across it that was allowed to remain undis- turbed, and caused a cessation of the actual 789 LIMITATIONS OF ACTIONS. 790 enjoyment of the way, during the 15 months immediately preceding the commencement of the action in assertion of the right to the easement by plaintiff. R. S. N. S. (5 ser.) c. 112 provides a limitation of 20 years for the acquisition of easements, and declares that no act shall be deemed an interruption of actual enjoyment, unless submitted to or acquiesced in for one year after notice there- of and of the person making the same. Held, that notwithstanding the customary use of the way as a winter road only, the cessation of user for the year immediately preceding the commencement of the action was a bar to the plaintiff's claim under the statute. Held, also, that the circumstances under which the road- way had been used did not supply suflBc'ient reason to infer that the way was an easement of necessity appurtenant or appendant to the lands formerly held in unity of possession, which would, without special grant, pass by implication upon the severance of the tene- ments. Knock V. Knock, xxvii., 664. 5. Reservation in 'judgment — Judicial ad- mission — Future damages — Interruption of prescription. See No. 23, infra. 2. Operation of Statute, &c. 6. Malicious prosecution — Proceedings to remove commissioner — Litispendence — Libel — Slander — Prescription — Arts. 2262, 2267 C. G. — Interruption.'i — An action for libel and slander taken during pendency of proceed- ings complained of as maliciously brought be- fore the courts does not become subject to prescription until the termination of such pro- ceedings. ( See 6 Legal News 155 ; 27 L. C. Jur. 129.) Mayor of Montreal v. Hall, xii., 74. 7. Actioti en nullite — Minority — ■ Tu- torship — Sale prior to code — Prescription —Arts. 2243, 2253 G. 0.]— The right of ac- tion to annul a sale made in 1855 by an emancipated minor and her husband to her father and ex- tutor (without any account be- ing rendered, but after the making of an in- ventory of the community existing between her father and, deceased mother) of her share in her mother's succession, is prescribed by ten years from the date when the minor be- came of age. Moreau v. Motz (7 L. C. R. 147) followed — Judgment appealed from (M. L. R. 2 Q. B. 228) affirmed, Fournier and Henry, JJ., dissenting. Gregoire v. Ore- goire, xiii., 319. 8. Moneys entrusted for investment — Con- dition precedent — Prescription — Art. 2262.] — H. agreed to invest trust funds of C. with M. in a land speculation, mentioning, in the letter notifying M. of the acceptance of his draft, the understanding H. had as to the share he was to get and adding : " I also assume that the lands are properly conveyed, and the full conditions of the prospectus car- ried out, and if not, that money will be at once refunded." The lands were never pro- perly conveyed and the conditions of the pro- spectus never carried out. Held, affirming the judgment appealed from (M. L. R. 6 Q. B. 354), that the action being for the recovery of money entrusted to defendant for a special purpose, the prescription of two years did not apply. Moodie v. Jones, xix., 266. 9. Injuries to the person — Negligence of Crown servant — 50 d 51 Vict. c. 16 — Arts. 2262, 2261, 2188, 2211 G. G.—R. S. G. e. S8.] — Held, reversing the judgment appealed from (2 Ex. C. R. 328), that even assuming that under the common law of Quebec, or statutes in_ force at the time the injury was sus- tained, the Crown could be held liable for an injury caused by negligence of its servants, such injury having been sustained more than a year before the filing of the petition, the action was prescribed under arts. 2262 and 2267, C. C. — Per Patterson, ,T., the Crown is made liable for damages caused by the negligence of its servants operating Government rail- ways by 44 Vict. c. 25 (R. S. 0. c. 38), but as the petition of right in this uase was filed after the passing of 50 & 51 Vict. c. 16, the claimant became subject to the laws relating to prescription in Quebec, and his action was prescribed. The Queen v. Martin, xx., 240. 10. Appearance by attorney — Instructions — G. 8. L. G. c. 82, s. U — Petition in dis- avowal.'] — The only prescription available against a petition in disavowal is that of thirty years. McDonald v. Dawson (11 Q. L. R. 181) followed. (See Cass. Dig. (2 ed.) 586- 589.) Dawson v. Dumont, xx., 709. 11. Statute of Limitations — Criminal con- versation — Damages ] — The Statute of Limi- tations is not a bar to an action for criminal conversation where the adulterous intercourse between defendant and plaintiff's wife has continued to a period within six years from the time the action is brought. — Judgment appealed from (27 Ont. App. R. 703) affirmed. — Qumre, Does the statute begin to run only when the adulterous intercourse ceases, or is the iplaintiffi only entitled to damages for in- tercourse within the six years preceding the action? King v. Bailey, xxxi., 338. 12. Municipal drains , — Continuing tres- pass — Limitation of actions ex delictu — 58 Vict. c. 4, s. 295 {N. S.)— Verdict ]—Actioa for trespass by reason of the municipal cor- poration constructing and maintaining a drain through the plaintiff's land. The jury found that it had been constructed in 1886 " by virtue of the street commissioner's power of office." The plaintiff, though aware of its existence at the time, made no objection until 1896, when the land caved in. The Supreme Court affirmed the judgment of the court be- low (33 N. S. Rep. 401), which held that the jury had found that the defendant had constructed the drain by its agent, and that, the trespass being a continuing one, the action was not barred by the limitation provided in the '"Towns' Incorporation Act of 1895" for action ex delictu against towns. Town of Truro v. Archibald, xxxi., 380. 13. Peremption d'instanee — Retrospective legislation— Arts. 1 and 279 C. P. Q.—Art. 454 C. G. P.] — When the period of peremp- tion commenced after the promulgation of the new Code of Procedure of Quebec the excep- tions declared by the fourth paragraph of its first article do not- prevent the peremption of a suit pending at the time it came into force under the limitation provided by art. 279 C. P. Q. Cooke V. Millar (3 R. L. 446; 4 R. L. 240) referred to. Schwab v. Town of Farn- ham, xxxi., 471. 14. Carriage of goods — Bill of lading — Limitation of time for suit — Damages from 791 LIMITATIONS OP ACTIONS. 792 unseaworthiness — Construction of contract.^ — On a shipment of goods by steamer the bill of lading jDrovided that all claims for damages to or loss of the same should be presented with- in one month from its date, after which the same should be completely barred. Held, re- versing the judgment appealed from (8 B. 0. Rep. 228) Mills, J. dissenting, that this limi- tation applied to a claim for damage caused by unseaworthiness of the steamer. Union 8S. Co. V. Drysdale, xxxii., 379. 15. Promissory note — Collateral to mort- gage — Prescription — Estoppel. See Trusts, 5. 16. Escheat for want of heir — Proceedings iy information — Prescription — Art. 2181 G. G. See Title to Land, 131. 17. Mortgage to secure advances to pay composition — Art. 1040 G. G. — Action to set aside deed. See Fbaudulent Conveyances, 3. 18. Yearly salary — Moneys paid and ex- pended — Prescription — Arts. 2260, 2261 G. G. See Bxecutoes and Administeatoks, 5. 19. Registered deeds — Recitals in title deed — Bona fides — Presumption against purchaser. See No. 25, infra. 2D. Limitation of actions ex deliotu — Con- tinuing trespass — Municipal drain — ISI. 8. " Towns' Incorporation Act." See Municipal Corporation, 94. 3. Pleading. 21. Bodily injuries^— Right of action iy de- ceased — Claim of widow — Prescription juris et de jure— Arts. 1056, 2261, 2262, 2267, 2188 G. G.—Arts. 431, 433 C. G. P.— Pleading- Lord Campbell's Act.] — The husband was in- jured while on duty as appellant's employee, the injury resulting in death about 15 months afterwards. No indemnity having been claim- ed during his lifetime, the widow, for herself as well as executrix of her minor child, brought action within one year after his death. Held, reversing the judgment appealed from (M. L. K. C Q. B. 118), Fournier, J., dissenting, that at the time of the death of respondent's husband all right of action was prescribed under art. 2262 C. C, and that this prescription is one to which the tribunals are bound to give effect although not pleaded. (Compare previous report, Canadian Pacifio Ry. Go. V. Robinson, 14 Can. S. C. R. 105). Canadian Pacific Ry. Go. v. Robinson, xix., 292. [Reversed by Privy Council (1892) A. C. 481.] 22. Prescription — Objection taken in appeal ^Gosts.] — Held, reversing the judgment ap- pealed from (30 L. C. Jur. 65), that although the objection that the right of action has been prescribed is taken for the first time on the argument in appeal, the court is bound to en- tertain it and give effect to it if properly raised. Dorian v. Crowley, Cass. Dig. (2 ed.) 709; Cass. S. C. Prac. (2 ed.) 144. 23. Prescription — Arts. 2188, C. G. — Waiver — Failure to plead limitation- Defence supplied by the court of its own mo- tion — Reservation of recourse for future dam- ages — Judicial admission — • Interruption of prescription.] — 'The prescription of actions for personal injuries established by art. 2262 C. C, is not waived by failure of the defend- ant to plead the limitation, but the court must take judicial notice of such prescription as absolutely extinguishing the right of action. — ■ 'The reservation of recourse for future dam- ages in a judgment upon an action for tort is not an adjudication which can preserve the right of action beyond the time limited by the provisions of the Civil Code. City of Mon- treal V. McGee, xxx., 582. 4. Possession. 24. Mortgage — Fraud — Foreclosure and sale — Purchase by mortgagee — Right to re- deem — Possession — Statute of Limitations — R. S. O. (iS77) c. 108, S..19— Trustee for sale — Waiver — Lien on proceeds.'] — In a fore- closure suit against the heirs of a deceased mortgagor, who were all infants, a decree was made ordering a sale ; the lands were sold pur- suant to the decree and purchased by J. H., acting for and in collusion with the mortgagee, who had not received permission from the court to bid ; J. H., immediately after receiv- ing his deed. Conveyed to the mortgagee, who thereupon took possession of the lands and thenceforth dealt with them as the absolute owner thereof ; by subsequent devises and con- veyances the lands became vested in the de- fendant M. H., who sold them to the defend- ant L., a bond fide purchaser, without notice, taking a mortgage for the purchase money. In a suit to redeem the lands by the heirs of the mortgagor some eighteen years after the sale and more than five .years after some of the heirs had become of age. Held, reversing the judgment appealed from (9 Ont. App. R. 537 ) , that the suit being one impeaching a purchase by a trustee for sale the Statute of Limitations had "no application, and that, as the defendants and those under whom they claimed had never been in possession in the character of mortgagees, the plaintiffs were not barred by the provisions of R. S. 0. c. 108, s. 19, and that the plaintiffs were conse- quently entitled to a lien upon the mortgage for purchase money given by L. Held, also, that as it appeared that the plaintiffs were not aware of the fraudulent character of the sale until just before commencing their suit, they Could not be said to acquiesce in the pos- session of the defendants. Faulds v. Harper. xi., 639. 25. 2'itle to land — Registered substitution — Rights of children not yet born — Revocation of deed — Prescription — Bona fides — Recital in deed — Presumption against purchaser — Arts. 930, 2191, 2193, 2202, 2207, 2251, 2253 G. C] — As good faith is required for the ten years' prescription under the Civil Code, that pre- scription cannot be invoked against a substi- tution which has been duly registered, such registration being sufficient to constitute any third party, who might subsequently purchase from the institute, a holder in bad faith. — Where the title deed of a purchaser of lands bears upon its face recitals which would have led upon inquiry to evidence of the defeasi- bility of his vendor's title, he must be pre- sumed to have been aware of the precarious nature of the title he was i)urchasing and pre- 793 LIQUOR LAWS. scriptive title cannot afterwards be invoked either by him or those in possession under him as holders in good faith-under translatory titlei — Judgment appealed from (Q. R. 5 Q. B; 490) reversed. (Leave to appeal to Privy Council refused.) Meloche v. Simpson, xxix., 375. 26. Partition of land — Tenants in common — Statute of Limitations — Possession.] — Under the Statute of Limitations, R. S. N. S. (.5 ser.) e. 112, possession of land in order to ripen into a title and oust the rehl owner, must be uninterrupted during the whole statutory period. If abandoned at any time during such period the law will attribute the interruption to the person having title. — Possession by a series of persons during the period will bar the title though some of such per- sons were not in privity with their pre- decessors. — Where one of two tenants in common had possession of the land as against his co-tenant, the bringing of an atftion of ejectment in their joint names and entry of judgmetit therein gave a fresh right of en- try to both and interriipted the prescription accruing in favour of the tenant in possession. Judgment appealed from (32 N. S. Rep. 1) affirmed. Handley v. Archibald, xxx., 130. 27. Title to lands — Statute of Limitations ■ — Possession-] — In 1892, M. obtained a grant of land from the Crown and in 1823, permit- ted his eldest son to enter into ppssession. The latter built and lived on the land and cultivated a large portion of it for more than ten years when he removed to a place a few miles distant, after which he pastured cattle on it and put up fences from time to time. His father died before he left the land. In 1870, he deeded the land to his four sons who sold it in 1873, and by different conveyances, the title passed to P. in 1884. In. 18t)ti, the descendants of the younger children of M. gave a deed of this land to B., who proceeded to cut timber from it. In an action for tres- pass by P.; Held, affirming the judgment ap- pealed from, that the jury on the trial were justified in finding that the eldest son of M. had the sole and exclusive possession of the laud for twenty years before 1870 which had ripened into a title. If not, the deed to his sons in 1870, gave them exclusive possession and, if they had not a perfect title then, they had twenty years after, in 1890. Bentley v. Pe-ppard, xxxiii., 444. 28. Statutory title — Trespass — Plea of liberum tenementum — Possession. See Title to Land, 77. 29. Tenant at will — Caretaker — Possession — New tenancy. See Title to Land, 78. 30. Estate for life — Possession of tenant — Remainder — Joint tenants — Survivorship. See Title to Land, 79. 31. Occupation of caretaker — Acts of ownership — Recovery of possession — Sever- ance of title. See Pbesceiption, 16. 32 Title hy possession ■ — Non-claim — 38 Vict. c. 16 (Out.) See Title to Land, 81. 33. Possession against assignee — Gontr estate of insolvent — Deed by assign Fraudulent conveyance. See Title to Land, 133. 34. Bad faith — Evidence — Purchase of stituted land — Conversion — Revendicatt Damages — Action by substitute — Art. C. C. See Substitution, 4. 35. Possession by trustee — Statute of J tations — Title to land. See Will, 13. 36. TMe to lands — Sheriff's deed — IVi — Equivocal possession. See Evidence, 239. 5. Othee Cases. 37. Renunciation of prescription — Art. C. C. — Condition of policy — Prosecutii claims — Limitation of liability.] — An ini may validly stipulate that claims arising der a policy should be ban-ed by the lap a shorter time than that limited by lav the bringing of similar actions. (M. L. Q. B. 293 affirmed.) Allen v. Merch Marine Ins. Co., xv., 488. 38. Seignorial tenure — Charges rui with the title — Servitude — Edits et o: nances (L. C.)] — A servitude may r from the circumstances under which tit held and the conduct of interested p£ from time immemorial. Commune de thier v. Denis, xxvii., 147. 39. Interruption of statute — 3 & 4 Wm c. J,2^G. S. N. B. c. '84, s. 40; c. 85. ss. 6 — Covenant in mortgage — Payment b; obligor. See No. 1, ante. 40. Remedy against the Crown — Petitv right — Defence open to Crown. See Rideau Canal Lands, 2. And see Prescription. LIQUOR LA\yS. 1. Legislative Jurisdiction, 1-12. r/ 2. License Fees, 13-16. 3. Municipal Regulations ; Local Opt Prohibition, 17-21. 4. Public Works Act, 22. 1. Legislative Jurisdiction. 1. Constitutional law — Taxation — K( Hon of trade and commerce — Police re tions — Local or municipal matters — vires — Powers of Dominion and Prov- Legislatures — License — Sale of liquo'i Vict. c. 8 (D.)— 37 Vict. c. 32 (O.)— j A. Act, 1867, ss. 91, 92—" Other licensi Brewer's licenses.] — After the passing oi Act to amend and consolidate the Law f( Sale of Fermented or Spirituous Liquors, 795 LIQUOE LAWS. 796 Vict. c. 32 [Ont.]), the Attorney General filed an information for penalties against S., a brewer licensed by the Government of Canada under the Act, 31 Vict. c. 8 (D.), for the manufacture of fermented, spirituous and other liquors, charging him with manufactur- ing beer, and selling by wholesale, for con- sumption within the Province of Ontario, a large quantity of said fermented liquor so manufactured by him. without first obtaining a license as required by the above Act of the Legislature of Ontario. On demurrer to the information the special matter for argument was that the Legislature of Ontario had no power to pass the statute under which the penalties were sought to be recovered, or to require brewers to take out any license what- ever for selling fermented or malt liquors by wholesale, as stated in the information. On appeal from the judgment of the Court of Queen's Bench for Ontario overruling the de- murrer. Held, that the Act of the Legislature of Ontario, a7 Vict. c. 32, is not within the legislative capacity of that legislature. — That the power to tax and regulate the trade of a brewer, being a restraint and regulation of trade and commerce, falls within the class of subjects reserved by s. 91 of the B. N. A. Act, 1867, for the exclusive legislative authority of the Parliament of Canada ; and that the license imposed was a restraint and regula- tion of trade and commerce and not the exer- cise of a police power. — That the right con- ferred on the Ontario Legislature by s-s. 9, s. 92 of said B. X. A. Act, to deal exclusively with shop, saloon, tavern, auctioneer and " other licenses," does not extend to licenses for brewers or " other licenses " which are not of a local or municipal character. Beg. V. Taylor, (36 U. C. Q. B. 218) overruled, Eitchie and Strong, JJ., dissenting, tievern V. 2'he Queen, ii., 70. 2. Police regulations — Ji.2 d 43 Vict. c. Jf, s. 1 (Que.) — Sale of liquors within prohibited hours — Gosts.~\ — Per Ritchie, C.J., and Strong and Fournier, JJ. The provisions of 42 & 43 Vict. c. 4 (Que.), ordering houses in which spirituous liquors are sold, to be closed on Sundays, and every other day between eleven o'clock of the night until five of the clock of the morning, are police regulations, within the power of the provincial legislature. — Per Henry, Taschereau and Gwynne, JJ. That the penalty imposed was not authorized by the statute, even if such statute was intra vires, and that the conviction had been properly quashed. The court being equally divided, the appeal was dismissed without costs and the judgment appealed from (2 Dor. Q. B. 103; 7 Q. L. R. 337) affirmed. Foulin v. City of Quebec, ix., 185. 3. Jurisdiction of provincial legislature — Sale of liquor — License fees — B. N. A. Act {1867) s. 91— U Tict. c. 3 iQiic.)S8 Vict. c. 76 (Que.)— 20 Vict. c. 129 (Can.)— By- law.'] — The Quebec License Act, 41 Vict. c. 3, is intra vires of the Legislature of the Pro- vince of Quebec. (Hodge v. T7«» Queen, 9 App. Cas. 117, followed), and does not inter- fere with existing rights and powers of incor- porated cities. A by-law of the City of Three Rivers, in virtue of its charter, 20 Vict. c. 129, and 38 Vict. c. 76, imposing a license fee on the sale of intoxicating liquors, is within the powers of the corporation. — .Judgment ap- pealed from (5 Legal News 331) affirmed. Suite V. City of Three Rivers, xi., 25. 4. Writ of prohibition — Licensed brewers Quebec License Act — 41 Vict. c. 3 (Que.) Constitutional law — 43 Vict. e. 19 (D.) Jurisdiction of Court of Sessions.] — ^The' in- spector of licenses for Montreal charged a drayman in the employ of brewers licensed under 43 Vict. c. 19 (D.), before the Court of Special Sessions of the Peace at Montreal with having sold beer outside the business pre- mises, but within the revenue district, in con- travention of the Quebec License Act, 1878 and its amendments, and asked a condemna- tion of $95 and costs for said offence. The licensed brewers claimed that under the Do- minion statute, they had a right of selling beer by and through their employees and dray- men without a provincial license, and that 41 Vict. c. 3 (Que.), and its amendments were ultra vires, and if constitutional did not au- thorize the complaint and they issued a writ of prohibition enjoining the Court of Spedal Sessions of the Peace from further proceeding with the complaint. Held, Taschereau and Gwynne, JJ., dissenting, that the Quebec Li- cense Act and its amendments were intra, vires, and that the Court of Special Sessions of the Peace of Montreal having jurisdiction to try the alleged offence and being the pro- per tribunal to decide the questions of fact and law involved, a writ of prohibition did not lie. • — Per Taschereau and Gwynne, JJ., that the case was one which it was proper for the Superior Court to deal with by pro- ceedings on prohibition. — Per Gwynne, J. ITie Quebec License Act of 1878 imposes no obligation upon brewers to take out a provin- cial license to enable them to sell their beer, and therefore the Court of Special Sessions of the Peace had no jurisdiction, and prohibi- tion should issue absolutely. — The appeal from the judgment of the Court of Queen's Bench (SI. L. K. 2 Q. B. 381) was dismissed with costs. Molson v. Lambe, xv., 253. 5. Liquor Licence Act, 18S7 (N.B.) — Con- ditions m restraint of trade — Legislative jur- isdiction.] — Under the "' Liquor License Act, 1887" (N.B.), all applications for licenses are required to be indorsed by the certificate of one-third of the ratepayers of the district for which the license is asked. No holder of a license can be a member of the municipal council, a justice of the peace, or a teacher in the public schools. Held, affirming the judg- ment appealed from (27 N. B. Rep. 554), that the legislature could properly impose these conditions to the obtaining of a license, and the provision is not ultra vires of the legisla- ture of that province as being a prohibitory measure by reason of the ratepayers' power to prevent licenses being issued ; nor is it a measure in restraint of trade by affixing a stigma to the business of selling liquor. O'^''^- her V. Peters; O'Regan v. Peters, xvii., 44. 6. Salaries of license inspectors — Payment by authority of department — Approval of Oovernor-in-Council — Liquor License Act, 1883, s. 6 — Action— Ultra vires.]— Glmm by license commissioners for moneys paid to li- cense inspectors with the approval of the De- partment of Inland Revenue, in excess of the salaries fixed 2 years later by order-in-council under s. 6 of the said Liquor License Act, 1883: Held, per Fournier, Taschereau ana Patterson, JJ., affirming the judgment ap- pealed from (2 Ex. C. R. 293), that the Crown could not be held liable for any excess of the salary fixed and approved ol by tne Governor-General-in-Council. — Per Strong, J- 797 LIQUOE LAWS. 798 The Act under which appellant was appointed having been declared ultra vires the petition of right was not maintainable. Burroughs v. The Queen, xx., 420. 7. Legislative jurisdiction — Liquor licenses — " Vessel licenses " — " Wholesale licenses " — " Canada Temperance Act, 18^8 " — License Act of 1883.] — Case referred under 47 Viet. c. 32, s. 26 (D.) 1st question — Are the fol- lowing Acts, in whole or in part, within the legislative authority of the Parliament of Can- ada, namely: — (1) The Liquor License Act, ISsa. {,'!) An Act to amend the Liquor Li- cense Act, 1888 'i — 2nd question. — If the court is of opinion that a part or parts only of the said Acts are within the legislative authority of the Parliament of Canada, what part or parts of said Acts are so within such legisla- tive authority? — Opinion. — The Acts referred to are, and each of them is, ultra vires of the legislative authority of the Parliament of Can- ada, except in so far as the said Acts respec- tively purport to legislate respecting those licenses mentioned in s. 7 of ' " The Liquor License Act, 1883," which are there denomi- nated ■' vessel licenses " and " wholesale li- censes," and except also, in so far as the said Acts respectively relate to the Carrying into effect of the provisions of " The Canada Tem- perance Act, 1878." Henry, J., was of opinion that the said Acts were wholly ultra vires. In re Liiquor License Act, 1663, Cass. Dig. (2 ed.) 509. LOn appeal the Privy Council held the Acts to oe wholly ultra vires. 8. Illegal distilleries — Penalties — Vice-Ad- miralty Courts — Jurisdiction — Inland re- venue. See CoNSTiTDTiONAi. Law, 18. 9. Prohibition of traffic — " Scott Act " — References — Penalties, &c. See Canada Temperance Act. 10. Sale of liquor — Prohibition — Sale by retail — Powers of legislature. See Constitutional Law, 45. 11. Sale of liquor — Prohibitory laws — Powers of legislature — Local option — Canada Temperance Act. See Constitutional Law, 46. 12. Nova Scotia Liquor License Act, 1895 — Conviction — Jurisdiction — Affidavit on certio- rari — Powers of provincial legislature — Mat- ter of procedure. See Certiorari, 4. 2. License Fees. 13. Sale of intoxicating liquors — License law of Quebec, 1878 — Omission in statute — Tender — Costs — Mandamus.] — The Quebec License Act, 41 Vict. c. 3, s. 63 enacts : " In addition to a fee of one dollar on the granting of each license, the duties comprised in the following tariff shall be payable by the appli- cant therefor to the license inspector, prelimi- nary to the granting of the different licenses hereinbefore mentioned : — Tariff of duties payable for licenses under the present law ; on licenses for the sale of intoxicating liquors. -—1. On each license to keep an inn and for the sale of intoxicating liquors; (a) In the City of Montreal, $200, if the annual value or rent of the premises for which the license re- quired is less than $400, and $300, if the an- nual value or rent is $400 or more; (b) In the City of Quebec, $125, if the annual value or rent is less than $400, and $175, if the an- nual value or rent is $400 or more; (c) In every other city, $80; (d) In every incorpor- ated town, $(0. — By 42&43 Vict. c. 3, s. 11, it was enacted: bub-sections (a), (bj and (c) of No. 1 of s. 63 of the said Act are re- pealed and replaced by the following : '■ In the Cities of Quebec and Montreal 50 % of the rental or annual value of the premises for which such license is required : Provided that in no case shall the price of the license exceed the sum of $300 or be less than $75. — No proviso for replacing class (c) repealed was yet enacted in May, 1880, when appellant went to the respondent, license inspector for the District of Three Kivers, to obtain a license to keep an inn at Nos. 14 and 16 Badeau street. City of Three Kivers, and- produced the certificate approved by the cor- poration of the city necessary to get such a license. He ottered at the same time the $1 fee, according to 41 Vict. c. 3, s. 6a, § 1, and re- quested a license, which respondent refused. Appellant obtained a writ of mandamus to compel respondent to grant the license. — In the Superior Court and Queen's Bench re- spondent urged that admitting he could not claim $80 as originally enacted for cities other than Montreal and Quebec, and admit- ting he could not Claim $70 as for incorporat- ed towns, he was at all events entitled to claim the duty of il 16s. mentioned in 41 Vict. c. 3, ss. 60 & 67, which had never been repealed, providing as follows : — " 60. The Lieutenant-Governor may, when and so often as he deems it expedient, by regulation reduce the rate of duty on licenses, as mentioned in art. 63 of this law, provided that this rate be not below the rate imposed by the 5th section of the Imperial Act, George III. c. 88." — ■' 67. The duties imposed by this law on licenses of inns, restaurants, steamboats, bars, railway buffets, or liquor shops, include those imposed by said Imperial Act, but should the same be hereafter repealed, such repeal shall not have the effect of reducing the amount of such duties." — 14 George III. c. 88, s. 5, is as follows : — " 5. And be it further enacted by the authority aforesaid that there shall, from and after the 5th day of April, 1775, be raised, levied, collected and paid, unto His JMajesty's Receiver-General of the said pro- vince (Quebec), for the use of His Majesty, his heirs and successors a duty of £1 16s., sterling money of Great Britain, for every license that shall be granted by the Governor, Lieutenant-Governor, or Commander-in-Chief of the said province to any person or per- sons, for keeping a house or any other place of public entertainment, or for the retailing of wine, brandy, rum, or any other spirituous liquors, within the said province ; and any person keeping any such house or place of entertainment, or retailing any such liquors, without such license, shall forfeit and pay the sum of £10 for every such offence, upon con- viction thereof ; one moiety to such person, as shall inform or prosecute for the same and the other moiety shall be paid into the hands of the Receiver-General of the province, for the use of His Majesty." — The Superior Court held that the offer of $1 was sufficient and ordered the issuing of a peremptory writ of mandamus enjoining the respondent to grant the license. The Queen's Bench set aside this judgment. Held, affirming the judgment ap- 799 LITIGIOUS EIGHTS. 800 pealed from (1 Dor. Q. B. 257), that appel- lant would not have been entitled to his license without offering to pay the fl 16s. sterling required by the Imperial Act in ad- dition to the fee of $1, even if the respondent had been authorized to issue a license, but owing to the repeal of s. 63 of 41 Vict. c. 3, s.-s. (c), without provision being made for the issue of licenses in cities other than Montreal and Quebec, under no circumstances could a license be issued for the City of Three Rivers for the year in question. — Per Kitchie, C.J., and Fournier, J. The man- damus could not go, because the period for which appellant claimed the license had ex- pired, and a mandamus is never granted to compel a party to do an impossibility. If ap- pellant had been entitled to his license and the time had expired after he had come to the court, it would have materially affected the question of costs, but not being entitled to his license the appeal must be dismissed with costs. — Per Henry, J. ' Appellant was entitled to his license upon payment of £1 16s. ster- ling, together with the fee of $1, and having been misled by the respondent into making a tender of a larger sum than respondent was entitled to demand, and not of the exact sum as required by the law, respondent ought to pay the costs. Bergeron v. Lassalle, Cass. Dig. (2 ed.) 495. 14. Regulation in restraint of trade — Pro- vincial license fees — Police regulations — Local or municipal matters. See No. 1, ante. 15. Conditions in restraint of trade — Legis- lative jurisdiction to impose fees — Municipal license fee. See No. 3, ante. 16. Quelec License Act — Provincial license fee. See No. 4, ante. 3. MuNioiPAi. Regulations ; Local Option ; Peohibition. 17. Granting licenses in St. John, N. B. — "New Brunswick Liquor License Act, 1887 — Directory clauses.'] — The Liquor License Act, 1887 (N. B.). provides that '.'all applications for license, other than in cities and incorpor- ated towns, shall be presented at the annual meeting of the council of the municipality and shall then be taken into consideration, and in cities and incorporated towns at a meeting to be held not later than the 1st day of April, in each and every year." The inter- pretation clause provides that in the City of St. John the expression " council " means the mayor, who has the powers given to a muni- cipal council. It is also provided that when anything is required to be done at, on or before a meeting of council, and no other date is fixed therefor, the mayor may fix the date for doing the same in the City of St. John. — Held, affirming the judgment appealed from (27 N. B. Rep. 554), that the provision re- quiring licenses to be taken into considera- tion not later than the 1st day of April is directory only, and licenses granted in St. John are not invalid by reason of the same being granted after that date. — Per Gwynne, J., that this provision does not apply to the City of St. John. Donaher v. Peters; Regan V. Peters, xvii., 44. 18. Municipal corporation — Action — Dis- cretion of members of council — Refusal to con- firm certificate — Liability of corporation.] — In an action against a municipal corporation for damages claimed on account of the council of the municipality having, as alleged, illegally refused to confirm a certificate to enable the plaintiff to obtain a license for the sale of liquors in his hotel. Held, affirming the judg- ment appealed from (Q. R. S. Q. B. 276), that the municipal council had a discretion under the provisions of the " Quebec License Law," R. S. Q. art. 839, to be exercised in the matter of the confirmation of such cer- tificates for the exercise of which no action could lie, and, further, that even if the mem- bers of the council had acted maliciously in refusing to confirm the certificate there could not be on that account any right of action for damages against the corporation. Beach V. Township of Stanstead, xxix., 736. 19. Jurisdiction of Provincial Legislature — License feis — Municipal by-law. 'See No. 3, ante. 20. Statutory prohibition — Penal statute ^—yPholesale purchase — Guarantee — Val- idity of contract — Forfeiture — Nova Scotia Liquor License Act — Practice. See CONTEACT, 166. 21. Canada Temperance Act — Police con- stable — Negligent performance of duty — See Municipal Corporation, 4. Public Works Act. 22. Saving intoxicating liquors near public works — Conviction under Ontario statutes — Destruction of liquors by order of justices — Unsealed conviction — Action for damages — Notice of action. See Malice, 4. LIS PENDENS. Retraxit of part of claim — Reserve as to balance — Subsequent action — Adjudi- cation in first action — Res judicata. See Practice and Procedure, 66. LITIGIOUS BIGHTS. 1. Forfeited shares — Illegal confiscation — Judgment m stmilar dispute — Arts. 1582, 1583, 158Jf C. G.] — B. became holder of 40 shares of stock, which at the time of the transfers had been declared forfeited for non-payment of dues. Subsequently other shares, which had been confiscated for similar reasons, were declared, by judgment of the Superior Court, to be valid and to have been illegally forfeited. Thereupon B. by mandamus asked to be recog- nized as a member of the society and paid the amount of dividends already declared in favour of and paid to other shareholders. In defence it was pleaded that B. had acquired under the transfers in question litigious rights and was only entitled to recover the amount actually paid, with legal interest and cost of 801 LOTTEEY. transfers. Held, aflBrming the judgment ap- pealed from (M. L. R. 2 Q. B. 272), Pournier and Henry, JJ., dissenting, that at the time of the purchase of said shares, B. was a buyer. of litigious rights within the provisions of art. 1583, C. C, and, under art. 1582, C. C, could only recover from the liquidators the price paid by him with interest thereon. — Also, that the exception in the fourth para- graph of art. 1584 C. C, only applies to the particular demand in litigation which had been confirmed by a judgment of a court, or which having been made clear by evidence is ready for judgment. Brady v. Stewart, xv., 82. 2. Title to lands — Usurper in possession — Pleadings — Art. 1582 C. G.]— Where there is no litigation pending or dispute of title to lands raised except by a defendant who has usurped possession, and holds by force, he caniiot when sued set up against the plaintiff a defence based upon a purchase of litigious rights. Powell v. Watters, xxviii., 133. 3. Contract void — Champerty — judgment — Tierce — Opposition. See Title to Land, 131. Collusive 4. Speculation in litigious rights — Estoppel — Warranty. See Title to Land, 111. And see Champerty — Maintenance. LOCAI. IMPROVEMENTS. See Municipal Coepoeation. LOCATION TICKET. Grown lands — Sales hy local agent — Sus- pensive conditions ■ — Timher licenses — Pri- ority of title. See Ceown, 95. LOGS. 1. Detention of saw-logs on drive — Float- aUe streams— B. S. O. {1887) c. 121— Con- struction of statute. See Wateecoueses, 5. 2. Rivers and streams — Obstruction — Dam — Driving saw-logs. See Wateecoueses, 6. And see Saw-logs. LORD CAMPBELL'S ACT. 1. Right of action iy deceased — Limitation of action — Remedy larred— Bodily injuries — Claim of widow — Extinguishment of olili- gation — Arts. 1056. 2261, 2262, 2261. 2188, 0. C.—Arts. IfSl, -433, C. C. P.]— The hus- band was injured while on duty as appellant's employee, the injury resulting in death about 15 months afterwards. No indemnity was claimed during his lifetime. The widow, for herself as well as executrix of her minor child, brought action within one year after his death. Meld, reversing the judgment appealed s. c. D. — 26 from (M. L. R. 6 Q. B. 118), Fourni( dissenting, that respondent's right o tion under art. 1056 C. C, depends not upon the character of the act from death ensued, but upon the condition ( decedent's claim at the time of his deatl if the claim was in such a shape thi could not then have enforced it, had dea' ensued, the article does not give a rif action, or impose liability on the pers( flicting the injury. — That as it appear the record that the plaintiff had no rij action, the court would grant the defen motion for judgment non obstante ver( -^That at the time of the death of r< dent's husband all right of action wai scribed under art. 2262, C. C, and tha prescription is one to which the tribuna bound to give effect although not pi Canadian Pacific Ry. Co. v. Robinson 292. [Reversed by Privy Council (1892) 481.] See Limitations of Actions, 21, 2. Government railway — Injury t ployee — Lord Campbell's Act — Art. 10, 0. — Exoneration from liability — R. S. 38, s. 50.]— Art. 1056 C. C. embodies t tion previously given by a statute of th vince of Canada re-enacting Lord Cam Act. Robinson v. Canadian Pacific R ([1892] A. C. 481) distinguishea.— A man may so contract with his employe: exonerate the latter from liability for gence, and such renunciation would answer to an action under Lord Cam Act. Griffiths v. Earl Dudley (9 Q. 3.57) followed. The Queen v.. Grenier, 42. S^ p*^- ^^^^ ^- 9^1, ^ 3. Damages for death of servant — jl tion of Maritime Court of Ontario — gence — Right of action. See Action, 42. 4. Art. 1056 C. C. — Moral wrong — So — Assessment of damages — Misdirection- trial. See Damages, 2. 5. Death of parent — Negligence — B( ment — Solatium — Art. 1056 C. C. — Pec loss. See Damages, 4. 6. Actio personalis moritur cum per Abatement of appeal — C. S. N. B. c. 8t See Appeal, 1. 7. Action by widow — Previous action eeased in his lifetime — Different cau action — Identity of material issues — Ei in first action — Subsequent use of. See Evidence, 19. LOTTERY. 1. Constitutional law — Legislative — B. N. A. Act, 1861 — Criminal Codt —R. 8. C. c. 159—R.S.Q. art. 2920—6 0. 36 (Que.) — Indictable offences — C — Illegal consideration — Co-relative ments — Nullity — Invalidity judicially —Arts. 13, U, 989, 990 G. 0.]— The : cial Legislatures have no jurisdiction mit the operation of lotteries forbidi the criminal statutes of Canada. — A c in connection with a scheme for the op 803 MALICE, MALICIOUS PEOSECUTION. 804 of a lottery forbidden by tbe criminal statutes of Canada is unlawful and cannot be enforced in a court of justice. The illegality which vitiates such a contract cannot be waived or condoned by the conduct or pleas of the party against whom it is asserted and it is the duty of the courts ex mero motu, to notice the nullity of such contracts at any stage of the case and without pleading. Judgment ap- pealed from reversed, Girouard, J., dissenting. — Per Girouard, J., (dissenting.) In Canada before the Criminal Code, 1892, lotteries were mere offences or contraventions and not crimes, and consequently the Act of the Que- bec Legislature was constitutional. L'Associ- ation St. Jean-Baptiste v. Brault, xxx., 598. 2. Illegal consideration of contract — Co- relative agreements. See Constitutional Law, 31. MACHINERY. Nuisance — Operation of electric railway — Power house machinery — Vibration, smoke and noise — Injury to adjoining property — Evidence — Assessment of damages — Reversal on questions of fact. See Nuisance, 6. And see Immoveable Pkopekty — Masteb and Servant — Moveables — Negligence. MAGISTRATE. See Justice op the Peace. MAGNA CHARTA. Canadian waters — Property in ieds — Public harbours — Erections in navigable waters — Interference with navigation — Right of fishing — Power to grant — Rip- arian proprietors — Great lakes and navigable rivers — Operation of Magna Charta — Pro- vincial legislation — R. S. O. (1887) c. 8-J, s. 47—55 Vict. 10 s.-ss. 5 to IS, IS and 21 (0.) R. S. Q. arts. 1375 to i378.]— Where the pro- visions of Magna Charta are not in forc'e, as in Quebec, the Crown, in right of the pro- vince, may grant exclusive rights of fishing in tidal waters, except in tidal public harbours, in which, as in public harbours, the Crown, in right of the Dominion, may grant the beds and fishing rights. Gwynne, J., dissenting. — Per Strong, C.J., and King and Girouard, JJ. The provisions of Magna ^Charta relating to tidal waters would be in force in the pro- vinces (except Quebec), unless repealed by legislation, but such legislation has probably been passed by the various Provincial Legis- latures and these provisions of the charter, so far as they affect public harbours, have been repealed by Dominion legislation. — (See ri898] A. C. 700.) The Fisheries Case, xxvi., 444. MAILS. See Postal Service. MAINTENANCE. 1. Reversion in lands not used for canal purposes — Purchase in conflict with public use — Trust. See KiDEAu Canal Lands, 1. 2. Fiduciary agent of Crown — Purchase in , conflict with public use — Ordnance lands Trust estate. See RiDEAU Canal Lands, 2. 3. Will — Sheriff's deed — Proof of heir- ship — liejection of evidence — New trial. See Evidence, 171. And see Champerty — Litigious Rights. MALICE ; MALICIOUS FROSEC1T- TION. 1. Libel — Slander — Interruption of pre- scription — Arts, .i'iii, 22(57 C. V. — Pendency of proceeding s.'\ — ^Action by S., in his life- time, civil engineer, for $20,000 damages, in consequence of unjust -removal from the po- sition of commissioner of expropriations. The respondents became plaintiffs par reprise d'instance. — On 14th April, 1868, B. and JI. were named joint commissioners to determine the amount to be accorded to Wilson for ex- propriation of part of his property. S. and B., after valuing the compensation at $19,- 500, on objections made, reduced the amount to $13,666. M., in his report, declared $7,500 sufficient. — Thereupon, on 7th August, 1808, the city council passed a resolution charging S. and B. with fraud and partiality, and ap- plied to the Superior Covftt to have them removed from office. — On 17th September, 1870, the application was granted on the ground that they had committed an error of judgment and proceeded on a wrong principle, the charges of fraud and par- tiality being held unfounded. — On 20th September, 1873, the Court of Queen's Bench re-instated S. and B. as Commissioners and on 4th November, 1876, this judgment was affirmed by the Privy Council. (2 App. Cass. 168.) — In May, 1871, S. brought the action, and in answfer the appellants submitted; — That the action was barred under arts. 2202 & 2267 C. C. ; that they had not been actuated by malice, and they 'considered it a duty to adopt proceedings for the redress of grievances complained of by interested parties, that there was reasonable and probable cause for their acts, and that S. had suffered no damage for which they were amenable. The Superior Court dismissed the action as barred, with- out entering into the merits, but the Court of Queen's Bench reversed the judgment and allowed $3,000 damages, being of opinion that, as the matter was still in course of litigation, arts. 2262 & 2267 C. C, did not apply, and the action was not prescribed ; that there was no proof of fraud and misconduct; that the proceedings were without reasonable and prob- able cause, and malice should be inferred. Held, affirming the judgment appealed from (6 Legal News 155; 27 L. C. Jur. 129), Fournier, J., dissenting, that the action was not merely for the libel contained in the re- solution of the 7th August, 1868, but for mali- cious prosecution, following up that resolution by proceedings instituted in the courts, mali- ciously and without any reasonable and just cause, and prescription did not begin to run until the termination of such proceedings. 805 MALICE, MALICIOUS PEOSECUTION. 806 Tie action, therefore, and judgment for dam- ages should be sustained, no objection having been raised that the action was prematurely brought. Mayor of Montreal v. Hall, xii., 74. 2. Reasonable and probable cause — In- ferences — Functions of judge — Questions for jury — Nonsuit. i — In an action for malicious prosecution the existence or non-existence of reasonable and probable cause must be deter- mined by the judge. The jury may be asked to find on the facts from which reasonable and probable Cause may be inferred, but the in- ferences must be drawn by the judge. Lister V. I'erryman (L. K. 4 H. L. 521) followed; Abrath v. North Eastern Ity. Co. (11 Q. B. D. 79, 140; 11 App. Cas. 247) considered. Archibald v. McLaren, xxi., 588. 3. Insolvent Act — Demand of assignment — Keasonable and probable cause — Order of judge annulling demand — Evidence.] — In 1874 the firm of D. & Co. was composed of J. D. and J. S. ; and the firm of E. & G. was then composed of J. F. E. and the plain- tiff. The latter firm carried on business then, in Saint John, as dealers in flour, meal, &c., and there had been dealings between the firms for about two years previously, but not, so far as appeared, to any very large extent. — In the fall of that year, three promissory notes, made by E. & G. in favour of D. & Co., which had been indorsed by the latter firm, and which had been discounted for them by the Bank of Montreal, were lying in that bank when they matured. The first for $409.81, fell due 23rd November, 1874; the second for $109.71, due 7th Uecember, and the third for $137.13, due 14th December. — On 23rd November, when the first note be- came due, plaintiff called at the oflice of D. & Co., where he saw S., and told him that he was unable to pay the note in full that day, but he offered S. 25% on account, and asked to be allowed to renew for the difference. S. promised to speak to the defendant on the subject, and requested plaintiff to call again and get his reply. Plaintiff accordingly called again shortly afterwards and found both S. and D. in their office. IJefendant then at once refused peremptorily to accept the offer which plaintiii: had made to S., or to accept 50% and to renew for the balance for one mouth. — Atter three o'clock on the same day, defendant called at the "office of B. & G. and told plaintiff that if the note was not taken up by one o'clock the following day, . an at- tachment would be issued against the firm of E. & G. Plaintiff urged him not to issue any attachment, assuring him that, not only D. & Co., but every one of the creditors of E. & G. should be paid in full. Defendant, how- ever, refused to listen to these assurances. — The note for $409.81 was not then retired, neither was the next one, for $109, when it became due ; but the third was paid in full at maturity. — Some time in December (the plaintiff thought about the 7th), E. & G. re- ceived a letter from B., as solicitor, on behalf of D. & Co., intimating that D & Co.'s claim must be paid, or that B. & G. must go into liquidation. — As the solicitor of U. & Co., B., on Kith December issued an attachment against B. & G., but which was never exeouc- ed. The sheriff testified that no property was pointed out to him, and that he found none to attach under it. — On ]2th .January, lS7.'i, a demand was served on E. & G. at the instance of D. & Co., requiring E. & G. to assign un- der the Insolvent Act of 1809. — Within five days after service a petition, under s. 15 of the Act, signed by B. & G. individually, was presented, praying that no further proceedings should be taken under it, and the judge pro- ceeded to inquire into the subject matter of it, and ordered, " After hearing the parties. &c., and it appearing to me that E. & G. have not ceased to meet their liabilities generally at the time of such demand, I do order that the prayer of the petitioners be granted, and that no further proceedings be taken on such de- mand, with costs, &c.," — B. & G. arranged with D. & Co. for the debt for which the de- mand had been made by giving them an in- dorsed note, payable, with interest, in 12 months ; which was subsequently paid in full. — Plaintiff brought action on the ground "that the defendant falsely and maliciously, and without reasonable and probable cause, made, or procured to be made, a demand . . . re- quiring plaintiff and B. to assign for the bene- fit of creditors, and falsely and maliciously, and without reasonable 'or probable cause, caused the same to be served . . . and the plaintiff and E. presented their petition praying that no further proceedings, under the demand, should be had, and the judge granted the petition and thereby such demand became and was of no force, &c., and the pro- ceedings thereon were determined ; and by reason whereof plaintiff was put to inconveni- ence and anxiety, and was prevented from transacting his business and carrying on his said trade with the said B., and was injured in his credit and incurred expense in procur- ing the said demand to be annulled," &c. — At the trial Duff. ,J., directed the jury that the annulling of the demand by the order of Judge Watters was prima facie evidence of the ab- sence of reasonable and probable cause, and threw upon the defendant the burthen of prov- ing the affirmative. Held, reversing the judg- ment appealed from (3 Pugs. & Bur. 77), that such order was not in itself even prima facie evidence of the absence of reasonable and pro- bable cause ; but, further, the evidence suflB- ciently established the existence of reasonable and probable cause for making the demand of assignment. Domville v. Gleeson, Cass. Dig. (2 ed.) 343. 4. Arrest — Imprisonment — Justice of the peace — Having liquors near public works — Destruction of liquors — Notice of action — Necessity of quashing — Unsealed conviction — Affixing seal — Venue — New trial — B. /S'. O. (18~7) c. 32, ss. 2, 6, l—R. S. O. (1887) c. 35, ss. 2, 6, 7— B. S. O. (,1887) c. 73— B. 8. O. (1877) c. 73.]— B. was convicted on a charge of having intoxicating liquors aboard a schooner in the Michipicoten River " for the purposes of sale on or near the works of the Canadian Pacific Railway, contrary to law." His stock of liquors was destroyed and, in de- fault of payment of a fine purported to be imposed under R. S. O. (1877) c. 32, s. 2, he was imprisoned at Port Arthur, Out., for about six weeks, when he was discharged under a writ of habeas corpus. The conviction as returned was not under seal ; neither the con- viction nor the order for destruction of the liqoor.s was formally quashed : the notice of action for damages for malicious arrest and imprisonment and destruction of the liquors was served upon one of the convicting justices personally and a copy left at the residence and with the solicitors of the other convicting jus- tice who admitted having seen a copy of the notice, but it did not appear where or at what time. The venue was laid in Toronto and 807 MANDAMUS. 808 changed by consent to Port Arthur where the trial took place. B. recovered damages and the Divisional Court affirmed the trial court judgment (15 O. R. 716). The Supreme Court (Ritchie, C.J., and Strong, Fournier, Gwynne and Patterson,, JJ-), affirmed the judgment of the Court of Appeal for Ontario (16 Ont. App. R. 398), dismissing an appeal from the Divisional Court judgment. Conmee V. Bond, 1890, Cass. Dig. (2 ed.) 511. 5. Malioe — Libellous resolution — Summary dismissal of municipal official.] — A resolution by which a municipal council summarily dis- missed an official without any previous notice recited that he had committed a serious fault by making unfounded charges against his as- sistant; that he was charged with negligence towards his committee; that he, without cause, refused to recognize his assistant, and by his conduct tended to render the adminis- tration of his department inefficient. No ma- licious motive was shewn to have actuated the council in passing the resolution. Held, that there was nothing in the resolution of a nature to injure the official character or repu- tation of the official so dismissed. — Judgment appealed from (Q. R. 6 Q. B. 177) affirmed. Davis V. City of Montreal, xxvii., 539. 6. Proiaile cause — Forgery.] — An action by S., holder of a note indorsed to him by the payees, was dismissed upon evidence that it had never been signed by the person named as maker, nor with his knowledge or consent, but had been signed by his son without au- thority. The son deposed that he never in- tended to sign the note, and if he had actually signed it with his father's name, it was be- caused he believed that it was merely a re- ceipt for goods delivered by express. Immedi- ately after dismissal of the suit, S. wrote payees asking information to help him in lay- ing a criminal charge to force payment of the note and costs. He also applied to the agent, by whom the goods were delivered and note procured, and was informed that there was a receipt for the goods in the delivery-book, but that the signature was denied and could not be proved. Without further inquiry, and not- withstanding a warning against criminal pro- ceeding, S. laid information against the son for forgery. Upon investigation the charge was declared unfounded. Held, reversing both courts below, that, under the circumstances, the prosecution was without reasonable or probable cause, and plaintiff entitled to sub- stantial damages. Charlebois v. Surveyer, xxvii., 556. 7. Slander — Privileged communication. See Public Officer, 1. 8. Arrest on capias — Want of probable cause — Affidacit — Art. 7'yS C. G. P. — Damages. See Capias. 9. Damages — Evidence — Favourable ter- mination of proceedings. See Action, 43. 10. License by-law — Commercial traveller — Selling without license — Action for illegal arrest. See ToET, 4. 11. Privileged communication ■ — • Evidence ■ — Charge to jury — Vnfrirndlincss. See Libel, 7. MANDAMUS. 1. Discretionary order — Appellate jurisdic- tion — County school rates — B. S. N. S. {Ath ser.) c. 32, s. 52.]— A mandamus was applied for to compel the Town of Dartmouth to assess $16,976 for its proportion of countv school rates under R. S. N. S. c. 32, s 52 The court below, without determining whether or not. the assessment was possible and obli- gatory, made the rule absolute, leaving the questions to be determined on the return of the writ. Held, affirming the judgment ap- pealed from (1 Russ. & Geld. 402), Strong and Gwynne, JJ., dissenting, that the grant- ing of the writ. in this case was in the discre- tion of the court below, and the exercise of that discretion cannot at present be ques- tioned. — Per Ritchie, C.J. That the Town of Dartmouth is not, but that the City of Hali- fax is, exempted by R. S. N. S. c. 32 from contribution to County school rates. (See 5 Russ. & Geld. 402). The Queen v. Town of Dartmouth, ix., 509. 2. Appeal — Jurisdiction — Final judgment — Judgment on demurrer — Supreme and Exche- quer Courts Act, ss. 24 {g), 2S, 29, 30.]— In- terlocutory judgments upon proceedings for and upon a writ of mandamus are not appeal- able to the Supreme Court under s. 24 {g) of the Supreme and Exchequer Courts Act. The word " judgment " in that sub-section means the final judgment in the case. Strong and Patterson, JJ., dissented. Langevin v. Commissaires de St. Marc, xviii., 599. 3. School corporation — Decision of superin- tendent of public instruction — Appeal — Final judgment — Practice — R. S. Q. arts. 2055 2056 — 55 & 56 Vict. c. 24, ss. 18 and 19 (Que.)]— Under the provisions of art. 2(B5 of the Ke- yised Statutes of Quebec, as amended by 53 «fc 56 Vict. c. 24, ss. 18 and 19, certain rate- payers of a; school district appealed to the superintendent of public instruction for the Province of Quebec, who thereupon rendered a decision and gave orders and directions re- specting the erection of a school house, which, however, the school commissioners neglected to perform. Held, affirming the judgment ap- pealed from (Q. R. 3 Q. B. 500), that in such cases, the decision of the superintendent of public instruction was final ; that no appeal therefrom would lie to the Superior Court, and that the proper remedy to enforce the execution of the orders and directions of the superintendent was by mandamu.s. Commis- saires de St. Charles v. Cordeau, 9th Decem- ber, 1895. 4. Appeal — Special leave — 60 cG 61 Vict. c. 3Jf, s. 1 (e) — Error in judgment — Concurrent jurisdiction — Procedure.] — Special leave to ap- peal from a judgment of the Court of Appeal for Ontario, under s. 1 (e) of 60 & 61 Vict, c. 34, will not be granted on the ground merely that there is error in such judgment. — Such leave will not be granted when it is certain that a similar application to the Court of Ap- peal would be refused. — The Ontario courts have held that a person acquitted on a crimi- nal charge can only obtain a copy of the record on the fiat of the Attorney-General. S. having been refused such fiat applied for a writ of mandamus which the Divisional Court granted and its judgment was aflirmed by the Court of Appeal. Held, that the man- damus having been granted the public interest did not require special leave to he given for 809 MARCHANDE PUBLIQTJPl 810 an appeal from the judgment of the Court of Appeal, though it might have had the writ been refused. — The question raised by the proposed appeal is, if not one of practice, a question of the control of provincial courts over their own records and officers with which the Supreme Court should not interfere. At- torney-Oeneral of Ontario v. Scully, xxxiii., 16. 5. Final judgment — Decision — Highest court of final resort — 38 Vict. c. 11. See Appeal, .159. 6. By-law — Railway bonus — Validating Act — Remedy at law. See Municipal Cokpoeation, 37. 7. School taxes in county of Halifax — As- sessment of present ratepayers for previous years — Jurisdiction. See Assessment and Taxes, 62. 8. Remedy for wrongful dismissal — Physi- cian engaged iy Board of Health — Charge on municipality — Damages — ReasonaMe expenses ■ — Action. See MiTNioiPAL Coepokation, 158. 9. Drainage — Injuring liaiility — Right of action^Notice—R. S. 0. (1887) c. 18Jf. See Drainage, 2. 10. Municipal drains — Negligence — Non- completion — Action — Maintenance and repair. See Drainage, 3. 11. Return to writ — Demurrer — Practice in court below. See Appeal, 344. 12. Appeal — Jurisdiction — Court of Review —54 & 55 Vict. c. 25, s. 3 (D.)— Costs. See Appeal, 113. 13. Construction of contract — Construction of 12 Vict. c. 183, s. 20 — Notice to cancel con- tract — Gas supply shut off for non-payment of gas hill on other premises. See Contract, 28. MANDATE. 1. Termination — Partnership moneys — Se- questration of — Contre-lettre.'] — In November, 1886, G. B. by means of a contre-lettre be- came interested in real estate transactions in Montreal, effected by P. S. M. In December, 1886, G. B. brought action against P. S. M., to have a sale made by the latter to one Bar- salou declared fraudulent and the new pur- chaser restrained from paying the balance due to the parties named in the deed of sale. A plea of compensation was filed and, pending action, a sequestrator appointed, to whom Barsalou paid the money. In September, 1887, another action was instituted Iby G. B. against P. S. M. for an account of real estate transactions conformably to the contre-lettre. A plea of compensation was filed. The Su- perior Court dismissed the first action on the ground that G. B. had no right of action, but maintained the second ordering an account to be taken. The Queen's Bench affirmed the Superior Court in dismissing the first action and P. S. M. acquiesced in the judgment on the second action. — On appeal from the judg- ment dismissing the first action : Held, re- versing the judgment appealed from, that the plea of compensation was unfounded. G. B. having the right to put an end to P. S. M.'s mandate by a direct action, and therefore un- til the account which had been ordered in the second action bad been rendered, the moneys should remain in the hands of the se- questrator appointed with the consent of the parties. Bury v. Murphy, xxii., 137. 2. Partnership — Division of assets — Art. 1898 C. C. — Debtor and credHor account.'^ — In Quebec, where there is no other arrange- ment between partners, the partition of the' property of a commercial partnership must be made according to the rules laid down in the Civil Code in relation to the partition of suc- cessions, in so far as they can be made to apply. — Upon the dissolution of a partnership, where one of the partners has been entrusted with the collection of moneys due as the man- datary of the others, any of his co-partners may bring suit against him directly either for an account under the mandate, or as for money had and i-eceived. Lefebvre v. Aubry, xxvi., 602. 3. Pledge of stock — Notice of trust — Pre- carious title — Possession of shares — Insol- vency — Arts. 1155, 22158 C. C. , See Trusts, 2. 4. Statement — Reddition de compte — Errors and omissions — Reformation de compte. See Action, 2. o. Negotiorum gestor — Action — Account — Release — Purchase of trust estate — Will. See Account, 4. 6. Power of attorney — Authority to adjust and settle claim — Right to receive award. See Attorney. 7. Insolvency — Purchase by inspector — Trusts— Arts. U84, 1706 C. C.—Art. C. P. Q. tSee Trusts, 23. And see Broker — Principal and Agent — Trusts. MANITOBA. 1. School law — Rights " by practice " — Legislative jurisdiction — Denominational edu- cation. See Constitutional Law, 69. 2. Constitutional Act — Legislation in re- spect to education — Legislative powers — Right to repeal — Appeal to Governor-General-in- Council—33 Vict. c. 3, s. 22, s.-s. 2—B. N. A. Act, s. 93, s.-s. 3. See Constitutional Law, 2. And see House of Commons. MABCHANDE PUBLIQITE. See Husband and Wife — Married Woman. 811 MAEITIME LAW. 813 MARINE INSURANCE. See Insukance, Marine. MARITIME LAW. 1. Deviation — Putting into port over nigTit — Stress of weather.'] — On appeal from a judg- ment of the Supreme Court of Nova Scotia (24 N. S. Rep. 205), which held that it was not a deviation for a coasting vessel on a voy- age from Mahone Bay, N. S., to Fortune Bay in Newfoundland, and thence, &c., to put into an intermediate port over night to escape threatened bad weather, the Supreme Court of Canada affirmed the decision of the court appealed from, and dismissed the appeal with costs. Nova Scotia Marine Ins. Go. v. Eisen- hauer, 6th November, 1894. 2. Collision — Negligence — Rule of tlw road — Steamer — Sailing vessel — Opinion of assessors — Delegation of judicial functions.] — Action for damages by collision between plaintifiE's schooner and defendant's steamer. In the marine protest by the captain of the schooner the cause of action alleged was that the steamer's wheel was put to port when it should have been put to starboard, just before collision. The action was twice tried, the first trial having been set aside on the ground that the judge, by adopting the opinion of assessors, had delegated his judicial functions (19 Ont. App. R. 298). The second trial re- sulted in a verdict for plaintiff, which was af- firmed by the Court of Appeal. — The Supreme Court affirmed the Court of Appeal, and dis- missed the appeal with costs. CoUier v. Wright, 6th May, 1895 ; xxiv., 714. 3. Collision — Rules of road — Narrow chan- nel — Navigation rules — R. S. C. c. 79, s. 2, arts. 15, 16, 18, 19, 21, 22 and 23— "Crossing" ships — " Meeting " ships — " Passing " ships — Breach of rules — Presumption of fault — Con- tributory negligence — Moiety of damages — 36 d 37 Vict. (Imp.) c. 85, s. 17 — "Agony of collision."] — If two vessels approach each other in the position of " passing " ships, (with a side light of one dead ahead of the other) where unless the course of one or both is changed, they will go clear of each other, no statutory rule is imposed, but they are governed by the rules of good seamanship. — If one of two " passing " ships acts consist- ently with good seamanship, and the other persists, without good reason, in keeping on the wrong side of the channel ; in starboarding her helm when it was seen that the helm of the other was hard to port, and the vessels are rapidly approaching ; and, after signalling that she was going to port, in reversing her engines and thereby turning her bow to star- board, she is to blame for a collision which follows. — The non-observance of the statutory rule (art. 18), that steamships shall slacken speed, or stop, or reverse if necessary when approaching another ship, so as to involve risk of Collision, is not to be considered as a fact contributing to a collision, providing the same could have been avoided by the imping- ing vessel by reasonable care exerted up to the time of the accident. — Excusable manoeuvres executed in " agony of collision " brought about by another vessel, cannot be imputed as contributory negligence on the part of the vessel collided with. — The rule that in narrow channels steamships shall, when safe and practicable, keep to the starboard (art. 21), does not override the general rules of naviga- tion. The Leverington (11 P. D. 117) fol- lowed. Judgment appealed from (5 Ex. C R 135 ) affirmed. The " Cxiba " v. McMillan, xxvi., 651. 4. Affreightment — Carriers — Charter party — Contract — Negligence — Stowage — Fragile goods — Bill of lading — Condition — Notice — Arts. 1674, 1675, 1676 C. C. — Contract against liability — Fault of servants — Arts. 2383 (8) 2390, 2Jf09, 2413. 21,24, U^7 C. 0.]— The char- tering of a ship with its company for a par- ticular voyage by a transportation company, does not relieve the owners and master from liability upon contracts of affreightment dur- ing such voyage where the exclusive Control and navigation of the ship are left with the master, mariners and other servants of the owners, and the contract had been made with them only. — The shipper's knowledge of the manner in which his goods are being stowed under a contract of affreightment does not alone excuse ship-owners from liability for damages caused through improper or insuffi- cient stowage. — A condition of a bill of ladirg, providing that the ship-owners shall not be liable for negligence on the part of the master or mariners, or their other servants, or agents, is not contrary to public policy nor prohi- bited by law in the Province of Quebec. — Where a bill of lading provided that glass was carried only on condition that the ship and railway companies were not to be liable for any breakage that might occur, whether from negligence, rough handling or any other cause whatever, and that the owners were to be " exempt from the perils of the seas, and not answerable for damages and losses by collisions, stranding and all other accidents of navigation, even though the damage or loss from these may be attributable to some wrong- ful act, fault, neglect, or error in judgment of the pilot, master, mariners, or other ser- vants of the ship-owners ; nor for breakage or any other damage arising from the nature of the goods shipped," such provisions apply only to loss or damage resulting from acts done during the carriage of the goods, and do not cover damages caused by neglect or improper stowage prior to the commencement of the voyage. — Judgment appealed from (Q. R. 6 Q. B. 95, 294) affirmed. Glengoil SS. Go. V. Pilkington, and v. Ferguson, xxviii., 146. 5. Appeal — Certiorari — Merchants' Ship- ping Act, 1854 — Distressed seaman — Recovery of expenses — " Owner for time being " — Proof of ownership and payment.] — ^An appeal lies to the Supreme Court of Canada from the judgment of a provincial court making abso- lute a rule nisi for a certiorari to bring up proceedings before a police magistrate under the Merchants' Shipping Act with a view to having the judgment thereon quashed. Sec- tion 213 of The Merchants' Shipping Act, 1854, makes the expenses of a seaman left m a foreign port and being relieved from distress under the Act a charge upon the ship and em- powers the Board of Trade, in Her Majesty s name, to sue for and recover the same from the master of the ship or " owner thereof for the time being." Held, affirming the Supreme Court of New Brunswick (34 N. B. Rep. 449), that the latter words mean the owner at the time of action brought. Held, further, that a certificate of the assistant secretary ot the Board of Trade that such expenses were incurred and paid is sufficient proof of pay- 813 MAERIED WOMAN. 814 ment under the Act though the above section does not provide for a mode of proof by certi- ficate. — Notwithstanding the provision in the Imperial Interpretation Act of 1889 that the repeal of an Act shall not affect any suit, pro- ceeding or remedy under the repealed Act, in proceedings under The Merchants' Shipping Act of 1854, proof of ownership of a ship may be made according to the mode provided in The Merchants' Shipping Act, 1804, by which the formei' Act is repealed. Held, also, re- versing the judgment appealed from (34 N. B. itep. 449 ) , that under the Act of 1894 a copy of the registry of a ship registei'ed in Liver- pool, certified by the Registrar-General of Shipping at London, is sufiicient proof of ownership. Quwre. Where the Merchants' Shipping Act of 1854 provides that every or- der of two justices in an action for seaman's wages shall be final, will certiorari lie to re- move the proceedings into a Superior Court'.' 2'Ae Queen v. S. S. " Troop " Co., xxix., 662. 6. Jurisdiction of Maritime Court of On- tario — Action for negligence — Death of ser- vant — Lord CampieU's Act. See Action, 42. 7. Appeal from Maritime Court — Rules — Notice — Date of pronouncing judgment — En- try by registrar — R. 8. C. c. 137, ss. 18, 19. See Appeal, 381. 8. Collision at sea — Negligence — Defective steering gear — Question of fact — Interference with decision of local judge in admiralty. See Appeal, 226. 9. Foreign vessel fishing within British waters of Canada — Three-mile limit — License — K. S. C. c. 9Jf, s. .i — Evidence — Onus pro- iandi. See Fisheries, 6. And see Admiralty Law — Shipping. MARRIAGE. Conditions in restraint of — " Dying ivithout issue" — "Revert" — Contingencies — An- nuity — Dower — Election by widow — Devolu- tion of Estates Act, Ji9 Vict. (O.) c. 22 — •'The Wills Act of Ontario," li. S. 0. (1889) c. 109, s. 30. ' See Will, 15. MARRIAGE LAWS. 1. Interdiction — Authorisation by interdict- ed husband — Dower — Sheriff's sale — Registry laws — Warranty — Succession — Renimcia- tion — Donation by interdict-i — The registra- tion of a notice to charge lands with custom- ary dower must, on pain of nullity, be accom- panied by a certificate of the marriage in re- spect of which the dower is claimed and must also contain a description sufficient to identify the lands sought to be affected. A sale by a sherifE against a debtor in possession of an immoveable under apparent title discharges the property from customary dower which has not been effectively preserved by registration validly made under the provisions of art. 2116 of the Civil Code. — Semble, that voluntary interdiction, even prior to the promulgation of the Civil Code of Lower Canada^ was an absolute nullity and that the authorization to a married woman to bar her dower is not in- validated by the fact that her husband had been so interdicted at the time of such author- ization. Rousseau v. Burlaiid, xxxii., 541. 2. Marriage covenant — Universal commu- nity — Don mutuel — Registry laws — Arts. SOT, 819, nil" C. C. — Construction of contract.] — A marriage contract contained the following clause : — " Les futurs epoux se sont faits et se font par ces presentes an survivant d'eux, ce acceptant, donation viagSre, mutuelle, ggale et rficiproque de tous les biens meubles et im- meubles, acquets, conquets propres et autres biens ggneralement quelconques qui se trouveront Stre et appartenir an premier mourant au jour de son decSs, de quel- que nature qu'ils soieut, et 9. quelque lien qu'ils soient situgs, pour par le dit survivant en jouir en usufruit sa vie duraut, &, sa onution juratoire et gardant viduitg." It was admitted that the only thing affected consisted of property belonging to the community. Held, affirming the judgment ap- pealed from, that the donation was one within the provisions of art. 1411 C. C. and, as such, did not require registration, as the clause is divisible and the stipulation in question as to universal community is merely a marriage covenant and not subject to the rules and formalities applicable to gifts. Huot v. Bicn- vcnu, xxxiii., 370. 3. Will — Condition of legacy — Religious liberty — Restriction as to marriage — Educa- tion — Exclusion from succession — Public policy. See Public Policy, 1. And see Community — Divokce — Dowee — Husband and Wife — Markied Woman. MARRIED AVOMAN. 1. Dissolution of partnership — Benefit con- ferred during marriage — Simulation — Fraud.'] —On 10th April, 1880, J. S. M., a retired partner of the firm McL. & B., composed of himself and W. M., his brother, agreed to leave his capital, for which he was paid inter- est, in the new firm constituted of W. M. and R., and that such capital should rank after the creditors of the old firm had been paid in full. The new firm was to Carry on business under the same firm name to 31st December, 1889. J. S. M. died 18th November, 1886. His wife, separate as to property, had an account in the books of both firms. On 16th April, 1890, 'an agreement was entered into between the new firm and the estate of J. S. M. and his widow, by which a large balance was admitted to be due by them to the estate and the widow. The new firm was declared insolvent in Janu- ary, 1891. Claims were filed by the widow, and the estate of J. S. M. against the insol- vents. The bank contested on grounds, inter alia, that they had been creditors of the firm and continued to advance to the new firm on the faith of the agreement of April, 1886, that the widow's moneys formed part of the capital of J. S. M., and that the dissolution was simulated. — The Supreme Court reversed the judgment appealed from (Q. R. 2 Q. B. 431) and restored that of the Superior Court, Four- nier and King, JJ., dissenting, and Held, thaf the dissolution was simulated ; that the 815 MASTEE AND SEEVANT. 816 moneys which appeared to be owing to the widow, after having credited her with her own separate moneys, were in reality moneys de- posited by her hifsband in order to confer up- on her, during marriage, benefits contrary to law, and that the bank had a sufficient inter- est to contest these claims, the transaction be- ing in fraud of their rights as creditors. Mer- chants Batik of Canada v. McLacKlan, and v. McLaren, xxiii., 143. 2. Don mutuel — Property excluded from settlement iut acquired after marriage — Res- cission for value.'] — Where by the terms of a don mutuel by marriage contract a farm in the possession of one of the sons of the hus- band under a deed of donation was excluded from the don mutuel, and subsequently the farm in question became the absolute property of the father, the deed of donation having been for value, it was held that by reason of the rescission the husband had acquired an independent title to the farm, and it there- by became charged for the amount due under the don mutuel by marriage contract, viz., $5,000, and that after the husband's death the wife (the respondent in this case) was entitled, until a proper inventory had been made of the deceased's estate, to retain pos- session of the farm. Taschereau and Gwynne, J J., dissenting. — Judgment appealed from (Q. R. 1 Q. B. 144) affirmed. Martindale v. Powers, xxiii., 597. 3. Constitutional law — Marital rights — Separate estate — Legislative jurisdiction ■ — 40 Vict. c. 7, s. 3—R. S. C. c. 50— N. W. Ter. Ord. No. 16 of i8S9.]— The provisions of ordinance No. 16 of 1889, respecting personal property of married women, are intra vires of the Legislature of the N.-W. Territories of Canada, as affecting property and civil rights, upon which the Lieutenant-GovernOr-iu-Coun- cil was authorized to legislate by the order of the Governor-General-in-Oouncil passed under the provisions of "The North-West Territories Act." — Its provisions are consistent with ss. 36 to 40 of "The North- West Territories Act," which exempt from liability for her husband's debts the personal earnings and I business profits of a married woman. — The words " her personal property " used in the ordinance are unconfined by any context, and must be interpreted, not as having reference only to the " personal earnings " mentioned in s. 86, but to all personal property belonging to a woman, married subsequently to the or- dinance, as well as all personal property ac- quired since then by women married before it was enacted. Brittlebank v. Gray-Jones (5 Man. L. R. 33) distinguished. Conger v. Kennedy, xxvi., 397. 4. Mortgage — Implied covenant — Dis- claimei:] — Where a deed of lands to a married woman, but which she did not sign, contained a recital that, as part of the consideration, the grantee should assume and pay off a mort- gage debt thereon, and a covenant to the same effect with the vendor, his executors, adminis- trators and assigns, and she took possession of the lands and enjoyed the same, and the bene- fit thereunder without disclaiming or taking steps to free herself from the burthen of the title, it must be considered that in assenting to take under the deed she bound herself to the performance of the obligations therein stated to have been undertaken upon her be- half, and an assignee of the covenant could enforce it against her separate estate. Small V. Thompson, xxviii., 219. 5. Separate property — Oonveyamie—Gorir tracts— C. 8. N. B. c. 72.]— Section 1 of C. S. N. B. c. 72, which provides that the pro- perty of a married woman shall vest In her as her separate property, free from control of her husband and not liable for payment of his debts, does not, except in the case spe- cially provided for, enlarge her power for dis- posing of such property, or allow her to enter into contracts which at common law would be void. Moore v. Jackson (22 Can. S. C. R 310) referred to. Lea v. Wallace (33 N. b'. Rep. 492) reversed. Wallace v. Lea, xxviii., ' 595. 6. Renunciation of community — Mar- chande puhlique — Possession — Prescription — Estoppel — Arts. 1319, 2191 G. C. See TiTLB TO Land, 75. 7. Lands expropriated — Compensation — R. S. N. S. c. 36, s. 40. See Administbation, 1. 8. Estoppel — Conveyance iy married wo- man — Agreement — Recital — Bona fides. See Fraudulent Conveyances, 5. MABTIAX LAW. See Military Law. MASTER AND SERVANT. 1. Employee and Employee, 1-6. 2. Engagement and Dismissal, 7-11, 3. Liability of Employer for Injuries to Workmen, 12 37. (o) For Cause Unknown, 12-14. (6) Common Employment, 15-20. (c) Oontriiutory Negligence, 21-24. (d) Dangerous Material, 25-27. (e) Dangerous Way; Works and Plant, 28-31. if) Defective Construction and Machinery, 32-36. {g) Exonerating Circumstances, 37. ' 1. Employer and Employee. 1. Collector of taxes — Warrant upon void assessment — ■ False imprisonment — 41 Vict, c. 9 (N. B.) — "Respondeat superior" — Damages.] — 41 Vict. c. 9 (N. B.) authorized the assessment of owners of land benefited by the widening of streets in St. John, N. B., and in their report on one street, the com- missioners assessed benefit to a lot at $419.46, in the name of appellant as owner, although as it appeared afterwards he was not the owner of the land in question. The assess- ment, if not paid, was to be levied upon exe- cution, and S., the receiver of taxes, on de- fault, issued execution, and for want of goods appellant was arrested and imprisoned until he paid the amount. The action was against the city and the receiver for arrest and false imprisonment, and for money had and re- ceived. The jury found a verdict against botn 817 MASTER AND SEEVANT. 818 defendants, ^hich was set aside. Held, re- versing the judgment appealed from (20 N. B. Eep. 479), Ritchie, C.J., and Taschereau, J., dissenting, that the receiver had issued the warrant upon a void assessment and caused the arrest to be made, and was guilty of a trespass, being at the time a servant of the corporation, under their control, specially ap- pointed to collect and levy the amount so as- sessed, that the maxim of respondeat superior applied, and therefore the verdict against both respondents should stand. — Per Gwynne, J. That the corporation had adopted the act of their officer as their own by receiving and re- taining the money paid and authorizing the appellant's discharge from custody only after such payment. McSorley v. City of St. John, vi., 531. 2. "Negligence of servant — Deviation from employment — Resumption — Contributory negligence — Infant — Evidence.'] — A trades- man's teamster, sent out to deliver parcels, went to his supper before completing the de- livery. He afterwards started to finish his work, and in doing so ran over and injured a child. Held,' affirming the decision appealed from (33 N. B. Rep. 91), that from the mo- ment he had started to complete the business in which he had been engaged he was in his master's employ just as if he had returned to his master's store and made a fresh start. Merritt v. Hepenstal, xxv., 150. 3. Tortious act — Public work — Con- tractor — Liability of railway company.] — A company building a railway is not liable for injury to property caused by the wrongful act of their contractor in borrowing earth for embankments from a place, and in a manner, not authorized by the Contract. Kerr v. At- lantic d N. W. By. Co., XXV., 197. 4. Railway company — Loan of cars — Reasonable care — Breach of duty — Negli- gence — Risk voluntarily incurred — ■" Volenti non fit injuria."] — A lumber company had railway sidings laid in their yard for con- venience in shipping lumber over the line of railway, with which the switches connected, and followed the practice of pqinting out to the railway company the loade'd ears to be removed, the railway company thereupon send- ing their locomotive and crew to the respective sidings in the lumber yard and bringing away the cars to be dispatched from their depot as directed by the bills of lading. Held, af- firming the judgment appealed from (22 Out. App. R. 292), that in the absence of any spe- cial agreement to such effect, the railway com- pany's servants while so engaged 'were not the employees of the lumber company, and that the railway company remained liable for the conduct of the persons in charge of the lo- comotive used in the moving of the cars ; and that when the lumber company's employees remained in a car lawfully pursuing their oc- cupation there, the persons in charge of the locomotive owed them the duty of using rea- sonable skill and care in moving the car with them in it, so as to avoid all risk and injury to them. Canada Atlantic Ry. Co. v. Hurdman, xxv., 205. o. Hiring of servant by third party — Con- trol over service — Negligence.] — A plate glass company hired by the day the general servant and horse and waggon of another com- pany for use in its business, and while so hired the servant in carrying a load of glass knocked a man down and seriously injured him. Held, reversing the judgment appealed from (26 Ont. App. R. 63), that the plate glass company was not liable in damages for the injury ; that the driver remained the gen- eral servant of the company from which he was hired and not that of the plate glass company. Consolidated Plate Glass Co. v. Caston, xxix., 624. 6. Negligence — Damages for death of ser- vant — Right of action — Jurisdiction of Maritime Court of Ontario — Lord Gamp- bell's Act. See Action, 42. 2 Engagement and Dismissal. 7. Contract for service — Arbitrary right of dismissal — Forfeiture — Notice.] — By agreement under seal between M., the inventor of a machine, and McR., proprietor of patents therefor, M. agreed to obtain patents for im- provements and assign them to McR., who in consideration thereof agreed to employ M. for 2 years to place the patents on the market, paying him salary and expenses, and a per- centage on profits by sales. M. agreed to de- vote his whole time to the business, the em- ployer having the right, if it was not suc- cessful, to cancel the agreement at any time after the expiration of 6 months from its date by paying M. his salary and share of profits, if any, to date of cancellation. — Employer was to be absolute judge of the manner in which employed performed his duties, and was given the right. to dismiss employed at any time for incapacity or breach of duty, the latter in such case to have his salary up to the date of dis- missal, but to have no claim whatever against employer. — M. was summarily dismissed with- in 3 months from date of agreement for al- leged incapacity and disobedience to orders. Held, reversing the judgment appealed from (17 Ont. App. R. 139), that the agreement gave the employer the right at any time to dismiss JI. for incapacity or breach of duty without notice, and without specifying any particular act calling for such dismissal. — Per Ritchie, C.J-, Fournier, Taschereau and Pat- terson, JJ., that such dismissal did not de- prive M. of his claim for a share of the pro- fits of the business. — Per Strong and Gwynne, JJ., that the share of M. in the profits was only a part of his remuneration for his ser- vices which he lost by being dismissed equally as he did his fixed salary. McRae v. Marshall, six., 10. 8. Contract — Proprietor of newspaper — Engagement of editor — Dismissal — Breach of contract.] — A. B. and C. D., who had published a newspaper as partners or joint owners, entered' into a new agreement, by which A. B. assumed payment of all the debts of the business and became from that time sole proprietor of the paper, binding himself to continue its publication, and, in case he wished to sell out, to give C. B. the prefer- ence. The agreement provided that : " 3. Le dit Charles Belanger devient, §, partir de ce jour, directeur et redacteur du dit journal, soil nom devant paraltre comme directeur en tete du dit journal, et pour ses services et son influence comme tel, le dit Arthur Belanger lui alloue quatre cents piastres par annee, taut par impressions, annonces, &c., qu'en argent jusqu'au montant de Cette somme, et 819 MASTEE AND SERVANT. 820 le dit Arthur BSlanger ne pourra mettre fin a cet engagement sans le consentement du dit Charles Bglanger." The paper was published for some time under this agreement as a sup- porter of the Liberal party, when C. B., with- out instruction from or permission of A. B., wrote editorials violently opposing the candi- date of that party at an election, and was dis- missed from his position on the paper. He then brought an action against A. B. to have it declared that he was " redactcur et directeur of the newspaper and claiming damages. Held, reversing the Queen's Bench, that C. B., by the agreement, had become the employee of A. B., the owner of the paper ; that he had no right to change the political colour of the paper without the owner's consent ; and that he was rightly dismissed for so doing. Be- langer v. Bilanger, xxiv., . 678. 9. Principal and agent — Master and ser- vant — Insurance agent — Duty — Appoint- ment — Acting for rival company — Divided interests — Dismissal.'] — To act as agent for a rival insurance company is a breach of an insurance agent's agreement " to fulfil con- scientiously all the duties assigned to him, and to act constantly for the best interests of (his employer)," and is suflBcient justifica- tion for his dismissal. — Judgment of the Court of Appeal for Ontario (22 Ont. App. R. 408) affirmed. Eastmure v. Canada Accident Assur. Co., XXV., 691. 10. Hiring of personal services — Muni- ■ cipal corporation — Appointment of officers — nummary dismissal — Libellous resolution -^ Statute, interpretation of — Difference in text of English and French versions — 52 Vict. c. 7.9, s. 1!) (Q.) — "A discretion" — "At pleasure."] — The charter of the City of Mon- treal, 1889, 52 Vict. c. 79, s. 79, gives power to the dty council to appoint and remove such oflicers as it may deem necessary to carry in- to execution the powers vested in it by the charter, the French version of the Act stat- ing that such powers may be exercised " a sa discretion," while the English version has the words " at its pleasure." Held, affirming the judgment appealed from (Q. R. 6 Q. B. 177), that notwithstanding the apparent difference between the two versions of the statute, it must be interpreted as one and the same en- actment, and the city council was thereby given full and unlimited power, in Cases where the engagement has been made indefinitely as to duration, to remove officers summarily and without previous notice, upon payment only of the amount of salary accrued to such of- ficer up to the date of such dismissal. Davis V. City of Montreal, xxvii., 539. 11. Contract of hiring — Duration of ser- vice — Evidence — Dismissal — Notice.] — Where no time is limited for the duration of a contract of hiring and service, whether or not the hiring is to be considered as one for a year, is a question of fact to be decided up- on the circumstances of the case. — A business having been sold, the foreman, who was en- gaged for a year, was retained in his position by the purchaser. On the expiration of his term of service no change was made, and he continued for a month longer at the same salary, but he was then informed that if he desired to remain his salary would be con- siderably reduced. Having refused to accept the reduced salary he was dismissed, and brought an action for damages claiming that his retention for the month was a re-engage- ment for another year on the same terms. Held, affirming the judgment appealed from (24 Ont. App. R. 29(i), whic'h reversed that of Meredith, C.J., at the trial (27 O. R. 309), that as it appeared the foreman knew that the business, before the sale, had been losing money and could not be kept going without reductions of expenses and salaries, that he had been informed that the contracts with the employees had not been assumed by the pur- chaser and that upon his own evidence there was no hiring for any definite period, but merely a temporary arrangement, until the purchaser should have time to consider the changes to be made, the foreman had no claim for damages, and his action was rightly dis- missed. Bain v. Anderson, xxviii., 481. 3. Liability of Employee for Injuries to Workmen. (a) For Cause Unknown. 12. Negligence — " Quebec Factories Act " R. .V. Q. arts. 3019-3053— C. C. art. 1053— Civil responsibility — Accident, cause of — Conjecture — Evidence — Onus of proof — Statutable duty, breach of — Police regula- tions.] — The plaintiff's husband was accident- ally killed whilst employed as engineer in charge of the defendant's engine and machin- ery. In an action by the widow for damages the evidence was altogether circumstantial and left the manner in whic'h the accident occurred a matter of conjecture. Held, that, in order to maintain the action it was necessary to prove by direct evidence or by weighty, pre- cise and consistent presumptions arising from the fact proved, that the accident was actu- ally caused by the positive fault, imprudence or neglect of the person sought to be charged with responsibility, and such proof being en- tirely wanting the action must be dismissed. The provisions of " The Quebec Factories Act," (K. S. Q. arts. 3019 to 3053, inclusive- ly) are intended to operate only as police regulations, and the statutable duties thereby imposed do not affect the civil responsibility of employers towards their employees, as pro- vided by the Civil Code. Montreal Rolling Mills Co. V. Corcoran, xxvi., 595. 13. Master and servant — Negligence — Evidence — Probable cause of accident.] — Evidence which merely supports a theory pro- pounded as to the probable Cause of injuries received through an unexplained accident is insufficient to support a verdict for damages where there is no direct fault or negligence pioved against the defendant, and the actual cause of the accident is purely a matter of ■spcHulation or conjecture. Canada Paint Co. V. Trainor, xxviii., 352. 14. ' Accidental injury — Unknown cause- Negligence — Employer's liability — Arts. 1053, 1056 C. C] — Defendant manufactured detonating caps made by charging copper shells with a highly explosive mixture, requir- ing great care in manipulation. When dry it was liable to explode easily by friction or contact with flame, but burnt slowly without exploding when saturated with moisture, it was the duty of defendant's foreman, twice a day, to provide a sufficient quantity of the mixture for use in his special compartment during the morning and in the afternoon, ana to keep it properly dampened with water, tor which purpose he was furnished with a 821 MASTER AND SEEVANT. 832 sprinkler ; to fill empty shells with the ful- minating mixture as handed to him set on end in wooden plates, and then pass thfm on, properly moistened, through a slot in his compartment, to a shelf whence they were removed by another employee and the charges pressed by means of a machine worked by C, at a table near by. An explosion originated at the pressing machine, and might have oc- curred either through the fulminate in the shells having been allowed to become too dry through carelessness in sprinkling, or from an accumulation of the mixture adhering to and drying upon the metal portions of the pressing machine. It was the duty of 0. to keep the machine clean and prevent the mixture from accumulating and drying there in dangerous quantities. When the explosion occurred, the foreman and C. and another employee were killed, but a fourth employee, who was blown outside the wreck of the building and sur- vived, stated that the first flash appeared to come from the pressing machine, and the ex- plosion followed immediately. The theory propounded by plaintifiE, father of C, assumed that nothing was known of the actual cause of the explosion, nor where it in point of fact originated, but inferred, from a supposed condition of things, that the fulminate had not been suflnciently dampened, and, that this indicated carelessness of the foreman, and raised a presumption that the explosion ori- ginated through his fault. The evidence of the survivor led to the conclusion that the ex- plosion originated through O.'s neglect to clean the pressing machine. The defendant had taken all .reasonable precautions to di- minish risk of injury to employees in the event of an explosion, and there was evidence which shewed that conformity with the rules prescribed and instructions given to em- ployees for the purpose of securing their safety would be sufficient to secure them from injury. Held, Taschereau and King, JJ., dissenting, that as it appeared that the cause of the accident was either unknown or else that it could fairly be presumed to have been caused by the fault of a fellow-servant, as the whose personal representative brought the ac- tion, there could not be any such fault im- puted to the defendants as would render them liable in damages. Dominion Cartridge Go. V. Cairns, xxviii., 361. [Leave to appeal refused by , the' Privy Council.] (6) Common Employment. 15. Common employment — Negligence — Questions of fact — Finding of jury on.] — A gas company, engaged in laying a main in a public street, procured from a plumber the services of H., one of his workmen, for such work, and while engaged thereon H. was in- jured by the negligence of the servants of the company. — In an action for damages for such injury : — Meld, aflSrming the decision appeal- ed from (32 N. B. Rep. 100), that by the evidence at the trial negligence against the company was sufficiently proved. Held, fur- ther, that whether or not there was a com- mon employment between H. and the servant of the company was a question of fact, and it having been negatived by the finding of the jury, and the evidence warranting such find- ing, an appellate court would not interfere. St. John Gas Light Co. v. Hatfield, xxiii., 164. 16. Negligence of servants of the Grown — Common employment — Law of Quebec.] — It is no answer to a petition of right for in- juries to a servant of the Crown while in dis- charge of his duty in the Province of Quebec to say that the injuries complained of were caused by the fault of a fellow-servant, as the doctrine of common employment does not prevail in that province. — Judgment appealed from (4 Ex. C. R. 134) affirmed. The Queen V. Filion, xxiv., 482. 17. Common employment — Law of Que- iec] — The doctrine of common employment does not prevail in the Province of Quebec. — The Queen v. Filion. (24 Oan. S. C. R. 482) followed. The Queen v. Orcnior, xxx., 42. 18. Common employment — Doctrine in Quebec — Employer's liahilily for act of ser- vant.] — As the doctrine of common employ- ment does not prevail in the Province of Que- bec, acts or omissions by fellow-servants do not exonerate employers from liability for in- juries caused through negligence of a servant. Asbestos and ^Isbestic Go. v. Durand, xxx., 285. 19. Public work — Negligence of servants of Grown — Common employment — Law of Quebec. See Negligence, 29. 20. Negligence of loom fixer — Defective machinery — Fault of fellow-servant. See Negligence, 97. (c) Contributory Negligence. 21. Negligence — Injuries sustained by ser- vant — Responsibility — Contributory negli- gence — Protection of machinery.] — Where an employee sustains injuries in a factory through coming in contact with machinery, the employer, although he may be in default, cannot be held responsible in damages, unless it is shewn that the accident by which the in- juries were caused was directly due to his neglect. (Q. R. 9 S. C. 506 reversed.) Toohe V. Begeron, xxvii., 567. 22. ^Negligence — Accident, cause of — Coyitributory negligence — Evidence.] — In an action for damages by an employee for in- juries sustained while operating an embossing and stamping press, it appeared that when the accident causing the injury occurred, the whole of the employee's hand was under the press, which was unnecessary, as only the hand as far as the second knuckle needed to be in- serted for the purpose of the operation in which he was engaged. It was alleged that the press was working at undue speed, but it was proved that the speed had been increased to that extent at the instance of the employee himself, who was a skilled workman. Held. reversing the Court of Queen's Bench, that the injury occurred by a mere accident not due to any negligence of the employer, but solely to the heedlessness and thoughtlessness of the injured man himself, and the employer was not liable. Burland v. Lee, xxviii., 348. 23. Working on tramway — Reasonable care. See Negligence, 42, 237. 24. Negligence — Common fault — Incon- sistent findings — New trial.. See Negligence, 141. 823 MASTEK AND SERVANT. 824 (,. S. Kep. 279), that the phrase " nearest recurring anniversary of the date of the lease " in 52 Vict. c. 23, s. 1 (c), is equivalent to " next or next ensuing anni- versary," and the lease being dated 10th .June, no rent for 1894 was due on 22nd May of that year, at which date the lease was declared for- feited, and E.'s tender on 9th June was in time. Attorneg-Ocncral v. Hheraton (28 X. S. ttep. 492) approved and followed. Held, further, that though the amending Act pro- vided for forfeiture without prior formalities of a lease in case of non-payment of rent, such provision did not apply to leases existing when the Act was passed in cases where the holders executed the agreement to pay rent thereunder in lieu of work. The forfeiture of E.'s lease was, therefore, void for want of the formali- ties presci-ibed by the original Act. Temple v. Avtorney-Oeneral of X. >V., xxvii., 3.55. G. .\fiiiii}g claim — Invalid locaiion — Location in foreign territory.] — If the initial post of a mining claim is in the X'nited States territory the claim is utterly void, (li B. U. Itep. 531 affirmed). Madden v. Vonncll, xxx., 109. 7. Negligence — Use of dangcronx materials — ('i.\ — If the de- scri|»tion of a mining claim as i'ec(j]'ded is so erroneous as to mislead parties locating other claims in the \'icinity the error is not cured by a certificate of work done by the first locator on laud not included in such description and covered by the subsequent claims. 1,0 B. C. liep. 523 affirmed.) Voplen v. Ualluhan, xxx., 555. Followed in Gollom v. Manleg (No. 10 in- fra), and in t'leury v. Boscowiiz (No. 11, infra). 9. Negligence — IT'orfc in mine — Entering shaft — Code of signals — Disregard of rules — Damages.} — A miner was getting inlu the bucket by which he was to be lowered into the mine when owing to the chain not being checked his weight carried him rapidl.\- dowji and he was badly hurt. In an action for damages against the mine owners the jury found that the system of lowering the men was faulty ; the man in charge of it negligent ; and that the engine and brake by which the bucket was lowered were not tit and proper for the pur- pose. Printed rules were posted near the mouth of the pit providing among other things that signals should be given, by any miner wishing to go down the mine or be In-ought up, by means of bells, the number telling the en- gineer and pitman what was required. The jury found that it was not usual in descending to signal with the bells ; and that the injured miner knew of the rules but had not Complied -with them on the occasion of the acciilent. On appeal to the Supreme Court of Canada from a judgment setting aside the verdict for plaintilf and ordering a new trial. Held, re- \ersing said judgment (8 B. C. Itep. 344) and restoring the judgment of the trial judge (7 B. C. Kep. 414). that there was ample evidence to support the findings of the jury that defendants were negligent ; that there \>as no contributory negligence by non-use of the signals, the rules having, with consent of the employees and of the persons in charge of the men, been disregarded, which indicated their abrogation ; the new trial should there- fore not have been granted. Held, funher, that as the negligence causing the accident was not that of the persons having control of those going down the mine, it was not a case of negligence at common law with no limit to the 831 MINES AND MINEEALS. 832 amount of damages, but the latter must be assessed under the Employers' Liability Act ([1897] R. S. B. C. c. 69.) Warmington v. Palmer, xxxii., 126. 10. Mining law — Location of claim — Ap- proximate bearing — Mis-statement — Minerals in place — B. G. "Mineral Act."^ — Accuracy in giving the approximate bearings in staking out a mineral claim is as necessary in the case of a fractional claim as in any other. — ^A pro- spector in locating and recording his location line between stakes No. 1 and No. 2 as run- ning in an easterly direction, whereas it was nearly due north, does not comply with the statute requiring him to state the approxi- mate compass bearing and his location is void. Coplen V. Callahan (30 Can. S. C. R. 555) followed. — Before a prospector can locate a claim he must actually find " minerals in place." His belief that the proposed claim contains minerals is not sufficient. — Judgment appealed from (8 B. C. Rep. 153) reversed. Collom V. Manley, xxxii., 371. Followed in Gleary v. Boscowitz, No. 11, infra. 11. Mining law — Location — Certificate of wo'rK — Evidence to impugn — JB. S. B. C. c. 1S5.'\ — A certificate of work done on a min- ing claim in British Columbia is conclusive evidence that the holder has paid his rent and can only be impugned by the Crown. Coplen V. Callahan (30 Can. S. C. R. 555) and Col- lom V. Manley (32 Can. S. C. R. 371) fol- lowed. — C. believing that the statutory work had not been done on mining claims, and that they were, therefore, vacant, located and re- corded them under new names as his own and brought an action claiming an adverse right thereto. Held, affirming the judgment ap- pealed from (8 B. C. Rep. 225), that evidence to impugn the certificate of work given to the prior locators was rightly rejected at the trial. Cleary v. Boscowitz, xxxii., 417. 12. Segligenoe — Working of mines — Statu- tory mining regulations — R.^S. 5?. S. (5 ser.) c. 8 — Fault of fellow-workmen.'i — The defend- ant company employed competent officials for the superintendence of their mine, and re- quired that the statutory regulations should be observed. A labourer was sent to work in an unused balance which had not been fenced or inspected and an explosion of gas occurred from the efEects of which he died. In an ac- tion for damages by his widow. Held, revers- ing the judgment appealed from, Taschereau and Sedgewick, JJ., dissenting, that as the company Had failed to maintain the mine in a condition suitable for carrying on their works with reasonable safety, they were liable for the injuries sustained by the employee, al- though the explosion may have been attribut- able to neglect of duty by fellow-workmen. Grant v. Acadia Coal Co., xxxii., 427. 13. Mining law — Royalties — Dominion Lands Act — Publication of regulations — Re- newal of license — Payment of royalties — Voluntary payment — R. S. C. c. 54, ss. 90, 91.] — The Dominion Government, by regula- tions made under the Dominion Lands Act, may validly reserve a royalty on gold produced by placer mining in the Yukon though the miner, by his license, has the exclusive right to all gold mined. Taschereau and Sedge- wick, JJ., dissenting. — The " exclusive right " given by the license is exclusive only against quartz or hydraulic licenses or owners of sur- face rights and not against the Crown. Tns chereau and Sedgewick, JJ., dissenting -Th» provision in s. 91 of the Dominion Lands Act that regulations made thereunder shall have effect only after publication for four succes- sive weeks m the Canada Gazette, means that the regulations do not come into force on nuh- hcation in the last of the four successive issues of the Gazette, but only on the expiration of one week therefrom.. Thus where they were published for the fourth time in the issue of 4th September they were not in force until the 11th and did not affect a license granted on 9th September.— Where regulations provided that failure to pay royalties would forfeit the claim, and a notice to that effect was posted on the claim and served on the licensee, pay- ment by the latter under protest was not a voluntary payment —One of the regulations of 1»89 was that the entry of every holder of a grant for placer mining had to be renewed and his receipt relinquished and replaced every year. Held, per C. J. and Girouard and Davies, JJ. reversing the judgment of the Exchequer Court (7 Ex. C. R. 414) Sedge- wick, J., contra, that the new entry 'and re- ceipt did not entitle the holder to mine on the terms and conditions in his original grant only but he did so subject to the terms of any re^ giilations made since such grant was issued.— Ihe new entry cannot be made and new re- ceipt given until the term of the grant has expired. Therefore, where a grant for one year was issued in December, 1896, an.1 in August, 1897, the renewal license was given to the miner, such renewal only took effect in December, ' 1897, and was subject to regula- tions made in September of. that year. — Regu- lations in force when a license issued were shortly after cancelled by new regulations im- posing a smaller royalty. Held, that the new regulations were substituted for the others and applied to said license. The King v. Chap- pelle; The King v. Carmack; The King y. Tweed, xxxii., 586. The Privy Council granted leave for an ap>- peal and a cross-appeal, 4th March, 1903. See Can. Gaz. vol. xl., p. 569. 14. Mines and minerals — Placer mining — Hydraulic concessions — Staking claims — An- nulment of prior lease — Volunteer plaintiff — Right of action — Status of adverse claimants — Trespass.] — In an action by free miners, who had " staked " placer mining claims with- in the limits of a concession granted for pur- poses of hydraulic mining, to set aside the hydraulic mining lease on the ground that it had been illegally issued and was null and of no effect ; Held, that where there was a hy- draulic lease o'f mineral lands in existence, the mere fact of free miners " staking " on the lands included within the leased limits did not give them any right or interest in the lands nor did they thereby acquire such status in respect thereto as could entitle them to obtain a judicial declaration in an action for the annulment of the lease. Hartley v. Matson, xxxii., 644. 15. Adverse claim — Form of plan and affi- davit — Right of action — Condition precedent — -Necessity of actual survey — Blank in jurat ~R. S. B. C. ( /.SVQ7 I c. 135, s. S7-S1 Vtet. 0. 33, s. 9 {B. C.)—R. 8. B. S. c. S, s. 16-- B. C. Supreme Court Rule 415 of iS90.]— The plan required to be filed in an action to ad- verse a mineral claim under the provisions ot s. 37 of the " Mineral Act " of British Col- umbia, as amended by s. 9 of the Mineral 33 MINES AND MINEEALS. 834 ;t Amendment Act, 1898," need not be based [ an actual survey of the location made by e Provincial Land Surveyor who signs the an. — The filing of such plan and the affidavit quired under the said section as amended, is it a condition precedent to the right of the Iverse claimant to proceed with his adverse tion. — The Jurat to an affidavit filed pur- ant to the section above referred to did not ention the date upon whic'h the affidavit had len sworn. Held, that the absence of the ite was not a fatal defect, and that, even if could be so considered at common law, such defect would be cured by the " British Col- nbia Oaths Act " and the British Columbia apreme Court Rule 415 of 1890. Judgment )pealed from (9 B. C. Rep. 184) reversed, aschereau, J., dissenting. Paulson v. Bea- an et al., xxxii., 655. 16. Free miner's certificate — Annual re- ntals — ■ Special renewals — Vesting of in- rest in co-owners — Sheriff — Levy under tecution — R. 8. B. C. c. 135, ss. 2, 3, 9, 34 -62 Vict. c. 45, ss. 2, 3, 4—R. 8. B. C. c. 72, . 12, 2Jf.'] — The sheriff seized the interest in ineral locations held by an execution debtor co-ownership with another free miner and, 'ior to sale under the execution, the debtor lowed his free miner's license to lapse. A lecial certificate in the debtor's name was ibsequently procured by the sheriff under the •ovisions of the fourth section of the " Min- al Adt Amendment Act, 1899," and it was intended that the debtor's interest had thus len revived and re-vested in him subject to le execution. Held, that upon the lapse of le free miner's certificate the interest in lestion had, under the statute, became abso- tely vested in the co-owner and could not ereafter be revived and re-vested in the judg- eut debtor by the issue of a special certifi- Lte. — Judgment appealed from (9 B. C. Rep. !1) affirmed, Sedgewick, J., dissenting. ■arvey Van Norman Co. et al. v. McNaught, £Xii., 690. 17. Placer mining regulations — Staking aims — Overlapping locations — ■ Renewal ■ant — Unoccupied Crown lands.] — In Aug- it, 1899, M. staked and received a grant for a acer mining claim on Dominion Creek, ukon, which, however, actually included irt of an existing creek claim previously aked by W.. In 1900 he applied for and itained a renewal grant for the same area, ^'s claim having lapsed in the meantime, id was continuously in undisputed possession that area, with his stakes standing from e time of his original location until March, •01, when S. and T. staked benc'h claims for e lands embraced in W.'s expired location Ijich had been overlapped by M.'s claim, as ing unoccupied Crown land. Held, affirm- g the judgment appealed from, Davies and rmour, JJ., dissenting, that the application r the renewal grant by M., after W.'s claim id lapsed, for the identical ground he had iginally staked and continuously occupied, ve him a valid right to the location with- it the necessity of a formal re-staking and iw application and that, following the rule Osborne v. Morgan (13 App. Cas. 227), e possession of M. under his renewal grant ould not be disturbed. St. Laurent v. Mer- ;r, xxxiii., 314. 18. Lease of mining rights — Option as to nation — Adoption of boundary.] — McA. ised a portion of a lot of land for mining s. 0. D. — 27 purposes described by metes and bounds with the option : " Pourra le dit acquereur charger la course des lignes et bornes du dit lopin de terre sans en augmenter les homes, I'etendue on superficie en suivant dans ce cas la course ou ligne de la dite veine de quartz qu'il pent y avoir et se rencontrer en cet endroit, aprgs que lui, le dit bailleur, aura prospecte le dit lopin de terre susbaillg," adopted lines of sur- vey made by P. as containing the vein. B. leased another portion of the same lot. Iq an action en iornage the court appointed three surveyors to fix the boundaries. Each surveyor made a separate report, and the re- port and plan of the surveyor L. adopting P.'s lines, was adopted and homologated by the court. — Held, affirming the judgment ap- pealed from (13 Q, L. R. 168), Gwynne, J., dissenting, that McA. having located the claim in accordance with the terms of the deed was estopped from claiming that the property should be bounded according to the true course of the vein of quartz, and that the judgment homologating the survey adopt- ing P.'s lines and survey was right and should be affirmed. McArthur v. Brown, xvii., 61. 19. Sale of phosphate mining rights — • Option to purchase other minerals found while working — Exercise of option.] — M. by deed sold to W. the phosphate mining rights of cer- tain land, the deed containing a provision that " in case the said purchaser in working the said mines should find other minerals of an/ kind he shall have the privilege of buying th'e same from the said vendor or representative by paying the price set upon the same by two arbitrators, appointed by the parties." W. worked the phosphate mines for five years, and then discontinued it. Two years later he sold his mining rights in the land, and by vari- ous conveyances they were finally transferred to B., each assignment purporting to convey " all mines, minerals and mining rights al- ready found or which may hereafter be found" on said land. A year after the transfer to B. the original vendor, M., granted the exclusive right to work mines and veins of mica on said land to W. & Co., who proceeded to develop the mica. B. then claimed an option to pur- chase the mica mines, under the original agree- ment, and demanded an arbitration to fix the price, which was refused, and she brought an action to compel M. to appoint an arbitrator and for damages. — Held, affirming the decision of the Court of Queen's Bench, that the option to purchase other minerals could only be ex- ercised in respect to such as were found when actually working the phosphate, which was not the case with the mica, as to which B. claimed the option. Baker v. McLelland, xxiv., 416. 20. Crou-n grant — Reservation of coal — Ordcr-in-council — Supplementary grant.] — Certain Crown lands in Quebec had been granted to the suppliants, as assignees of one Kaye, the applicant for said lands, from which the Crown contended the coal thereon was re- served which was the sole question ii issue. The Exchequer Court (3 Ex. C. R. 157), held that there being no express or implied agree- ment to the contrary the suppliants were en- titled to a grant conveying such mines and minerals as would pass without express words. — The Supreme Court of Canada affirmed the judgment of the Exchequer Court, and dis- missed the appeal with costs. The Queen v. Canadian Agricultural Coal, and Colonization Co., xxiv., 713. 835 MISTAKE. 836 21. Contract — Mining claim — Agreement for sale — Construction — Enhanced value.} — By agreement in writing signed by both par- ties B. offered to convey his interest in certain mining claims to N. for a price named with a stipulation that, if the claims proved on development to be valuable and a joint stock company was formed by N. or his associates, N. might allot or cause to be allotted to B. such amount of shares as he should deem meet. By a contemporaneous agreement, N. promised and agreed that a company should immediate- ly be formed and that B. should have a rea, sonable amount of stock according to its value. No company was formed by N., and B. brought an action for a declaration that he was en- titled to an undivided half interest in the claims or that the agreement should be speci- fically performed. — Meld, reversing the judg- ment of the Supreme C!ourt of British Col- umbia, that the dual agreement above men- tioned was for a transfer at a nominal price in trust to enable N. to capitalize the proper- ties and form a Company to work them on such terms as to allotting stock to B. as the parties should mutually agree upon ; and that, on breach of said trust, B. was entitled to a re-conveyance of his interest in the claims and an account of moneys received or that should have been received from the working thereof in the meantime. Briggs .v. Newswander, xxxii., 405. 22. Mortgage — Registration — Fixtures — Interpretation of terms — Bill of sale — Per- sonal chattels — Delivery. See MoETQAGE, 43. 23. Sale of land — Agreement for sale — Mutual mistake — Reservation of minerals — Specific performance. See Sale, 89. 24. Indian lands — Treaties with Indians — Surrender of Indian rights — Crown grant — Constitutional law — 43 Viet. c. 28 (D.). See TiTijE TO Land, 141. 25. Decisions of Yukon gold commissioner — Appeals — Legislative jurisdiction. See Appeal, 294. 2G. Negligence — Defective works, ways and machinery — Proximate cause of injury ■ — Fault of fellow-ivorkman — Mining regula- tions. See Veedict, 3. MINORITY. 1. Doctrine of contributory negligence — Child of tender age.] — The doctrine of con- tributory negligence does not apply to an in- fant of tender age. — (Gardner v. Orace, 1 F. & F. 359, followed.) — Judgment appealed from (33 N. B. Rep. 91) affirmed. Merritt V. Hepenstal, xxv., 150. 2. Loan to minor — Misconduct of tutor — Remedy — Ratification — Account. See Mortgage, 11. 3. Administration — Emancipation hy mar- riage — Deed to tutor — Action to annul — Prescription — Arts. 2243, 2253 G. C. See Limitation of Actions, 7. 4. Sale of minor's property— Shares held m trust ' — Purchase for value — Notice Obligation to account. See Tbusts, 7. 5. Discharge of administration — Construc- tive trust — Dihats de compte. # See TtTTOKSHip, 2. 6. Universal legatee — Succession — Ac- ceptance by, after action — Operation of. See Succession, 1. 7. Appeal — Jurisdiction — Matter in con- troversy— R._ 8. G. c. 135, s. 29 (b)— Tutor- ship — Petition for cancellation of appoint- ment — Arts. 249 et seq. C. G. — Tutelle pro- See Appeal, 87. MISDESCRIPTION. Railways — Expropriation — Title to lands — Proprietaries par indivis — Plans, surveys, books of reference ■ — Estoppel — Satisfaction of condition as to indemnify — Application of statute — Registry laws ■ — ■ Construction of agreement. See Railways, 32. And see Title to Land. MISDIRECTION. See New Tkial. MISE EN DEMEURE. Municipal corporation — Waterworks — Rescission of contract — Notice — Long user —Waiver — Art. 1061 C. C. See CoNTKACT, 29. MISREPRESENTATION. See Conditions, and Accident, Fiee, Life, AND Marine Insttrance. MISTAKE. 1. Vendor and purchaser — Principal and agent — Mistake — Contract — Agreement for sale of land — Agent exceeding authority — Findings of fact.] — Where the owner of lands was induced to authorize the accept- ance of an offer made by a proposed purchaser of certain lots of land through an incorrwt representation made to her and under the mis- taken impression that the offer was f'l^ f-'* purchase of certain swamp lots only, wnilst it actually included sixteen adjoining lots m addition thereto, a contract for the sale ot the whole property made in consequence by her agent is not binding upon her and will be set aside by the court, on the ground of error, as the parties were not ad idem as to the suDjeci matter of the contract, and there was no actual consent by the owner to the agreement so made for the sale of her lands— Judgment idt MISTAKE. 838 I VilMw ?? ppealed from (31 N. S. Rep. 172) reversed. lurray v. Jenkins, xxviii., 5G5. 2. Sale of land — Agreement for sale ■ — lutual mistake — Reservation of minerals — Specific performance.'] — The E. & N. Ry. jO. executed an agreement to sell certain ands to H., who entered into possession, made mprovements, and paid the purchase money, fhereupon a deed was delivered to him which le refused to accept as it reserved the miner- ,1s on the land while the agreement was for .n unconditional sale. In an action by H. for pecific performance of the agreement the com- )any contended that in its conveyances the vord " land " was always used as meaning a,nd minus the minerals. Held, reversing the udgment of the Supreme Court of British Jolum'bia (6 B. C. Rep. 228), Tascherean, r., dissenting, that the contract for sale be- ng expresseu in unambiguous language, and J. having had no notice of any reservations, t could not be rescinded on the ground of Qistake and he was entitled to a decree for pecihc performanc'e. Hobhs v. The Esqui- nalt and Nanaimo By. Go., xxix., ^^&^^^J (Leaxs^toappealto. Privy Council JKSSSST" 3. Error as to fact — R:ep6tition de I'imu —Actio condicto indebiti — Duress — Trans- iction — Payment under threat of criminal irosecution — Ratification — Arts. lOJ/7, [OJlS, IIJ/O G. C] — About the time a dissolu- ion of partnership was imminent one of the )artners was accused of embezzlement of unds and, supposing that he was liable for m alleged shortage and under threat of crim- nal prosecution, he signed a consent that the imount should be deducted from his share as I member of the firm. He was denied access the books and vouchers and, some weeks ifterwards, upon settlement of the affairs of he partnership, the amount so charged to him vas i)aid over to the other partners. It was ubsequently shewn that this partner had nade his returns correctly and had not ap- iropriated any part of the missing funds. Jeld, that he was entitled to recover back the Lmount so paid in an action condictio indetiti ,s both the consent and the payment had leen made under duress and in error and, fur- her, that there had been no ratification of he consent to the deduction of the amount ly the subsequent payment, because the denial i access to the books and vouchers caused dm to continue in the same error which viti- ,ted his consent in the first place, and, fur- her, that, even if the consent given could be egarded as amounting to transaction, it could be voidable on account of error as to act. Migner v. Goulet, xxxi., 26. 4. Marked cheque — ■ Fraudulent alteration 'ayment by third party — Liability for loss — negligence — Recovery of sum paid through rror.] — B. having an account in the Bank of I. had a cheque for $5 marked " good," nd, altering it so as to make it read as a heque for $500, he had it cashed by the mperial Bank. The same day it went hrough the clearing house and was paid by he Bank of H. to the Imperial Bank. The rror was discovered next day by the Bank of I., and re-payment demanded from the Im- erial Bank and refused. The Bank of H. rought an action to recover from the Im- erial Bank $495, overpaid on the cheque. )efendant contended that the note as pre- snted to be marked good was so drawn as to lake the subsequent alteration an easy mat- ter, and the plaintiff's act in marking it in that form was negligence which prevented re- covery. Held, affirming the judgment appeal- ed from (27 Ont. App. R. 590), which affirmed that at the trial (31 O. R. 100), that there was nothing in the circumstances to take the case out of the rule that money paid by mis- take can be recovered back, and the Bank of H. was therefore entitled to judgment. Im- perial Bank of Canada v. Bank of Hamilton, xxxi., 344. Affirmed on appeal by the Privy Council, [1903] A. C. 49. 5. Action for account — Agent's returns — Compromise — Subsequent discovery of error — Ratification — Prejudice.] — P. was agent to manage the wharf property of W., and receive the rents and profits thereof, being paid by commission. When his agency ter- minated W. was unable to obtain an account from him and brought an action therefor which was compromised by P. paying $375, giving $125 cash and a note for the balance and receiving an assignment of all debts due to W. in respect to the wharf property dur- ing his agency, a list of which was prepared the time. Shortly before the note became [ue P. discovered that, on one of the accounts assigned to him, $100 had been paid and de- manded credit on his note for that sum. This W. refused, and in an action on tbe note P. claimed that the error avoided the compro- mise and that the note was without consider- ation or, in the alternative, that the note should be rectified. Held, affirming the judg- ment of the Supreme Court of Nova Scotia, that as it appeared that P.'s attorney had knowledge of the error before the compromise was effected, and as, by the compromise, W. was prevented from going fully into the ac- counts and perhaps establishing greater lia- bility on the part of P., W. was entitled to recover the full amount of the note. Peters v. Worrall, xxxii., 52. 6. Insurance — Application — ■ Beneficiary not named in policy — Right to proceeds.] — Where through error and unknown to the in- sured, the beneficiary mentioned in the appli- cation for insurance is not named in the policy he is, nevertheless, entitled to the benefit of the insurance. — Judgment appealed from re- versed, Davies and Mills, JJ., dissenting. {Cornwall v. Halifax Banking Co., xxxii., 442. 7. Debtor and creditor — Payment — Ac- cord and satisfaction — Mistake — Principal and agent.] — On being pressed for payment of the amount of a promissory note, the de- fendant offered to convey to the plaintiffs a lot of land, then shewn to the plaintiff's agent, in satisfaction of the debt. The agent, after inspecting the land, made a report to the plaintiffs but gave an erroneous description of the property to be conveyed. On being in- structed by the plaintiffs to obtain the con- veyance, the plaintiffs' solicitor observed the mistake in the description and took the con- veyance of the lot which had actually been pointed out and inspected at the time the offer was made. More than a year afterwards, the plaintiffs sued the defendant on the note and he pleaded accord and satisfaction by conveyance of the land. In their reply the plaintiffs alleged that the property conveyed was not that which had been accepted by them and, at the trial, the plaintiff recovered judgment. Tbe full court reversed the trial court judgment and dismissed the action. 839 MONOPOLY. 840 Held, aflarming the judgment appealed from (9 B. C. Rep. 257) that the plaintiffs were bound to accept the lot which had been offer- ed to and inspected by their agent in satis- faction of the debt and could not recover on the promissory note. Pither d Leiser v. Man- ley, xxxii., 651. 8. Amount insured — policy — Parol evidence. See INSUBANCE. Death or endowment Life, 28. 9. Survey of boundaries — Conventional line — Courses and distances — Equitable relief. See BouNDABT, 1. 10. Reddition de compte — Settlement without vouchers — Omissions — Reformation de compte. See Action, 2. 11. Policy of insurance — Misdescription of risk — Representation by insured — Contract ■ — Waiver. See INSUBANCE, Fire, 93. 12. Wrong principle of award — Final by submission — ■ Setting aside. See Arbitrations, 47. 13. Receipt — Mistake — Parol testimony — Art. 1234 0. C. — Nullite d'ordre publique. See Evidence, 222. 14. Misrepresentation — Quality of mason- ry — Instructions to follow specifications — Increased price of works. See Contract, 177. 15. Error in mortgage — Rectification — Registered judgment — Priority. See Eegistey Laws, 24. 16. Fraud — Coercion — Compromise — Duress — False inventory. See Paetition, 1. 17. Contract — Rescission — Innocent mis- representation — Common error — Sale of land — Failure of consideration. See Contract, 120. 18. Debtor and creditor — Appropriation of payments — Error in appropriation ■ — Arts. lltiO, 1161. See Payment, 2. 19. Scire facias — Title to land — Annul- ment of letters patent — Tender on taking action — Sale of pledge — Vente a rSmire Concealment of material facts — Arts. 121Jf- 1S79 R. 8. Q. — Registration — Transfer of Crown lands — Art. 1007 C. P. Q.—Art,. 1553 C.C. See Crown, 93. 20. Sale of land — Misrepresentation by vendor — Estoppel. See Estoppel, 16. 21. Mining claim — Error in description — Registration. See Mines and Minerals, 8. 22. Rescission of contract — Misrepresen- tation — Artifi,ce — Consideration. See Vendor and Pubchaseb, 26. 23. Customs duties — Lex fori — Lex loci Interest on duties improperly levied — Mistake of law — Repetition — Presumption of oood faith — Arts. 1047, 10J,9 C.C. See Customs Duties, 5. 24. Construction of written contract — Specifications — " From " and " to " streets — Reference to annexed plan — Mistake — Apportionment of costs. See Conteact, 179. MIS-TRIAL. New trial — Answers by jury — Final judgment — Jurisdiction. See Appeal, 174. And see Ntw Tblal. MITOYENETE. See Party Wall. MONEY PAYMENT. Insolvency — Assignment — Preference — Payment in money — Cheque of third party — R. S. U. {1887) c. 124, s. 3. See Insolvency, 23. And see Payment. MONOPOLY. 1. Contract for exclusive rights, — Opera- tion of telegraph lines — Restraint of trade — Public policy. See Company Law, 2. 2. Construction of statute — By-law — Exclusive rights — Statute confirming — Ex- tension of privilege — C. S. C. c. 65 — 45 Vict. (Q.) c. 79, s. 5. See Statutes, 144. 3. Constitutional law — Municipal corpora- tion — Powers of legislature — License — Monopoly — Highways and ferries ■ — Tfavi- gable streams — By-laws and resolutions — Intermunicipal ferry — Tolls — Disturbance of licensee — North-West Territories Act, R. S. C. c. 50, ss. 13 and 24— B. N. A Act. s. 92 ss. 8, 10 and 16— Rev. Ord. N. W. Ter. (1888) 0. 28— Ord. N. W. T. No. 7 of 1891-9$, s. 4 — Companies, club associations and part- See Constitutional Law, 27. 4. Trade combination — Public policy — Unlawful consideration — Malum prohibition — Matters judicially noticed. See CoNSPiRACT. 841 MOETGAGE. 843 MORTGAGE. 1. Assignment and Transfer, 1-4. 2. Contract, 5-24. (a) Construction of Terms, 5-8. (6) Fraudulent Circumstances, 9-15. (c) Parties to Deed, 16-18. {d) Property Affected, 19-24. 3. Equitable Charge, 25. 4. Foreclosure, Sale and Hypothecary Eecotjese, 26-31. 5. Limitation of Actions, 32-83. 6. Notice, 34-40. 7. Registry Laws, Priority and Privi- leges, 41-48. 8. Release of Charges, 49-55. 9. Rights and Remedies, 56-81. 10. Sale of Mortgaged Property, 82, 83. 1. Assignment and Transfer. 1. Assignment as collateral — Duty of as- signee as to collecting — Bond, action on — Equitable plea — Taking accounts.'] — Action on a bond to pay £18,250 on 1st July, 1863, with interest at 6% half yearly in advance. Plea upon equitable grounds, in substance, that before the making of the bond the plain- tiffs through their trustee and manager, agreed to advance defendants £18,250 by transferring debentures of the Town of St. Catharines to that amount, for which defendants should give to plaintiffs good mortgages upon real estate to be approved by plaintiffs' manager, and that in the meantime defendants should exe- cute said bond, but that the debentures should only be handed over to defendants as and when such approved mortgages should be de- livered to plaintiffs ; that defendants assigned certain mortgages and executed others upon their own real estate, which were accepted and approved by plaintiffs' manager, who handed over debentures amounting at par value to £14,000 ; that plaintiffs realized upon some, if not all, the mortgages, and defendants also paid large sums on account and defend- ants believed their bond was fully paid, but had received no account, and as the payments were numerous and extended over many years and the accounts were complicated, they prayed that the suit should be transferred un- der the Administration of Justice Act to the Court of Chancery and^ the accounts there taken. The ease was transferred accordingly, and by consent of parties, a decree was made referring it to the master to take accounts, who made his report, and defendants ap- pealed from it on three grounds. 1. Be- cause the master had not charged plaintiffs with a draft of $1,697 with interest.— 2. Be- cause the master ought to have charged plain- tiffs with the difference between £2,000 in sterling debentures and $8,000 currency, the amount due on a mortgage, referred to as the "Ross" mortgage. 3. Because the master ought to have charged plaintiffs with interest on $6,484 (amount of a mortgage by McQ. as- signed to plaintiffs) from luth August, 1859. — The first ground of appeal turned entirely on the weight to be given to evidence on one side or the other respecting the draft in ques- tion, which the plaintiffs contended was an accommodation draft given by one of the de- fendants to their manager, the defendants al- leging that it was given in payment of an in- stalment of interest. Proudfoot, V.-C, al- lowed the appeal on this ground, and his judg- ment was upheld by the Court of Appeal. — ^As to the second ground, it appeared that among the mortgages assigned to plaintiffs was one for $6,484, bearing interest at 6 per cent., executed by McQ. upon land sold to him by one of defendants to secure balance of pur- chase money. The land was subject to a mort- gage for $8,000, called the " Ross Tl-ust Mort- gage," and, at the time of the sale to McQ., it was agreed defendants should pay off this prior mortgage. At the time of the assign- ment of the mortgage to plaintiffs they were informed of this agreement, and to secure the plaintiffs, their manager retained two of the sterling debentures amounting to £2,000 to pay this mortgage for $8,000. Defendants claimed that plaintiffs were responsible for the application of the $8,000 out of the pro- ceeds of the debentures ifrom 9th March, 1860, date of the assignment of the mortgage, or that they should only be charged with $8,000 of the £2,000 sterling. The plaintiffs contend- ed that nothing should be allowed, because their manager was also the manager of the Ross estate, and that defendants consented to his retaining the two debentures in his char- acter as agent of the Ross estate to be applied in satisfaction of the Ross mortgage, which was not satisfied until 1875. — Proudfoot, V.- C, held, that the onus lay upon plaintiffs to establish clearly that the debentures passed from them to defendants, and were held by Cameron as agent of the Ross trust and not as their agent, and as the evidence was insuffi- cient to support this contention plaintiffs should bear the loss. — This holding was also upheld by the Court of Appeal. — As to the third ground — although plaintiffs took pro- ceedings on the McQ. mortgage, the suit was conducted in such a dilatory manner that the final order of foreclosure was not obtained till 2nd April, 1875, and the property was then sold by plaintiffs to McQ. at a price much less than the principal and interest upon the origi- nal mortgage amounted to — Proudfoot, V.-C, held, that defendants were not merely in the position of sureties for the assigned mort- gages, who could not make plaintiffs liable for mere delay in proceeding upon the mort- gages, but that when mortgages, or judg- ments, or securities of these kinds are as- signed, the assignees are affected with a trust in regard to them, which imposes upon them the duty of diligence in their management; the assignment moving the property from the control of the debtor, and placing it within the control of the creditor, imposes upon him the duty of using proper exertions to render it effectual for the purpose for which it was assigned. Plaintiffs were therefore liable for not having collected the interest in question; it having been lost by the wrongful act of themselves, or their manager, for whose con- duct they were responsible. — The Court of Appeal affirmed the judgment of Proudfoot, V.-C. — An appeal to the Supreme Court of Canada was dismissed with costs. Synod of Toronto v. De Blaquiire, Cass Dig. (2 ed.) 537. 2. Assignment of equity — Covenant of in- demnity — Assignment of covenant — Right of mortgagee on covenant in mortgage.'] ■ — C. mortgaged his lands in favour of B., with the 843 MOETGAGB. 844 usual covenant for payment. He afterwards sold the equity of redemption to D., who cove- nanted to pay off the mortgage and indemnify C. against all costs and damages in connection therewith. This covenant of D. was assigned to the mortgagee. D. then sold the lands, sub- ject to the mortgage, in three parcels, each of the purchasers assuming payment of his pro- portion of the mortgage debt, and assigned the three respective covenants to the mortgagee, who agreed not to make any claim for the said mortgage money against D. until he had exhausted his remedies against the said three purchasers and against the lands. The mort- gagee having brought an action against C. on his covenant in the mortgage. — Held, revers- ing the judgment appealed from (24 Ont. App. R. 492 ) , that the mortgagee being the sole owner of the c;ovenant of D. with the mortgagor, assigned to him as collateral secu- rity, had so dealt with it as to divest himself of power to restore it to the mortgagor unim- paired, and the extent to which it was im- paired could only be determined by exhaustion of the remedies provided for in the agreement between ' the mortgagee and D. The mort- gagee, therefore, had no present right of action on the covenant in the mortgage. McGuaig V. Barier, xxix., 126. 3. Transfer of hypothec — Advances iy iank — 34 Vict. c. 5, s. iO — Nullity. See Banks and Banking, 14. 4. Right of action J)y mortgagee — Condition precedent — Notice of assignment — Transfer of mortgage — Assignment of rights under fire insurance policy after loss. See Insurance, Pike, 72, 73. 2. Contract. (a) Construction of Terms, 5-8. (6) Fraudulent Circumstances, 9-15. (c) Parties to Deed, 16-18. id) Property Affected, 19-24. (o) Construction of Terms. 5. Rate of interest — Fixed time for re-pay- ment — Contract — Rate after maturity. See Interest, 3. 6. Deed absolute — Declaration to operate as mortgage — Evidence. See Deed, 14. 7. Deed in absolute form — Effect as secu- rity only — Parol testimony. See Evidence. 225. 8. Corporation — By-law — Bonus to mort- gagors — Conditions of — Construction of terms. See By-law, 13. (6) Fraudulent Circumstances. 9. Scciiritij for advances — Acts in contem- plation of bankruptcy — Insolvent Act of 1S75 — Fraudulent preference — Onus of proof.] — W. was a private banker who discounted at an exorbitant rate notes received by D. in the course of his business. D.'s indebtedness on new transactions amounted to a large sOm of money, but he entered into new business, after obtaining goods on credit to the amoiint of $4,000 or $5,000, upon a representation to the suppliers that, although without any available capital, he had experience in business. About twelve days after he commenced his new busi- ness, being threatened with foreclosure pro- ceedings, he applied to W., who advanced $300, part of which was applied in paying overdue interest on the mortgage, and the sur- plus in retiring a note held by W. ; he exe- cuted a mortgage to W., was granted a re- duced rate of interest, and told he would have to work carefully to get thi-ough. D. became insolvent about four mouths afterwards, and a suit was brought by the assignee, impeach- ing the mortgage. Held, affirmmg the judg- ment appealed from (7 Ont. App. R. 103), that the plaintiff had not satisfied the onn's cast upon him by the Insolvent Act of shew- ing that the insolvent, at the time of the mortga.ge, contemplated that his embarrass- ment must of necessity terminate in insol- vency. McCrae v. White, ix., 22. 10. Fraud against creditors — 13 Eliz. c. 5 — Right of creditor of mortgagor to redeem — • Evidence.] — Plaintiffs recovered judgment against H. and issued execution under which the sheriff professed to sell goods of H., and gave a deed to plaintiffs conveying all the " share and interest " of H. in the goods. Six months before plaintiff's judgment. H. had ex- ecuted a mortgage covering all the goods pro- posed to be sold by the sheriff. The plaintiffs filed a bill to set this mortgage aside as fraudulent under the Statute of Eliz., and fraudulent in fact. Held, affirming this judg- ment appealed from, that no fraud being shewn and the plaintiffs not offering to redeem the mortgage, the action was rightly dis- missed. Halifax Banking Co. v. Matthew, xvi., 721. 11. Nullity — Loan to minor — Arts. 297, 298 C. C. — Obligation — Personal remedy — Moneys used for benefit of minor — Hypothecary action — Costs.] — Where a loan of money is impro- perly obtained by a tutor for his own purposes and the lender, through his agent who was also the subrogate tutor, has acknowledged that the judicial authorization to borrow has been ob- tained without the tutor having first submitted a summary account as required by art. 29S C. C, and that such authorization is otherwise irregular on its face, the obligation given by the tutor is null and void. — The ratification by the minor after becoming of age of such obligation is not binding if made without knowledge of the causes of nullity or illegality of the obligation given by the tutor. — If a mortgage, granted by a tutor and subsequently ratified by a minor when of age, is declared null and void, an hypothecary action by the lender against a subsequent purchaser of the property mortgaged will not lie. — A person lending money to a tutor, which he proves to have been used to the advantage and benefit of the minor, has a personal remedy agamst the minor when of age for the amount so loaned and used. Davis v. Kerr, xvii., 235. [Note. — • Two actions were instituted and appeals taken in both. Three appeals were taken to the Supreme Court of Canada from the judgments below (M. L. K. 5 Q. B. lob, 17 Rev. de Leg. 620, 622). The judgment in the personal action was reversed, with (!osts 845 MOKTGAGE. 846 was'aXwd'V ''^' '" ''^ hypothecary action Uon^Securiiy for advances to pay oor.po.i- 12. Debtor and creditor — Mortgage — Pre- ference — Pressure — R. S. O. (1887) c. 124, s. 2.] — A mortgage given by a debtor who knows that he is unable to pay all his debts in full is not void as a preference to the mort- gagee over other creditors if given as a result of pressure and for a honS, fide debt, and if the mortgagee is not aware of the debtor being in insolvent circumstances. Molsons Bank v Halter (18 Can. S. C. R. 88), and Stephens V. McArthur (19 Can. S. C. R. 446) followed. Judgment appealed from (18 Ont. App. R. 159) affirmed. Gibbons v. McDonald, xx., 587. 13. Preference ■ — Prejudice of creditors — Notorious insolvency of mortgagors — Art 2023 G. C]— About 28th February, 1883, " E. Pichg et fils " made a voluntary assignment for the benefit of their creditors, in the hands of T. The Union Bank, on 13th March, issued an attachment, on the affidavit of their agent on the faith of the assignment, that B. P. et fils were notoriously insolvent and in bank- ruptcy and seized their personal property. On 27th March, 1883, the appellants obtained from the assignee a document by which he bound himself to grant mainlevee of a hypo- thec given 17th November, 1882, by E. P. et fils to him to secure him against indorsements of $5,000, on promissory notes for advances to E. P. et fils, $3,000 by the Hochelaga Bank and $2,000 by Banque Ville Marie ; and to allow the Union Bank to take a first hypothec on the immoveable hypothecated for $2,500. The Union Bank agreed to obtain for E. P. et fils a composition for 20c. in the $ and a discharge from certain Montreal creditors. — Upon obtaining this document appellants dis- continued proceedings under the attachment, and on 29th of same month, the Montreal creditors of E. P. et fils signed a transfer of their respective claims to appellants ; the lat- ter fulfilling thereby the condition imposed upon them by the document of 27th March. On 13th April T., who had signed the docu- ment, gave a discharge of the mortgage for $5,000 ; and E. P. et fils consented in favour of appellants to the mortgage for $2,650. The mortgaged property -having been sold six months afterwards, appellants were collocated for the amount of their claim. — Respondents contested this collocation, alleging the notori- ous insolvency of B. P. et fils at the time of granting the mortgage. — The Superior Court rejected the contestation on the grounds : 1. that by acceptance of the composition of 20c. on the $ by the Montreal creditors the Pichgs had been placed in a position to resume their business ; 2. that respondents had acquiesced in the agreement between T. and appellants. — This judgment was reversed by the Queen's Bench on the grounds that the Pichfis were notoriously insolvent when the hypothec was given ; that appellants were aware of the in- solvency as proved by the affidavit for the attachment; and that therefore under art. 2023 0. C, the hypothec in question could not be invoked against appellants and the other creditors of the insolvents. — The Supreme Court concurred in the judgment appealed from and dismissed the appeal with costs, Gwynne, J., dissenting. Union Banh of Lower Canada v. Hochelaga Banh, Cass. Dig. (2 ed.) 350. 14. Contract in fraud of creditors — Action to annul — Art. IO4O C. C. — Limitation of ac- See Fraudulent Conveyances, 3. 15. Consideration partly bad — Bona fide advance — Statute of Elizabeth — R. S O {1887} c. 124, s. 2. See Fraudulent Preference, 7. (c) Parties to Deed. 16. Fiduciary substitution — Mortgage by in- stitute — Preferred claim — Vis Major — 16 Vict, c. 25 — Registry laws — Practice — Sheriff's sale — Parties — Estoppel — Improvements on sub- stituted property — Grosses reparations — Art. 2172 C. C.—29 Vict. c. 26 (Can.)]— The in- stitute, greuc de substitution, in possession and the curator to the substitution, upon judicial authority, mortgaged land under the Act for re- lief of sufferers by the Montreal Fire of 1852 (16 Vict. c. 25), for a loan expended in recon- structing buildings upon the property. On default in payment the mortgagee obtained judgment against the institute, and caused the lands to be sold in a suit to which the curator had not been made a party. Held, that, as the mortgage had been judicially authorized and was given special preference by the sta- tute, superior to any rights or interests that might arise under the substitution, the sale in execution discharged the lands from the sub- stitution not yet open and effectually passed the title to the purchaser for the whole estate, including that of the substitute as well as that of the greve de substitution, notwith- standing the omission to make the curator a party to the action or proceedings in execution. — An institute, greve de substitution, may validly affect and bind the interest of the sub- stitute in real estate subject to a fiduciary substitution in a case where the bulk of the property has been destroyed by vis major in order to make necessary and extensive repairs {grosses reparations), upon obtaining judicial authorization, and in such case the substitu- tion is charged with the cost of the grosses reparations, the judicial authorization ope- rates as res judicata, and the substitute called to the substitution is estopped from contesta- tion of the necessity and expense of the re- pairs. — The sheriff seized and sold lands un- der a writ of execution against a defendant, described therein, and in the process of seizure, and also in the deed by him to the purchaser, as greve de substitution. Held, that the term used was merely descriptive of the defendant and did not limit the estate seized, sold or con\e.ved under the execution. — Judgment ap- pealed from affirmed, Taschereau and King, JJ., dissenting. Held, per Taschereau, ,T., that art. 2172 C. C, as interpreted by 29 Vict. c. 26 ( Can. ) , applies to hypothecs and Charges only and does not require renewal of registration for the preservation of rights in and titles to real estate. Chef dit Vadebon- cosur V. City of Montreal, xxix., 9. 17. Hypothecary action — Res judicata — • Statement of balance due — ?voticc. See Sale, 7.5. 18. Implied covenant — Married woman — Disclaimer. See Deed, 45. 847 MOETGAGE. (d) Property Affected. 19. Statutory powers to iorrow, &c. — Mortgage by railway company — Sale of rights ■ — Power to mortgage road — Ultra vires — 06- jection taken in master's office and on appeal.} ■ — The G. J. Ry. Co., having statutory power to borrow money, issue debentures, bonds, or other securities for the sums borrowed, to sell, hypothecate or pledge its lands, tolls, revenues and other property, to purchase, hold and take land or other property for the construction, maintenanc'e, accommodation and use of the railway, and to alienate, sell or dispose of the same, entered into a contract with Brooks for the construction of their road. When Brooks required the necessary iron, he was unable to purchase it without the assistance of the com- pany, and he authorized the officers of the company to negotiate for its purchase. In consequence a solicitor of the company, as agent of Brooks, and with the approval, in writing, of the president of the company, en- tered into a written agreement, dated Toronto, 9th June, 1874, with the defendants (Bickford and Cameron) for the purchase of the iron, to be paid for as delivered at Belleville by the promissory notes of Brooks, and a credit for six months was to be given from the time of the several deliveries of the iron. Brooks thereby agreed to obtain from the company an irrevocable power of attorney enabling the Bank of Montreal (which advanced Bickford the money to buy the iron) to receive the bonuses, and to procure from the company a mortgage for $200,000 on that portion of their road (44 miles) on which the iron was to be laid — the mortgage to be sufficient in law to create a lien on the 44 miles of railroad, as security for payment of such notes, but not to contain a covenant for payment by the com- pany. On the 30th June, 1874, an agreement, under seal, was executed, which did not vary these terms in any material respect. On the same day, a power of attorney (indorsed by Brooks with a request to the company to give it), and a mortgage (also indorsed by Brooks with a request to grant it), were executed by the company under their corporate seal to the manager of the bank in Toronto, as a trustee. The bank having made advances to Bickford in the ordinary course of their business deal- ings to enable him to purchase the iron, it was all consigned to their order by the bills of lading, and, when delivered on the wharf at Belleville, was held by the wharfingers sub- ject to the order of the bank, the whole quan- tity stipulated for by the contract being so de- livered ready for laying on the track as re- quired. The bank and Bickford caused to be delivered from time to time to Brooks, by the wharfingers at Belleville, all the iron he re- quired to lay, being about 2,000 tons, and about an equal quantity remained on the wharf unused. Brooks having failed to meet his notes for the price of the iron, Bickford recovered judgment at law against him for $164,852.96. The bank then sold the iron re- maining on the wharf for the purpose of real- izing their lien, when Bickford became the purchaser thereof at $33.50 for the rails and $50.50 for track supplies. Bickford was re- moving the iron when the company filed a bill for an injunction to restrain the removal. A motion to continue the injunction was refused on the 11th October, 1875. The defendants (Bickford, Cameron and Buchanan) then ans- wered the bill, and on 18th January, 1876, by consent, a decree was made referring it to the master to take the mortgage account, to ascer- tain and state the amount due to Bidsford and Cameron for iron laid or delivered to or for plaintiff's use on the track, and also the amount due (if any) in respect of iron de- livered at Belleville, but since removed, and to report special circumstances, if requisite. The master found due upon the mortgage $46,841.- 10, the price of iron actually laid on the track, and interest ; and that nothing was due in re^ spect of the iron delivered at Belleville but subsequently removed. On appeal to Vice- Chancellor Proudfoot the master's report was affirmed, and on an appeal to the Court of Appeal for Ontario, it was held that the mort- gage was ultra vires, and the master's report was affirmed. Held, reversing the judgment appealed from (23 Gr. 302), that the proviso ' in the mortgage was in its terms wide enough to sustain the contention of the mortgagee Claiming the price of all the iron delivered on the wharf at Belleville, and that the memo- randum indorsed by Brooks on the mortgage should not be construed as cutting down the terms of the proviso, but was intended as written evidence of Brooks' consent to the mortgage and to the loss of priority in respect of the mortgage bonds to be delivered to him under the contract. Held, also, reversing the Court of Appeal, that the statutory power to boiTow money and secure loans cannot be con- si'dered as implying that the company's powers to mortgage are to be limited to that object; and, therefore, that the mortgage executed by the company on a portion of their road in favour of the trustee Budhanan, being given within the scope of the powers conferred upon the company to " alienate, sell, or dispose " of lands for the purpose of constructing and working a railway, was not ultra vires. Held, also, that under the pleadings and de- crees in the cause, the objection that the mort- gage was ultra vires was not open to the com- pany in the master's office, or on appeal from the master's report. — Quwre. Whether the rights of a public corporation to take lands, operating the railway, taking tolls, &c., are susceptible of alienation by mortgage in this country? Bickford v. Grand Junction By, Co., i., 696. 20. Leasehold premises — Terms of mort- gage — ' Assignment or sub-lease.] — A lease of real estate for 21 years with a covenant for a like term or terms was mortgaged by the lessee. The mortgage after reciting the terms of the lease proceeded to convey to the mort- gagee the indenture and the benefit of all covenants and agreements therein, the leased property by description and " all and singular the engines and boilers which now are or shall at any time hereafter be brought and placed upon or affixed to the said premises, all of which said engines and boilers are hereby de- clared to be and form part of the said lease- hold premises hereby granted and mortgaged or intended so to to be and form part of the term hereby granted and mortgaged;" the habendum of the mortgage was: "To have and to hold unto the said mortgagees, their successors and assigns, for the residue yet to come and unexpired of the term of years created by the said lease less one day thereol and all renewals, &e." Held, reversing the judgment appealed from (23 Out. App. n. 602), that the premises of the said mortgage above referred to contained an express as- signment of the whole term, and the haoen- dum, if intended to reserve a portion to the mortgagor, was repugnant to the said premises and therefore void ; that the expression ' lease- 849 MOETGAGE. 850 hold premises " was quite sufficient to carry the whole term, the word " premises " not meaning lands or property, but referring to the recital which described the lease as one for a term of 21 years. Held, further, that the habendum did not reserve a reversion to the mortgagor ; that the reversion of a day generally without stating it to be the last day of the term is insufficient to give the in- strument the Character of a sub-lease. Jame- son V. London & Canadian Loan & Agency Co., xxvii., 435. 21. Insurance against fire — Condition in policy — Interest of insured — Mortgagor as owner.] — By a coiiaition in a policy of insur- ance against fire the policy was to become void " if the assured is not the sole and un- conditional owner of the property ... or if the interest of the assured in the property whether as owner or trustee . . . mort- gagee, lessee or otherwise is not truly stated." Meld, that a mortgagor was sole and uncon- ditional owner within the terms of said con- dition. Western Assur. Co. v. Temple, xxxi.,. 373. 22. Mining machinery — Fixtures " Bills of Sale Act " — Registration. See No. 43, infra. N. S. 23. Property, real and personal — Immove- ables by destination — Moveables incor- porated with freehold — Severance from realty — Contract ■ — Resolutory condi- tion — Conditional mile — Hypothecary cred- itor — Unpaid vendor — G. C. arts, 379, Wn, 2083, 2085, 2089. See Contract, 66. 24. Trade fixtures — Chattels — Tools and machinery of a " going concern "■ — Construc- tive annexation. See Immoveable Pbopeety. 3. Equitable Charge. 25. Agreement to charge lands — Statute of Frauds — Registry.} — The owner of an equity of redemption in mortgaged lands, called the " Christopher farm," signed a memo, as follows : — " I agree to charge the E. % of lot No. 19, in the 7th concession of Lough- borough, with the payment of two mortgages held by G. M. G. and Mrs. K. respectively, upon the 'Christopher farm' . . amount- ing to $750 . . and I agree on demand to execute proper mortgages of said land to carry out this agreement, or to pay off the said Christopher mortgages." Held, affirming the judgment appealed from (22 Ont. App. R. 175), that this instrument created a present equitable charge upon the east half of lot 19, in favour of the mortgagees named therein. Rooker v. Hoofstetter, xxvi., 41. 4. Pobeolosure; ^ale, and Hypothecary Recotjese. 26. Assignment of equity of redemption in trust — Reconveyance — Foreclosure against trustee — Subsequent sale — Power of sale — Deed after foreclosure.'] — K. mortgaged leasehold premises to respondents, with cove- nant authorizing them to sell on default, with or without notice at public or private sale. The mortgage conveyed the unexpired portion of the current term and "every renewed term." Afterwards K. conveyed the equity of redemption to O. upon trusts, and left the Country. During his absence the lease expired, and was renewed in the name of O.. On de- fault in payment of interest suit was brought against O. for foreclosure, prior to which O., being threatened with such suit, re-conveyed the equity to K., but the deed was never de- livered. O. filed an answer and disclaimer of interest, which he afterwards withdrew and consented to a decree, and the mortgagees sub- sequently sold the mortgaged premises to D. for less than the amount due on the mortgage ; the deed to D. recited the proceedings in fore- closure and purported to be made under the decree. K. sought to have the decree of foreclosure opened and cancelled, the deed to D. set aside, and to be allowed to come in and redeem. Held, affirming the judgment appeal- ed from (11 Ont. App. K. 526), Strong and Henry, J J., dissenting, that even if the de- cree of foreclosure were improperly obtained, and consequently void, yet the sale to D. was a proper exercise of the power of sale in the mortgage and should be sustained, and that it passed the renewed term which was includ- ed in the mortgage. Kelly v. Imperial Loan Co., xi., 516. 27. Foreclosure — Practice — parties — Lease by mortgagor — ■ Stay of proceedings — Sale of mortgaged lands ■ — Conditions of sale.] — In an action for fore- closure of mortgage, defendants were admin- istrators and heirs-at-law of the mortgagor and devisees in trust of deceased heirs. Subse- quent incumbrancers, judgment creditors of some of the heirs, and the lessee of the " Queen Hotel," part of the mortgaged pre- mises under lease from some of the heirs, were not made parties. None of the defendants ap- peared and the equity of the mortgagor and those claiming under him was foreclosed, and the lands ordered to be sold on the day named for the sale, on application of the lessee of the hotel, an ex parte order was made direct- ing that on payment into court of $37,019 proceedings should be stayed until -further order and that plaintiffs should convey the mortgaged lands and the suit and benefit of proceedings, therein to S. & K., which direc- tion was complied with. — On 26th December, 1889, defendant's motion to rescind this mo- tion was refused and the order amended by a direction that the lessee should be made a defendant and S. & K. joined as plamtiffis, and that the stay of proceedings be removed. On 4th January, 1890, a further order was made directing that the hotel property be sold subject to the rights of the lessee. Prom the two last mentioned orders defendants appealed to the full court which affirmed the former and set aside the latter. — Both parties ap- pealed to the Supreme Court of Canada. Held, that the order of 26th December, 1889, was rightly affirmed. The stay of proceedings un- der the order affirmed by it was no more ob- jectionable than if effected by injunction _ to stay a sale under a writ of fi. fa., and being made at the instance of a lessee, and as such a purchaser pro tanto, of the mortgaged lands who had a right to redeem, it was in the dis-- cretion of the judge so to order. To the direc- tion that plaintiffs should convey the lands to S. & K. defendants had no locus standi to object, and they were not prejudiced by the addition of parties made by the order. Nor 851 MORTGAGE. 853 had defendants a right to object to the re- moval of the stay of proceedings and rights of subsequent incumbrancers not before the court would not be aftected by the order made in their absence. Moreover, between the date of the order and the appeal to the full court the property having been sold under the decree, the purchaser not being before the court was a sufficient ground for dismissing the appeal. Held, further, that the order of January 4th, 1890, should also have been affirmed by the full court. In selling the mortgaged property the court ought to have protected the rights of the. lessee by selling first the propo.rtion in which she had no interest. — Judgment ap- pealed from (23 N. S. liep. 350) varied. Collins V. Cunningham; Cunningham v. Drys- dale, xxi., 189. 28. Sale under powers — • Authority of agent to give credit — Inquiry iy purchaser — Payment. See PEiNCiPiOL AND Agent, 5. 29. Declaration d'hypothSque — • Service of judgment — Absentee — Surrender of mort- gaged lands — Personal consideration. See Practice and Pboceduke, 131. 30. Suit against mortgagor — Hypothecary action against subsequent purchaser — State- ment of balance due — Payment — Notice — Res judicata. See Sale, 75. 31. Sheriff's sale — Substitution — Parties to mortgage_ suit — Preferred claim — Estop- pel. See No. 16, ante. 5. Limitation of Actions. 32. Interruption of prescription — Payment by co-obligor. See Limitation of Actions, 1. 33. Fraudulent sale — Foreclosure — Pur- chase by mortgagee — Trustee for sale — Possession — Statute of Limitations — Re- demption — ■ Lien on proceeds — R. S. 0. (lari) c. 108, s. 19 — Waiver. See Limitation of Actions, 24. 6. Notice. 34. Security for loan — Deed absolute in form — Purchase for value without notice ■ — Registration — Purchase with agreement to re-sell — Practice — Amendment under A. J. Act (0.)—Vict. c. — , s. 50.]— Plaintiff alleg- ing ownership of lands, filed her bill alleging that she conveyed the lands on the 31st Aug- ust, 1866, to McF., deceased, by deed absolute in form, but intended as security only for re-payment of $500, then advanced by McF. to her ; that subsequently McF. by deed ab- solute in form, dated 13th June, 1871, convey- ed the lands to defendants R. and McK. ; that R. and McK had at the time of the con- veyance notice of plaintiff's rights ; that sub- sequently and on 21st June, 1872, R. and MdK. conveyed the lands, by deed absolute in form, to defendant B. ; that B. had, before the conveyance to him, notice of the plain- tiff's rights ; that to secure payment of part of his purchase money to R. and McK., B. mortgaged the lands to them by mortgage' dated 12th, July, 1872, which they subsequent- ly assigned to one Watson; and she prayed that it might be declared that the deed to McF. was intended to operate only as a se- curity and that the plaintiff might be let in to redeem the lands ; that B. might be re- strained from cutting timber and ordered to account for timber cut; and that the defend- ants might be ordered to remove the mortgage made to R. and McK., and for other relief.— Defendants R., McK., and B. while ad- mitting that the conveyance to McF. was in- tended only to operate as a security, denied that they had any notice of that fact, and claimed the lands as purchasers for value without notice. The Chancellor heard evi- dence on 5th May, 1875. Before the evidence had all been adduced, or any argument of the" case, an application made on behalf of defend- ant B., for leave to file a supplemental ans- wer setting up the registry laws as a defence to the claim was refused, and a decree made declaring the conveyance to McF. only secur- ity for payment of the $500 ; that R. and McK. 'bought with actual knowledge of the plaintiff's claim, and that B. bought from them with actual notice. — On appeal by B. the Court held that the evidence did not shew that B. • had actual notice when he purchased, that the amendment should have been allowed, and that the court had power then to allow it under the Administration of Justice Act, s. 50, but as it would not be proper to con- clude plaintiif without allowing him an oppor- tunity of producing further evidence, the case was sent down for another hearing. ( See Mc- Farlane v. Peterkin, 4 Out. App. R. 25.) — Held, Ritchie, C.J. and Henry, J., dissenting, that the judgment refusing the amendment was properly appealable to the Court of Ap- peal for Ontario, but when that court had made an order allowing the amendment in the exercise of its discretionary power, it might be doubted whether the Supreme Court had jurisdiction to entertain an appeal from such order. Assuming the Supreme Court to have such jurisdiction, it should be chary in ex- ercising it, lest by so doing it should injuri- ously fetter the very extensive discretion in matters of amendment with which the Legis- lature had invested all courts In Ontario. — The doctrine that where a purchaser without notice had paid a portion of the purchase money and had given a mortgage for the bal- ance, and before payment of this mortgage he becomes affected with notice of an equitable title in plaintiff, who subsequently files a bill to set aside the sale, the purchaser shall be entitled to no relief or consideration whatever in a court administering equity in respect of the purchase money paid before he became affected with notice, was questioned in Totten V. Douglas (18 Grant, 352), and the assertion of it in this case for the purpose of support- ing the decree was also a reason for affirm- ing the allowance of the amendment. Trans- fers of the legal estate to relatives upon al- leged verbal promise to hold as mortgagees subject to redemption or to recovery upon re- payment ought to be strictly scrutmized, especially when the rights of third persons who have paid money upon faith of title are in question, and it might promote the ends o: justice to allow the proposed amendment ana give further opportunity for the consideration of this point.— Further, the decree took no notice of the interests of Watson, the assignee of the mortgage, who could not be oepmeu of the estate by anything done in the suit as 853 MOETGAGE. 854 instituted. — Per Ritchie, C. J., dissenting. — The Supreme Court should determine whether or not the Chancellor was right in his opinion that the amendment would not on the facts as proved be of any avail to defendants if it had been on the record at the time of his de- cision ; and if not the amendment should not have teen allowed, but the judgment of the Chancellor affirmed. — ^Appeal dismissed with costs, Ritchie, C.J., and Henry, J., dissent- ing. — (21st June, 1880.) — B. subsequently put in a supplemental answer denying notice of plaintiff's claim, claiming protection of regis- try laws, and that he was purchaser for value without notice. On 31st March, 1881, Spragge, C., held that defendant had notice of plaintiff's claim at the time he purchased, and was not a iona fide purchaser for value without notice. — ^On appeal, the court was equally divided. (McParlane v. Peterkin, 9 Ont. App. R. 429.) — Held. Gywnne, J., dis- senting, that the redeemable character of the transaction being admitted on the pleadings, was not open to discussion. The only point to consider was whether or not the Chancellor was wrong in finding as matter of fact that defendant had actual notice. If they had actual notice this would defeat the registered title. The court being unable to say the Chancellor was wrong, thought the appeal should be dismissed. — Per Gwynne, J., dis- senting, that the transaction was a sale of the land to JlcJb'., and the evidence only es- tablished that McF. verbally and voluntarily, and so in a manner not binding upon him, promised J. P., plaintiff's agent, whom McF. regarded as selling the land although the deed was made by the plaintiff; that he might re- purchase the land, and that he (McF.) would re-sell and re-convey it to him upon re-pay- ment of the $500 at any time during his (McF.'s) lifetime; and- further, that there was no evidence establishing any notice what- ever binding upon B., or which could have any effect to defeat his purchase. Rose v. Peter- kin, Cass. Uig. (2 ed.) 535. 35. Sale of mortgaged land for taxes ■ — Purchase by mortgagor — Action to foreclose — Pleading.] — Lands under mortgage were of- fered for sale by the municipality for arrears of taxes and purchased by the wife of the mortgagor. The tax sale certificate was after- wards assigned to L., who obtained a deed from the municipality. In an action against the mortgagor, his wife and L. for foreclosure, the mortgagee alleged that the purchase at the tax sale was in pursuance of a fraudulent scheme by the mortgagors to obtain the land freed from the mortgage, and the trial judge so held in giving judgment for the mortgagee. The Court of Queen's Bench did not pro- nounce on the question of fraud but affirmed the judgment on other grounds. — Held, af- firming the decision appealed from (12 Man. L. R. 290), that L. could not claim to have been a purchaser for value without notice as such defence was not pleaded, and it was not a case in which leave to amend should be granted. — Held, further, that the facts proved on the trial were sufficient to put L. on in- quiry and so amounted to constructive notice. Lawlor V. Day, xxix., 441. 30. Hypothecary action — Subsequent pur- chaser — Statement of balance — Res judicata — Notice. See Sale, 75. ^ 37. Purchase of land — Agreement to as- sign mortgage as part payment — Negotiable instrument — Second mortgage — Specific per- formance. See Contract, 244. 38. Error in description — Omission by mistake — Rectification — Notice — Estoppel. See Vendor and Pckchasek, 19. 39. Charge on land — Legacy — Priority- Notice. See Executors and Administrators, 4. 40. Conveyance in absolute form — Result- ing trust — Notice to equitable owner ■ — Estoppel. See Sale, 111. 7. Registry Laws ; Priority and Privi- LEGESi 41. Agreement to postpone — Assignment — Notice — Registration — Priority-] — In 1861, W. M. mortgaged lands for $4,000, and subsequently mortgaged the same lands to the appellant, both mortgages being duly regis- tered. In 1860, W. M. executed another mort- gage to the respondent intended to be sub- stituted for the first mortgage, and the money was applied in payment thereof, the second mortgagee consenting that the mort- gage to respondent should have priority over his. The second mortgage was afterwards as- signed, without notice of this agreement. The assignment was registered, and ihis obtained priority over the agreement, which had not been registered. The Court of Chancery (26 Gr. 280), held that the respondent was not entitled to relief upon the facts as shewn, and dismissed the bill. The Court of Appeal (5 Ont. App. R. 503) affirmed the decree except as to the second mortgagee, who was ordered to pay off the respondent's mortgage, principal and interest, but without costs. Held, affirm- ing the judgment appealed from, Strong, J., dissenting, that the appellant was bound both at law and in equity to indemnify the respondent for any loss sustained by reason of breach of the agreement, but that no relief could be decreed against the assignee who had acquir- ed the second mortgage in good faith without notice of the unregistered agreement. Mc- Dougall v. Campbell, vi., 502. 42. Postponement — Priority of lien — Hali- fax Assessment Act, 1S83 — Mortgage made 6a- fore statute — Construction of Act.] — The Halifax City Assessment Act, 1883, made the taxes assessed on real estate in said city a first lien thereon except as against the Crown. Held, affirming the judgment appealed from sub-nom. Cogswell v. Holland (21 N. S. Rep. 155, 279), that such lien attached on a lot assessed under the Act in preference to a mortgage made before the Act was passed. O'Brien v. Cogswell, xvii., 420. 43. Mining machinery — Registration ■ — Fixtures — Interpretation of terms — Bill of sale — Personal chattels — R. S. N. S. (5 xer.) c. !)2, ss. 1, 4 and 10 (bills of sale) — 55 Vict. (N. 8.) c. 1, s. US (The Mines Act) —Jfl & U Vict. (N. S.) c. 31, s. .4.]— The " fixtures " included in the meaning of the ex- pression " Personal Chattels " by s. 10, N. S. " Bills of Sale Act," are only such articles as 855 MOETGAGE. 856 are not made a permanent portion of the land and may be passed from hand to hand with- out reference to or in any way affecting the land, and the "' delivery " referred to in the same clause means only such delivery as can be made without a trespass or a tortious ^ct. — An instrument conveying an interest in lands and also fixtures thereon does not re- quire to be registered under the " Bills of Sale Act" (K. S. N. S. L5 ser.] c. 92), and there is no distinction, in this resped, be- tween fixtures covered by a licensee's or ten- ant's mortgage, and those covered by a mort- gage made by the owner of the fee. — Judg- ment appealed from (28 N. S. liep. 202) affirmed. Warner v. Don, xxvi., 388. 44. Error as to amount — Rectification — Registered judgment — Priority. cSee Registrt Laws, 24. 45. Priority — Legacy — Charge on lands — Notice. See Executors and Administbatoks, 4. 46. Priority lien. — Proceedings on mechanics' See Lien, 5. 47. Title to land — Sheriff's sale ■ — Deed — Action to vacate — Petition — Exposure to evic- tion — Actio condictio indebiti — Refund of price paid — Substitution not yet open — Prior incumbrance— Arts. 706, 710, 71J,, 715 C. G. P. —Arts. 1511, 1535, 1586, 1591 , 2060 C. G. See Substitution, 7. 48. Substituted property — Preferred claim — Relief of sufferers by Montreal fire, 1852 — Registry laws — Sheriff's sale — Estoppel. See No. 16, anie. 8. Release of Chakoes. 49. Estate tail — Mortgage in fee — Release ■ — Re-conveyance — Bar of entail — Legal estate of mortgagee — Statutory discharge — R. 8. 0. (1877) c. Ill, ss. 9, 67.] — The execution and registration, in accordance with the R. S. O. (1877) c. Ill, s. 67, of a discharge of a mort- gage in fee simple made by a tenant in tail re-conveys the land to the mortgagor barred of the entail. Judgment of the Court of Ap- peal for Ontario (6 Out. App. R. 312) re- versed, Henry, J., dissenting. Lawlor v. Law- lor, X., 194. 50. Action hypothecaire — Delegation of pay- ment of hypothecary obligation — Dilaissement en justice by part owner — Joint debt — Joint and several hiypotheos — Personal recourse — Acceptance of delegation — Eviction from part of property.^ — R. sold to Q. the S. % lot 4679, Montreal, and C. on the same day sold him the N. % of the same lot. Q. sold to G., L. and R. % of both properties en bloc and re- ceived $22,246.87, leaving due $27,365.63, which the purchasers promised to pay for Q. to R. to meet Q.'s liability. R. was not a party, but subsequently served notice of ac- ceptance of the delegation of payment. Prior to such acceptance R. sued the joint proprie- tors hypothec'arily for Q.'s debt, and they made a delaissemcnt of the portion of the lands sold by her to Q. Subsequently R. sued O. under the delegation for % of the $27,- 365.63. G. contended that having been obliged to surrender a portion of the property, he could not be sued for any portion of the money, and the judgment appealed from (2 Legal News 67), sustained this contention, ffeid, that if G. in the hypothecary action had been evicted from the whole of the property hypo- thecated he would have been relieved from personal responsibility under the delegation; but haying been evicted from only a part in- terest in said property he was freed from lia- bility under the delegation merely to the ex- tent to which the eviction might be considered to have paid his share of the debt to R. Reeves v. Perrault, x., 616. [Note from Cass. Dig. (2 ed.) 335. — The court therefore ordered that, upon payment, as a condition precedent, of the costs incurred by plaintiff in the Supreme Court and the Court of Queen's Bench, together with costs incurred by plaintiff in the Superior Court since the filing of defendant's pleas on record, the defendant be allowed to amend his pleas and to plead that he had been evicted from a part of the property sold to G. by Q., and that what had been paid by G. to Q. at the time of said sale paid, and even over paid, for the part of said property which G. detained, and that the cause be thereupon proceeded with in the Superior Court in the ordinary course, and that in default of said amendment within three months the Superior Court, on motion to that effect, should enter judgment against defendant for $3,281.25 with interest, and all the costs.] 51. Policy of fire insurance — " Mortgage clause " — Payment to mortgagee — Subroga- tion — Discharge of mortgage.] — Where a policy of insurance against fire contains the " mortgage clause," payment by the insurer to the mortgagee in the case of loss, when the in- sured has forfeited hje rights under the policy, does not operate as a discharge of the mortgage but simply substitutes the insurer to the mort- gagee's rights as a remedy in such a case. Per Taschereau, J., In re Ouerin v. Manches- ter Fire Assur. Go., xxix., 139, at p. 156. (Note. — Compare Imperial Fire Ins. Co v. Bull, xviii., 697; 15 Out. App. R. 421; 14 0. R. 322.) 52. Mortgage of trust estate — Equity run- ning with estate — Recourse — Construction of deed — Falsa demonstratio — Water lots— Ac- cretion — After acquired title — Contribution to redeem — Discharge — Parol evidence — Estop- pel.] — On dissolution of A. & Co. by retire- ment of C. D. A., business was carried on by remaining partners T. A. and B. A. on same premises, the property of C. D. A., the con- tinuing partners agreeing to pay off a mort- gage thereon as one of the old firm's debts. They neglected to pay and the property was sold under foreclosure, when they purchased and took a deed describing the lands as m said mortgage, one side being bounded by "the windings of the shore" of Sydney Harbour, and including a "water lot," part of which was known as the " stone ballast heap, in front of the shore lands. They immediately re-mortgaged the lands by same description adding a further or alternative description, and, at the end:— "Also all and smgular the water lots and docks in front of the said lots, — although in fact they then owned none ex- cept those covered by the description in the deed from the sheriff, and they gave at the same time a collateral bond to the mortgagees for the amount of their mortgage. They tben conveyed the equity to C. D. A., giving him 857 MOETGAGE. 858 a bond of indemnity against the mortgage they had so executed. Some time afterwards T. A. and B. A. acquired by grant other water lots in front of the mortgaged property, and used and occupied them as part of their business premises along with the mortgaged lands. C. D. A. sold the equity of redemption subject to the mortgage, and T. A. and B. A. settled their obligation under the indemnity bond by a compromise with the assignees of C. D. A., paying $8,000, and obtained their discharge. Upon proceedings by the assignees of the mort- gagees to foreclose the mortgage, and against T. A. and B. A. upon the collateral bond, T. A. and B. A. paid the amount due, and the foreclosure proceedings were continued for their benefit. Held, that the liability of the mortgagors was fully satisfied and discharged by the compromise, and as they were after- wards obliged to pay the outstanding incum- brance they were entitled to take an assign- ment and enforce the mortgage by foreclosure proceedings against the lands. Per Gwynne, J. — The mortgagors were only entitled to fore- closure for the realization of the amount actu- ally paid by them in compromising their lia- bility under the indemnity bond. — Held, fur- ther, that as the construction of the mortgage depended upon the state of the property at the time it was made parol evidence would be ad- mitted to explain the ambiguity in the descrip- tion of the lands intended to be affected ; that as there were no specific descriptions or recitals tending to shew that any other property was intended to be covered by the mortgage beyond what would be satisfied by including the water lot described as the " stone ballast heap," the after acquired water lots would not be charged or liable to contribute ratably towards re- demption of the mortgage ; that even admit- ting that the description was sufficient to in- clude the after acquired property, such pro- perty was not liable to contribute towards payment of the mortgage debt. Itnrie v. Archibald, xxv., 368. 53. Mortgage — Assignment of lease — Dis- charge — Abandonment of security.'] — The mortgagee of a lease may relieve himself from liability to the lessor on the assignment by way of mortgage with the latter's consent, by releasing his debt and re-conveying the secu- rity. — Judgment appealed from (26 Ont. App. R. 116) affirmed. Jamieson v. London and Canadian Loan and Agency Go., xxx., 14. 54. Fire insurance — " Mortgage clause " — Payment to mortgagee — Liability of insurer to insured — Subrogation in rights of mort- gagee — Release of mortgage. See Insurance, Fiee, 71. 55. Suretyship — Appropriation of payments — Reference to take accounts. See Peinoipal and Stjeett, 2. 9. Rights and Remedies. 56. Attornment — Tenancy at will — Rent equivalent to interest — Distress for arrears of interest — Landlord's privilege.] — A mortgage in pursuance of the Act respecting Short Forms of Mortgages, R. S. O. (1877) c. 104, contained the usual clauses as to entry, &c., on default, with power to distrain for arrears of interest, and that until default, the mort- gagors should have quiet possession and, in addition, the following provision and varia- tion : And the mortgagor doth release to the company all his claims upon the said lands and doth attorn to and become tenant at will to the company, subject to the said proviso " Held, per Strong, Fournier and Henry, ,TJ attrmmg the judgment appealed from (6 Ont App. R. 286), Ritchie, C.J., and Taschereau and (xwynne, JJ., contra, that upon the pro- per construction of the deed there was no re- servation of rent entitling the mortgagee to claim a landlord's right, as against an execu- tion creditor, of a year's arrears of interest on their mortgage before removal of goods on mortgaged premises by the sheriff. The court being equally divided the appeal was dismissed without costs. Trust and Loan Co. v. Lawra- son, X., 679. 57. Assignment — Purchase of equity — Sale — Liability to account.] — The assignee of a mortgage obtained a release of the equity of redemption which he sold for a sum consider- ably m excess of his claim against the as- signor. In a suit to foreclose, — Held revers- mg the judgment appealed from (13 Ont. App R. 467) and restoring that of the Common Pleas Division (10 O. R. 58), that he was bound to account for the proceeds of such sale. McLean v. Wilkins, xiv., 22. 58. Registration — Priority of subsequent mortgage — Surplus proceeds of sale — Bar of dower.] — Land devised was charged with an annuity to testator's widow who also had her dower therein. The devisees mortgaged the land to C. in March, 1879, and the mortgage was not registered until January, 1880. In November, 1879, a second mortgage to M. was registered in which the widow joined barring her dower and releasing her annuity for the benefit of M. She had had knowledge of the prior mortgage and had refused to join in it. The second mortgagee, not being aware of the prior incumbrance when the mortgage was ex- ecuted, gained priority, and the land was sold to satisfy his mortgage ; the proceeds of the sale being more than sufficient for that pur- pose the surplus was claimed both by the widow and by C. Held, reversing the Court of Appeal (Ont.), Gwynne and Patterson, J J., dissenting, that the security for which the dower had been barred and the annuity re- leased having been satisfied, the widow was' entitled to the fund in court as representing her interest in the land in priority to C. Gray v. Goughlin, xviii., 553. 59. Foreclosure — Sale of land — Suit for residue of debt — Prohibition.] — ^A testator had given a mortgage on lands to secure $7,000 due to plaintiff, and had also given to plain- tiff a bond conditioned for due payment ac- cording to the terms of the mortgage. The mortgagor made default, the mortgage was foreclosed, the mortgaged premises were sold by the sheriff, according to the usual practice, and bought in by plaintiff for $4,000. The sheriff's report of proceedings under the de- cree and sale and application of proceeds, was confirmed by the court, and there being still $3,000 due, plaintiff brought action on the bond. The special case admitted that the pro- ceedings in the foreclosure suit were regular, and that plaintiff had since the sale conveyed the lands to a third party. Defendant applied for prohibition to restrain plaintiff from pro- ceeding with the action, claiming that it opened up the foreclosure, and plaintiff, not being in a position to re-convey the mortgaged premises to defendant, or the heirs of the mortgagor, his remedy on the bond was barred. 859 MOETGAGE. S60 —The Supreme Court (N. S.) held that the English rule did not apply, as the practice was different in Nova Scotia, the sale of the mortgaged lands not being the act of the mort- gagee but of the court, and refused the writ. — Meld, affirming the judgment appealed from (7 Russ. & Geld. 497), that ^e mortgagee was not prohibited from proceeding on the bond to recover the residue of his debt. Ghisholm' v. Kenny, Cass. Dig. (2 ed.) 539. 60. Practice — Parties to action — Trespass to mortgaged property — First and suisequent mortgages — Owner of equity of redemption — Transfer of interest iefore aotion.'\ — Under the Nova Scotia Judicature Act the owner of the equity of redemption can maintain an ac- tion for trespass to mortgaged property and injury to the freehold, though after the tres- pass and before action brought he has parted with his equity. Gwynne, J., dissenting. — Mortgagees out of possession cannot, after their interest has ceased to exist, maintain an action for such trespass anB injury commit- ted while they held the title. — Judgment ap- pealed from (24 N. S. Rep. 476) affirmed. Per Gwynne, J. A mortgagee in possession at the time the trespass and injury is commit- ted is the only person damnified thereby, and can maintain an action therefor after he has parted with his interest, nor is he estopped therefrom by having Consented to a sale to one of the trespassers of the personal property as to which the trespass was committed. — The tort feasors could not set up such estoppel even though the amount recovered from them with the sum received by such mortgagee for his interest should exceed his mortgage debt. Brookfield v. Brown, xxii., 398. 61. Sale of land — Sale subject to mortgage ■ — Indemnity of vendor — Special agreement — Purchaser trustee for third party.^ — L. F. agreed to sell land to C. F. and others subject to mortgages thereon, C. F. to hold same in trust to pay half the proceeds to L. F. and the other half to himself and associates. It was understood that a company was to be formed to take the property, and before the transaction was completed such company was incorporated, and L. P. became a member re- ceiving stock as part of the consideration for his transfer. C. P. filed a declaration that he held the property in trust for the company, but gave no formal conveyance. In an action against L. F. for interest due on a mortgage C. F. was brought in as third party to indem- nify L. F., his vendor. Held, reversing the decision of the Supreme Court (N. S.), Tas- chereau and King, JJ., dissenting, that the evidence shewed that the sale was not to C. F. as a purchaser on his own behalf but for the company and that the company and not C. F. was liable to indemnify the vendor. Fraser v. Fairbanks, xxiii., 79. 62. Mortgage — Discharge — Action on joint note — Security for mortgage deit.] — A. and B., partners in business, borrowed money from C. giving their joint and several note and a mortgage on partnership property. The part- nership dissolved, A. assumed all liabilities and continued the business alone. After disso- lution 0. gave A. a discharge of the mortgage, but without receiving payment, and after- wards sued B. on the note. Held, affirming the decision appealed from (20 Ont. App. R. 695 ) , that the note having been given for the mortgage debt, C. could not recover without being prepared, upon payment, to convey to B. the mortgaged lands which he had incapaci- tated himself from doing. — Held, also, that by the terms of the dissolution of partnership the relations between A. and B. were changed to those of principal and surety, and it having been found at the trial that C. had notice of such change his release of the principal dis- charged the surety. Allison v. McDonald, xxiii., 635. 63. Chattel mortgage — Mortgagee in posses- sion — Negligence — Sale under powers — " Slaughter sale."'\ — A mortgagee in posses- sion who sells mortgaged goods in a reckless and improvident manner is liable to account not only for what he actually receives, but for what he might have obtained had he acted with proper regard for the interests of the mortgagor. Rennie v. Block, xxvi., 356. 64. Mortgage loan to pay off prior incum- irances — Increased rate of interest — Assign- ment of mortgage — Purchaser of equity of re- demption — Accounts.] — The Supreme Court of Canada affirmed the judgment appealed from (23 Ont. App. R. 139), which decided as follows : — When a loan is effected for the purpose of paying off incumbrances, at once or as they become due, at the option of the new mortgagees, and an incumbrance at lower interest than the new mortgage is not due, and the prior mortgagee refuses to accept pre- payment, the new mortgagee cannot treat that mortgage as paid off, and charge the mort- gagor with interest at the increased rate on the amount thereof, , unless he has set apart the amount of the prior incumbrance and noti- fied the mortgagor to that effect, but must, until the prior mortgage is fully paid, charge interest at the increased rate only on the amount actually paid to the prior mortgagees. — An assignee of a mortgage takes it subject to the actual state of the accounts between tue mortgagor and mortgagee, and cannot, even where it contains a formal receipt for the whole mortgage money, claim more in re- spect of it' than has been advanced, and can- not, in such a case as the present, charge the mortgagor with the increased rate. — ^The fact that the purchaser of the equity of redemption has been allowed the full amount of the mort- gage as between the mortgagor and himself does not make him liable to pay that sum to the mortgagees. London Loan Go. v. Manley, xxvi., 443. 65. Leasehold estate — Assignment of equity of redemption — Acquisition of reversion by assignee — Priority — Merger.} — The assignee of a term, who takes the assignment subject to mortgage and afterwards acquired the re- version, cannot levy out of the mortgaged pre- mises, to the prejudice of the mortgagees, the ground rent reserved by the lease which he was himself under an obligation to pay before becoming owner of the fee. Emmett v. Qium (7 Ont. App. R. 306) distinguished. Judg- ment appealed from (24 Ont. App. R. 599 af- firmed.) Mackenzie v. Building and Loan Associfition, xxviii., 407. (Leave to appeal to Privy Council refused). 66. Appeal — Jurisdiction — Matter in con- troversy — Interest of second mortgagee^Sur- plus on sale of mortgaged lands — Praehoe.]-- While an action to set aside a second mort- gage on land for $2,200 was pending, the mortgaged lands were sold under a prior mort- gage, and the first mortgagee, after satisfying his own claims, paid the whole surplus of tne 861 MOETGAGE. 862 proceeds of the sale, amounting to $270, to the defendant as subsequent incumbrancer. Judgment afterwards rendered declared the second mortgage void, and ordered defendant to pay plaintiff, as assignee for creditors, the $270 so received by him thereunder, and this judgment was affirmed on appeal. — Upon ap- plication for leave to appeal, objections taken for want of jurisdiction under BO & 61 Viet. c. 34 (D.), were overruled by a judge of the Court of Appeal for Ontario, who held that an interest in real estate was in question. The appeal was proceeded with, and case and factums printed and delivered. — On motion to quash for want of jurisdiction when called for hearing ; Held, that the case did not involve a question of title to real estate or any inter- est therem, but it was merely a controversy in relation to an amount less than $1,000, and that the Act prohibited an appeal. Jermyn v. Tew, xxviii., 497. 67. Assignment of equity — Covenant of in- demnity — Assignment of covenant — Right of mortgagee on covenant in mortgage.] — C. exe- cuted a mortgage on his lands in favour of B., with the usual covenant for payment. He afterwards sold the equity of redemption to D. who covenanted to pay off the mortgage and indemnify C. against all costs and dam- ages in connection therewith. This covenant of D. was assigned to the mortgagee. D. then sold the lands, subject to the mortgage, in three parcels, each of the purchasers, assum- ing payment of his proportion of the mortgage debt, and he assigned the three respective cove- nants to the mortgagee who agreed not to make any claim for the mortgage money against D. until he had exhausted his remedies against the purchasers and the lands. The mortgagee having sued C. on his covenant. Held, reversing the judgment appealed from (24 Ont. App. R. 492), that the mortgagee being the sole owner of the covenant of D. with the mortgagor, assigned to him as col- lateral security, had so dealt with it as to di- vest himself of power to restore it to the mort- gagor unimpaired, and the extent to which it was impaired could only be determined by ex- haustion of the remedies provided for in the agreement between the mortgagee and D. The mortgagee, therefore, had no present right of action on the covenant in the mortgage. Mc- Cuaig v. Barher, xxix., 126. 68. Voluntary conveyance of land — 13 Elia. c. 5 (Imp.) — Solvent vendor — Action by mortgagee.] — A voluntary Conveyance of land is void under 13 Eliz. c. 5 (Imp.j as tending to hinder and delay creditors, though the ven- dor was solvent when it was made, if it re- sults in denuding him of all his prpperty and so rendering him insolvent thereafter. — A mortgagee whose security is admittedly insuffi- cient may bring an action to set aside such conveyance and may do so without first realiz- ing his security. — Judgment appealed from (7 B. C. Rep. T.89) reversed, Gwynne, J., dissent- ing. Sun Life Assur. Co. v. Elliott, xxxi., 91. 69. Default clause — Principal falling due — Rate of interest — Instalments.'] — A mortgage to secure $20,000 with interest at 9 % pay- able half yearly, provided " that on default of payment for 2 months of any portion of the money secured the whole of the instalments . . . shall become payable . . . that on default of payment of any of the instalments, &c., at the times provided, interest at the rate above mentioned shall be paid on all sums so in arrear, and also on the interest by this pro- viso secured at the end of every half year that the same shall be unpaid." Held, reversing the judgment appealed from (26 Ont. App. R. 232) that the principal sum becoming due for non-payment under the first of the above pro- visos was not an instalment in arrear under the second on which the mortgagee was en- titled- to interest at the rate of 9 % per an- num. Biggs v. Freehold Loan and Savings Co., xxxi., 136. 70. The mortgage clause attached to a pol- icy of insurance against fire, which provided that " the insurance as to the interest only of the mortgagees therein shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, &c.," applies only to acts of the mortgagor after the policy comes into operation and cannot be invoked as against the concealment of material facts by the mortgagor in his application for the policy Quwre, Would the mortgage clause entitle the mortgagee to bring an action in his own name alone on the policy? London and Liverpool and Globe Ins. Go. v. Agricultural Savings and Loan Co., xxxiii., 94. 71. Suit for redemption or foreclosure — Action for specific performance — Joint hear- ing — Consolidation of suits — Frame of de- cree. See Patent of Invention, 4. 72. Charge on railway — Receiver in posses- sion — Priority — Privilege of material men — Immoveables by destination — Unpaid vendor. See Lien, 3. 73. Mortgagor and mortgagee — Mortgage by trustee — Personal liability — Enforce- ment of equitable rights. See Trusts, 8. 74. Attornment by mortgagoi Demise by mortgagee — Statute of Frauds — Distress for rent — Statute of Anne — Colourable process — Tenancy at will — Remedy of execution credit tor. See Landlord and Tenant, 1. 75. Security for advances — Hypothecation of bonds — Collateral — Sale of securities — Purchase by mortgagee — Trust. See Pledge, 6. 76. Foreclosure — Order for possession — Illegal or immoral consideration — Purchaser of equity of redemption — Right to set up de- fence. See Pleading, 31. 77. Action for redemption — Foreign lands — Lex rei sitm — Action in personam — Juris- diction of court. See Court. 78. Jurisdiction to set aside mortgage on foreign lands — Secret trust — Lex rei sitw. See Lex Rei Sit^. 79. Obligation to indemnify grantor against mortgage — Conveyance subject to mortgage — Assignment of right of action — Principal and surety — Implied covenant. See Action, 137. 863 MUNICIPAL COEPOEATIONS. 864 80. Title to land — Life estate — Construc- tion of statute — Preferred claim — Improve- ments made on lands greve de substitution ■ — Charge on lands. See Substitution, G. 81. Deltor and creditor ■ — Preference — Collusion — Pressure — R. 8. B. C. cc. 86, 87 — 2'Ae Bank Act, s. 80 — Company law ■ — ■ Mortgage iy directors — Ratification — B. C. Companies Acts, 1890, 1892, 1894. See Company Law, 17. 10. Sale of Mortgaged Peopeett. 82. Hypothecary debts — Bequest of mort- gaged lands — Charge upon the estate — Art. 889 C. C. See Will, 57. 83. Devise of mortgaged land — Action to eject purchaser under decree for sale — Statu- tory title. See TiTi^ to Land, 56. MORTMAIN ACTS. 9 Geo. II. c. 36 — Does not apply in New Brunswick. See Will, 9. . MOVEABLES. 1. Unpaid vendor — Conditional sale — Sus- pensive condition — Moveables incorporated with freehold — Immoveables by destination — Hypothecary charges — Arts. 375 et seq., C. C] — A suspensive condition in an agreement for the sale of moveables, whereby, until the whole of the price shall have been paid, the property in the thing sold is reserved to the vendor is a valid condition. — In order to give moveable property the character of immove- ables by destination, it is necessary that the person incorporating the moveables with the immoveables should be, at the time, owner both of the moveables and the real property with which they are so incorporated. LainS V. BUand (26 Can. S. C. R. 419), and FUia- trault V. Ooldie (Q. R. 2 Q. B. 368), dis- tinguished. — ^Decision of the Court of Queen's Bench affirmed, Girouard, J., dissenting. Banqiie d'Hochelaga v. Waterous Engine Works Co., xxvii., 406. 2. Property, real and personal — Immove- ables by destination — Moveables incorporated with freehold — Severance from realty — Contract — Resolutory condition — Condi- tional sale — Hypothecary creditor — Unpaid vendor — C. C. arts. 379, 2017, 2083, 2085: 2089. See Contract, 66. MUNICIPAL COBFOBATIONS. 1. Assessment and Taxes, 1-27. 2. By-laws, 28-53. (o) Appeals. 28. (6) Bonus, 29-34. (c) Necessity of By-law, 35, 36. (d) Passing of By-law, 37-46. (e) Validity of By-law, 47-53. 3. Casting Vote, 54. 4. Contracts, 55-61. 5. Corporate Liability, 62-80. 6. County Buildings, 81, 82. 7. Debentures, 83, 84. 8. Drainage, 85-104. 9. Duties and Powers, 105-115. 10. Expropriation, 116-118. 11. Libel, 119. 12. Liquor Laws. 120-123. 13. Local Improvements, 124-137. 14. Monopoly, 188. 15. Negligence, 139-152. 16. Notice of Action, 153, 154. 17. Nuisance, 155-157. 18. PuBLio Health, 158. 19. Public Ways, 159-198. 20. Waterworks, 199-203. 1. Assessment and Taxes. 1. License tax on merchants, traders, do. — Discrimination between residents and non- residents — 33 Vict. c. Jf {N. B.) — By-law.] — Action against the police magistrate for wrongful arrest and imprisonment, for viola- tion of a by-law of the City of St. John, un- der 33 Vict. c. 4 (N. B.). Section 3 of the Act authorized the licensee to use any art, trade, &c., within the city of St. John, and s. 4 gave power to fix the sums of money that should from time to time be paid for such license fees, to declare how fees should be recoverable, and to impose penalties. The by-law discriminated between resident and non-resident merchants, traders, &c., by im- posing a license tax of $20 on the former and $40 on the latter. Held, reversing the judg- ment appealed from (4 P. & P. 61, 64), that assuming the Act, 33 Vict. c. 4, to be intra vires of the Legislature, the by-law made un- der it was invalid, because the Act gave no power of discrimination between residents and non-residents, such as had been exercised in this by-law. Jonas v. Gilbert, v., 356. 2. Taxation — Penalty for non-payment of tax — Interest — Legislative powers — B. N. A. Act, 1867, ss. 91, 92 — Constitutional law — 49 Vict. c. 52, s. 626 (Man.) — 50 Vict. c. 43 (Man.)] — The Manitoba Mun. Act, 1886, provides for a 10% discount on taxes promptly paid and for an addition, after a fixed time, of 10% upon delinquent tax^. On appeal from the Queen's Bench, Man. (6 M. L. R. 515) ; Held, reversing the judgment appealed from (6 Man. L. R. 515), Gwynne, J., dissenting, that the 10% added to de- linquent taxes was only imposed as a PB"™'? for non-payment which the Legislature had power to impose in legislating with respect to municipal institutions and that it ^^ not " interest " within the meaning of s. 91 oi the B. N. A. Act, 1867. Ross v. Torrance (2 Legal News, 186) overruled. Lynch v. 865 MUNICIPAL CORPOEATIONS. 866 Canada North-west Land Co., xix., 204; South Dufferin v. Morden, xix., 204; Gibiins v. Barber, xix., 204. 3. Ontario Assessment Act, R. S. 0. (.18811) 0. 19S, ss. 15, 65 — Illegal assessment — Court' of revision — Business carried on in two muni- cipalities.] — Section 65 of tlie Out. Assess- ment Act, does not enable the Court of Re- vision to make valid an assessment which the statute does not authorize. — Section 15 of the Ad; provides that " where any business is carried on by a person in a municipality in which he does not reside or in two or more municipalities, the personal property belong- ing to such persons shall be assessed in the municipality in which such personal property is situated." W., residing and doing business in Brantford, had certain merchandise in Lon- don stored in a public warehouse, the ware- house being used by other persons as well as W. He kept no clerk or agent in charge of such merchandise, but when sales were made a delivery order was given upon which the warehouse-keeper acted. Once a week a commercial traveller for W., resid- ing in London, attended there to take orders tor goods, including the kind so stored, but the sales of stock in the warehouse were not confined to transactions entered into Lon- don.' — Held, affirming the decision appealed from (19 Ont. App. R. 675), that W. di.d not carry on business in London within the mean- ing of the section, and his merchandise in the warehouse was not liable to be assessed at London. City of London v. Wait, xxii., 300. 4. Business tax — Quebec License Laws — 55 & 56 Vict. c. 11, s. 26— City of Sherbrooke — Charter — 55 & 56 Vict. c. 51, s. 55 — Powers of taxation.] — By virtue of the first clause of a by-law, passed under 55 & 56 Vict. c. 51, an Act Consolidating the Charter of the City of Sherbrooke, appellant was taxed five cents on the dollar on the annual value of premises in which he traded in spirituous li- quors, and in addition, under clause three of the same by-law, a special tax of $200 was im- posed for the same business. The Act, 55 & 56 Vict. c. 51, s. 55, enumerates in sub-sec- tions a to j the taxes to be' imposed, sub- section (i) authorizing a business tax on all trades, occupations, &c., based on annual value of premises, and sub-section (g) pro- viding for a tax on persons, among others, of the occupation of the petitioner. Sub- section (ff) provides: "The whole, however, subject to the provisions of the Quebec License Act." That Act (art. 927 -R. S. Q.) limits municipal powers of taxation of a city to $200 upon holders of licenses. Held, affirm- ing the judgment appealed from, Taschereau and Gwynne, JJ., dissenting, that the power granted by 55 & 56 Vict. c. 51, to impose the several taxes was independent and cumula- tive, and as the special tax did not exceed $200, the by-law was intra vires, the proviso of sub-section (g) not applying to the whole section. Webster v. City of Sherbrooke, xxiv., 268. 5. Ont. Assessment Act — Directory or im- perative statute — Collection of taxes ■ — De- livery of roll to collector — 55 Vict. e. i8 (0.)] — ^The Ontario Assessment Act, s. 119, provides for the preparation every year by municipal clerks of a " collector's roll," con- taining a statement of all assessments to be made for municipal purposes in the year, and s. 120 provides for a similar roll with respect s. c. D.— 28 to taxes payable to the treasurer of the pro- vince. At the end of s. 120 is the following : " The clerk shall deliver the roll, certified un- der his hand, to the collector on or before the 1st day of October." Held, affirming the de- cision appealed from (21 Ont. App. R. 379), that the provision as to delivery of the roll to the collector was imperative and its non- delivery was a sufficient answer to a suit against the collector for failure to collect the taxes. Held, also, that such delivery was ne- cessary in the case of the roll for municipal taxes provided for in the previous section as well as to that for provincial taxes. Town of Trenton v. Dyer, xxiv., 474. 6. Special tax — Local improvement — Double taxation.] — Two taxes cannot exist for the same purpose at the same time. Banqut Ville Marie v. Morrison, xxv., 289. 7. Assessment and taxation — Exemptiom — Real property — Chattels — Fixtures — Gas pipes — Highway ■ — Title to portion of streets — Legislative grant of soiV—55 Vict. c. 48 (Ont.)] — Gas pipes which are the property of a private corporation laid under the high- ways of a city are real estate within the meaning of the " Ontario Assessment Act oj 1892," and liable to assessment as such, as they do not fall within the exemptions men- tioned, in s. 6 of that Act. — The enactment by the 1st and 13th clauses of the company's Act of incorporation (11 Vict. c. 14 ( Can. ) ) , operated as a legislative grant to the com- pany of so much of the land of the streets, squares, and public places of the city as might be found necessary to be taken and held foi the purposes of the company and for the convenient use of the gas works, and when the openings where pipes may be laid are made at the place designated by the city sur- veyor, as provided in the said Charter, and the pipes are placed there, the soil they occupy is land taken and held by the company under the provisions of the said Act of incorporation. — The proper method of assessment of the pipes so laid and fixed in the soil of the streets, squares and public places in a city ought tc be separately in the respective wards of the city in which they may be actually laid, as in the case of real estate. — Judgment appeal- ed from (23 Ont. App. R. 551) affirmed. Consumers' Gas Co. v. City of Toronto, xxvii., 453. 8. Expropriation — Widening streets — Assessment — Excessive valuation — 52 Vict, c. 19, s. 228 (0«e.)]— The Queen's ■ Bench (Q. R. 7 Q. B. 214) reversed the judgment of the Superior Court, District of Montreal, and held that the commissioners had acted illegally in an attempt to correct an error In assessment by imposing an excessive assess- ment upon a particular lot, instead of mak- ing a new roll dividing the assessment equally among adjacent owners, and quashed the as- sessment roll. The Supreme Court, on appeal affirmed the Queen's Bench judgment. Cit% of Montreal v. Ramsay, xxix., 298. 9. Municipal assessment — Domicile — Change of domicile — Intention — .59 Vict. c. 61 {N. B.)]— By the St. John City As- sessment Act (59 Vict. c. 61) s. 2 "for the purposes of assessment any person having his home or domicile, or carrying on business, oi having any office or place of business, or anj occupation, employment or profession, withir the City of Saint John shall be deemec 867 MUNICIPAL COEPOEATIONS. 868 . . . an inhabitant and resident of the said city." J. carried on business in St. John as a brewer up to 1893, when he sold the brewery to three of his sons and conveyed his house and furniture to his adult children in trust for them all. He then went to New York where he carried on the business of buying and selling stocks and securities, hav- ing offices for such business and living at a hotel paying for a room in the latter only when occupied. During the next four years he spent about four months in each at St. John visiting his children and taking re- creation. He had no business interests there but attended meetings of the directors of the Bank of New Brunswick, as a director of the bank, during his yearly visits. He was never personally taxed in New York and took no part in municipal matters there. Being assessed in 1897 on personal property in St. John he appealed against the assess- ment unsuccessfully and then applied for a writ of certiorari with a view to hav- ing it quashed. Held, reversing the judg- ment appealed from, that as there had been a long continued actual residence by J. in New York, and as on his appeal against the assessment he had avowed his bond fide inteu' tion of making it his home permanently, or at Jeflst for an indefinite time, and his deter- juin^tlon not to return to St. John to reside, he had acquired a new home or domicile and .that his domicile in St. John had been aban- doned within the meaning of the_Act. Jones ■V. CUy of 8t. John, xxx., 122. 10. Assessment and taxes — Exemption from municipal rates — School taxes.] — By- law No. 148 of the City of Winnipeg, passed in 1881, exempted forever the C. P. K. Co. from '■ all municipal taxes, rates and levies and assessments of every nature and kind." Held reversing the judgment appealed from (12 Man. L. R. 581), that the exemption in- cluded school taxes. — The by-law also provided for the issue of debentures to the company, and by an Act of the Legislature, 46 & 47 Vict. c. 64, 'it was provided that by-law 148 authorizing the issue of debentures granting by way of bonus to the C. P. R. Co. the sum of $200,000 in consideration of certain under- takings on the part of the said company, and by-law 195 amending by-law No. 148 and ex- tending the time for the completion of the undertaking . . be and the same are hereby declared legal, binding and valid. . . . Held, that notwithstanding that the de- scription of the by-law in .the Act was Confin- ed to the portion relating to the issue of de- bentures the whole by-law including the ex- emption from taxation was validated. Can- adian Pacific By. Co. v. City of Winnipeg. XXX., 558. lOo. Expropriation of lands — Damages for use of rifle range — Mode of assessment — Valu- ation roll — Present uses — Prospective value — Evidence.] — The judgments appealed from (see 8 Ex. C. R. 163). decided, in effect, that as the lands taken for use as part of a rifle range, at the time of expropriation, had a prospective value for residential and other uses beyond that which then attached to them as lands in use for agricultural and .other simi- lar purposes, such prospective values should be taken into Consideration in assessing what would be sufiicient and just compensation to be paid upon the expropriation of the lands for such public uses as would, in various ways, affect the lands injuriously and diminish their prospective values. — In making the as- sessment of such compensation, the court be- low consulted the municipal assessment rolls, not as a determining consideration, but as af- fording some assistance in arriving at a fair valuation Of the lands expropriated. The Su- preme Court of Canada affirmed the judgment appealed from. The Turnhull Real Estate Go. v. The King; Corkery et al. v. The King; De- Bury et al. V. The King, 6th October, 1903 ; xxxiii., 677. 11. Notice of assessment — Alteration by Court of Revision without notice. See Assessment and Taxes, 17. 12. Assessment of gross income — Rates and taxes in St. John, N. B. — Foreign cor- poration — 31 Vict. c. S, s. Jf (N. B.), See Assessment and Taxes, 6. 13. Assessment — Taxes — Sale of land for arrears — Nullity — 32 Vict. c. 36. s. 155 See Sale, 99. 14. Levy of taxes — Void assessment — Ar- rest of delinquent — Trespass — Liability of collector — " Respondeat superior " — Dam- ages against corporation. Master and Seevant, 1. 15. Sale of land for taxes — Appropriate remedy — Injunction — Prohibition ■ — Art. 1031 G. G. P.— Arts. 716, 7^6 (a) Mun. Code Que. See Assessment and Taxes, 19. 16. Extension of municipal boundary — Navigable waters — Legislative jurisdiction — 43 & 44 Vict. c. 62 (y«e.) — Assessment of railway bridge, rated therefrom, and they cannot either con- jointly or individually institute actions against sn MUNICIPAL COEPORATIONS. 878 such county Corporation to compel the render- ing of special accounts of the administration of funds in which they have an interest, their proper method of securing statements being through the facilities afl'orded by art. 164 and other provisions of the Municipal Code. (See 3 Rev. de Jur. 557.) Township of Ascott v. Oounty of Oompton; Village of Lennoxville v. County of Gompton, xxix., 228. 63. Interference with proprietary rights — Abandonment of expropriation proceedings — Damages — Servitudes established for public uiiUty—Arts. 406, 407, 507, 105S G. O.— Emi- nent domain.'] — Where, under authority, of a statute authorizing the extension of a street, a servitude for public utility was established on private land which was not expropriated and the extension was subsequently abandoned, the owner of the land was not, in the absence of any statutory authority therefor, entitled to damages for loss of proprietary rights while the servitude existed. Perrault v. Gauthier et al. (28 Can. S. C. R. 241) referred to. The Chief Justice dissented. Hollester v. Gity of Montreal, xxix., 402. 64. Negligence — Necessary proof — Statu- tory officer — Ratepayer — Statute labour.} — In an action for damages in consequence of a carTiage having been upset by running against a pile of sand left on the highway, and one of the occupants thrown out and seriously in- jured, there was no direct evidence as to how the obstruction came to be placed on the high- way, but it appeared that statute labour had been performed at the place of the accident immediately before under the direction of the pathmaster, an officer appointed by the corpor- ation under statutory authority. The evi- dence indicated that the sand was left on the road by a labourer working under directions from the pathmaster or by a ratepayer en- gaged in the performance of statute labour. Seld, affirming the judgment appealed from, that the action must fail for want of evidence that the injury was caused by some person for whose acts the municipal corporation was re- sponsible. Per Strong, C.J., — Quwre. Is the corporation liable for the acts of a statutory officer like the pathmaster, or of a ratepayer in performance of statute labour? McGregor V. Township of Harwich, xxix., 443. 65. Principal and agent — Action — Parties — Water commissioners — Statutory body — Powers — Gontract — 37 Vict. c. 79 (Ont.)] — By 37 Vict. c. 79 (Ont.) the waterworks of Windsor are under management of a Board of Commissioners who collect the revenue, pay the city any surplus therefrom, and initiate works for improving the system, the city sup- plying the funds. The total expenditure is not to exceed $300,000 and not more than $20,OO0 can be expended in any one year with- out a vote of the ratepayers. Held, affirming the judgment appealed from (27 Ont. App. R. 566), that the Board is merely the statu- tory agent of the city in carrying out the pur- poses of the Act, and a contract for work to be performed in connection with the water- works, not authorized by by-law of the coun- cil, and incurring an expenditure which would exceed the statutory limit was not a binding contract. Held, also, that if an action could have been brought on such contract "the city corporation would have been a necessary party. Quwre, Would not the city corporation have been the only party liable to be sued? Mac- dougall v. Water Commissioners of Windsor, xxxi., 326. 66. Principal and agent — Police constable — Negligent performance of duty — Liability of municipal corporation.] — A police officer is not the agent of the municipal corporation which appoints him to the position and, if he is negligent in performing his duty as a guar- dian of the public peace, the corporation is not responsible. (Judgment ap}iealed from, 35 N. B. Rep. 296, affirmed). McCleave v. City of Moncton, xxxii., 106. 67. Negligence — Personal injuries — Drains and sewers — Liability of municipality — Offi- cers and employees of municipal corporation — 59 Vict. c. 55, s. 26, s.-s. 18 (Que.)]— The Act incorporating the Town of St. Louis, Que., gives power to the council to regulate the con- nection of private drains with the sewers, " owners or occupants being bound to make and establish connections at their own cost, under the superintendence of an officer ap- pointed by the Corporation." Held, affirming the judgment appealed from (Q. R. 11 K.B. 117) that the municipality cannot be made liable for damages caused through the acts of a person permitted by the council to make such connections, as he is neither an employee of the corporation nor under its control. Dallas V. Town of St. Louis, xxxii., 120. 68. Levy for tax — Arrest of delinquent — Void assessment — Damages against corpora- tion. See Master and Servant. 1. 69. Calling out militia— ^Form of requisition — Suit for pay — Anticipated riots. See Military Law, 1. 70. County debentures — Refusal to issue — Railway aid — Breach of agreement — Special damages. See Contract, 6. 71. Improper construction of drain — Ac- ceptance of surplus funds — Suit by contractor. See Etsoppel, 3. 72. Use of public street by railway company — Nuisance — Damages — Right of action. See Railways, 71. 73. License by -laic — Commercial travellei — Action for illegal arrest — 29 tG SO Vict. c. 57, ss. 20. 21 (Que.) See Tort, 4. 74. ilunicipal regulations — Edits et ordon- nauces L. C. — Common of Berthier. See Servittjde, 4. 7.0. Public market — Traders and hucksters — Ubstruction of streets, dc. See No. 155, infra. 76. Negligence of municipal officers — En- croachment on street — Nuisance — Ohstruciion of show-window — Misfeasance — Statutable duty. See No. 171, infra. 77. Obstruction of highway — Telephone poles on streets — Projrimate cause of injury Impleading third party — Costs. See Negligence, 192. 879 MUNICIPAL CQEPOEATIONS. 880 78. Contract — Drainage — Inter-murUoipal works — Guarantee — Continuing liability. See Deainage, 8. 79. Pledge — Deposit with tender — Forfei- ture — Breach of contract — Damages — Resti- tution of pledge. See AoTioif, 49. 80. Guarantee of waterworks debentures — By-law — ■ Vote of ratepayers — Approval of Lieutenant-Governor. See No. 50, ante. 6. County Buildings. 81. B. S. N. 8. (5 ser.) c. 20, s. 1; 49 Vict. c. 11 — County buildings — Establishment — Court house and jail — Removal from shire town.l—By R. S. N. S. (5 ser.) c. 20, s. 1, as amended by 49 Vict. c. 11, jails, court houses and sessions houses may be established, erected and repaired by order of the municipal councils in the respective municipalities. In 1891 an Act empowered the municipality of L. to borrow a sum for erecting and furnishing a court house and jail for the county or repair- ing and improving the existing court house, provision being made for the municipality of C. and the town of L. respectively contribut- ing towards payment of the loan. L. is the shire town of the county where the sittings of the Supreme Court are held as required by statute, and where the county court house and jail had always been situated. In pursuance of the Act, the council proposed to build a court house and jail at B. another town in the county, and, when built, to petition the legis- lature to transfer the court to B. An injunc- tion was obtained restraining the council from erecting a court house and jail at B. or ex- pending in such erection any funds in which the municipality of C. or the town of L. or either of them, were interested. Held, that the municipality could not, under the statu- tory authority to establish and erect a court house and jail, remove these buildings from the town of L. and so repeal and annul the statutes of the legislature which had establish- ed them in L. ; that, without direct legislative authority therefor, the buildings could only be erected in the shire town, and- that the in- junction had been pr'operly granted. Munici- pality of Lunenburg v. Attorney-General of Nova Scotia, xx., 596. 82. Statute, construction of — 55 Vict. c. JiZ, ss. 397, Wh -469. 47S (Ont.)—City separated from county — Maintenance of court house and gaol — Care and maintenance of prisoners.'\ — No compensation can be awarded by arbitra- tors to a County Council in respect of the use, by a city separated from that county, of the court house and gaol unless the question is specifically referred to them by a by-law of each municipality. A claim for compensation for the care and maintenance of prisoners' stands, as far as the meaning to be given to the word " city " is concerned, upon the same basis as a claim for the use of the court house and gaol. Judgment of the Court of Appeal • for Ontario (24 Ont. App. R. 409), affirmed. County of Carleton v. City of Ottawa, xxviii., 006. 7. Debentures. 83. Aid to railway — Debentures signed by warden de facto — 44 & 1^5 Vict. a. 2, s. 19 (Que.) — Completion of railway — Evidence-^ Admission by co-defendant — Onus probandi.] — A municipal Corporation, under a by-law, issued and delivered its debentures to the trea- surer of Quebec as a subsidy to a railway company, to be paid over to the company in the manner and subject to the same conditions as the provincial subsidy payable under 44 & 45 Vict. c. 2, s. 19, viz., " when the road was completed aud in good running order to the satisfaction of the Lieutenant-Gpvernor-in- Council." The debentures were signed by M. who was elected warden and held that ofiSce after the former warden had verbally resigned. — In an action by the company to recover the debentures frora the provincial treasurer (after the Government bonus had been paid), in which the corporation was co-defendant, the provincial treasurer pleaded by demurrer only, which was overruled, and the corporation pleaded general denial and that the deben- tures were illegally signed. Held, 1. Affirm- ing the judgment appealed from, that the de- bentures had been validly signed by the warden de facto. 2. That as the provincial treasurer had admitted by his pleadings that the road had been completed to the satisfaction of the Lieutenant-Governor-in-CounCil the onus was on the municipal corporation to prove that the Government had not acted in conformity with the statute. Strong, J., dissenting. County of Pontiac v. Ross, xvii., 406. 84. Municipal bond — Form — Statutory authority — ■ Construction.] — An Act of the New Brunswick Legislature authorized the county council of Gloucester county to ap- point Almshouse Commissioners for the Parish of Bathurst, in said County, who might build or rent premises for an almshouse and work- house, the cost to be assessed on the parish. The municipality was empowered to issue bonds, to be wholly chargeable on said parish, under its corporate seal and signed by the warden and secretary-treasurer, the proceeds to be used by the commissioners for the pur- poses of the Act. G. purchased from the secre- tary-treasurer of the county a bond so signed and sealed and headed as follows : " Alms- house Bonds, Parish of Bathurst." It went on to state that " This certifies that the Par- ish of Bathurst in the County of Gloucester, Province of New Brunswick, is indebted to George S. Grimmer," . . pursuant to an Act of Assembly (the above mentioned Act) &c. In an action by G. on said bond. Held, reversing the judgment of the Supreme Court of New Brunswick (35 N. B. Rep. 255), that, notwithstanding the above declaration that the parish was the debtor, the County of Glouces- ter was liable to pay the amount due on the bond. Grimmer v. County of Gloucester, xxxii., 305. 8. Drainage. 85. Construction of sewer — Entering adjoin- ing municipality — R. S. O. (188f) c. 184, s. 479, s.-s. 15; 51 Vict. c. 28, s. 20 (O.)]— 50 Vict. c. 28, s. 20, amending the Municipal Act of Ontario (R. S. O. 1887, c. 184). s. 479. does not remove restrictions imposed by the Municipal Act, and municipalities interested mast either between themselves, settle the terms an^ conditions for construction of 881 MUNICIPAL COEPOKATIONS. sewers into the territory of an adjoining muni- cipality, or proceed to arbitration. The Court of Appeal for Ontario (17 Ont. App. R. 346) and Divisional Court (18 O. R. 199) affirmed. City of Hamilton v. Township of Barton, xx., 173. 86. Drainage — Damages — Reference — Drainage Trials Act, 5Jf Vict. c. 51 — Powers of referee — .Negligence — LiaiiKty of muni- cipality.] — Upon reference of an action to a referee under the Drainage Trials Act of On- tario (54 Vict. C. 51), whether under s. 11, or s. 19, the referee has full power to deal with the case as he thinks fit, and to make, of his own motion, all necessary amendments to enable him to decide according to the very right and justice of the case, and may con- vert the claim for damages under said s. 11 into a claim for damages arising under s. 591 of the Municipal Act. — In a drainage scheme for a single township the work may be Carried into a lower adjoining municipality for the purpose of finding an outlet without any pe- tition from the owners of land in such ad- joining township to be affected thereby, and such owners may be assessed for benefit. Stephen v. McOillivray (18 Ont. App. R. 516), and Nissouri v. Dorchester (14 O. R. 294) , distinguished. — ^One whose lands in the adjoining municipality have been damaged cannot, after the by-law has been appealed against and confirmed and the lands assessed for benefit, contend before the referee to whom his action for such injury has been re- ferred under the Drainage Trials Act, that he was not liable to such assessment, the matter having been concluded by the confirmation of the by-law. — ^The referee has no jurisdiction to adjudicate as to the propriety of the route selected by the engineer and adopted by by>- law, the only remedy, if any, being by appeal against the project proposed by the by- law. — A municipality constructing a drain cannot let water loose ' just inside or any- where within an adjoining municipality with- out being liable for injury caused thereby to lands in such adjoining municipality. — Where a scheme for drainage work to be constructed under a valid by-law proves defective and the work has not been skilfully and pro- perly performed, the municipality constructing it are not liable to persons whose lands are damaged in consequence of such defects and improper construction, as tort feasors, but are liable under s. 591, Mun. Act, for damage done in construction of the work or conse- quent thereto. — A tenant of land may recover damage suffered during his occupation from construction of drainage work, his rights rest- ing upon the same foundation as those of a freeholder. — Judgment appealed from (20 Ont. App. R. 225) varied. Township of Ellice v. Hiles; Township of Ellice v. Crooks, xxiii., 429. 87. Ditches and Watercourses Act, B. S. O. \lS87)e. 220 — Requisition for drain — Owner of land — Meaning of term " owner."] — By s. Y (o) of the Ditches and Watercourses Act (Ont), any owner of land to be benefited thereby may file with the clerk of a munici- pality a requisition for a drain if he has ob- tamed " the assent in writing thereto of (in- cludmg himself) a majority of the oWners attected or interested." Held, affirming the judgment appealed from (21 Ont. App. R. 168), that "owner "in this section does not mean the assessed owner; that the holder of any real or substantial interest is an owner affected or interested;" and that a mere tenant at will can neither file thi sition nor be included in the majority n — Quwre, If the person filing the req is not an owner within the meaning term are the proceedings valid if the majority without him? Township of ( V. York, xxiv., 282. 88. Petition for drain — Use of d: common sewer — Connection with dr Nuisance — Liability of householder. ]- tition by ratepayers under Mun. Act c s. 570, asked for a drain to be cons for draining property described thereir township was afterwards annexed to joining city, and ,the drain thereafter i a common sewer, it being .as construe for that purpose. In an action ags householder, who had connected the from his house with said drain, for a n- occasioned thereby at its outlet : Hi firming the decision appealed from (2 App. R. 613), Taschereau and Gwynr dissenting, that s. 570 in authorizing tl struction of a drain " for draining, tl perty " empowered the township to co a drain for draining not only surface but sewage generally, and the household not responsible for the consequences < necting his house with said drain by ] sion of the city. — Where a by-law p: that no connection should be made ' sewer, except by permission of the C: gineer, a resolution of the city council ing an application for such connect terms which were complied with and tl nection made was a sufficient compliaii< said by-law. Lewis v. Alexander, xxii 89. Trespass — Damages — Easem Equitahle interest — Municipal iy-law tration of — Notice — Registry Act, R 0. lU.]—fi. S. 0. [1877] c. 114, s. 8 viding that no lien, charge or interest ing land shall be valid as against a reg instrument executed by the same par heirs or assigns, is not restricted to in derived under written instruments susc of registration, but applies to all intei If the owner of land gives permission municipality to Construct a drain thro the municipality, after the work ha: done, has an interest in the land to wh registry laws apply whether the agr conveys the property, creates an easen is a mere license which has become i able, and if there has been no by-law i izing the land to be taken such intei under the said section, invalid as ag£ registered deed executed by an assignee owner, a purchaser for value without Ross V. Hunter (7 Can. S. C. R. 289 tinguished. — Judgment appealed froi Ont. App. 395) affirmed. City of Tor, Jarvis, xxv., 237. 90. Municipal hy-law — Special mcnts — Drainage — Power of counci additional necessary works — Ultra vi solutions — Executed contract.] — Wl municipal by-law authorized the consti of a drain benefiting lands in an ad; municipality which Wi — By-law — Construction of statute^-55 Vict c. 42. s. 531—51 Vict. c. 50, s. lH— Finding of jury— Notice.'] — A by-law of the City of King- ston requires frontagers to remove snow from the sidewalks. The effect of its being com- plied with was to allow the snow to remain on the Crossings which therefore became high- er than the sidewalks and, when pressed down by traffic, an incline more or less steep was formed at the ends of the crossings. A young lady slipped and fell on one of these inclines and being injured asked damages against the city and obtained a verdict. The Municipal Act of Ontario makes a corporation, if guilty of gross negligence, liable for accidents result- ing from snow and ice on sidewalks ; notice of action in such case must be given but may be dispensed with on the trial if the court is of opinion that there was reasonable excuse for the want of it and that the corporation has not been prejudiced in its defence. Held af- firming the decision appealed from (23 Ont. App. R. 406), Gwynne, J., dissenting, that there was sufficient evidence to justify the finding that the corporation had not fulfilled its statutory obligation to keep the streets and sidewalks in repair ; Cornwall v. Durochie (24 Can. S. C. R. 301) followed ; that it was no excuse that the difference in level between the sidewalk and crossing was due to observance of the by-law ; that a Crossing may be regard- ed as part of the adjoining sidewalk for the purpose of the Act; that "gross negligence" in the Act means very great negligence, of which the jury found the corporation guilty; and that an appellate court would not inter- fere with the discrttion of the trial judge m dispensing with notice of action. City of Kingston v. Drerman, xxvii., 46. 145. Maintenance of streets — Accumulation of snow and ice — Gross negligence — R. S. [1891] c. 2%S, s. 606 (iii).]— About 10.30 a.m., in January, a man walking along a street in Toronto slipped on the ice and fell receiving injuries from which he died. His widow sued for damages under the Ontario statute re- enacting Lord Campbell's Art. There had been a considerable fall of snow for two or three days before the accident, and on the day preceding there had been a thaw followed by a hard frost at night. Early on the morning of the accident employees of the city had scattered sand on the crossing but the high wind prevailing at the time had probably blown it away. Held, affirming the judgment appealed from (27 Ont. App. R. 410), that the facts were not sufficient to shew that the injury to the deceased was caused by " gross negligence " of the corporation within the meaning of R. S. O. [1897] c. 223, s. 606 (2). Ince V. City of Toronto, xxxi., 823. 146. Obstruction on highway — Repair of municipal streets — Negligence.] — The Su- preme Court of Canada affirmed the judgment appealed from (33 N. S. Rep. 291) which held that permitting a mound of earth about eight inches in height to remain at a filling over a trench dug to lay a pipe across a public street was not a serious or unusual obstruction due to negligence on the part of the municipality and holding the plaintiff guilty of want of proper care in approaching during the dark- ness the dangerous place which he had previ- ously seen by daylight in the same condition. Messenger v. Town of Bridgetown, xxxi., 379. 147. Defective sidewalk — Evidence — Con- iributory negligence — Nonsuit — New trial — Lawful use of street. See Negligence, 39. 148. Exercise of powers — Injury to pro- perty hy excavations — Negligence in manner of constructing streets. See No. 162, imfra. 901 MUNICIPAL COKPORATIOJSTS. 902 149. Excavation in street — Action for per- sonal injuries — Lord OampielVs Act — Evi- dence. See Evidence, 19. 150. Action of warranty — Negligence — Ob- struction of street — Assessment of damages — Questions of fact. See Appeal, 232. 151. Extra cost of drainage works — Misap- plication of funds — Negligence — Be-assess- ment. See No. 92, ante. 152. Repairs to highway — Statute labour — Obstruction left upon roadway. See No. 64, ante. 16. Notice or Action. 153. Negligence — Repair of sidewalks — Pleading — Notice of action. See No. 141, ante. 154. Discretion of trial court — Dispensing with notice of action — Repair of streets — Ice and snow on sidewalk. See No. 144, ante. 17. NtrisANCB. 155. Public market — Nuisance — Licensing traders and hucksters — Obstructing streets and sidewalks — Loss of rent — Damages.'] — The Court of Queen's Bench, by the judgment ap- pealed from, reversing the Superior Court, held that the City of Montreal was not re- sponsible for injury to the owner of property in the vicinity of a public market by reason of the street being encumbered on market days, by licensed traders, hucksters, &c., pro- vided reasonable efforts were made by the civic officials to prevent crowds from becoming sta- tionary or preventing free access and egress to or from the premises. — On appeal to the Supreme Court of Canada the judgment of the Court of Queen's Bench (Q. R. 7 Q. B. 1) was affirmed. Davidson v. City of Montreal, xxviii., 421. 156. Vse of street by railway — Nuisance — Corporate liability. See Railways, 71. 157. Encroachment on street — Obstruction of show-window — NuisoMCe — Negligence of of- ficials — Misfeasance — Statutable duty. See No. 171, infra. 157a. Expropriation of lands — Damages for use of rifle range — Mode of assessment — Con- sulting valuation rolls — Present uses — Pro- spectac value — Evidence. See No. 10a, ante. 18. PxJBLio Health. 158. Appointment of board of health — R. S. N. S. (5 ser.) c. 29—37 Vict. c. 6, s. 1 (N.S.) —42 Vict. c. 1, s. 67 (N.S.)— Contract— Rea- sonable expenses — Dismissal — Form of remedy — Mandamus.] — Section 67 of the Act which established municipal corporations in Nova Scotia (42 Vict. c. 1) giving them "the ap- pointment of health officers . . . and a board of health " with the powers and author- ities formerly vested in courts of sessions, does not repeal c. 29 of R. S. N. S. (4 ser.), pro- viding for the appointment of boards of health by the Lieutenant-Governor-in-Council. (Ritchie, O.J.. doubted the authority of the Lieutenant-Governor to make appointments in incorporated counties.) — A board of health employed M., a physician to attend small-pox patients " for the season at a fixed rate per day. On complaint against M., he was noti- fied that the board had employed a consulting physician, but refusing to consult with the new appointee he was dismissed. His action set forth his engagement and dismissal and claimed payment to the date at which the last small-pox patient in the district was discharged and special damages for loss of reputation. The statute (R. S. N. S. (4 ser.) c. 29, s. 12) al- lows boards of health to incur reasonable ex- penses defined by 37 Vict. [N.S.] c. 6, s. 1, to be services performed and medicine supplied in carrying out its provisions, and makes such expenses a charge to be assessed and levied as ordinary county rates. Held, per Fournier, Gwynne and Taschereau, JJ., affirming the judgment appealed from (21 N. S. Rep. 492), that the contract with M. was to pay him the rate per day so long as small-pox should prevail in the district during the sea- son ; that his dismissal was wrongful and the fulfilment of the contract could be enforced against the municipality by action. — I'er Ritchie, C.J., and Strong, J. There was suf- ficient ground for the dismissal of M. As- suming it, however, to have been unjustifiable, M.'s only remedy would have been by man- damus to compel the municipality to make an assessment to cover the expenses incurred. But the claim for damages for wrongful dis- missal did not come within the " reasonable expenses," which may be incurred by a board of health and made a charge on the county, and the municipality was, therefore, not liable. — Per Patterson, J. That the proper remedy for the recovery of the expenses mentioned in said s. 12 is by action and not by mandamus to compel an assessment, but a claim for dam- ages for wrongful dismissal does not come within the section and is not made a county charge. County of Cape Breton v. McKay, xviii., 639. 19. Public Wats. 159. Roads — Homologated prods verbal — Mun. Code (Que.), Arts. 100, J,51, 705— Proceeding to annul.] — Where a proch verbal of a municipal council directing improvements to be made on a portion of road situated with- in the municipality has been duly homologated, it cannot subsequently be set aside by inci- dental procedure, but, like a by-law, it can only be attacked directly as indicated in the Municipal Code, arts. 100, 461. Parent v. St. Sauveur (2 Q. L. R. 258) approved. Judg- ment appealed from (M. L. R. 1 Q. B. 200; 4 Dor. Q. B. 192 affirmed.! Reburn v. Ste. Anne du Bout de I'Isle, xv., 92. Note. — This case was overruled in Tous- sii/nant v. County of Nieolet, xxxii., 353. See No. 174, infra. 160. Road allowance — Obligation to open — Substituted road — Jurisdiction of Ontario 903 MUNICIPAL COEPOEATIONS. 904 oowris—G. 8. V. G. c. 5Jf—B. S. O, 1887, 0. 184, ss. 52Jf, 5S1.^ — H. owned and resided on a lot in front of which, under the pro- visions of C. S. U. C. 0. 54, an allowance was granted by the township for a road that was never opened owing to difficulties caused by the formation of the land, and a by-law was passed authorizing a new road in substi- tution thereof. Some years after H. brought suit to compel the township to open the ori- ginal road or, in the alternative, to provide him with access to his lot, and also to keep said road in repair and pay damages for in- juries caused by the road not having been opened. Seld, affirming the judgment appeal- ed from (15 Ont. App. R. 687), that the pro- visions of the Act, O. S. U. C. c. 54, requir- ing a township to maintain and keep in repair roads, &ci, and prohibiting the closing or alteration of roads applied only to roads which had been formally opened and used and not to those which a township, in its discre- tion, has considered it inadvisable to open. Seld, also, that the courts of Ontario have no jurisdiction to compel a municipality, at the suit of a private individual, to open an origin- al road allowance and make it fit for public travel. Hislop v. Township of ■ McOUlwray, xvii., 479. 161. Highway — Control of streets — Orade —34 Viet. 0. 11 (N. B.)—45 Vict. c. 61 {N. B.)] — ^The Act of incorporation of the Town of Portland, N. B. (34 Vict. c. 11) which remained in force when the town was incorporated as a city by 45 Vict. c. 61, em- powered the corporation to open, lay out, regulate, repair, amend and clean the roads and streets, and this included the necessary authority to alter the level of the street, if the public convenience required it. Williams V. City of Portland, xix., 159. 162. 'Negligence — Excavations — High- way — Lowering grade of street — Injury to lands — Statutory damages — 51 Vict. c. 4^, s. 190 (B. C.)]— The B. C. Act, 51 Vict. c. 42, by s. 190, empowered the City of West- minster to order by by-law the opening or ex- tending of streets, and for such purposes to acquire and use lands within the city limits, either by private contract or under formali- ties stated in sub-sections 3, 4, 13 & 15 of that section, providing for the nomination of commissioners to fix prices for such land, and that deposit by the coundl of the price fixed by the commissioners should vest the title in the council. By sub-section 17, sub-sections 3 and 4 apply to damages to real or personal estate by reason of alteration in the line or level of any street and for compensation there- for, without further formality. A by-law authorized money to be raiged for improving streets, but none was passed expressly order- ing the improvements. The grade of a street named in the by-law was lowered causing the approach from an adjacent lot to become very difficult, and no retaining wall being built, the soil caved in and weakened the supports of buildings on the lot. Held, affirming the judg- ment appealed from, Ritchie, O.J., and Tasche- reau, J., dissenting, that the owner could main- tain an action for damages sustained by the lowering of the grade and was not obliged, to seek redress under the statute ; that s.-s. 17, dispensi_ng with formalities, only applied to cases of land injuriously afiEected by access being interfered with, and where land was taken or used for purposes of work on the streets, the formalities of s. ss. 3 and 4 must be observed ; that the street having been ex- cavated to a depth which caused a subsidence of adjoining land the latter must be regarded as having been taken and used for the pur- poses of the excavation, and the council should have acquired it under the statute ; not having so acquired it and having neglected to take steps to prevent the subsidence of the ad- jacent land, they were liable for the damage thereby caused. Held, further that, however legal the making of the excavation may have been if skilfully executed, the neglect to take such precautions was in itself such negligence in the manner of executing it as to entitle the owner of the adjacent land to recover dam- ages for the injury sustained. Held, per Pat- terson, J., that in the absence of the statutory preliminaries a municipality has no greater right than any other owner of adjacent land to disturb the soil of a private person. City of New Westminster v. Brighouse, xx., 520. 163. Nuisance — Level of the streets — Raising street — Erecting fence — Access cut off — Nonsuit — Charter of city — Powers of council.] — The City of Saint John had power to alter, amend and repair streets laid out, or to be laid out. The charter is con- firmed by 26 Geo. III. c. 46, and the right to alter the levels of streets recognized by 9 Geo. IV. c. 4. Church street, not originally desig- nated on the plan of the city, was made a public street in 1811, on petition of owners of land through which it passes, who gave the land for the street. In 1874 the corporation raised Church street below Canterbury street, filling it in to within 4 or 5 feet of plaintifE's house and shop. On the embankment so made in front of plaintifE's house and shop the cor- poration erected a fence, which deprived plain- tiff of access from the street to his house and shop, but he reached them by a narrow pas- sage left next the house and shop running easterly towards Canterbury street and west- erly toward Prince William street. In his ac- tion against the city for damage by reason of so filling in the street and erecting the fence, plaintiff was nonsuited, on the ground that the charter and Acts gave defendant full au- thority to raise the level of the street, and that in it was vested the sole discretion as to the time and manner of doing it, and that having exercised a bona fide discretion in the matter and raised it, the damage sustained by the plaintiff was not the subject of an action ; that as to the erection "of the fence on the wall it was necessary for the protection of the pub- lic, and that it was the duty of defendant to put it there for that purpose. This nonsuit was set aside by the Supreme Court (N. B.) holding that the corporation had no right to fill in the street in the manner in which they did, and erect the fence on the embankment in front of plaintiff's house and shop, and that the manner in which the Corporation had filled in the street and erected the fence was of itself evidence that it acted carelessly and without reasonable skill and care and that the consideration of this should not have been withdrawn from the jury. (2 Pugs. & Bur. 636. ) Held, that the nonsuit should not have been set aside. Fournier and Henry, JJ., dissenting. — Per Gwynne, J., Taschereau, J., concurring. That defendant had, under the Acts which confirm and amend the charter, complete legislative power to raise or lower the level of streets to any extent that the irregularities of the ground may seem to the corporation and its council, as representing the public, to require for the benefit and con- 905 MUNICIPAL COEPORATIONS. veaience of the public, cannot be doubted ; the councils of these municipal corporations are themselves a deliberative, law-making assembly, chosen by the people to do whatever, within their jurisdiction, may in their judgment be necessary for the public benefit, and the powers conferred must therefore have a liberal con- struction in view of the public rather than of private interests. The power of altering, amending, repairing and improving the streets, which is a power vested in the corporation for the benefit of the public, represented by the council, is restricted by no condition save only by the implied condition that what shall be done in the name of the public, and ostensibly for their benefit and convenience, shall not be done in such a manner as in reality to constitute a public nuisance. — Plaintiff did not rest his right to maintain this action upon the ground that the act complained of was a public nuisance from which he sustained pe- culiar injury, and as he could not succeed without establishing the act complained of to be such public nuisance, the nonsuit was right and should be affirmed. Mayor of St. John v. Pattison, Cass. Dig. (2 ed.) 173. 164. Ont. Mun. Act, ss. 53 j., 535 (2), 538— Intermunidpal bridges — Rwer boundaries — Deviation of boundary road — - Repairs to bridges — Liability of county — .)g Vict. c. 47 (Ont.) — Territorial Act, B. 8. 0. (1887) — Municipality fronting on Jafce.] — The ac- tion was to enforce contributions . to the main- tenance and repair of bridges (15 O. R. 446, and 15 Ont. App. R. 617). On appeal to the Supreme Court of Canada, Held, affirming the Court of Appeal for Ontario. — Fer Strong, J, The appeal must be dismissed for the rea- sons stated by Mr. Justice Osier in the Court of Appeal. — Per Patterson and Taschereau, JJ. That rivers over which bridges are built and which do not cross any road between counties do not come within the provisions of s. 535 of the Ont. Mun. Act, because as no road exists in law between the counties at the place in question there is no such devia- tion of a road. The bridges if made where the rivers called the Big Bob and the Little Bob cross the original allowance, could not be said, since March, 1880, to be over rivers crossing the boundary line between the town- ships. A fortiori, the bridge on the deflected road cannot be held to be over a river Cross- ing the boundary line. — Per Gwynne, J. The bridge in question is one across the stream flowing from Sturgeon Lake into Pigeon Lake at a point distant over 1% miles west of Pigeon Lake and in the Village of Bob- caygeon, situate within the Township of Veru- 1am, so that it is apparent : 1. That this is not a bridge over a river forming or cross- ing any boundary line between two municipali- ties, so as to come within s. 535 ; and 2. As there is no river which in point of fact does cross the boundary line between the two town- ships at any place, no question of deviation within the meaning of the section does or can arise. The bridge is one across a river wholly within the limits of the village of Bobcaygeon, and which is said to exceed 100 feet in width, -the bridge, therefore, seems to come within the provisions of s. 534 of the Act. It cer- tainly does not come within s. 535. The County of Victoria v. The County of Peter- borough, Cass. Dig. (2 ed.) 558. 165. Ownership of roads and streets — Bights of private property owners — Ownership ad medmm filum viw — B. S. N. S. (5 ser.) c. 45—50 Vict. 0. 23 (N. S.)]— That the ship of lands adjoining a highway exte: medium filum viw is a presumption of la' which may be rebutted, but the presuj will arise though the lands are descri a conveyance as bounded by or on the way. Gwynne, J., contra. — In constru Act of Parliament the title may be refei in order to ascertain the intention of th islature.— The Act, 50 Vict. c. 23 (^ vesting the title to highways and the over which the same pass in the Crov a public highway, does not apply to th of Halifax.— The charter of the N. S. phone Co. authorizing the constructio working of lines of telephone along thi of, and across and under, any public hi or street of the City of Halifax, provide in working such lines the Company shoi: cut down nor mutilate any trees. He versing the judgment appealed from ( S. Rep. 509) Taschereau and Gwynni dissenting, that the owner of private pr in the city could maintain an action fo: ages against the company for injuring mental shade trees on the street in fr his property while constructing or w the telephone line, there being nothing evidence to rebut the presumption of < ship ad medium, or to shew that the had been laid out under a statute of th vince or dedicated to the public befoj passing of any expropriation Act. O'C V. N. S. Telephone Co., xxii., 276. 166. Encroachment on street — Bi " upon " or " close to " street line — C of Halifax, ss. 454, 455 — Petition to r obstruction — Judgment — Variance, s. 54, charter of Halifax, any person i lug to erect a building upon or close line of the street must first cause such 1 be located by the city engineer and ob certificate of the location ; and if a bi is erected upon or Close to the line w such certificate having been obtained tl preme Court, or a judge thereof, may, ' tition of the recorder, cause it to be rei A petition was presented asking for t moval of a porch built by B. which, t tition alleged, was upon the line of the i A porch had been erected on the same i 1855 and removed in 1885 ; i iwhile it the portion of the street outside of it since its removal, the portion up to the had been used as a public sidewalk ; c hearing of the petition the original line street could not be proved, but the judg that it was close to the line so used I public and ordered its removal. The Su Court (N. S.) reversed his decision, that the evidence would have justifie judge in holding that the porch was up( line, but having held that it was close line while the petition only called for i moval as upon it, his order was proper versed. City of Halifax v. Beeves, 340. 167. Private way — Bight of passa Government and municipal aid — B. arts. 1716, 1717 and 1718— Arts. 407 an G. C] — The proprietor of land in 01 bourg by action nigatoi/re claimed that i purged from a servitude of right of p claimed by his neighbour, the defendai road across the land was partly built the aid of government and municipal m but no indemnity was ever paid plaintifi privilege of passing across his land hac 907 MUNICIPAL COEPOEATIONS. 908 granted by plaintiff to certain parties other than the defendant by a special deed. Held, reversing the judgment appealed from, that the mere granting and spending of money by the government and the municipality did not make the private way a colonization road within the meaning of art. 1718 R. S. Q. Chamierland v. Fortier, xxiii., 371. 168. Construction of statute — Retroactive effect — Turnpike road company — Erection of toll gates — Consent of corporation.] — A turnpike road company had been in existence for a number of years, erected toll-gates and collected tolls, when an Act, 52 Vict. c. 43 (a) forbid any such Company to place a toll or other gate within the limits of a town or village without the consent of the corporation. Section 2 provided " this Act shall have no retroactive effect," but was repealed by 54 Vict. c. 36 (a). After 52 Vict. c. 43 was passed, the company shifted one of its toll gates to a point beyond the limits of the vil- lage, which were subsequently extended so as to bring the gate within them. The corpora- tion took proceedings against the Company, contending that the repeal of s. 2 made 52 Vict. c. 43 retroactive, and that the shifting of the toll gate without the consent of the corporation was a violation of said Act. Held, affirming the decision appealed from, that as a statute is never retroactive unless made so in express terms, s. 2 had no effect, and its repeal could not make the statute retroactive ; that the shifting of the toll gate was not a violation of the Act, which only applied to the erection of new gates, and that the extension of the limits of the village could not effect pre-existing rights of the company. Village of St. Joachim de la Pointe Claire v. Fointe Claire Turnpike Road Co., xxiv., 486. 169. Puilic highway — Private way — Reg- istered plan — Dedications — Oser — Con- struction of statute — Retrospective statute — 4ti Vict. s. 18 (O.)— Estoppel.] — The right vested in a municipal corporation by 46 Vict, c. 18 (O.), to Convert into a public highway a road laid out by a private person on his property can only be exercised in respect to private roads to the use of which the owners of property abutting thereon were entitled. — Judgment appealed from (19 Ont. App. R. 641) reversed. Gooderham v. City of Toron- to, XXV., 246. 170. Powers of Legislature — License ■ — Monopoly — NavigaMe streams ■ — Intermuni- cipal ferry — Tolls — Disturbance of licen- see.] — The authority of the Legislative As- sembly, N. W. T., by R. S. C. c. 50, and orders-in-couucil thereunder to legislate as to " municipal institutions " and " matters of a local and private nature, ' (and perhaps as to license for revenue) within the territories, includes the right to legislate as to ferries. — The Town of Edmonton, by its charter and by "The Ferries Ordinance" (Rev. Ord. N. W. Ter. c. 28), can grant the exclusive right to maintain a ferry across a navigable river which is not within the territorial limits of the municipality ; and as under the charter the powers vested in the Lieutenant-Governor-in- Council by the Ferries Ordinance are trans- ferred to the municipality, such right may .be conferred by license and a by-law is not neces- sary. Dinner v. Humbe^stone, xxvi., 252. 171. Highway — Encroachment upon street — Negligence — Nuisance — Obstruction of show-window — Municipal officers — Mis- feasance during prior ownership — Non- feasance — Statutable duty.~\ — An action does not lie against a municipal corporation for damages in respect of mere non-feasance, un- less there has been a breach of some duty im- posed by law upon the corporation. Munici- pality of Pictou V. Geldert (1893) A. C. 524 and Municipal Council of Sydney v. Bourke (1895) A. 0. 433, followed.— An action does not lie against a municipal corporation by the proprietor of lands for damages in respect thereof, through the mistake or misfeasance of the corporation or its officers, alleged to have occurred prior to the acquisition of his title thereto. — A municipal corporation is not civilly responsible for acts of its officers or servants other than those done within the scope of their authority as such. City of Mon- treal V. Mulcair, xxviii., 458. 172. Old trails in Rupert's Land — Substi- tuted roadway — Necessary way — R. S. C. c. 50, s. 108 — Reservation in Grown grant — Dedication — User — Estoppel — Assessment of lands claimed as highway — Evidence.] — The user of old travelled roads or trails over the waste lands of the Crown in the North- west Territories of Canada, prior to the Do- minion Government survey thereof does not give rise to a presumption that the lands over which they passed were dedicated as public highways. — The lands over which an old travelled trail had formerly passed, leading to the Hudson Bay Trading Post at Edmon- ton, N. W. T., had been enclosed by the owner, divided into town lots and was for several years assessed and taxed as private property by the municipality, and a new street substi- tuted therefor as shewn upon registered plans of sub-division and laid out upon the ground had been adopted as a boundary in the descrip- tions of lands abutting thereon in the grants by letters patent from the Crown. Held, re- versing the decision appealed from, that, un- der the circumstances, there could be no pre- sumption of dedication of the lands over which the old trail passed as a public highway, either by the Crown or by the private owner, notwithstanding long user of the same by set- tlers in that district prior to the Dominion Government survey of the Edmonton Settle- ment. Heiminck v. Town of Edmonton, xxviii., 501. 172o. Old trails in Rupert's Land — Crown grant — Squatter's plan of sub-division -^ Sub- stitution of new way — Dedication — Highway — Adopting new street as a boundarii.] — A squatter in possession of public lands near the old Hudson Bay Trading Post at Edmonton, who afterwards became patentee of the greater part of the lands he occupied, had made a plan of sub-division thereof into town lots which shewed a new roadway or street laid down in the place of the old travelled trail across said lands leading to the trading post, and subsequently, the Crown, in making grants, described several parcels of the lands in the patents as being bounded and abutting upon the said new street, or roadway, so laid down on the plan. Held, affirming the judg- ment appealed from (1 N. W. T. Rep., pt- 4, p. 39), that the space so shewn upon the plan, as laid out for a street, had been adopted and dedicated by the Crown as and for a public street and highway, in substitution for the old travelled trail or roadway across saio lands. Brown et al. v. Town of Edmonton, xxiii., 308; xxviii., 510. 909 MUNICIPAL COEPOEATIONS. 910 173. Public works ^ Tsl egligence — Ohstruo- tion on highway.] — Action for damages for in- juries caused through alleged negligence of the corporation in permitting a mound of earth aljout eight inches in height to remain at the tilling over a trench dug to lay a pipe across a public street. In passing over the obstruction during the night plaintiff's horse stumbled and fell throwing the plaintifE from the vehicle whereby the injuries were sustain- ed. The Supreme Court affirmed the judg- ment appealed from (.53 iS. S. Rep. i!91), which held that there had been no negligence on the part of defeudant, that the obstruction was not serious or unusual, and that the ac- cident occurred through want of proper care by plaintifE in approaching, in the dark- ness, the dangerous place which he had previ- ously seen in the same condition by daylight. Messenger v. Town of Bridgetown, xxxi., 379. 174. Assessment and taxes — Appeal — Jurisdiction — Annulment of prods verbal — Matter in controversy.] — The Supreme Court of Canada has no jurisdiction to entertain an appeal in a suit to annul a prods verbal estab- lishing a public highway notwithstanding that the effect of the prods verbal in question might be to involve an expenditure of over $2,000 for which the appellant's lands would be liable for assessment by the municipal corporation. Dubois v. Village of &'te. Rose (21 Can. S. C. K. 65) ; I'he City of Sherbrooke v. McMan- amy (18 Can. S. G. R. 594) ; The County of Verchires v. The Village of Varennes (19 Can. S. C. R. 365) and The Bell Telephone Company v. The City of Quebec (20 Can. S. C. R. 230) followed; Webster v. The City of Sherbrooke (24 Can. S. C. R. 52, 268) and McKay v. The Township of Hinchinbrooke (24 Can. S. C. R. 55) referTed to; Reburn V. The Parish of Ste. Anne du Bout de I'Isle (15 Can. S. C. R. 92 » overruled. Toussig- nant v. County of Nicolet, xxxii., 353. 175. Railway charter — Uighioay crossing —Control of streets — Compensation to muni- cipatity — ■ Terminus " at or near " point named.] — ^Authority to a company to con- struct a railway empowers them to cross every highway between the termini without permis- sion of the municipal authorities being neces- sary and without liability to compensate the municipalities for the portions of the high- ways taken for the road. — A charter author- ized construction of a railway from Vau- dreuil to a point at or near Ottawa, passing through the Counties of Vaudreuil, Prescott and Russell. Held, that if it were necessary, the railway could pass through Carleton County, in which the City of Ottawa is situ- ated, though it was not named. Held, also, that in this Act the words " at or near the City of Ottawa " meant in or near the said city. — Judgment appealed from (4 Ont. L. R. 56; 2 Ont. L. R. 336) affirmed. City of Ot- tawa v. Canada Atlantic Ry. Co; City of Ot- tawa V. Montreal & Ottawa Ry. Co., xxxiii., 176. Lawful use of street — Defective side- walk. See Negligence, 39. 177. Corporation ferry — Coupon ticket — Passenger by other lines ■ — Carriers ■ — Injury to passenger — Mooring of ferry boat — Dam- ages. See Negligence, 40. 178. Construction of sidewalk — Level crossings — Negligence. See No. 139, ante. 179. Control of streets — Negligence — Repair of sidewalks — Notice of action. See No. 141, ante. 180. Public bridge — Want of repair — Damages — Road committee. See Negligence, 189. 181. Defective bridge — Repair of streets^ Damages — Evidence — New trial. See Negligence, 188. 182. Road allowances — Substituted way — Reversion of original roadway — 50 Oeo. III. o. 1 — J^ Geo. IV.,'c. 10 — Municipal Acts — 36 Vict. c. 48 (Ont.) — Public uses. See Highway, 33. 183. County and municipal bridges — Width of streams — Freshets. See No. 109, ante. 184. Vancouver City charter — Jus publi- cum — Extension of street to deep water — Crossing Canadian Pacific Railway — Use of foreshore. See No. 110, ante. 185. Maintenance of streets — Action for per- sonal injuries — Third party added as defen- dant — Admissibility of evidence. See Evidence, 19. 186. Defective sidewalk — Accumulation of ice — Repair of streets. See No. 142, ante. 187. Obstruction of street — Accumulation of snow — Street railway. ^-ji" See Negligence, 23fe; 188. Repair of streets — Private way — Level of sidewalk. See No. 143, ante. 189. Obstruction of streets — Public mar- ket — Licensing traders and hucksters. See No. 155, ante. 190. Care of streets — Snow and ice on sidewalks — Negligence — Notice. See No. 141, ante. 191. Widening streets — Private way — Local improvement — Special assessment. See Res Judicata, 13. 192. Licensing traders and hawkers — Public market — Obstruction of streets and side- walks. See No. 155, ante. 193. Public street — Dedication — Obstruc- tion — Right of owner or occupier to com- pensation. See Dedication. 194. Performance of statute labour pairing roads — Negligence. See No. 64, ante. Re- 911 NAVIGABLE WATEKS. 912 195. Telephone polls on street — Cause of accident — Obstruction of highway. See Negligence, 192. 196. Maintenance of streets — Snow and ice accumulating — Gross negligence. See No. 145, ante. 197. Repair of streets — Obstruction on highway — Negligence. See No. 146, ante. 198. Tramway — Operation of railway — Use of streets — Municipal regulations — Crossings — Powers — By-law or resolution —Construction of B. S. N. 8. {1900) c. 71, ss. 263, 264. See No. 51, ante. 20. Wateewoeks. 199. By-law — Water supply — Rates to consumers — Discrimination.^ — Under the au- thority given to municipal corporations to fix the rate or rent to be paid by each owner or occupant of a building, &c., supplied by the corporation with water, the rates imposed must be uniform. Patterson, J. dissenting. — A by-law excepting Government institutions from the benefit of a discount on rates paid within a certain time is invalid as regards such exception. Patterson, J., dissenting. — Judgment appealed from (18 Ont. App. K. 622) reversed. Attorney-General of Canada V. City of Toronto, xxiii., 514. 200. Waterworks — Extension of works — Repairs — By-law — Resolution — Agree- ment in writing — Injunction — Highways and streets — B. 8. Q. art. U85—Art. 1033a C. C. P.] — By resolution of the Town of Chic'outimi, 9th October, 1890, based upon ap- plication previously made, L. obtained permis- sion to construct waterworks in the town and lay the necessary pipes in the streets wher- ever he thought proper, taking his water supply from the River Chicoutimi at whatever point might be convenient for his purposes, upon condition that the works should be commenced within a cer- tain time and completed in the year 1892. He constructed a system and had it in opera- tion within the time prescribed but, the sys- tem proving insufficient, a company was form- ed in 1895, under K. S. Q., art. 4485, and given authority by by-law to furnish a proper water supply to the town, whereupon L. at- tempted to perfect his system, to alter the po- sition of the pipes, to construct a reservoir and to make new excavations in the streets for these purposes without receiving any fur- ther authority from the council. — Held, re- versing the judgment appealed from (Q. R. 5 <.». B. 542). Gwyune, J., dissenting, that these were not merely necessary repairs but new works, actually part of the system re- quired to be completed during the year 1892, and which after that date could not be pro- ceeded with except upon further permission obtained in the usual manner from the Coun- cil of the town. Held, further, that the reso- lution and the application upon which it was founded constituted a " contract in writing " and a " written agreement " within the mean- ing of art. 1033a C. C. P. and violation of its conditions was a sufiicient ground for injunc- tion to restrain the construction of the new works. Ville de Chicoutimi v. Ligari, xxvli. 329. 201. Waterworks — Rescission of contract — Notice — Mise en demeure — Long user — Waiver — Art. 1067 C. C.]— A contract for the con- struction and maintenance of a system of waterworks required them to be completed in a manner satisfactory to the corporation and allowed the contractors thirty days after no- tice to put the works in satisfactory working order. On the expiration of the time for the completion of the works the corporation served a protest upon the contractors complaining in general terms of the insufiiciency and unsat- isfactory construction of the works without specifying particular defects, but made use of the works complained of for about nine years when, without further notic'e, action was brought for the rescission of the contract and forfeiture of the works under conditions in the contract. Held, that, after the long delay, when the contractors could not be replaced in the original position, the complaint must be deemed to have been waived by acceptance and use of the waterworks and it would, un- der the circumstances, be inequitable to re- scind the contract. Held, further, that a no- tice specifying the particular defects to be remedied was a condition precedent to action and that the protest in general terms was not a sufficient compliance therewith to place the contractors in default. Town of Richmond v. Lafontaine, xxx., 155. 202. Principal and agent — Action on water- works contract — Parties — Water commissionr ers — Statutory body. See No. 65, ante. 203. Guarantee of waterworks debentures — By-law — ■ Vote of ratepayers — Approval of Lieutenant-Governor. See No. 50, ante. NAVIGABLE WATERS. 1. Interference — Water lots — Easement — Trespass — Public waters — Prescription.] — ^W. was lessee of water lots held under Crown patent, granted in 1840, the lease being given by authority of the patent, and public statutes respecting the construction of the Esplanade in Toronto, which formed the boundary of said water lots. Held, affirming the judgment ap- pealed from (12 Ont. App. R. 327), that such lease gave to W. a right to build as he chose on the lots, subject to any regulations which the city had power to impose, and in doing so to interfere with the right of the public to navigate the water. — Held, also, that the waters being navigable parts of the Bay of Toronto no private easement by prescription could be acquired therein while they remained open for navigation. London and Caruiduin Loan and Agency Co. v. Warin, xiv., 232. 2. Constitutional law — Title to al/oeus— Dedication of public lands — Presumption^ User — Obstruction to navigation — Pumo nuisance — Balance of convenience.] — ^The title to the soil in the beds of navigable rivers is in the Crown in right of the provinces, not m right of the Dominion. Dixon v. Snetmger (23 U. C. C. P. 235) discussed.— By 23 Vict, c. 2, s. 35 (Can.), power was given to tne Crown to dispose of and grant water lots in 913 NAVIGATION. 914 rivers and other navigable waters in Up- per Canada, and the power to grant the soil carried with it the power to dedicate it to the public use. — The user of a bridge over a navi- gable river for thirty-five years is sufficient to raise a presumption of dedication. — If a pro- vince before confederation had so dedicated the bed of a navigable river for the purposes of a bridge that it could not have objected to it as an obstruction to navigation, the Crown as representing the Dominion, on assuming control of the navigation, was bound to permit the maintenance of the bridge. — ^An obstruc- tion to navigation cannot be justified on the ground that the public benefit to be derived from it outweighs the inconvenience it causes. — It is a public nuisance though of very great public benefit and the obstruction of the slight- est possible degree. Judgment appealed from (5 Ex. C. R. 30) affirmed. The Queen v. Moss, xxvi., 322. 3. Constitutional law — Municipal corpora- tion — Powers of Legislature — License — Mono- poly — Navigaile streams — By-laws and reso- lutions — Inter-municipal ferry — Tolls — jDjs- twriance of licensee-^North-West Territories Act, R. S. C. c. 50, ss. 13 and ZJt—B. N. A. Act (ia67) s. 92, s.-ss. 8, 10 and 15— Rev. Ord. N. W. Ter. (1888) c. 28— Ord. N. W. T. No. 7 of 1891-92, s. Jf — Companies, clui associa- tions and partnerships. See Constitutional Law, 27. 4. Canadian waters — Property in alveus — Puilic hariours — Erections in navigaile waters- — Interference with navigation — Rights of fishiitg — Power to grant — Riparian proprie- tors — Great lakes and navigable rivers — Magna Gharta — Provincial legislation — R. 8. 0. (i887) c. 24, s. 47—55 Vict. c. 10, ss. 5 to IS, 19 and 21 (0.)—R. 8. Q. arts. 1315 to W8. 8ee Constitutional Law, 5. 5. Legislative jurisdiction — Municipal boundary — 43 d 44 Vict. c. 62 (Que.) See Assessment and Taxes, 41. And see Navigation — Rivers and Streams — Watercourses. NAVIGATION. 1. Title to land -^ Unauthorized grant — Halifax Harbour — Obstruction — Low water mark — Nuisance— Trespass.'] — Action of tort by E. against Av . for having pulled up piles in the Harbour of Halifax below low water mark, driven in to be used as supports to an extension of E.'s wharf, built on land obtained by a Crown grant to E. in August, 1861. W. pleaded that " he was possessed of a wharf and premises in said harbour, in virtue of which possession he and his predecessors in title had enjoyed for twenty years and up- wards before the action, and had now, the right of having free and uninterrupted access from and to Halifax Harbour, to and from said wharf, with steamers, &c., and because piles, placed by plaintiffs in said waters, in- terfered with his rights, he removed the same," ihere was evidence that the erections B. was making for the extension of his wharf ob- structed access by vessels to W.'s wharf. A verdict against W. was upheld by the full court. Held, reversing the judgment appealed from (4 R. & G. 270), that, as the Crown could not, without legislative sanction, grant to E. the right to place in said harbour below low water mark any obstruction or impedi- ment so as to prevent the free and full enjoy- ment of the right of navigation, and as W. had shewn special injury, he was justified in removing the piles, which was the trespass complained of. Wood v. Esson, ix., 239. 2. Negligence — Collision — Action — Towage contract — Joinder of defendants — Company — Liability limited — 25 & 26 Vict. (Imp.) c. 63- — Merchant Shipping Amendment Act, 1862 — Navigation of Canadian waters, 31 Vict. c. 58, s. 12 — Motion for judgment — Findings of jury — Weight of evidence — Practice.] — The tow- ing company entered into a Contract with S., to tow the ship " Thrasher " from Royal Roads to Nanaimo, and when loaded to tow her back to sea. At Nanaimo, under arrange- ments between the T. Co; and the M. S. Co., the remainder of the engagement was under- taken between the two companies, and the M. S. Co.'s tug boat " Etta White," and the T. Co.'s tug " Beaver " proceeded to tow the " Thrasher " out of Nanaimo on her way to sea, the " Etta White " being the foremost tug. Whilst thus in tow the ship was dragged on a reef, and became a complete wreck. The night of the accident was light and clear, the tugs did not steer according to the course pre- scribed by the charts and sailing directions and there was, on the other side of the course they were steering, upwards of ten miles of open sea free from all dangers of navigation, and the ship was lost at a spot which was plainly indicated by the sailing directions, although there was evidence that the reef was unknown. The ship had no pilot, and those aboard were strangers to the coast. In an action for dam- ages for negligently towing the ship, and so causing her destruction ; -Held, 1. That as the tugs had not observed those proper and rea- sonable precautions in adopting and keeping the course to be steered, which a prudent navi- gator would have observed, and the accident was the result of their omission to do so the owners of the tugs were jointly and severally liable. Tasc'hereau, J., dissented as to the lia- bility of the M. S. Co., holding that the T. Co. were alone liable. 2. That under the B.C. Judicature Act the action was maintainable in its present form by joining both companies as defendants. 3. That as there was nothing in the M. S. Co.'s charter or Act of incorpor- ation to prevent their purchasing and owning a steam tug, and as the use of such a vessel was incidental to their business, they had a perfect right to let the tug to hire for pur- poses such as it was used for in the present case. 4. That as the tugs in question were not registered as British ships at the time of the accident their owners were not entitled to have their liability limited under 25 & 26 Vict. (Imp.) c. 63. 5. That the limited liability under s. 12 of 81 Vict. c. 58 (D.) does not apply to cases other than these of collision. Bewell V. B. C. Towing Co. and The Moody- ville Sawmill Co., ix., 527. [Note. — Leave to appeal to the Privy Council was obtained, but the case was settled before hearing.] 3. Collision — Appreciation of evidence ■ — Findings of fact — Appeal — Proper navigation — Negligent lookout — Anchor light.] — In an action claiming compensation for loss of the fishing schooner " Carrie B. Sayward " by be- ing run into and sunk while at anchor by the 915 NAVIGATION. 916 " Reliance," the decision mainly depended on whether or not the lights of the lost schooner were burning as the admiralty rules required at the time o£ the accident. The local judge gave judgment against the " Reliance." Held, that though the evidence given was contradic- tory, it was amply sufficient to justify the said judgment which should not, therefore, be dis- turbed on appeal. Santanderino v. Vanvert (23 Can. S. C. R. 145), and The Village of Granby v. Menard (31 Can. S. C. R. 14) fol- lowed. Schooner " Reliance " v. t'onwell, xxxi., 653. 4. Admiralty law — ■ Navigation — Narrow channels — " White law " B. 24 — Right of way — Meeting ships — Collision.] — Rule 24 of the " White law " governing navigation in United States waters provides " that in all narrow cfhaunels where there is a current, and in the rivers St. Mary, St. Clair, Detroit, Niagara and St. Lawrence, when two steamers are meeting the descending steamer shall have the right of way and shall, before the vessels shall have arrived within the distance of one-half mile of each other, give the signal necessary to indicate which side she elects to take." Held, that this rnle has no reference to the general course of vessels navigating the waters mentioned but applies only to meeting vessels. Therefore, a steamer ascending the St. Clair River with a tow was nof in fault when she followed the custom of up-going vessels to hug the United States shore. — ^The " Shenandoah " with a tow was ascending the St. Clair River in a fog and hugging the United States shore. The " Carmona " was coming down the river and they sighted each other when a few hun- dred yards apart. They simultaneously gave the port and starboard signals respectively and the port signal was repeated by the " Car- mona." The " Shenandoah " then gave the port signal and steered accordingly. The "Car- mona," thinking there was not room to pass between the other vessel and one lying close by at the elevator dock, reversed her engines. She passed the " Shenandoah," but on going ahead again collided with the vessel in tow. Held, reversing the judgment of tJie local judge (8 Ex. C. R. 1), that the " Shenandoah " was not in fault, and that as the local judge had found the " Carmona " not to blame, and as her captain's error in judgment, if it was such, in thinking he had not room to pass be- tween the two vessels was committed while in the agonies of collision, his judgment as to her should be affirmed. Davidson v. Georgian Bay Navigation Co.; The Shenandoah and the Crete, xxxiii., 1. 5. Pullic work — • Navigation of River St. Lawrence — Negligence — Repair of channel- Parliamentary appropriation — Discretion as to expenditure.'] — Action for damages to SS. " Arabia " sustained by striking an obstruc- tion in the River St. Lawrence ship channel which had been deepened by the Department of Public Works and subsequently swept once. The suppliants contended that the Crown was obliged to keep the channel clear and that failure to do so amounted to negligence. The judgment appealed from (7 Ex. C. R. 150), held that the channel was not a public work after the work of deepening was completed, and, even if it was, no negligence had been proved to make the Crown liable under s. 16 (c) of the Exchequer Court Act (1887). It also decided that the department charged with the repair and maintenance of the work with money voted by Parliament for that pur- pose was not obliged to expend the appropria- tion as such matters were within the discre- tion of the Governor-in-Council and Minister who were responsible only to Parliament in respect thereof. The Supreme Court affirmed the judgment appealed from. Hamburg Am- erican Packet Go. v. The King, xxxiii., 252. [Leave to appeal to Privy Council granted July, 1903.] 6. Boom company — Obstruction of tidal and navigable waters — 45 Vict. c. 100 (N.B.) — Legislative jurisdiction. See Constitutional Law, 66. 7. Legislative jurisdiction — 39 Vict. c. 53 (Que.) — Taxatioy, of ferry boats — Municipal by-law — Double tax — Montreal harbour— Jur- isdiction of commissioners. See Constitutional Law, 53. 8. Narrow channel — Negligence — Agony of collision. S6e Shipping, 3. 9. Throwing sawdust in river — Obstruction — Assessment of damages — Joint tort-feasors. See Damages, 61. 10. Narrow channel — Negligence — Lights — Collision. See Shipping, 4. 11. Constitutional law — Navigable waters — Title to alveus — Crown — Dedication of public lands — Presumption of dedication — Vser — Obstruction to navigation — Public nuisance — Balance of convenience. See Constitutional Law, 81. 12. Canadian waters — Property in alveus — Public harbours — Erections in navigable waters — Interference with navigation — Bight of fishing — Power to grant — Riparian proprie- tors — Great lakes arid navigable rivers — Ope- ration of Magna Charta — Provincial legisla- tion^-B. S. O. {1S87) c. 24, s. 41-55 Vict. o. 10, SS. 5 to 13, 19 and 21 (,0.)—R. S. Q. arts. 1375 to 1378. See Constitutional Law, 5. 13. Maritime law — Collision — Rules of the road — Narrow channel — Navigation, rules of —B. S. C. c. 79, s. 2, arts. 15, 16, 18. 19, 21 and 23 — " Crossing " ships — " Meeting " ships ■ — " Passing " ships — Breach of rules — Pre- sumption of fault — Contributorii negligence — Moiety of damages— 36 & 37 Vict. {Imp.) o. 85, s. 17 — Manmuvres in " agony of collision. See Shipping, 7. 14. Admiralty law — Collision — Ship at anchor — Anchor light — Lookout — Weightof evidence — Credibility — Findings of trial judge ■ — Negligence. See Shipping, 11. 15. Admiralty law— Collision— Undue speed —Ship in default— Rule 16—Navigatwm dur- ing fog. See Shipping, 12. And see Admibalty Law— Insurance, Ma- KiNE— Rivers and Streams— Shipping. 917 NEGLIGENCE. 918 NEGLIGENCE. 1. Buildings and Premises, 1-6. 2. Caeeiees, 7-13. 3. Causa Causans ; Peoximate Cause, 14- 28. 4. Common Employment," 29-37. 5. Contbibutoey Negligence, 38-73. 6. Damages, 74-79. 7. Dangerous Materials, &o., 80-84. 8. Dangerous Way, Works, &c., 85-95. 9. Defective Machinery and Construc- tions, 96-112. 10. Drainage, 113-115. 11. Employers' Liability, 116-137. 12. Evidence, 138-151. 13. Laches, 152-163. 14. Landlord and Tenant, 164-166. 15. Lord Campbell's Act, 167-170. 16. Navigation, 171-182. 17. Notice of Action, 183, 184. 18. Public Ways, 185-199. 19. Public Works, 200-203. 20. Railways, 204-241. 21. Tramways, 242-250. 1. Buildings and Premises. 1. Insufficient foundation wall — Contract — 111 Vict. cc. 6 <& 7 {N.B.)— Building by-law — Violation of — Liahility of owner — Assessment of damages — Loss of rent.'] — S. contracted to erect a proper and legal building for W. and two days later the City of St. John, under the Act 41 Vict. c. 6 (N. B.), passed a by-law prohibiting buildings such as that contracted for. W. had reserved the right to alter plans and specifications, and make deviations in the construction, detail or execution of the work, and engaged an architect to superintend the work and enforce the conditions of the con- tract, &cf. While in course of erection, Ihe centre wall, having been built on an insuffi- cient foundation, fell, carrying with it the party wall common to W. and McM., his neighbour. In an action against W. and S. to recover damages the jury found for the plaintifE for $5,327, i. e., general damages, $3,952, and $1,375 for loss of rent. In the full court the verdict was allowed to stand for $3,952, amount of general damages (21 N. B. Rep. 31). On appeal and cross-appeal, Held, Gwynne, J., dissenting, that at the time of the injury, the contract for the erection of W.'s building being in contravention of a valid by-law, the defendant W., his Contractors and agent were all equally responsible for the consequences of building the illegal wall which caused the injury; that the jury, in the ab- sence of any evidence to the contrary, could adopt the actual loss of rent as a fair criterion by which to establish damage sustained, and therefore the verdict should stand for the full amount of the verdict. — Per Gwynne, J., dis- senting: That W. was not, by the terms of the contract, liable for the injury, and, even it the by-law did make the building a nuisance, the plaintiff could not, under the pleadings in 'M case, have the benefit of it. Walker v. McMillan, vi., 241. 2. Fortuitous event — High wind — Vis major —Hall of wall after fire— Arts. 17. s.-s. 2.}, 1053, 1055, 1071 C. 0.]— Where fire destroyed his house, leaving walls dangerous, and defendant, knowing the fact, neglected to secure or sup- port a wall or take it down, and some days after the fire it was blown down by a high wind and damaged plaintiff's house, defendant cannot shield himself under plea of vis major Judgment appealed from (M. L. R. 6 Q. B. 402) affirmed. Nordheimer v. Alexander, xix., 248. 3. Sic utere tuo ut alieno ne Iwdas — Use of engine — Discharge of steam — Nuisance.] — A condenser pipe passed through the floor and discharged steam into a dock below, 20 feet from an adjoining warehouse into which the steam entered and damaged the contents. No- tice was given to the company, but the injurious use continued. Held, affirming the judgment appealed from (23 N. S. Rep. 263), that the act causing the injury violated the rule of law which does not permit one, even on his own land, to do anything, lawful in itself, which necessarily injures another, and the persons injured were entitled to damages, more espe- cially as the injury continued after notice. Chandler Electric Co. v. Fuller, xxi., 337. 4. Building — Want of repair — Damages — Heritiers fiduciaires — Personal liability of trustees — Executors — Arts. 921, 981 (a), 1055 C. C] — The owner of property abutting on a highway is under a positive duty to keep it from being a cause of danger to the public by reason of any defect, either in structure, repair or use and management, which reasonable care can guard against. — ^A. T. sued J. F. and M. W. F. personally as well as in their quality of testamentary executors and trustees of the will of the late J. F., claiming $4,000 damages for the death of her husband who was killed by a window falling on him from the third story of a building which formed part of the gen- eral estate of the late J. F., but which had been specifically bequeathed to one G. F. and his children, for whom the said J. F. and M. W. F. were also trustees. The courts below held appellants liable in their capacity of ex- ecutors of the general estate and trustees un- der the will. — Held, reversing the judgment appealed from, that the appellants were re- sponsible for the damages resulting from their negligence in not keeping the building in re- pair as well personally as in their quality of trustees (d'heritiers fiduciaries) for the bene- fit of G. P.'s children ; but were not liable as executors of the general estate. Ferrier v. Trepannier, xxiv., 86. 5. Contributory negligence — Unsafe pre- mises — Risk voluntarily incurred.] — ^An em- ployee of a company which had contracted to deliver coal at a school building went volun- tarily to inspect the place where the coal was to be put on the evening preceding the day upon which arrangements had been made for the delivery, and was accidentally injured by falling into a furnace pit in the basement on his way to the Coal-bins. He did not apply to the School Board or the caretaker in charge of the premises for permission to enter before inaking his visit. Held, affirming the judgment appealed from (23 Out. App. R. 597), that in thus voluntarily visiting the premises for his own purposes and without notice to the occupants, he assumed all risks of danger from the condition of the premises and could not recover damages. Rogers v. The Toronto Public School Board, sxvii., 448. 919 NBGLIGEFCB. 920 6. Lawful use of land — Excavations — In- jury to adjoining property — Damages — Right of action.] — PlaintifE charged that defendant carelessly, negligently and improperly made ex- cavations upon his lot adjoining that of the plaintiff, allowed water to accumulate in the excavations and to injure the foundations of plaintiff's building. The judgment appealed from (18 N. B. Rep. 523), ordered a nonsuit on the ground that damage and injury must both concur to afford a right of action, that the evidence shewed only an ordinary and legitimate use by defendant of his own land which did not constitute an Injury and, there- fore, he was not liable for damages. On ap- peal the Supreme Court of Canada affirmed the judgment appealed from. St. John Young Men's Christian Association v. Hutchinson, Cass. Dig. (2 ed.) 210. 2. Oarriehs. 7. Carriers — Special contract — Limitation of liability — Damages — Wrongful conversion on connecting line of transportation — Sale of goods for non-payment of freight.] — Condi- tions in a shipping receipt relieving the car- rier from liability for loss or damages aris- ing out of " the safe-keeping and carriage of goods " even though caused by the negligence, carelessness or want of skill of the carrier's officers, servants or workmen, without the actual fault or privity of the carrier, and re- stricting claims to the cash value of the goods at the port of shipment, do not apply to cases where the goods have been wrongfully sold or converted by the carrier. Wilson v. Canadian Development Co., xxxiii., 432. The Privy Council refused leave to appeal, July, 1903. 8. Carriage of perishable freight — Bill of lading — Verbal condition — Duty as to suitable transportation — Covered cars — " At owner's risk " — Estoppel. See Railways, 1. 9. Contract by carrier — Forwarding goods — Delivery — Connecting lines — Custody of goods. See Caekieks, 6. 10. Railway company — Carriage of goods — Limitation of liability — Railway Act, 1888 s. 2J,G (S). See Railways, 5. 11. Railway company — Carriage of goods — ■ Connecting lines — Special contract — Loss by fire in warehouse — 'Negligence — Pleading. See Railways, 6. 12. Fragile goods — Stowage — Contract against fault of servants — Charter party — Affreightment. See Carriers, 16. 13. Railways — - Carriers — Special instruc- tions — Acceptance by consignee — Warehouse- men — Amendment. See Carriers. 17. 8. Causa Causans ; Proximate Cause. 14. Runaway horses — Negligence — Proxi- mate cause — Danger voluntarily incurred^— Reasonable conduct.] — C. having driven his horses into a lumber yard adjoining a street on which blasting .operations were being car- ried on, left them in charge of the owner of another team while he interviewed the proprie- tor of the yard. Shortly after a blast went off and stones thrown by the explosion fell on the roof of a shed in which C. was standing and frightened the horses, which began to run. C. at once ran out in front of them and en- deavoured to stop them, but dould not, and in trying to get away he was injured. He brought an action against the municipality conducting the blasting operations to recover damages for such injury. Held, affirming the decision appealed from (20 Ont. App. R. 49), Gwynne, J., dissenting, that the negligent manner in which the blast was set off was the proximate and first cause of the injury to C. , that such negligent act immediately produced in him the state of mind which instinctively impelled him to attempt to stop the horses; and tliat he did no more than any reasonable man would have done under the circumstances. Town of Prescott v. Connell, xxii., 147. 15. Passenger vessel — XJse of wharf — Invi- tation to public — Accident in using insuffi- ciently lighted wharf — Proximate cause — Irre- gular medical attendance — Excessive dam- ages.] — A company owning a steamboat mak- ing weekly trips between Boston and HaUfax, occupied a wharf in the latter city leased to their agent. For the purposg of getting to and from the steamer there was a plank side walk on one side part way down the wharf and persons using it usually turned at the end and passed to the middle of the wharf. X. and his wife went to meet a passenger expect- ed to arrive by the steamer between seven and eight o'clock one evening in November. They went down the plank sidewalk and instead of turning off at the end, there being no lights, and the night dark, they continued straight down the wharf which became narrower after some distance, and formed a jog, on reaching which, Y.'s wife tripped and as her husband tried to catch her they both fell into the water. Forty-four days afterwards Mrs. Y. died. In an action by Y. against the company to re- cover damages occasioned by the death of bis wife it appeared that the deceased had not had regular and continual medical treatment after the accident and the doctors who gave evidence at the trial differed as to whether or not the immersion was the approximate cause of her death. The jury when asked: Would the deceased have recovered, notwith- standing the accident, if she had received regu- lar and continual attendance? replied, "very doubtful." A verdict was found for plaintiff with $1,500 damages, which the Supreme Court (N. S.) set aside, and ordered a new trial. Held, affirming judgment appealed from (24 N. S. Rep. 436). that Y. and his wife were lawfully upon the wharf at the time of the accident; that in view of the established practice they had a right to assume that they were invited by the company to go on the wharf and assist their friends in disembark- ing from the steamer ; and that they had a right to expect that the means of approach to the steamer were safe for persons using or- dinary care, and the company was under an obligation to see that they were safe. — EM, further, that it having been proved that the 921 NEGLIGENCE. 932 wharf was only rented to the agent because the landlord preferred to deal with him per- sonally, and that it was rented for the use of the company, whose officers had sole con- trol of it, the company was in possession of it at the time of the accident. — Held, also, that the evidence and finding of the jury hav- ing left it in doubt that the accident was the proximate cause of Mrs. Y's death, the jury not having been properly instructed as to the liability of the company under the circum- stances, and the damages being excessive un- der the evidence, the order for a new trial should be affirmed. York v. Canada Atlantic SS. Co.. xxii., 167. 16. Master and servant — Negligence — " Quebec Factories Act " — R. S. Q. arts. 3019- 3053 — Art. 1053 .G. G. — Civil responsibility — Cause of accident — Conjecture — Evidence — Onus of proof — Breach of statutable duty — Police regulations.] — The plaintiff's husband was accidentally killed whilst employed as en- gineer in charge of defendant's engine and ma c!hinery. In an action by the widow for damages the evidence was altogether circumstantial and left the manner in which the accident occurred a matter of conjeforh v. Canada Atlantic 88. Co., xxii., 107. 93. Defecti/oe construction — Machinery in mine — Cause of injury — Fault of fellow-work- man — Ways and works — Verdict.'] — An eleva- tor Cage was used in defendant's mine for the transportation of workmen and materials through a shaft over eight hundred feet in depth. It was lowered and hoisted by means of a cable which ran over a sheave wheel at the top of the shaft, and, to prevent accidents, guide rails were placed along the elevator shaft and the cage was fitted with automatic dogs or safety clutches intended to engage upon these guide-rails and hold the cage in the event of the cable breaking. The guide-rails were continued only to a point twenty feet below the sheave wheel. On one occasion the engineman in charge of the elevator carelessly allowed the cage to ascend higher than the guide-rails and strike the sheave wheel with such force that the cable broke and, the safety clutches failing to act, the cage fell a distance of over eight hundred feet, smashed through a bulkhead at the eight hundred foot level and injured the plaintiff who was engaged at the work for which he was employed by the de- fendants about fifty feet lower down in the shaft. In an action to recover damages for the injury sustained, the jury found that the immediate cause of the injury was " the non- 939 NEGLIGENCE. 940 continuance of the guide-rails " which, in fheir opinion, " caused the safety-clutches to fail in their action, and therefore allowed the cage to fall. Held, reversing the judgment appealed from (a B. O. Rep. 62). that the verdict ren- dered in favour of the plaintiff ought not to have been disregarded as there was sufficient evidence to support the finding of fact by the jury. McKelvey v. Le Roi Mining Go., xxiii., 664. The Privy Council refused leave for an ap- peal, 11th February, 1903. 94. Coupling railway cars — Orders of con- ductor — Dangerous way — Findings of jury. See No. 212, infra. 95. Guarding dangerous machinery — Statu- tory duty — Cause of accident. See No. 19, ante. 9. Defective Machinebt and Constbuc- TIONS. 96. Use of dangerous machinery — Orders of superior — Reason'aile care.'\ — O. was em- ployed in a factory to heat rivets and, with another workman, was engaged in oiling ma- chinery which worked the drill in which the rivets were made. Having oiled part, the other workman went away for a time during which O. saw that the oil was running ofiE the horizontal shaft of the drill and called the attention of the foreman of the machine shop to it and to the fact that the shaft was full of ice. The foreman said to him, " Run her up and down a few times and it will thaw her off." The shaft was seven feet from the floor and on it was what is called a buggy which could be moved along it on wheels. Depending from the buggy was a straight iron rod into the hollow end of which was inserted the drill secured by a screw, and attached to the buggy was a lever over six feet long. O. when so directed by the foreman tried to move the buggy by means of the lever but foiind he could not. He then went round to the back of the spindle and not being able then to move *he buggy came round to the front, put his two hands upon a jacket around the spindle and put the weight of his body against it ; it then moved and he stepped forward to recover his balance, when the screw securing the drill caught him about the middle of the body and he was seriously injured. It was shewn that O. had no experience in the mode of moving the buggy and that the screw should have been guarded. Held, affirming the decision ap- pealed from (21 Ont. App. R. 596), Gwynne, J., dissenting that the jury were warranted in finding that there was negligence in not having the screw guarded; that as the foreman knew that O. had no experience as to the ordinary mode of doing what he was told to do, he was justified in using any reasonable mode ; that he acted within his instructions in using the only efficient means that he could ; and that under the evidence he used ordinary care. Hamilton Bridge Co. v. O'Connor, xxiv., 598. 97. Defective machinery ■ — • Evidence for jury — Findings of fact — Verdict.] — T., a weaver in a cotton mill, was injured while assisting a less experienced hand, by the shuttle flying out of the loom at which the latter worked, and striking her on the head. The mill contained about 400 looms, and for every 46 there was a man called the " loom fixer," whose duty it was to keep them in proper repair. The accident was caused by a bolt breaking by the shuttle coming in con- tact with it, and as this bolt served as a guard to the shuttle the latter could not remain in the loom. The jury found that the breaking of the bolt caused the accident, and that the " loom fixer " was guilty of negligence in not having examined it within a reasonable time before it broke. .T. obtained a verdict, which was affirmed by the Court of Appeal. Held Gwynne, J., dissenting, that the " loom fixer '' had not performed his duty properly ; that the evidence as to negligence could not have been withdrawn from the jury ; and that, as there was evidence to justify their finding, the ver- dict should stand. — Per Gwynne, J., that the finding of the jury that the negligence con- sisted in the omission to examine the bolt was not satisfactory, as there was nothing to shew that such examination could have prevented the accident, and there should be a new trial. Canadian Coloured Cotton Mills Go. v. Tal- bot, xxvii., 198. 98. Unprotected laundry rollers — Injury to employee — Passing faintness of victim — Ap- proved machinery — Contributory negligence.] — An employee in a laundry, who had gone to work without her breakfast was attacked by faintness and while in a state of unconscious- ness, dropped her hand into an opening in a steam mangle, receiving severe injuries by Contact with the heated cylinder and large re- volving rollers. She perfectly understood the management of the machine which was in good working order, and not considered dan- gerous. On a recent visit, the Government factories inspector had approved of the ma- chine and the factory was in the best possible order. Held, affirming the judgment appealed from (Q. K. 5 Q. B. 191), that there was no negligence chargeable to the defendant for which an action would lie. Demers v. Mon- treal Steam Laundry Co., xxvii., 537. 99. Matters of fact — Finding of jury — Insecure rigging.] — W. was working on a vessel in port when a boom had to be taken out of the crutch in which it rest- ed and he pointed out to the master that this could not be done until the rigging sup- porting it, which had been removed, was re- placed which the master undertook to do. When the boom was taken out it fell on the deck and W. was injured. In an action against the owners for damages the jury found that the fall of the boom was owing to the said rigging not being secured, but that this was not occasioned by the negligence of the owners or their servants. — Held, affirming the judgment appealed from (30 N. S. Bep. 548), Gwynne, J., dissenting, that the first part of the finding did not necessarily mean that the rigging had never been secured, or that if se- cured originally it had become insecure by negligence of defendants, and the jury having negatived negligence their finding should not be ignored. Williams v. Bartling, xxix., 54S. 100. Operation of railway— Defective works — Loch on switch — Finding of negUgence— Evidence.]— The. absence of a lock or guarO on a railway switch is a defect m the con- struction of the ways, works, machinery or plant connected with the construction of worKS sufficient to support findings of negligence W a jury. Balch & Peppard v. Bomburgh, l^ta June, 1900. 941 NEGLIGENCE. 942 101. Dangerous machinery — Railway — Sparks from engine — Evidence — Findings of jury — Defective construction.] — Fire was dis- covered on J.'s farm a short time after a train of tiie Grand Trunk Railway had passed it drawn by two engines one having a long, and the other a short, or medium, smoke-box. In an action against the Company for damages it was proved that the former was perfectly constructed. Two witnesses considered the other defective, but nine men, experienced in the construction of engines, swore that a larger smoke box would have been unsuited to the size of the engine. The jury found that the fire was caused by sparks from one engine and they believed it from that with the short smoke-box ; and that the use of said box con- stituted negligence in the company which had not taken the proper means to ■ prevent emis- sion of sparks. Held, affirming the judgment of the Court of Appeal (2 Ont. L. R. 689), that the latter finding was not justified by the evidence and the verdict for plaintiff at the trial was properly set aside. Jackson v. Grand Trunk Ry. Co., xxxii., 245. 102. Findings of fact — Machinery in mine — Defective construction — Proximate cause of injury — Fault of fellow-workman — Defective ways, works and machinery — Disturbing ver- dict on appeal.] — An elevator cage was used in defendant's mine for the transportation of workmen and materials through a shaft over eight hundred feet in depth. It was lowered and hoisted by means of a cable which ran over a sheave wheel at the top of the shaft, and, to prevent accidents, guide rails were placed along the elevator shaft and the cage was fitted with automatic dogs or safety cllitches intended to engage upon these guide- rails and hold the cage in the event of the cable breaking. The guide-rails were con- tinued only to a point twenty feet below the sheave wheel. On one occasion the engineman in charge of the elevator carelessly allowed the cage to ascend higher than the guide-rails and strike the sheave wheel with such force that the cable broke and the safety clutches failing to act, the cage fell a distance of over eight hundred feet, smashed through a bulkhead at the eight hundred foot level and injured the plaintiff who was engaged at the work for which he was employed by the defendants about fifty feet lower down in the shaft. In an action to recover damages for the injury sustained, the jury found that the immediate ;ause of the inury was " the non-continuance of the guide-rails " which, in their opinion, "caused the safety-clutches to fall in their iction, and therefore allowed the cage to fall." Beld, reversing the judgment appealed from (9 B. C. Rep. 62), that the verdict rendered in favour of the plaintiff ought not to have been disregarded as there was sufficient evi- Jence to support the finding of fact by the iury. McKelvey v. Le Roi Mining Co., xxxii., 364. Leave to appeal refused by the Privy Coun- cil, 11th February, 1903. 103. Damage iy fire — Spark arrester — Mis- iwecWon.]— In a case where the main issue vas as to 'the sufficiency of a spark-arrester )u a steam engine used in running a hay-press, ;ne trial judge directed the jury that " if there vas no spark-arrester in the engine that in tself would be negligence for which the de- endauts would be liable." — field affirming ;t| judgment appealed from (23 N. S. Rep. ''0), Strong, J., dissenting, that it was mis- direc'tion to tell the jury that the want of a spark-arrester was, in point of law, negligence Peers v. Elliott, xxi., 19. And see New Teial 76. 104. Employer's UaUlity — Defective use of machinery — Notice — Injury to workman.]— Employers are no less responsible for the in- juries occasioned by the defective system of using their machinery than they would have been for a defect in the machinery itself. — There being no Employers' Liability Act in force in British Columbia when the injury in question happened, plaintiff was not precluded from obtaining compensation by failure to give notice of the defects to his employers. Web- ster V. Foley, xxi., 580. And see Mastee and Servant, 32. 105. Absence of buffers on tramcars — Work- man's Compensation Act.] — The absence' of proper buffers on a tramcar is actionable negligence. The Toronto Ry. Co. v. Bond, xxiv., 715. 106. Collision at sea — Steamship — Defec- tive steering apparatus — Question of fact. See Appeal, 226. 107. Defective snow plough and bridge — Findings of jury — Contributory negligetice — Answers to questions — Railway company — Act of incorporation — Change of name. See No. 213, infra. 108. Insecure tackle — Warning of danger — - Cause of injury. See No. 88, ante. 109. Militia class-firing — Government rifle range — Officers and servants of the Crown — Injury to the person. See Military Law ; Militia, 2. 110. Sawmill — Injury to workman — Open- ing in floor — Fencing — Appeal — Findings at trial — Contributory negligence. See No. 89, ante. 111. Evidence to support verdict — Findings of fact — Practice — Defective works, ways and machinery — Proximate cause of injury^ — Fault of fellow-workman — Mining regulations. See No. 93, ante. 112. Operation of railway — Defective ma- chinery — Contributory negligence — Examining train — Running rules. See No. 51, ante. 10. Drainage. 113. Drainage — Adjoining municipalities — Defective scheme — Tort feasors.] — ^A munici- pality constructing a drain cannot let water loose just inside or anywhere within an ad- joining muDicipality without being liable for Injury caused thereby to lands in such adjoin- ing municipality. — Where a scheme for drain- age work to be constructed under a valid by- law proves defective and the work has not been skilfully and properly performed, the municipality constructing it are not liable to persons whose lands are damaged in conse- quence of such defects and improper construe- 943 NEGLIGENCE. 944 tiou, as tort feasors, but are liable under s. 591, Municipal Act, for damage done in con- struction of the work or consequent thereon. (20 Ont. App. R. 225, varied.) Township of Ellice V. HUes; Township of EUioe v. Crooks, xxiii., 429. 114. Repair of drains — Duty of munioi- pality—B. 8. O. (1881/) c. 184— Right of ac- tion — Land injuriously affected — Arbitration — Mandamus. See Drainage, 2. 115. Uncompleted drains — Flooding land — Mandamus — Municipal works. See Drainage, 3. 11. Employers' Liabilitt. 116. Passenger elevator — Negligence of em- ployees — Assessment of damages — Art. 1054 C. C. — Vindictive damages — Gross-appeal — ■ Relief for respondent. 1— On 13th April, 1883, C, an architect who had his oflBce on the third flat of a building in which the landlord had placed an elevator for the use of tenants, da- siring to go to his oifice, went towards the door admitting to the elevator, and seeing it open entered, but the elevator not being there he fell into the cellar and was seriously injured. In an action against the landlord, claiming damages, it was proved that the boy in charge at the time of the accident, had left the elevator with the door open to go to his lunch, leaving no substitute in charge. It was shewn also that C. had suffered seriously from a fracture of the skull, had been obliged to follow for many months an expensive, medical treatment and had become almost incapacitat- ed for the exercise of his profession. C. had been in the habit of using the elevator during the absence of the boy. The trial judge award- ed $5,000 damages, which, on appeal, was re- duced to $3,000 on the ground that C. was not entitled to vindictive damages. Held, affirm- ing the judgment appealed from (M. L. R. 3 Q. B. 270), that the landlord was liable for the fault, negligence and carelessness of his employee, and that the amount awarded was not unreasonable. Reld, also, that the sum of $5,000 awarded by the Superior Court was not an unreasonable amount and could not be said to include vindictive damages, but as no cross-appeal had been taken the judgment of the Superior Court could not be restored. Stephens v. Chauss6, xv., 379. 117. Loading of steamer — Accident — Evi- dence — Neglect of usual precaution — lAabUity of employ er.'\ — When two stevedores are inde- pendently engaged in loading the same steamer, and, owing to the negligence of the employees of the one, an employee of the other is injured, the former stevedore is liable in damages for such injury. — The failure to observe a pre- caution usually taken in and about such work is evidence of negligence. Judgment appealed from (Q. R. 1 Q. B. 234) affirmed, Gwynne, J., dissenting. Brown v. Leclerc, xxii., 53. 118. Negligence of Grown servants — Gam- mon employment.] — The doctrine of common employment does not prevail in the Province of Quebec. (4 Ex. C. R. 134, affirmed.) The Queen v. Filion, xxiv., 482. Followed in The Aslestos and Aslestic Go. V. Durand (30 Can. S. C. R. 285), and in The Queen v. Grenier (30 Can. S. C. R. 42). 119. Negligence of servant — Deviation from employment — Resumption."] — A tradesman's teamster, sent out to deliver parcels, went to his supper before completing the delivery. He afterwards started to finish his work and in doing so he ran over and injured a child. Held, affirming the decision appealed from (33 N. B. Rep. 91), that from the moment he had started to complete the business in which he had been engaged he was in his master's em- ploy just as if he had returned to the master's store and made a fresh start. Merritt v. Hepenstal, xxv., 150. 120. Master and servant ■ — Injuries sus- tained ty servant — Responsibility — Gontribu- tory negligence — Protection of machinery.] — Where an employee sustains injuries in a fac- tory through coming in Contact with machin- ery, the employer, although he may be in de- fault, cannot be held responsible in damages, unless it is shewn that the accident by which the injuries were caused was directly due to his neglect. (Q. R. 9 S. C. 506, reversed.) Tooke V. Bergeron, xxvii., 567. 121. Master and servant — Employer's lia- bility — Goncurrent findings of fact — Gantrihu- tory negligence — Reasonable precautions.] — In an action by an employee for injuries sus- tained there was some evidence of neglect on the part of the employers which, in the opinion of both courts below, might have been the cause of the accident through which the in- juries were sustained, and both courts found that the accident was due to the fault of the defendants either in neglecting to cover a dangerous part of a revolving shaft tempor- arily with boards or to disconnect the shaft or stop the whole machinery while the plaintiff was required to work over or near the shaft. Held, Taschereau, J., dissenting, that although the evidence on which the courts below based their findings of fact might appear weak, and there might be room for the inference that the primary cause of the injuries might have been the plaintiff's own imprudence, the Su- preme Court of Canada would not, on appeal, reverse such concurrent findings of fact George Matthews Co. v. Bouchard, xxviii., 580. Followed in Dominion Cartridge Go. v. Mc- Arthur (31 Can. S. C. li. 392). See No. 144, infra. 122. Municipal corporation — Obstruction on highway — ■ Necessary proof — Statutory officer — Ratepayer — Statute labour.]— iTi an action against a municipal corporation for damages in consequence of a carriage hav- ing been upset by running against a pile of sand left on the highway, and one of the oc- cupants thrown out and seriously injured, there was no direct evidence as to how the obstruction came to be placed on the highway, but it appeared that statute labour had been performed at the place of the accident immedi- ately before under the direction of the path- master, an officer appointed by the corpora- tion under statutory authority. The evidence indicated that the sand was left on the road by a labourer working under directions from the pathmaster or by a ratepayer engaged m the performance of statute labour. Held, a£- firming the judgment appealed from, that the action must fail for want of evidence that the injury was caused by some person tor whose acts the municipal corporation was re- sponsible.— Per Strong, C.J. Qwere, Is the corporation liable for, the acts of a statutoi? officer like the pathmaster, or of a ratepayer 945 NEGLIGENCE. 946 in performance of statute labour? McGregor V. Township of Harwich, xxix., 443. 123. Master and servant — Hiring of ser- vant ly third party — Control over service.'i — The defendant hired by the day the general servant and horse and waggon of another com- pany for use in its business, and while so hired the servant in carrying a load of glass knocked a man down and seriously injured him. — Held, reversing the judgment appealed from (26 Ont. App. R. 63), that the defend- ant was not liable in damages for the injury ; that the driver remained the general servant of the company from which he was hired and not that of the defendant. Consolidated Plate Glass Co. V. Gaston, xxix., 624. 124. Negligence — Personal injuries — Drains and sewers — Liability of municipality ■ — Officers and ernployees of municipal corpora- tion— 59 Vict. c. 55, s. 26, s.-s. 18 (Que.)] — The Act incorporating the Town of St. Louis, Que., gives power to the council to regulate the connection of private drains with the sew- ers, " owners or occupants being bound to make and establish connection at their own cost, under the superintendence of an oflBcer appointed by the Corporation." Held, affirm- ing the judgment appealed from (Q. R. 11 K. B. 117), that the municipality cannot be held liable for damages caused 'through the acts of the person permitted by the council to make such connections, as he is neither an employee of the corporation nor under its con- trol. Dallas V. Town of St. Louis, xxxii., 120. 125. Negligence — Vis major — Driving timber — Servitude ■ — Watercourses ■ — Float- able rivers — Statutory duty — 53 Vict. o. S7 (Que.) — . Riparian rights.] — The Rouge River, in the Province of Quebec, is floatable but not navigable, and is used by lumber- men for bringing down sawlogs to booms in which the logs are collected at the mouth of the river and distributed among the owners. The plaintitts constructed a municipal bridge across the river near its mouth where the col- lecting booms are situated. The defendant and a number of other lumbermen engaged in driving their logs, mixed together, down the river did not place men at the bridge to pro- tect it during the drive and took no precau- tion to prevent the formation of jams of their logs at the piers of a railway bridge which crosses the river a short distance below the mu- nicipal bridge, nor did they break up a jam of logs which formed there, but they abandoned the dnve before the logs had been safely boomed at the river mouth. The River Rouge is sub- ject to sudden freshets during heavy rains, and, on the occurrence of one of these freshets, the waters were penned back by the jam and a quantity of the logs were swept up stream with such force that the superstructure of the municipal bridge was carried away. In an action by the municipality to recover damages CT S "^* lumbermen jointly and severally, feld iimimmg the judgment appealed from, tne Lhief Justice and Sedgewick, J., dissent- ing, that, irrespectively of any duty imposed P.y fta.tute, the proprietors of the logs were liable for actionable negligence on account of rne careless manner in which the driving of tne logs was carried on, and were jointly and severally responsible in damages for the in- juries so caused. Ward v. Township of Gren- vme, xxxii., 510. 126. Withdrawal of case from jury — Evi- dence — Reasonable care — New trial — Questions for the jury. See Evidence, 163. 127. Government railway — ■ Improper con- duct of servant — Liability of Grown, See No. 206, infra. 128. Lease of tolls — Negligence of toll col- lector — Liability of turnpike company. See No. 187, infra. Imprudence — Gon- 129. Dangerous way tributory negligence. See No. 87, ante. 130. " Quebec Factories Act " — Police regulations — Evidence — Unknown cause of accident — Breach of duty. See No. 16, ante. 131. Use of dangerous material — Regula- tions of cartridge factory — Reasonable pre- cautions — Accidental injury — Causa eausaus. See No. 18, ante. 132. Neglect to insulate electric wires • — Employer's liability — ' Causa eausaus. See No. 80, ante. 133. Common fault — Division of damages — Risk voluntarily incurred. See No. 47, ante. 134. Intercolonial Railway Relief and As- surance Association — Contribution from pub- lic funds — Exoneration from liability for injuries to employees. See No. 219, infra. 135. Persons in charge of electric car — Motorman — Injury to conductor — Work- men's Compensation Act. See Employer and Employee, 1. 136. Police constable — Negligent perform- ance of duty — Liability of corporation. See Municipal Coepoeation, 66. 137. Negligence of Crown officials — Public work — Right of action — Liability of Grown — ■ Jurisdiction of Exchequer Court — Prescrip- tion. See No. 201, infra. 12. Evidence. 138. Evidence of negligence — Failure to observe ordinary precaution.] — Failure to ob- serve a precaution usually taken in the load- ing of ships by stevedores is evidence of negli- gence.— (Q. R. 1 Q. B. 234, affirmed.) Brown v. Leclere, xxii., 53. 139. Infant — Imprudence.] — Action by next friend to infant for injuries sustained by his son from a portable mirror falling upon him when with her in defendants' shop. The trial judge found that there was no evidence of negligence by defendants to be submitted to the jury and dismissed the action. The Divisional Court reversed his decision and or- dered a new trial (25 O. R. 78), and its 947 NEGLIGENCE. 94S judgment was affirmed by the judgment ap- pealed from (21 Ont. App. R. 264).— The Supreme Court of Canada affirmed the judg- ment appealed from and dismissed the a,ppeal with costs. T. Eaton Go. v. Sangster, xxiv., 708. 140. Landlord and tenant — Loss hy fire — ■ Cause of fire — Civil responsi- bility — Legal presumption — Onus of proof — Hazardous occupation — Arts. 105S, 1064, 1071, 1626, 1627, 1629 C. C.]— To rebut the presumption Created by art. 1629 C. C. it is not necessary for the lessee to prove the exact origin of the fire or that it was due to unavoidable accident or irresist- ible force. It is sufficient for him to prove that he had used the premises leased as a prudent administrator (en ion pire de fa- mine) and that the fire occurred without any fault that could be attributed to him or to persons for whose acts he should be held re- sponsible. — ^Judgment appealed from (Q. R. 5 Q. B. 88), affirmed, Strong, C.J., dissent- ing. Murphy v. Labb6, xxvii., 126. Followed in Klook v. Lindsay (28 Can. S. C. R. 453) . See No. 142, infra. 141. Master and servant — Common fault — Assignment of facts — Arts. 353 & JfUt G. G. P. — Art. 427 G. P. Q. — Inconsistent findings — Misdirection — New trial ■ — Pleading.'} — In an action for injuries alleged to have been caused by negligence, the plaintiff must al- lege and make affirmative proof of facts suf- ficient to shew the breach of a duty owed him by, and inconsistent with due diligence on the part of the defendant, and that the injuries were thereby occasioned ; and where in such an action the jury have failed to find the dei- fendants guilty of the particular act of negli- gence Charged in the declaration as constitut- ing the cause of the injuries, a verdict for the plaintiff cannot be sustained, and a new trial should be granted. — Judgment appealed from (Q. R. 6 Q. B. 534) reversed. Cowans V. Marshall, xxviii., 161. 142. Landlord and tenant — Loss by fire — 'Negligence — Legal presumption — Onus of proof — Construction of agreement — Covenant to return premises in good order — Art. 1629 G. C] — A steam sawmill was totally destroy- ed by fire during the term of the lease, whilst in possession of and occupied by the lessees. The lease contained a covenant by the lessees " to return the mill to the lessor at the close of the season in as good order as could be expected considering the wear and tear of the mill and machinery." The lessees, in defence to the lessor's action for damages, adduced evidence to shew that necessary and usual precautions had been taken for the safety of the premises, a night watchman kept there making regular rounds, that buckets filled with water were Tsept ready and force-pumps pro- vided for use in the event of fire, and they submitted that, as the origin of the fire was mysterious and unknown, it should be assumed to have occurred through natural and fortui- tous causes for which they were not respon- sible. It appeared, however, that the night watchman had been absent from the part of the mill where the fire was first discovered for a much longer time than was necessary or usual for the making of his rounds, that dur- ing his absence the furnaces were left burning without superintendence, that sawdust had been allowed to accumulate for some time in a heated spot close to the furnace where the fire was actually discovered, and that, on disi covering the fire, the watchman failed to make use of the water buckets to , quench the in- cipient flames, but lost time in an attempt to raise additional steam pressure to start the force-pumps before giving the alarm. Held, affirming the judgment appealed from (Q. R. 7 Q. B. 9), that the lessees had not shewn any lawful justification for their failure to re- turn the mill according to the terms of the covenant ; that the * presumption established • by 1629 C. C, against the lessees, had not been rebutted, and that the evidence shewed culpable negligence on the part of the lessees which rendered them civilly responsible for the loss by fire of the leased premises. — Murphy V. LabbS (27 Con. S. C. R. 126) approved and followed. Klock v. Lindsay; Lindsay v. Klock, xxviii., 453. See No. 140, ante. 143. Lease — Hire of tug — Conditions — Repairs — Compensation — Presumption of fault — Measure of damages.'] — The company chartered the tug " Beaver " from K., by writ- ten contract datod at Quebec, 22nd May, 1895, by which it was agreed that K. should char- ter the tug " Beaver " for not less than one month from date, at $45 per day of 24 hours. If kept longer than one month the rate to be $40 per day. K. to furnish tug, crew, pro- visions, oil, &c., and everything necessary ex- cept coal and pilots above Montreal, the tug to leave next morning's tide and to be dis- charged in Quebec. The company took pos- session of the tug, put her in charge of their pilot (who assumed the control, employment and navigation of the vessel ) , and used the tug for their purposes until 8th July, 1895, when, while still in their possession, the pilot took her, in the daytime, into waters at the foot of the Cornwall Rapids, in the River St Lawrence, where she struck against some sub- merged hard substance and sank. She was raised a few days afterwards, towed to port and placed in dock for repairs at Montreal. The orders were to make the necessary repairs, to put the vessel in the same condition as she was immediately before the accident, and on 30th July, K. was notified that the repairs were completed, that the tug would be put out of dock the following day and he was re- quested to receive the tug at Montreal, K. answered that the discharge was to be made at Quebec, that she was not in as good condi- tion as when leased, and requested the com- pany to join in a survey, which, however, they declined to do. The survey was made by a naval architect, who reported that, in addi- tion to the repairs already made it would cost $2,494.90 to restore the vessel to the same Condition as when leased to the company. On 1st August K. took possession of the tug, under protest and brought the action for the amount of this estimate in addition to the rent accrued with fees for survey and protest. The company admitted the rent due and tendered that portion of the claim into court. Ibe Superior Court rendered judgment _ for the amount of tender, dismissing the action as to the remainder of the claim on the ground that K. had been sufficiently compensated by tne repairs which had been made by the charter- ers. The Court of Review and the Queens Bench increased the verdict to the full sum claimed, $4,909.90. by adding the amount ot the surveyor's estimate and the fees, aeia, affirming the judgment appealed fro™> ''^"i^ wick and Girouard, JJ., dissenting, that tne contract between the parties was a contract oi 949 NEGLIGENCE. 95a lease; that the taking of the vessel, in the daytime, into the waters where she strucli was ^rimd facie evidence of negligence on the part of the company, and that as the company did not adduce evidence sufficient to rebut the presumption of fault existing against them they were responsible under the Civil Code for the damages caused to the vessel during the time she was controlled and used by them. Held, further, that the proper estimate of damages under the circumstances was the cost of repairs which should be assumed to be the measure of depreciation in value occasioned by the accident, and that no substantial error arose from regarding the condition and value of the vessel at the commencement of the lease as that in which she ought to have been disi- charged — Oirouard, J., was of opinion that the Superior Court judgment should be re- stored. Gollins Bay Rafting and Forwarding Co. V. Kaine, xxix., 247. 144. Use of dangerous materials ■ — Proxi- mate cause of accident — Injuries to worhman — Employer's liability — Presumptions — Find- ings of jury sustained iy courts below.] — As there can be no responsibility on the part of an employer for injuries sustained by an em- ployee in the course of his employment, unless there be positive testimony, or presumptions weighty, precise and consistent, that the em- ployer is chargeable with negligence, which was the immediate, necessary and direct cause of the acddent which led to the injuries suf- fered, it is the duty of an appellate court to relieve the employer of liability in a case where there is no evidence as to the immediate cause of an explosion of dangerous material which caused the injuries, notwithstanding that the findings of a jury in "favour of the plaintiff, not assented to by the trial judge, have been sustained by two courts below. Taschereau, J., dissented, taking a different view of the evidence and being of opinion that the findings of the jury, concurred in by both courts below, were based upon reasonable pre- sumptions ^drawn from the evidence, and that, following The George Matthews Go. v. Bou- chard (28 S. C. R. 580"), and The Metropoli- tan Railway Go. v. Wright (11 App. Gas. 152) those findings ought not to be reversed on appeal. The Asbestos and Asiestic Go. v. Durand (30 S. C. R. 285) discussed and ap- proved. Dominion Cartridge Co. v. Mo- Arthur, xxxi., 392. Leave to appeal to Privy Council granted, 2nd August, 1902. 145. Cause of accident — Conjecture — Onus of proof — Breach of duty — Police regulations. See No. 16, ante. 146. Negligence of fellow-servant — Defec- tive machine — Evidence for jury. See No. 97, ante. . 147. Precautions in case of dangerous ma- terial — Probable cause of accident — Em~ player's liability. See No. 18, ante. 148. Concurrent findings of fact — Neglect of reasonable precautions — Imprudence of servant — Employer's liability. See No. 121, ante. 149. Neglect of reasonable precautions — Presumption of fault — Contributory negli- gence — Findings of jury. See No. 81, ante. 150. Damages — Improper evidence — Mis- direction. See New Tbials, 80. 151. Railway crossings — Necessary pre- cautions — Shunting cars — Evidence of negligence. See No. 221, infra. 13. Laches. 152. Action in warranty — Joint specula- tion — Partnership or ownership par in- divis.] — W. and D, entered into a joint specu- lation of real estate ; each looked after his individual interests in the operations result- ing from this co-partnership ; no power of at- torney or authority was given to enable one to act for the other and they did not con- sider that any such authority existed by virtue of the relations between them ; all convey- ances required to carry out sales were executed by each for his own undivided interest. Upon the death of W. and D., the business was continued by their representatives on the same footing, and the representatives of W. subse- quently sold their interest to T. W., who purchased on behalf of, and to protect, some of the legatees of W., without any change be- ing made in the manner of conducting the business. A book-keeper was employed to keep the books required for the various in- terests, with instructions to pay the money received at the office of the Co-proprietors into a bank, whence they were drawn upon cheques bearing the joint signatures of the parties interested, and the profits were di- vided equally between the representatives of the parties interested, some in cash, but gen- erally by cheque drawn in a similar way. M. N. T>., who looked after the business for the representatives of D., paid diligent attention to the interests confided to him and received their share of such profits, but J. B. C, who acted in the W. interest, so negligently looked after the business as to enable the book keeper to embezzle moneys which represented part of the share of the profits coming to the repre- sentatives of W. In an action brought by the representatives of W. to force the representa- tives of D. to bear a share of such losses : Held, affirming the judgment appealed from, that the facts did not establish a partnership between the parties, but a mere ownership par indivis. that the representatives of D. were not liable to make good any part of the loss, having by proper vigilance and prudence obtained only the share which belonged to them. — Even if a partnership existed, there would be none in the moneys paid over to the parties after a division made. Archbald v. deLisle; Baker v. deLislej Mowat v. deLisle, xxv., 1. 153. Principal and agent — ^ Negligence of agent — Lending money for principal — Fin- ancial brokers -^ Liability for loss — Meas- ure of damages.]— Financial brokers who in- vest money for a Client are his agents in the transaction if they profess to be acting for him and in his inferest though their remunt- eration may come from the borrower. — An agent who invests money for his prmcipal 951 NEGLIGENCE. 952 without taking proper precautions as to the sufficiency of the security is guilty of negli- gence, and if the value of the security proves less than the amount invested he is liable to his principal for the loss occasioned thereby. — The measure of damages in such a case is not the amount loaned with interest, but the difference between that amount and the actual value of the land. — Judgment appealed from (3 B. C. Kep. 416) varied, Taschereau and Gwynne, JJ., dissenting. Lowenburg v. WoUey, XXV., 51. 154. Marked cheque — Fraudulent alter- ation — Payment by mistake.'] — There is no duty imposed upon persons in dealings with others to take precautions to prevent loss to the latter by the criminal acts of third per- sons, and the omission to do so is not, in itself, negligence in law. — Judgment appealed from (27 Ont. App. R. 590) affirmed. Im- perial Bank of Canada v. Bank of Hamilton, xxxi., 344. Affirmed on appeal by the Privy Council, [1903] A. G. 49. And see Banks and Banking, 11. 155. Solicitor and client — Breach of duty — Misconduct — Advice given to client.] — A solicitor advising his client according to the established Jurisprudence of the court in which proceedings are taken is not guilty of action- able negligence although the decision upon which he relied in giving the advice may be subsequently overruled. I'aylor v. Robertson, xxxi., 615. 156. Failure to register judgment — Retainer — Instructions. See SouciTOE, 3. 157. Mandate — Administration through agent — Misappropriation. See Teusts, 9. 158. Crown — Suretyship — Postmaster's iond — Penal clause — Lex loci contractus — Negligence — Laches of Crown officials — Re- lease of sureties — Arts. 1053, 105A, 1131, 1135, W2T, 1929, 1265 C. C. See SUBETYSHip, 9. 159. Application for insurance — Delay in delivery of policy — Escrow — Conversion. See Insurance, Marine, 21. 160. Omission in mortgage — Neglect to register — Laches — Findings of trial judge. See SoLiciTOE, 8. 161. Chattel mortgage — Mortgagee in pos- session — Wilful default — Sale under pow- ers — " Slaughter sale " — Practice — Assign- ment for benefit of creditors — Revocation of. See Sale. 40. 162. Drainage — Intermunicipal works — Damages — Extra cost — Misapplication of funds — Repairs — Assessment — R. S. O. (1877) 0. 174—46 Vict. c. 18 (Ont.) See Municipal Coepokation, 92. 163. Warehouseman — Taking damp grain into elevator — Damages — New trial — Re- sponsibility. See Warehouseman, 3. 14. Landlord and Tenant. 164. Dangerous manufacture — Loss by fu-e —Arts. 1054, 1627, 1629 CO. See Landloed and Tenant, 16. 165. Loss of leased premises by fire — Pre- sumption of negligence — Art. 1629 C. C. Onus of proof. See No. 140, ante. 166. Loss of leased premises — Presump- tion of fault — Art. 1629 C. G. — Evidence m rebuttal^Probable cause of fire. See No. 142, ante. 15. LoED Campbell's Act. 167. Injuries caused hy careless navigation, — Action in rem — Lord Campbell's Act. See Action, 42. 168. Bodily injuries — Prescription of de- ceased's right of action — Claim by representa- tives — Pleading. See LoED Campbell's Act, 1. . 169. Action for personal injuries — Death of plaintiff — Subsequent action under Lord Campbell's Act — Evidence. See Evidence, 19. 170. Enactment of art. 1056 C. C. — Actions under Lord Campbell's Act. See No. 219, infra. 16. Navigation. 171. Death of servant — Lord Campbell's Act — Jurisdiction of Maritime Court of Om- tario — Right of action. See Action, 42. 172. Collision — Action — Joinder of de- fendants — Company — Limited liability — Merchant Shipping Amendment Act, 186% (Imp.) — Navigation of Canadian waters, SI Vict. c. 58, s. 12 (D.)— Motion for judg- ment — Findings of jury — Weight of evidence — Practice. See Navigation, 2. 173. Answering signals — Inland naviga- tion — Agony of collision. See Shipping, 3. 174. Collision — Vessel lying in narrow channel — Lights — Crew. See Shipping, 4. 175. Obstructing navigation — Repairs to bridge — Powers conferred by charter. See Eivees and Streams, 2. 176. Defective steering apparatus — OoUi- sion at sea — Question of fact. See Appeal, 226. 177. Collision — Rule of the road— Steamer — Sailing vessel. See Admiealtt Law, 1. 953 NEGLIGENCE. 954 178. Maritime law — Collision ■ — ■ Rules of the road — Narrow channel — Naviga- tion, rules of — R. 8. C. c. 79, s. 1, Arts. 15, 16, 18, 19, 21, 22 and 23 — " Grossing " sliups: — " Meeting " ships — • " Passing " ships — Breach of rules — Moiety of damages — 36 & 31 Vict. (Imp.) c. 85, s. 17 — Manoeuvres in " agony of collision." See Admieamy La-W, 2. 179. Hire of tug — Conditions — Repairs — Negligence — Compensation. See, Lbasb, 10. 180. Public work — Navigation of River St. Lawrence — Repair of ship channel — Expenditure of parliamentary appropriation. See Public Woek, 11. 181. Admiralty law — Collision — ._ (HC anchor — Anchor light — Lookout Weight of evidence — Credibility — Find- ings of trial ^udge. See Shipping, 11. 182. Admiralty law — Collision — Undue speed — Sliip in default — Rule 16 — Navi- gation during fog. See Shipping, 12. 17. Notice of Action. 183. Highways — Repairs — Notice of ac- tion — Pleading. See Municipal Cobporation, 141. 184. Negligence of municipal corporation — Snow and ice on sidewalks — Notice of action — Discretion of trial judge. See No. 191, infra. 18. Public Wats. 185. Municipal corporation — Highway — Crossings — Level of street.] — A municipal corporation is under no obligation to construct a street crossing on the same level as the side- walk, and shewing that a sidewalk is at a level of four inches above the level of the crossing is not such evidence of negligence in the construction of the crossing as to make the corporation liable in damages for injury to a foot passenger sustained by striking hei foot against the curbing while attempting to cross the street. Judgment appealed from (23 C. L. J. 294; 11 O. R. 26) reversed; Strong and Fournier, JJ., dissenting. City of London v. Goldsmith, xvi., 231. 186. Highways — Alteration of level of street — Powers of municipality — Contributory negligence.] — W. owned and occupied a house situate several feet from a street and with steps in front. In altering the street level the corporation cut it down and removed the steps, leaving the house about six feet above the highway. W.'s wife, in going down planks placed by him to get down to the new level, slipped and fell, receiving injuries. Held, af- firming the judgment appealed from (29 N. B. Rep. 1), that the corporation had authority to do the work and as it was not shewn tO' have been negligently or improperly done, the city was not liable. Held, also, that the wife was guilty of contributory negligence in using the planks as she did, knowing that such use was dangerous. Williams v. City of Portland six., 159. 187. Toll-gate — Obstruction of highway — Volunteer — Contributory negligence — Invita- tion to use dangerous way — Liability of road company — Collector of tolls — Lessee.] — A toll- house extended to the edge of a highway, and m front of it was a short board walk. The gate was attached to a post on the opposite side of the road, and was fastened at night by a chain which was usually carried across the board walk and held by a large stone against the house. The board walk was generally used by foot passengers, and C. walking on it at night tripped over the chain and fell sus- taining injuries. — The toll collector was made a defendant but did not enter a defence. It was shewn that he had made an agreement with the company to pay a fixed sum for the privilege of collecting tolls for the year, and was not to account for the receipts. The com- pany claimed that he was lessee of the tolls, and that they were not responsible for his acts. The jury found, however, that in using the chain to fasten the gate as he did he was only following the practice that had existed for some years previously, and doing as he had been directed by the company. The statute under which the company was incorporated contains no express authority for leasing the tolls, but uses the term " renter " in one sec- tion, and in another speaks of a "lease or con- tract " for collecting the tolls. — The company claimed, also, that C. had no right to use the board walk in walking along the highway, and that the fact of her being there was contributory negligence on her part which relieved them from liability for the accident. Held, affirming th» judgment ap- pealed from (18 Ont. App. R. 286), Gwynne, J., dissenting, that C. had a right to use the board walk as part of the public high- way, and was, moreover, iu\ited by the com- pany to use it, and there was, therefore, no contributory negligence ; that whether the toll collector was servant of the company or lessee of the tolls, the company, under the finding of tile jury, was liable tor his acts. Kingston & Bath Road Go. v. Campbell, xx., 605. 188. Public streets — Municipal corporation — R(- pairs — Xew trial — Evidence — Verdict.] — The proprietor of an omnibus line ran coaches through some of the principal streets of Halifax under license from the corporation. Owing to the want of repair on some of the streets, and the accumulation of snow and ice, the conveyances could not be run according to time table, and there was a falling off in the number of passengers ; moreover, some of th& horses were injured and vehicles broken or damaged by the rough state of the streets. Held, Ritchie, C.J., dissenting, that it was the duty of the corporation to keep the streets in good reiiair; and Gwynne, J., dissenting, that the plaintiff was entitled to retain his verdict,, as he had pro\'ed special injury, and as the damages awarded were not too remote nor excessive. Judgment appealed from (4 R. & G. 371) aflirmed. City of Halifax v. Walker, Cass. Dig. (2 ed.) 175. 189. Defective state .of public bridge — Lia- bility of municipality — Damages — New trial — Misdirection — Practice — Case reserved — Questions of law and fact — Drawing infer- ences.] — Action for damages for injury from falling over a bridge which was, at the time, very much out of repair, about twenty feet of the railing on one side having fallea. 955 NEGLIGENCE. 956 away. One of the standing committees of the municipal council was a committee on roads and bridges, whose duty was to report to regu- lar meetings of council the state of the roads and bridges in the county. There was no evi- dence as to whether or not the bridge was much used as a thoroughfare or otherwise — The only question submitted to the jury was as to amount of damages. The judge charged ■"that the accident which had occurred to plain- tiff was a most disastrous one, resulting from the undouDted negligence of those on whom the duty lay of keeping the bridge in a safe condi- tion, and that the liability of defendant was a matter of law which he would reserve for the full court." — The jury found for plaintiff for $3,000, and defendant failed to obtain a new trial on grounds which did not include misdi- rection. The court below was equally divided, Kigby and Weatherbe, JJ., being of opinion that defendant's counsel had agreed in the view propounded by the judge at the trial, and had requested the court to determine the question of law first, as if the issue of negligence had been found against defendant, upon sufiicient evidence and under a proper charge, considered the case disposed of by Walker v. City of Hali- fax (Cass. Dig. (2 ed.) 175; No. 188, ante) and McQuarry v. Municipality of St. Mary's (5 R. & G. 493.) On the other hand, McDon- ald, C.JT., and Tompson, J., held that the reser- vation at the trial was a reservation for the opinion of the court of a mixed question of law and fact, and they not only doubted their power to draw inferences of fact at all, but were unable to draw the inference of negli- gence, the evidence being silent on material points, such as whether or not the bridge was much or little travelled, and whether or not the alleged defect ever came to the know- ledge of the county officers. Held, affirming the judgment appealed from (6 R. & G. 549), Strong, J., dissenting, that the plaintiff was entitled to retain his verdict. — Per Strong, J., dissenting, that there was not sufficient evi- dence of negligence to warrant the verdict, and the case reserved for the court being on qiiestions of fact as well as of law, a new trial might have been ordered, notwithstanding that the objection was not taken either at the trial or in the rule nisi. Municipality of Colchester v. Watson, Cass. Dig. (2 ed.) 175. 190. Municipal corporation — Repair of street — Accumulation of ice — Defective side- walk.] — In an action for injuries sustained through the plaintiff falling on a sidewalk where ice had formed and been allowed to remain for a length of time : Held, affirming the judgment appealed from (21 Ont. App. R._ 279,) Gwynne. J., dissenting, that as the evidence at the trial of the action shewed that the sidewalk, either from improper construction or from age and long use, had sunk down so as to allow water to accumulate upon it whereby the ice causing the accident was formed, the corporation was liable. Held, per Taschereau, J. Allowing the ice to form and remain on the street was a breach of the statutory duty to keep streets in repair in consequence of which the cor- poration was liable. Totcn of Cornwall v. Derochie, xxiv., 301. Followed in City of Kingston v. Drennan (27 Can. S. O. K. 46) No. 191, infra. 191. Municipal corporation — Snow and ice on sidewalks — By-law — Construction of sta- tute— 55 Vict. c. 1,2, s. 531—51/ Vict. c. 50. s. IS — Finding of iurv — G-rnsa mpnlinannK — Notice of action — Discretion of trial judge.] — ^A by-law required frontagers to remove snow from the sidewalks. The effect of its being complied with was to allow the snow to remain on the crossings which therefore became higher than the sidewalks, and when pressed down by traffic an incline more or less steep was formed at the ends of the crossings. A young lady slipped and fell on one of these inclines, and being severely in- jured brought an action for damages against the city and obtained a verdict. The Munici- pal Act of Ontario makes a corporation, if guilty of gross negligence, liable for accidents resulting from snow or ice on sidewalks; no- tice of action in such Case must be given, but may be dispensed with on the trial if the court is of opinion that there was reasonable excuse for the want of it, and that the cor- poration has not been prejudiced in its defence. Held, affirming the decision appealed from (23 Ont. App. R. 406), Gwynne, J., dissenting, that there was sufficient evidence to justify the jury in finding that the corporation had not fulfilled its statutory obligation to keep the streets and sidewalks in repair ; Gornwatt v. Derochie (24 Can. S. C. R. 3ul) followed; that it was no excuse that the difference in level between the sidewalk and crossing was due to observance of the by-law ; that a cross- ing may be regarded as part of the adjoining sidewalk for the purpose of the Act ; that " gross negligence " in the Act means very great negligence, of which the jury found the corporation guilty ; and that an appellate court would not interfere with the discretion of the trial judge in dispensing with the notice of action. City of Kingston v. Drennan, xxvii., 46. 192. Highway — Runaway accident — Proxi- mate cause — Telephone pole — Liability of cor- poration — Action — Third party — Costs.] — ^A person driving on a public highway who sus- tains injury to his person and property by the carriage coming in contact with a telephone pole lawfully placed there, cannot maintain an action for damages if it clearly appears that his horses were running away and that their violent, un- controllable speed was the proximate cause of the accident. — In an action against the city corporation for damages in such a case the latter was ordered to pay the costs of the tele- phone company brought in as third party, it having been shewn that the company placed the pole where it was lawfully, and by authority of the corporation. Bell Telephone Co. V. City of Chatham, xxxi., 61. 193. Municipal corporation — Maintenance of streets — Accumulation of snow and ice — Gross negligence— R. S. O. {1897) c. m, ». 606 (2).]— About half past ten o'clock nn a morning in January a man walking along a street crossing in Toronto slipped on the ice and fell, receiving injuries from which he died. His widow sued for damages under Lord Campbells Act. There had been a considerable fall of snow for two or three days before the accident, and on the day preceding there had been a thaw fol- lowed by a hard frost at night. Early on the morning of the accident, employees of the city had scattered sand on the crossing but the high wind prevailing at the time had probably blown it away. Held, affirming the judgment appealed from (27 Ont. App. R. 401), that the facts were not sufficient to shew that the injury to the deceased was caused by _' 8™^^ npsrlip-enpp " nf tha pnvr>nvntinn within the 957 NEGLIGENCE. 958 meaning of E. S. O. (1897) c. 223, s. 606 (2). Ince V. City of Toronto, xxxiy 323. 194. Municipal corporation — Negligence — Oistruotion on highway.] — Action for dam- ages for injuries caused through alleged negli- gence of the corporation in permitting a mound of earth about eight inches in height to remain at the filling over a trench dug to lay a pipe across a public street. In passing over the obstruction during the night plains tiff's horse stumbled and fell, throwing the plaintiff from the vehicle, whereby the injuries were sustained. The Supreme Court affirmed the judgment appealed from (38 N. S. Rep. 291) by which the court below had held that there had been no negligence on the part of defendant, that the obstruction was not serious or unusual, and that the accident accurred through the plaintiff's want of proper care in approaching, in the" dark- ness, the dangerous placie which he had previ- ously seen in the same condition by daylight. Messenger v. Town of Bridgetown, xxxi., 379. 195. Municipal ferry — Manner of mooring — Personal injuries — Corporate liahility — Con- tributory negligence. See No. 40, ante. 196. Lighting of streets — Position of hy- drant — Obstruction on sidewalk — Statutory See Municipal Cobpokation, 140. 197. Oistruotion of street — Snow and ice — Finding of jury — Proximate cause. See No. 245, infra. 198. Municipal corporation — Repair of streets — Liability for non-feasance. See MtTNiciPAL Cobpokation, 143. 199. Obstruction on highway — Evidence — ■ Statute labour — Corporate liability. See No. 122, ante. 19. Public Works. 200. Grown — Negligence of servants or of- fioers — Common employment — Law of Quebec —50 & 51 Vict. c. 16, s. 16 (e).]— A petition of right was brought by P. to recover damages for the death of his son caused by the negli- gence of servants of the Crown while engaged in repairing the Lachine Canal. Meld, affirm- ing the decision appealed from (4 Ex. C. R. 134), Taschereau, J., dissenting, that the Crown was liable under 50 & 51 Vict. c. 16, s. 16 (c) ; and that it was no answer to the petition to say that the injury was caused by a fellow-servant of the deceased, the case being governed by the law of Quebec, in which the doctrine of common employment has no place. The Queen v. Filion, xxiv., 482. Followed in The Queen v. Grenier (30 Can. S. 0. R. 42), and in The Asbestos amd Asbes- tie Co. V. Durand (30 Can. S. C. R. 285), on the holding as to the doctrine of Common em- ployment. See Nos. 30 and 31, ante. Ap- proved in Letourneux v. The King (33 Can. S. C. R. 885), No. 201, infra. 201. Public work — Negligence of Grown of- fimals — Bight of action — Liability of Crown — 50 & 51 Vict. 0. 16, ss. 16, 23, 58— Jurisdiction of the Exchequer Court — Prescription — Art 2261 C. 0.]— Lands in the vicinity of the La- chine Canal were injuriously affected through flooding caused by the negligence of the Crown officials in failing to keep a siphon-tunnel clear and in proper order to carry off the waters of a stream which had been diverted and carried under the Canal and also by part of the lands being spoiled by dumping exca- vations upon it. Held, reversing the judg- ment appealed from (7 Ex. C. R. 1), Davies, J. (dissenting), that the owner had a right of action and was entitled to recover damages for the injuries sustained and that the Ex- chequer Court of Canada had exclusive origi- nal jurisdiction in the matter under the pro- visions of ss. 16, 23 and 58 of the Exchequer Court Act. 2'Ae Queen v. Filion (24 Can. S. C. R. 482) approved; The City of Quebec V. TAe Queen (24 Can. S. C. R. 430) referred to. — The prescription established by art. 2261 of the Civil Code of Lower Canada applies to the damages claimed by appellant in his petition of right. Letourneux v. The King,- xxxiii., 335. 202. Servants of the Crown — Injury to property on public work — Liability of Crown for tort— 50 & 51 Vict. c. 16 (D.)]— 50 & 51 Vict. c. 16, ss. 16 and. 58 confers upon the sub- ject a new or enlarged right to maintain a petition of right against the Crown for dam- ages in respect of a tort (Taschereau, J., ex- pressing no opinion on this point). — By 50 & 51 Vict. c. 16, s. 16 (D.), the Exchequer Court is given jurisdiction to hear and deter- mine inter alia: ''(c) Every claim against the Crown arising out of any death or injury to the person, or to the property, on any public work, resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment : (d) Every claim against the Crown arising under any law of Canada." ... In 1877 the Dominion Government became possessed of the property in the City of Quebec, on which the Citadel is situated. Many years be- fore that a drain had been constructed through this property by the Imperial authorities, the existence of which was not known to the offi- cers of the Dominion Government, and it was not discovered at an examination of the pre- mises in 1880 by the city engineer of Quebec and others. Before 1877 this drain had be- come choked up, and the water escaping gradu- ally loosened the earth, until, in 1889, a large portion of the rock fell from the clilf into a street of the city below, causing great damage, for which compensation was claimed from the Government. — Beld, per Taschereau, Gwynne and King, JJ., affirming the decision of the Exchequer Court, that as the injury to the property of the city did not occur upon a public work, s.-s. (c) of s. 16 of the above Act did not make the Crown liable, and, moreover, there was no evidence that the injury was caused by the negligence of any officer or ser- vant of the Crown while acting within the scope of his duties or employment. — Seld, per Strong, C.J., and Pournier, J., that while s.-s. (c) of s. 16 of the Act did not apply to the case, the city was entitled to relief under s.-s. (d) ; that the words " any claim against the Crown " in that sub-section, without the ad- ditional words, would include a claim for a tort; that the added words "arising under any law of Canada," do not necessarily mean any prior existing law or statute law of the Dominion, but might be interpreted as mean- ing the general law of any province of Can- 959 NEGLIGENCE. ada, and eve^ if the meaning be restricted to the statute law of the Dominion, the efEect of s. 58 of 50 & 51 Vict. c. 16 is to reinstate the provision contained in s. 6 of the repealed Act, E. S. C. c. 40, which gives a remedy for in- jury to property in a case like the present ; that this case should be dedded according to the law of Quebec, regulating the rights and duties of proprietors of land situated on dif- ferent levels; and that under such law the Crown, as proprietor of land on the higher level, was bound to keep the drain thereon in good repair, and was not relieved from lia- bility for damage caused by neglect to do so by the ignorance of its officers of the existence of the drain. — Held, also, per Strong, C.J., and Fournier, J., that, independently of the en- larged jurisdiction conferred by 50 & 51 Vict, c. 16, the Crown would be liable to damages for the injury complained of, not as for tort but for a breach of its duty as owner of the superior heritage, by altering its natural state to the injury of the inferior proprietor. City of Quebec v. The Queen, xxiv., 420. 203. Public work — Navigation of River St. Lawrence — Repair of ship channel — Expendi- ture of Parliamentary appropriation. '[ — Action for damages to SS. " Arabia " sustained by striking an obstruction in the River St. Law- rence ship channel which had been deepened by the Department of Public Works and sub- sequently swept once. The suppliants con- tended that the Crown was obliged to keep the channel clear, and that failure to do so amounted to negligence. The judgment ap^ pealed from (7 Ex. 0. R. 150) held that the channel was not a public work after the work of deepening was completed, and, even if it was, no negligence had been proved to make the Crown liable under s. 16 (c) of the Ex- chequer Court Act (1887). It also decided that the department charged with the repair and maintenance of the work with money vot- ed by Parliament for that purpose was not obliged to expend the appropriation as such matters were within the discretion of the Gov- emor-in-Council and Jliniste'r, who were re- sponsible only to Parliament in respect there- of. — ^The Supreme Court aflSrmed the judg- ment appealed from. Hamburg American Packet Go. v. The King, xxxiii., 252. (Leave to appeal to the Privy Council was granted, July, 1903.) 20. Railways. 204. Railways — Running of trains — Sparks from engine — Fire communicated from pre- mises of company — 14 Geo. III. c. 78, s. 86 — Questions for jury.'] — Action against the com- pany for negligence causing destruction of re- spondent's buildings by fire from one of their locomotives. The freight shed of the company was first ignited by the sparks and the fire extended to respondent's premises. The fol- lowing questions were submitted and answers given by the jury : — " Q. Was the fire occa- sioned by sparks from the locomotive? A. Yes. Q. If so, was it caused by any want of care on the part of the company or its servants, which, under the circumstances, ought to have been exercised? A. Yes. Q. If so, state in what respect you think greater care ought to have been exercised? A. As it was a special train and on Sunday, when employees were not on duty, there should have been an extra hand on duty. Q. Was the smoke stack furnished with as good apparatus for arresting sparks as was consistent with the efficient working of the engine? If you think the apparatus was defective, was it by reason of its not be- ing of the best kind, or because it was out of order? A. Out of order." — Verdict for plain- tiff for $800 was unanimously sustained by the Queen's Bench Division. Held, affirming the judgment appealed from, Henry, J., dissenting, 1. That the questions were proper questions to put to the jury and that there was sufficient evidence of negligence on the part of the appel- lants' servant to sustain the finding. 2. If a railway company are guilty of default in the discharge of the duty of running their locomo- tives in a proper and reasonable manner, they are responsible for all damage which is the natural consequence of such default, whether such damage is occasioned by fire escaping from^ the engine coming directly in contact with -and consuming the property of third persons, or is caused by the burning of pro- perty of the railway company, ignited by fire escaping from the engine, coming di- rectly in contact; therewith. 3. The sta- tute 14 Geo. III. c. 78, s. 86, which is an ex- tension of 6 Anne c. 81, ss. 6 & 7, is in force in the Province of Ontario as part of the law of England introduced by the Constitutional Act, 31 Geo. III. c. 31, but has no application to protect a party from legal liability as a consequence of negligence. Canada Southern Ry. Co. V. Phelps, xiv., 182. 205. Operation of railway — Sidings—Notice of train approaching — Horses taking fright — Ringing of bell, c6c.] — There is no duty upon a railway company to give notice of the ap- proach of trains at sidings where there is no station or highway crossing by ringing a bell or sounding the whistle, nor to take any spe- cial precautions in approaching or passing such a siding. — Judgment appealed from. (27 N. B. Rep. 59) reversed. New Brunswick Ry. Co. V. Vanwart, xvii. 85. 206. Government railway — Public work — Improper conduct of servant — Prescription — Arts. 2262, 2267, 2188, 2211 C. C.—U Vict. o. 25— R. S. C. c. 38—50 & 51 Vict. c. 16. s.18 — Retroactive legislation.] — Held, reversing the Exchequer Court (2 Ex. C. R. 328), that even assuming 50 & 51 Vict. c. 16, gives an action against the Crown for injury to the person received on a public work resulting from negligence of which its officer or servant is guilty (upon which point the court ex- pressed no opinion), the Act is pot retroactive in efEect and gave no right of action for in- juries received prior to its passing. Held, also that, even assuming that under the com- mon law of Quebec, or statutes in force at the time of the injury received, the Crown could be held liable, the injury complained of having been received more than a year before the filing of the petition, the action was pre- scribed under arts. 2262 and 2267 C. G.—Per Patterson, J. The Crown is made liable for damages caused by the negligence of its se^ vants operating Government railways by 4* Vict. c. 25 (R. S. C. c. 38), but as the petition of right was filed after the passing of 50 & 01 . Vict. c. 16, the claimant became subject to the laws relating to prescription in Quebec, and his action was prescribed. The Queen T. Martin, xx., 240. 207. Operation of railway— Construction of crossings — Notice of train approaching — Level of highway.] — Railway companies using a une 961 NEGLIGENCE. 963 of railway constructed so as to cross a liigh^ way considerably below its level are liable for injuries caused from thus leaving the highway in a dangerous condition. — Failure to give no- tice of trains approaching crossings, by ringing a bell, renders the railway company liable for injuries caused through horses taking fright at approaching trains, although the train may not have come in contact with the vehicle or its occupants. Grand Trunk Ry. Co. v. Sih- Tiald; Grand Trunk Ry. Co. v. Tremaine, xx., 259. ' 208. Government railway — JfS Vict. c. 8 — Damage from overflow of water — Boundary ditches.] — Held, aflSrming the judgment ap- pealed from (2 Ex. C. R. 396), that under 43 Vict. c. 8, confirming the agreement of sale to the Crown of the Rivigre du Loup branch of the Grand Trunk Railway, the Crown cannot be held liable for damages caused from the accumulation of surface water to land crossed by the railway since 1879. unless it is caused by acts or omissions of the Crown's servants, and as the damages in the present case appear, by the evidence relied on, to have been caused through the non-maintenance of the boundary ditches of claimant's farm, which the Crown is under no obligation to repair or keep open, the appellant's claim for damages must be dis- missed. Morin v. The Queen, xx., 515. 209. Intercolonial Hailway — Duty of con- ductor — Running of trains — " All aboard " — Tacit license — Estoppel — Boarding moving train — Accident to passenger emparhing — Right of action — Contributory negligence.] — Plaintiff, having a first-class ticket by the In- tercolonial Railway, intended going home by the mixed freight and passenger train which, on that day, was unusually long and, when it stopped at the station, the forward part of the first-class car was opposite the platform. It was then about ten minutes after the advertised time of depar- ture. Plaintiff was on the platform when the train came in, but did not then get aboard. The conductor (defendant) got off the train and went to a hotel for dinner. While he was absent the train was, without his knowledge, backed down, so that only the second-class car remained opposite the platform. The jury found that the first-class car did not remain at the platform long enough to enable plaintiff to get on board. The defendant, after dinner, came over hastily (being behind time and ,therefore in somewhat of a hurry), called " all aboard," glanced down the platform, saw no person attempting to get on board, crossed^ the train between two box cars to signal the driver to start (it being necessary to cross the train in order to be seen by the driver, owing to a (Jurve in the track), and almost immediately the train started. — The 124th regulation pre- scribes that conductors must not start the train while passengers are getting on board, and that they should stand at the front end of the first passenger car when giving the signal to the driver to start, which was not done in this instance. Plaintiff and a friend were on the platform, and when they heard " all aboard," went towards the cars quickly, but plaintiff, who had a paper box in her hands, in attempting to get on board, caught the hand-rail of the car, slipped owing to the motion of the train and was seriously injured. The jury found that the call " all aboard " was a notice to passengers to get on board. Held, affirming the Supreme Court of New Brunsi wick (19 N. B. Rep. 340 ; 19 N. B. Rep. 586), s. C. D.— 31 th^t although the plaintiff's contract was with the Crown, the defendant owed to her as a passenger, a duty to exercise reasonable care, and that there was ample evidence of negli- gence for the jury. Taschereau and Gwynne J J., dissented. — Per Ritchie, C.J. There was no obligation on the part of the passengers to go on board the train until it was ready to start or until invited to do so by the intima- tion from the conductor " all aboard." It was the duty of the conductor to have had his first- class car up in front of the platform. Should circumstances have prevented this, it was his duty to be careful before starting his train to see that sufiicient time and opportunity were afforded passengers to board the car in the in- convenient position in which it was placed, and the evidence shewed that the defendant exer- cised no care in this respect. — Fer Henry, J. There was no satisfactory proof of contri- butory negligence on the part of the plaintiff. The package she carried was a light one, and such as is often carried by passengers with the knowledge and sanction of railway con- ductors and managers, and a tacit license is therefoivs given to passengers to carry such parcels with them into the cars. — The plaintiff violated regulations in attempting to get on the car while in mo- tion. But the defendant could not shelter himself under those regulations, for when he gave the order " all aboard " he knew, or ought to have known, that the first-class car was away from the platform, and he ought to have advanced the train and stopped it, so that the Tilaintiff could have entered that car. The conductor was estopped from complaining that the plaintiff did what, by calling " all aboard," he invited her to do. After the notification ,"all aboard" is given by a conductor, it is his duty to wait a reasonable time for passen- gers to get to their places. — Per Taschereau and Gwynne, JJ., dissenting. Whether the omission to stop the first-class car at the plat- form, or the conductor's failure to wait a reasonable time after calling " all aboard " before giving the starting signal were or were not breaches of the defendant's duty, such breaches could not be said to have caused the accident if the plaintiff had not voluntarily attempted to get on the train while it was in motion, which she was not justified in doing. Hall v. ilcFadden, Cass. Dig. (2 ed.) 723. 210. Railways — Running of trains— ^Signal posts — " iitop " notice — hlstoppel — Unskilful conduct — Disregarding rules ■ — Approaching bridge — " Res ipsa loquitur " — New trial — Nonsuit — Partial appeal — Cross-appeal.'] — Plaintiff sustained injuries by being thrown out of his waggon, on a highway, in Winnipeg, where it approaches a bridge used as a railway and trafiic bridge, owing to his horses becom- ing frightened at au engine and train which had advanced to the bridge, and immediately alongside the public highway approach to the bridge. After taking fright the horses became unmanageable and ran away, throwing the plaintiif on to a pile of stones. The statement of claim alleged that there Avas a post some distance from the bridge and down the rail- way track with " stop " painted on it, and it was the duty of the Company to stop the en- gine at the sign, unless the bridge caretaker signalled that the line was clear ; that on the occasion complained of, the engine came down to the bridge without stopping ; that defendant neglected and refused to stop at the sign post, and to obey the flag signal of the bridge care- 963 NEGLIGENCE. 964 taker ; and that the defendant " so negligently, unskilfully and improperly managed the engine and train that they proceeded towards and up to the bridge, and immediately alongside the public highway approach thereto, and caused and permitted steam to escape from the en- gine with a loud noise, whereby and by reason of said negligent, unskilful and improper con- duct of the servants of the defendants, and by reason of thexlose approach of the engine and train, and the escape of the steam ;'■' the horses became frightened, while turning out of the bridge into the highway, and while upon the highway approach to the bridge the horses ran away, and the plaintiff was unable to control or manage them, and was thrown from the waggon, &c., &c. — A demurrer was filed on the ground that the declaration Contained an allegation of duty which was a conclusion of law, and did not shew a violation by defendant of any common law duty, or statutory obliga- tion. Wallbi-idge, O.J., refused a motion for nonsuit, but gave leave to defendant to move on the whole case. — Witnesses were then called for the defence, and the jury^ave a.ver- dict for plaintiff for $750. — On a rule to set aside the verdict and enter a nonsuit, or for a mew trial, the demurrer was overruled, on the ground that the allegations pointed to in the .demurrer did not stand alone, but other and :Sufl5cient causes were shewn to impose upon ihe defendant that care and regard for the ■safety of the public, the absence of which care and regard constituted, with the wrongful acts .charged, the cause of action of the plaintiff and the rule was discharged as to nonsuit, but made absolute for a new trial. Defendant ap- pealed but plaintiff took no cross-appeal. Held, that plaintiff was entitled to recover, Ibut not having appealed from the rule order- ing a new trial, that rule should be affirmed and the appeal dismissed with costs. — Per Ritchie, C.J. The evidence shewed that there was a man employed to watch the bridge, whose duty it was to signal trains crossing, and that he was there and discharged his duty. It was also shewn that the company had posts erected on the line approaching the bridge, put there for the purpose of indicating that ' engines should stop there before approaching the bridge, to give the signal to enable them to cross the bridge in safety ; but, instead of stopping there, on the occasion in question, the train went on and approached within a very ^w yards of the bridge and stopped, when those persons who were crossing the 'bridge were compelled to come immediately alongside, and within a few feet of the engine. The engine being there and blowing off steam, the horses of the plaintiff became frightened and ran away, causing the damages claimed. The aecident was occasioned solely through negligence on the part of the defendant. If the engine had stopped at the indicated stop- ping place, the evidence shewed that the acci- dent would not have happened. Running it down as close as possible to where the Car- riages had to cross the bridge was a piece of recklessness. There, was no contributory negligence on the part of the plaintiff ; no neglect or want of care on his part, as he had a right to cross the bridge at the time, and under the circumstances could not be anywhere else than where he was. — Fer Strong, J. The Case appears one in which the maxim " res ipsa loquitur " applies. The defendant by putting the post with a printed sign board on it, with a direction to engine drivers not to PUSS it, as indicating the point beyond which it was not safe to proceed until it was ascer- ' tained that the bridge was clear, by its own act had shewn that the omission to obey this direction would be negligence. — Fer Henry, J. The mere fact that the post was established by arrangement between the city and railway authorities for engines to stop at, made the company liable for breaking the rule, there being no contributory negligence on the part of the plaintiil. Appeal dismissed with costs. Canadian Pacific Kp. Go. v. Lawson, Gass. Dig. (2 ed.) 729. 211. Railway — Accident to passenger — Train longer than platform — Damages — Negli- gonce.'i — L. was the holder of a ticket, and passenger on the company's train from L6vis to Ste. Marie, Beauce. When the train ar- rived at Ste. Marie station the Car upon which L. had been travelling was some distance from the station platform, the train being longer than the platform, and L. fearing that the car would not be brought up to the station, the time for stopping having nearly elapsed, got out of the end of the car, the distance to the ground from the steps being about two feet and a half, and in so doing he fell and broke his leg which had to be amputated. The ac- tion was for $5,000 damages, alleging negli- gence and want of proper accommodation. The defence was contributory negligence. Upon the evidence, the Superior Court, the judgment being affirmed by the Court of Queen's Bench, decided in favour of L. and awarded him the full amount of damages claimed. On appeal to the Supreme Court of Canada, Held, reversing the judgment appealed from, that in the exercise of ordi- nary care, L. could have safely gained the platform by passing through the car forward, and that the accident was wholly attributable to his own fault in alighting as he did and that, therefore, he could not recover. Four- nier, J., dissenting. Quebec Central liy. Co. V. Lortie, xxii., 336. 212. Railways — Dangerous way — Injury to employee — Finding of jury — Interference on appeal.'] — W. was an employee of the G. T. R. Co., whose duty it was to couple cars in the Toronto yard of the company. In performing this duty on one occasion, under specific direc- tions from the conductor of an engine attached to one of the cars being coupled, his hand was crushed owing to the engine backing down and bringing the cars together before the coupling was made. The con- ductor denied having given directions for the coupling, and it was contended that W. improperly put his hand between the draw bars to lift out the coupling pin. It was also contended that the conductor had no authority to give directions as to the mode of doing the work. The jury found against both conten- tions and W. obtained a verdict. Held, af- firming the judgment appealed from (20 Ont. App. K. 528), that though the findings of the jury were not satisfactory' upon the evidence a second Court of Appeal Could not interfere with them. — Per King, J., that the finding that specific directions were given must be accepted as conclusive ; that the mode in which the coupling was done was not an improper one, as W. had a right to rely on the engine not being moved until the coupling was made, and could properly perform the work in the niost expeditious way, which it was shewn he did ; that the conductor was empowered to give directions as to the mode of doing the work if, as was stated at the trial, he be- lieved that using such a mode could save time ; 965 NEGLIGENCE. and that W. was injured by conforming to an order to go to a dangerous place, the per- son giving the order being guilty of negligence. Grand Trunk By. Go. v. Weegar, xxiii., 422. 213. Defective snow-plough and hridge — De- railment of train — Contributory negligence — Findings of jury — Failure to answer ques- tions — Act of incorporation — Change of name — ' New trial.] — ^A locomotive engineer in the company's employ was killed through the derailing of a snow-plough and consequent . breaking of a bridge. The jury found that the derailing was the proximate cause of the accident ; that deceased was not guilty of con ■ tributory negligence ; that the snow-plough and bridge were defective and that the train crew was insufficient. Tbey answered " we do not know " to the questions, as to whose negligence caused the accident ; whether or not the defects were known to defendant be-' fore or at the time of accident, or could have been discovered by careful inspection ; whether defendant was aware of insufficiency of the crew ; whether different construction of the bridge would have secured the safety of the train ; whether deceased knew the train was off the track before it reached the' bridge, and if by reasonable care of deceased or crew, the accident woul^ have been prevented. The court below were equally divided as to the necessity for a new trial. The trial judge instructed the jury that the proximate cause was what caused the accident and not that without which it would not have happened, and there was a question as to the parties, plaintiffs in the action. The court below were also di- vided in opinion on these points. The Su- preme Court of Canada ordered the new trial and affirmed the holdings of the judgment ap- pealed from (27 N. S. Rep. 498) in other re- spects. Pudsey v. Dominion Atlantic' Rtj. Co., XXV., GUI. 214. Negligence — Sparks from railway engine or " hot-lorn " — Damages hy fire — Evi- dence — -Burden of proof — Art. 11153 C. C. — Questions of fact.] — In an action for damages for loss of property by fire alleged to have- been occasioned by sparks from an engine or hot-box of a passing train, in which the court appealed from (Q. R. 9 S. C. 319), held that there was no sufficient proof that the fire oc- curred through the fault or negligence of the company and it was not shewn that such find- ing was clearly wrong or erroneous, the Su- preme Court would not interfere with the finding. Senisao v. Central Vermont By. Co., xxvi., 641. Followed in Grand Trunk Bailway Go. v. BanivUle (29 Can. S. C. R. 201), No. 217, infra. 215. Railways — Construction of statute — 51 Viet. c. 29, s. 262 (D.)— Bailway cross- ^gs — Packing railway frogs, wing-rails, do.] — The proviso of the fourth sub-section of s. 262 of "The Railway Act" (51 Vict, c. 29 (D. ), does not apply to the fillings re- ferred to in the third sub-section, and confers no power upon the Railway Committee of the Privy Council to dispense with the filling in of the spaces behind and in front of the rail- way frogs and crossings and the fixed rails and switches during the winter months. Judg- ment appealed from (24 Ont. App. R. 183) reversed. Washington v. Grand Trunk By. Co., xxviii., 184. (Affirmed by Privy Council, [1899] A. C. 275.) 216. Railways — Begular depot — Z facilities — Bailway crossings — Walkit line of railway — Trespass — Invitatio License— 51 Vict. o. 29, ss. 240, 256, (D.)] — ^A passenger storm-bound at I Crossing on' the Grand Trunk Railway, the train and attempted to walk througi storm to his home a few miles distant. Vi proceeding along the line of the railwa the direction of an adjacent public high he was struck by a locomotive engine killed, There was no depot or agent r tained by the company at l^ucan Crossing a room in a small building there was as a waiting-room, passenger tickets were and fares Charged to and from this point, for a number of years, travellers had bee lowed to make use of the permanent we order to reach the nearest highways, being no other passage-way provided. J reversing the judgment appealed from Ont. App. R. 672), Ta^chereau and I JJ., dissenting, that notwithstanding the user of the permanent way in passing to from the highways by passengers taking leaving the company's trains the dec( could not under the circumstances, be sa have been there by the invitation or licen the company at the time he was killed that the action would not lie. Grand T By. Go. V. Anderson, xxviii., 541. 217. Sparks from railway engine ■ — Bui on railway berm — Damages by fire — 1 ings of jury — Evidence — Concurrent ings of courts appealed from.] — In an ai for damages in consequence of property t destroyed by fire alleged to have been cause sparks from an engine of the company the found, though there was no direct evidem how the fire occurred, that the company r gently permitted an accumulation of gras rubbish on their road opposite plaintiffs' i erty which, in case of emission of sparks oi ders would be dangerous ; that the fire inated from or by reason of a spark or ci from an engine ; and that the fire was • municated by the spark or cinder fallinj the company's premises and spreading to p tiffs' property. A verdict against the com) was sustained. Held, affirming the judg] appealed from (25 Ont. App. E. 242), following Senisac v. Central Vermont By. (26 Can. S. C. R. 64), and George Matt] Co. V. Bouchard (28 Can. S. 0. R. 580), the jury having found that the accumuls of rubbish along the railway property ca the damages, of which there was some dence, and the finding having beenaffirme the trial Court and Court of Appeal, it sh not be disturbed by a second appellate c< Grand Trunk By. Co. v. Bainville, x 201. 218. Railway — Bunning of trains — preaching crossing — Warning — Shunti Bailway Act, 1888, s. 265.]— Section 25 the Railway Act, 1888 providing that ' bell with which the engine is furnished i be rung, or the whistle sounded, at the tance of at least 80 rods from every j at which the railway crosses any high and that the bell shall be kept rin or the whistle sounded at short intei until the engine has crossed such 1 way " applies to shunting and other ten ary movements in connection with the ning of trains as well as to the general tr Judgment appealed from (25 Ont. App 437) affirmed. Canada Atlantic By. Ct Henderson, xxix., 632. 967 ISTEGLIGENCE. 968 219. Government railways — Injury to em- ployee — Negligence of fellow-servant — Lord Campbell's Act — Art. 1056 G. C. — Exonera- tion from liability — R. 8. G. c. 38, s. 50.'] — Art. 1056 G. C. embodies the action previously given by a statute of the Province of Canada re-enacting* Lord Campbell's Act. Robinson V. Ganadian Pacific Ry. Co- ([1892] A.C. 481) distinguished. — ^A workman may so contracJt with his employer as to exonerate the latter from liability for negligence, and such renun- ciation would be an answer to an action for injuries caused by the fault of a fellow-ser- vant under Art. 1056 C. 0. Griffiths v. Earl Dudley (9 Q. B. D. 357) followed. — In s. 50 of the Government Railways Act (R. S. G. c. 38) providing that "Her Majesty shall not be relieved from liability by any notice, con- dition or declaration in the event of any dam- age arising from any negligence, omission or default of any officer, employee or servant of the Minister," the words " notice, condition or declaration" do not include a contract, or agreement by which an employee has renounc- ed his right to claim damages from the Crown for injury from negligence of his fellow-ser- vants. Grand Trunk Ry. Go. v. Vogel (11 Can. S. C. R. 612) disapproved. — An em- ployee on the Intercolonial Railway became a member of the Intercolonial Railway Relief and Assurance Association, to the funds of which the Government contributed annually $6,000. In consequence of such Contribution a rule of the association provided that the members renounced all claims against the Grown arising from injury or death in the course of their employment. The employee having been killed in discharge of his duty by negligence of a fellow servant : Meld, revers- ing the judgment appealed from (6 Ex. C. R. 276) that the rule of the association was an answer to an action by his widow under art. 1056 G. C. to recover compensation for his death. — The doctrine of common employ- ment does not prevail in the Province of Que- bec. The Queen v. Filion (24 Can. S. C. R. 482) followed. The Queen v. Grenier, xxx., 42. 220. Operation of railway — Gondition of permanent way — Grass on siding.] — For a railway company to permit grass and weeds to grow on a side track is not such negligence as will make it liable to compensate an em- ployee who is injured in consequence of such growth while on the side track in the course of his employment. Wood v. Ganadian Paci- fic Ry. Go., XXX., 110. 221. Railway crossing — Necessary precau- tions — Shunting cars — Warning — Proof of negligence — Jury trial — Questions to be de- tenu iiicd by jury.] — B, in driving towards his home on a night in September, had to cross a railway track between nine and ten o'clock, on a level crossing near a station. Shortly be- fore a train had arrived from the west which had to be turned for a trip back in the same direction, and also to pick up a passenger Car on a siding. After some shunting the train * The Act referred to did not conform en- tirely either with Lord Campbell's Act, nor with the similar enactment in Upper Canada, and, as a consequence, it would appear that art. 1036 C. C. is, in effect, a limitation upon the formerly existing action under the civil law. QucBre — Whether contracts are per- missible against liability under art. 1058 O. C.V (Author's note.) ^ was made up, and just before coming to the level crossing the engine and tender were un- coupled from the cars to proceed to the round house. B. saw the engine pass but apparent- ly failed to see the cars, and started to cross, when he was struck by the latter and killed! There was no warning of the approach of the cars which struck him. In an action by his widow under Lord Campbell's Act the jury found that the railway company was guilty of negligence, and that a man should have been on the crossing when making the switch to warn the public. A verdict for the plaintiff was sustained by the Court of Ap- peal. Held, affirming the judgment appealed from, Gwynne, J., dissenting, that it was pro- perly left to the jury to determine whether or not, under the special circumstances, it was necessary for the company to take greater precautions than it did and to be much more careful than in ordinary cases where these conditions did not exist; and that the case did not raise the question of the jury's right to determine whether or not a railway com- pany could be compelled to place watchmen upon level highway crossings to warn per- sons about to cross the line. Lake Erie & Detroit River Ry. Go. v. Barclay, xxx., 360. 222. Negligence — Running of railway trains — Injury to passengers in sleeping berth.] — ^A passenger in a sleeping berth at night, believ- ing that she was riding with her back to the engine, tried to turn around in the berth and, the car going round a curve at the time, she was thrown out on to the floor and injured. In an action against the railway company for damages it was not shewn that the speed of the train was excessive nor that there was any defect in the roadbed at the place where the accident occurred to which it could be at- tributed. Held, reversing the judgment ap- pealed from, that the accident could not be attributed to any negligence of the servants of the company which would make it liable in damages to S. therefor. Ganadian Pacific Ry. Co. V. Smith, xxxi, 367. 223. Railway company — Fencing — Cul- vert — Negligence — Cattle on highway — 51 Vict. c. 29, s. 194—53 Viet. c. 28, s. 2.]— A railway company is under no obligation to erect or maintain a fence on each side of a culvert across a watercourse, and where cat- tle went through the Culvert into a field and thence to the highway and straying on to the railway track were killed, the company was not liable to their owner, Taschereau, J.,, dissenting. Grand Trunk Ry. Go. v. James, xxxi., 420. 224. Backing trains in station yard — Find- ings of jury — Operation of railway — Lights on train — Evidence.] — A conductor in de- fendant's employ while in the performance of the duty for which he was engaged at the Windsor station of the Canadian Pacific Kail- way in Montreal, was killed by a train which was being moved backwards in the station yard. There was no light on the rear end of the last car of the train nor was there any person stationed there to give warning of the movement of the train. Held, affirming the judgment appealed from (Q. R. H K. xS. 394), that by omitting to have a light on tne rear end of the train the railway company failed in its duty and this constituted _pnmo facie evidence of negligence. Ganadian j Ry. Go. V. Boisseau, xxxii., 424. 969 NEGLIGENCE. 970 225. Operation of railway trains — Colli- sion — Duty of engineman — Rules — Con- tributory negligence. \ — By rule 232 of the Grand Trunk Kailway Company, " conductors and enginemen will be held responsible for the violation of any rules governing their trains, and they must take every precaution for the protection of their trains even if not provided for by the rules." By rule 52, enginemen must obey the conductor's orders as to start- ing their trains unless such orders involve violation of the rules or endanger the train's safety, and rule 05 forbids them to leave the engine except in case of necessity. Another rule provides that a train must not pass from double to single, track until it is ascertained that all trains due which have the right of way have arrived or left. M. was engineman on a special train which was about to pass from a double to a single track and when the time for starting arrived, he asked the conductor if it was all right to go, knowing that the regular train passed over the single track about that time. He received from the conductor the usual signal to start and did so. After proceeding about two miles his train collided with the regular train and he was in- jured. In an action against the company for damages in consequence of such injury. Held, affirmiug the judgment of the Court of Appeal, that JI. was not obliged, before starting, to examine the register and ascertain for him- self if the regular train had passed, that duty being imposed by the rules on the conductor alone, that he was bound to obey the conduct- or's order to start the train, having no reason to question its propriety, and he was, there- fore not guilty of contributory negligence in starting as he did. Grand Trunk Ry. Go. v. Miller, xxxii., 454. • 220. Railtrny crossing — Defective air- hrahes — Yis major — C. 8. C. a. 166, ss. lift, US — Failure to stop at level crossing. See Railways, 99. : 227. Tort — Crown servants — Puilic work — " The King can do no wrong." See Rahwats, 100. 228. Running of railway trains — Use of wood (IS fuel — Sparks from engine — Evi- dence — Findings of jury — New trial. See Railways, 102. ^ 229. Running of railway trains — Defec- tive engine — Sparks from engine — Cause of fire — Presumption — Evidence. See Railways, 103. 230. Operation of railway — Running trains through town — Notice at crossing — Con- tributory negligence. See Railways, 47. 231. Running railway trains — Ringing bells — Improper conduct of servant — Con- tributory negligence — Accident while on duty. See Railways, 105. 232. Operation of railway — Sparks from engine—" Damage." See Railways, 69. ,233. Railway station — Approaches — Run- ning of trains — Imprudence. See Railways, 106. 234. Railway crossing — Ringing of bell — Sounding of whistle — C. S. C. c. 66, s. lOi. See Railways, 108, 111. 235. Running of railway trains — Ringing bell — Sounding whistle — Crossing highway. See Railways, 108, 111. 230. Broken railway track — Effect of climate. See Railways, 48. 237. Railway company — Accident at cross- ing — Statutory requirements — Notice of approach. See Appeal, 225. 238. Railway company — Breaking of rail — Latent defect — Arts. 1053, 1613, 1675 C. C. See Railways, 10. 23!J. Dangerous machinery — Railway — Sparks from engine — Evidence — Findings of jury — Defective construction. See No. 101, ante. 240. Operation of railway — Defective ma- chinery — Contributory negligence — Ex- amining train — Running rules. See No. 54, ante. 241. Carriage by railways — Special in- structions — Acceptance by consignees — Ware- housemen. See Railways, 7. 21. Tkamways. 242. Street railway — Height of rails — Statutory obligation — Accident to horse.} — A tramway charter, required the road be- tween, and for two feet outside of, the rails to be kept constantly in good repair and level with the rails. A horse crossing the track stepped on a grooved rail and his caulk caught in the groove whereby he was injured. The rail, at the place where the accident occurred, ,was above the level of the roadway. Held, affirming the judgment appealed from (21 N. S. Rep. 531; 24 N. S. Rep. 113), that as the rail was above the road level, contrary to the requirements of the charter, it was a street obstruction unauthorized by statute, and, therefore, a nuisance, and the company was liable for the injury to the horse caused there- by. Halifax Street Ry. Co. v. Joyce, xxii., 258. 243. Tramway — Wrongful ejectment from car — Exposure to cold — Consequent ill- ness — Damages — Remoteness of cause.} — In an action for damages from being wrongfully ejected from a street car, illness resulting from exposure to cold in consequence of such ejectment is not too remote a cause for dam- ages ; and where the evidence was that the person ejected was properly clothed for pro- tection against the severity of the weather, but was in a state of perspiration from an altercation with the conductor when he left the car and so liable to take cold, the jury were justified in finding that an attack of rheumatism and bronchitis which ensued was the natural and probable result of the eject- ment, and in awarding damages therefor. — ■ 971 NEGLIGENCE. 972 Judgment appealed from (21 Ont. App. R. 578) affirmed, Gwynne, J., dissenting. To- ronto Ry. Go. V. Grinsted, xxiv., 570. 244. Tramway — Collision with vehicle — Excessive speed — Contributory negligence.] — Persons crossing street railway tracks are en- titled to assume that the cars will be driven moderately and prudently, and if an accident happens through a car going at an excessive rate of speed the street railway company is responsible. — The driver of a cart struck by a Car in crossing a track is not guilty of con- tributory negligence because he did not look to see if a car was approaching if, in fact, it was far enough away to enable him to cross if it had been proceeding moderately and prudently. He can be in no worse position than if he had looked and seen that there was time to cross. — Judgment appealed from (21 Ont. App. R. 553) affirmed, Gwynne, J., dissenting. Toronto By. Go. v. Gosnell, xxiv., 582. 245. Obstruction of street — Accumulation of snow — Question of fact — Finding of jury.] — An action was brought against the City of Toronto to recover damages for in- juries incurred by reason of snow having been piled on the side of the streets, and the street railway company was brought in as third party. The evidence was that the snow from the sidewalks was placed on the roadway im- mediately adjoining by servants of the city, and snow from the railway tracks was placed by servants of the railway company upon the roadway immediately adjoining the track without any permission from the city, thus rais- ing the roadway next to the track, where the accident occurred, to 20 inches above the rails. The jury found that the disrepair of the street was the act of the railway company, which was therefore made liable over to the city for the damages assessed. The company contend- ed on appeal that the verdict was perverse and contrary to evidence. — Held, affirming the decision appealed from, that under the evi- dence of the manner in which the snow from the track had been placed on the roadway immediately adjoining, the jury might reas- onably be of opinion that if it had not been so placed there the accident would not have happened, and that this was the sole cause of the accident. — Toronto Ry. Co. v. City of Toronto, xxiv., 589. 246. Tramway — Defective appliances — Absence of buffers on cars.] — Tlbe plaintiff was a motorman in the employ of the com- pany and sued under the Workman's Com- pensation Act to recover damages for injuries sustained while coupling a street Car and trailer. The main negligence charged was the jibsence of buffers to protect the employees from injury in coupling. Plaintiff had a verdict at the trial which was affirmed. Held. affirming the judgment appealed from (22 Ont. App. R. 78), that there was negligence on the part of the company in not having proper appliances to prevent injury, and that a new trial had been properly refused. To- ronto Ry. Co. V. Bond, xxiv., 715. 247. Electric car — Excessive speed — Prompt action — Contributory negligence.] — A cab driver was endeavouring to drive his cab across the track of an electric railway when it was struck by a car and damaged. In an action against the tramway Company for damages it appeared that the accident occur- red on part of a down grade several hundred feet long, and that the motorman after see- ing the cab tried to stop the car with the brakes, and that, the brakes proving ineffec- tual, he reversed the power, being about a car length from the cab. The jury found that the car was running at too high a rate of speed, and that there was also negligence in the failure to reverse the current in time to avert the accident ; that the driver was negligent in not looking out more sharply for the car, and that, notwithstanding such negligence on the p^t of the driver the accident could have been averted by the exercise of reasonable care by the motorman. Held, affirming the judgment appealed from (32 N. S. Rep. 117), Gwynne, J., dissenting, that the last finding neutralized the effect of that of con- tributory negligence ; that as the car was on a down grade and going at an excessive rate of speed it was incumbent on the servants of the company to exercise a very high degree of skill and care in order to control it if danger was threatened to any one on the highway; and that from the evidence given it was iiu- possible to say that everything was done that reasonably should have been done to prevent damage from the excessive speed at which the car was being run. Hahfax Electric Tramway Go. v. Inglis, xxx., 256. 248. Street railway track — Improper con- struction — Bad order of track — Questions of fact — Findings of trial judge.] — The plaintiff, who was thrown out of a waggon, sustaining injuries, brought action for negligence owing to improper construction and bad order of the company's track. Torrance, J., found that the track was in bad order, the switch three inches above the level of the road, contrary to law, and that this caused the accident with- out any fault on the part of the plaintiff, whose damages he assessed at $2,500. The Queen's Bench reversed this judgment, being of opinion that the rails, as well as the part of the roadway the company was bound to maintain, were lawful and sufficient; that the company was not at fault, and that the plaintiff had not exercifeed necessary caution and prudence, and might, by reasonable caution and prudence, have avoided the acci- dent. Held, that as the questions to be de- cided were purely matters of fact, the judg- ment of the court of first instance should not have been disturbed. Strong, J., dissented, on the ground that the judgment of the Court of Queen's Bench on the facts was correct. Par- ker V. Montreal City Pass. Ry. Co., Cass. Dig. (2 ed.) 731. [The Privy Council refused leave to appeal, as the findings of fact should not have been disturbed on appeal ; see 6 Can. Gaz. 174.] 249. Motorman — Person in charge of electric car — Injury to conductor — Work- men's Compensation Act.] — The motorman or an electric car may be a " person who has charge or control " within the meaning of s. 3 of the Workmen's Compensation Act (a- S. O. ri897] c. 160), and if he negligently allows an open car to come in contact with a passing vehicle whereby the conductor, who is standing on the side in discharge of his duty, is struck and injured, the electric company is liable in damages for such injury. Judgment appealed from (27 Ont. App. R. 151) affirm- ed. Toronto Ry. Co. v. Snell, xxxi., 241. 250. Operation of tramway — ContriHUry negligence — Pleadings — Issues — Evidence —Verdict — New trial — Objections tanen 973 NBWSPAPEK. 974 on appeal ] — In an action to recover damages from injuries to a motorman through a colli- sion of his car with a special car returning to the car barn at unusual speed on the wrong track, a verdict was entered for the plaintill on the findings of the jury. On appeal to the Court of Review, defendant objected (IJ that plaintiff had not denied charges in the state- ment .of defence that the accident had been caused by his fault; (2) that there was misdirection by the trial judge telling the jury that the plaintiff could succeed even if he had himself been negligent if they thought' such negligence had not caused the accident; (3) that it had not been alleged that the car which came in collision with that of the plaintiff had no right to be in the place where it was at the time; (4) that, since the trial, defendant had discovered that plaintiff had stated his age at 47 instead of 45 years ; and, ( 5 ) that the verdict was against the weight of evidence. Langelier, J., in delivering the judgment ap- pealed from, Held, (1) that objection to the pleadings came too late, after the necessary proof had been made and an amendment per- mitted; (2) that, as in Quebec, contributory negligence would merely tend to reduction of damages, negligence not leading to injury could not be considered, and, seeing that the direction did not affect the verdict which attri- buted the injury solely to the negligence of the defendant, the verdict should not be dis- turbed; (3) that as evidence had been made without objection on the third point objected to, the objection came too< late on the appeal ; (4) that evidence discovered after trial must be of a nature tending to change the result of the trial, in order to obtain a new trial, and that the difference of 3, couple of years in plaintiff's age could not have that effect, and (5) as the evidence was such that a reason- able person could have concluded as the jury did there could not be a new trial. The Su- preme Court affirmed the judgment appealed from for the reasons stated by Mr. Justice Langelier. SherirooTce Street R. Co. v. Kerr, 7th November, 1899. NEGOTIABLE SECURITY. Fraudulent conversion — Past due bonds — Debentures transferable by delivery — Equity of previous holders — Estoppel — Implied notice — Innocent holders for value — 0. G. arts. H87, H90, 2202 and 2287.]— A bond fide holder acquiring commercial paper after dis- honour takes subject not merely to the equi- ties of prior parties to the paper, but also to those of all parties having an interest there- in. In re European Bank; Ex parte, Ori- ental Commercial Bank (5 Ch. App. 358j followed. Judgment appealed from (Q. R. 3 Q. B. 539, affirmed.) Young v. Macyider, XXV., 272. And see Banks and Banking — Bills and Notes, Etc. NEGOTIORUM GESTOR. ^ Mandatory — Action for new account — Re- lease—Parties — Purchase of trust estate — turator — Administration — Form of action — Indwisibility — Release — Specific performance T-A-rt. liSJf C. C.—Art. 920 G. G. P.]— Re- spondent, representing the institutes and sub- stitutes under the will of the late J. D., brought an action against appellant, one of the institutes who acted as curator and ad- ministrator of the estate for a certain time, for an account of three particular sums, whicli plaintiff alleged defendant had received while curator. IJeld, rcsersing the judgment appeal- ed from (18 R. L. 647), that an action did not lie against the appellant for these parti- cular sums apart and distinct from an action for an account of his administration of the rest of the estate. — ^Plaintiff alleged that he represented S. D., one of the substitutes, in virtue of a deed of release and subrogation by which it appeared he had paid to S. D.'s attorney for and on behalf of defendant £447 7s. 6%d., defendant having in an action of account settled by deed with S. D. for $4,000, which he agreed to pay and for which plaintiff became surety : Held, that as the deed gave defendant a full and complete discharge of all accounts as curator or administrator of the estate, plaintiff could not claim a further ac- count of these particular sums. — Plaintiff also claimed to represent F. D. and E. D., two other institutes, in virtue of assignments to him by them on 21st January and 15th Novem- ber, 1869, respectively. In 1865, after defen- dant had been sued in an action of account, by a deed of settlement, F. D. and Br D. agreed to accept as their shares in the estate $4,000 each, and gave defendant a complete and full discharge : Held, affirming the judg- ment appealed from, that the defendant could not be sued for a new account, but could only be sued for the specific performance of the obligations he had contracted under the deed of settlement. — By 'the judgment appealed from ( 18 R. L. 647 ) , defendant was condemn- ed to account for his own share transferred to plaintiff in 1862, and also for C. D.'s share, another institute who in 1882 transferred his rights to plaintiff. The transfer by defen- dant was as co-legatee of such rights and in- terests as he had at the time of transfer, and he had at that time received the sixth of the sum for which he was asked to account : Held, reversing the court below, that plaintiff took nothing as regards these sums under the transfer, and even if he was en- titled to anything, the defendant would not be liable in an action to account as mandatory or negotiorum gestor of plaintiff. 2. That F. D. and B. D., having acquired an interest in C. Z. D.'s share after the transfer of their shares to plaintiff in 1869, plaintiff could not maintain his action without making them par- ties to the suit. — Qucere, Were the transfers made by the institutes to plaintiff while cura- tor, null and void under art. 1484, C. C? Dorion v. Dorion, xx., 430. And see Account — ExEcuiqKS and Admin- ISTEATORS — Mandate — Peincipal and Agent. NEAVSPAPER. 1. Authority to publish — Corporation pub- lisher and proprietor — Deposit of affidavit or affirmation — Newspaper Act, 50 Vict. c. 23 (Man.)]— By 50 Vict. c. 23 s. 1 (Man.) no person shall print or publish a newspaper until an affidavit or affirmation made and signed, and containing such matter as the Act directs has been deposited with the protho- notary of the Court of Queen's Bench or clerk of the Crown for the district in which the newspaper is published ; by s. 2 such affi- davit or affirmation shall set forth the real and true names, &c., of the printer or publisher 975 NEW TRIAL. 976 of the newspaper and of all the proprietors ; by s. 6, if the number of publishers does not exceed 4 the affidavit or affirmation shall be made by all, and if they exceed 4, it shall be made by 4 of them ; and s. 5 provides that the affidavit or affirmation may be taken be- fore a justice of the peace or commissioner for receiving affidavits to be used in the Court of Queen's Bench. Held, 1. That 50 Vict. c. 23' contemplates, and its provisions apply to, the case of a corporation being the sole pub- lisher and proprietor of a newspaper. 2. That s. 2 is complied with if the affidavit or affir- mation states that a corporation is the pro- prietor of the newspaper and prints and pub- lishes the same. Gwynne, J., dissenting. 3. That the affidavit or affirmation, in ease the proprietor is a corporation, may be made by the managing director. — Judgment appealed from (6 Man. L. R. 578) affirmed. Ashdown V. Manitoba " Free Press " Co., xx., 43. 2. Aliniitg law — Dominion Lands Aut — Puhlication of regulations — Renewal of license — Payment of royalties — Voluntary payment — B. S. C. c. 54, ss. 90, 91. See Mines and Minerals, 13. NE-W TRIAL. 1. Accounts, 1. 2. Appeals, 2 14. 3. Criminal Cases, 15-16. 4. Damages, 17-24. 5. discketionahy orders, 25 30. 6. Evidence, 31-56. 7. Findings of Fact, 57-66. 8. JIlSDIRECTION, 67 84. 9. Practice, 85-90. 10. Verdict, 91-97, 1. Accounts. 1. Taking accounts — Jurij unable to deal with questions of account — ilisdirection.] — Counsel urged that the jury should be instruct- ed to deal with accounts between the parties, but the jury stated they were unable to do so. Held, that the accounts should have been taken in order properly to decide the case and a new trial was ordered. Oriffith v. Boscovitz xviii., 718. I 2. Appeals. 2. Appeal — Matter of discretion — Construc- tion of 38 Vict. c. 11, s. 33.] — Under s. 22 of the Siipi-pme and Excheouer Courts Act no appeal lies from the judgment of a court granting a new trial, on the ground that the verdict was against the weight of evidence, that being a matter of discretion. Book \. The Merchants' Marine Ins. Co., i., Ill, [See Supreme Court Amendment Act, 1880, s. 4, and the E. S. C. c. 135, s. 24, par. (d) as amended by 54-55 Vict. c. 25, s. 2, enacted since above decision.] 3. Discretion — Xcic trial ordered by court below — Appeal.'] — The Supreme Court of Canada will not hear an appeal from a judg. ment ordering a new trial on the ground that the verdict was against weight of evidence. Eureka Woollen Mills Co. v. Moss, xi., 91. ■ 4. Order for new trial — Questions of law and fact — Insurable interest — Discretion to hear appeal.] — Where the order for a new trial in the court below has been made upon both questions of law and fact, the Supreme Court will hear an appeal. Howard v. Lon- cashire Ins. Co., xi., 92. 5. Order for new trial — Final judgment — Appellate jurisdiction.] — There is no appeal under the provisions of the Supreme Court Act from a judgment (after amendment of the pleadings and a new cause of action being set up) ordering a new trial which is not, in such a case, a final judgment nor otherwise within the appellate jurisdiction ■ of the Su- preme Court of Canada. Canadian Pacific liy. Co. V. Cobban Mfg. Co., xxii., 132. 6. Appellate jurisdiction in cases of new trial — Questions of law.] — It was contended that the circumstances were stronger than in Eureka Woollen Mills Co. v. Moss (11 Can. S. C. R. 91), (No. 3, ante), and that the dis- cretion of two courts below in favour of a new trial should not be interfered with, although there was no objection to the jurisdiction taken in the respondent's factum. The judg- ment appealed from held that there had been no misdirection but that the circum- stances were peculiar and the discretion of the Divisional Court ordering a new trial ought not to be interfered with. Reld, that as the judgment appealed from did not proceed on the ground that there had been misdirection on a point of law, there could be no appeal to the Supreme Court. As the appeal was quashed for want of jurisdiction, only costs as of a motion to quash were allowed. O'iSiiUivan v, Lake^ xvi., 636. 7. Order Jor new trial — Judgment on mo- tion — Non-jury cases.] — Section 24 (d) of E. S. C. c. 135, allowing appeals to the Supreme Court " from the judgment on a motion for a new trial upon the ground that the judge has not ruled according to law," applies to jury cases only. Halifax Street By. Co. v. Joyce, xvii., 709. 8. Contract — Collateral agreement — Ques- tions for jury — Verdict — New trial — Duty of appellate court.] — Whether or not a memoran- dum of agreement set up by the defendant as containing the only contract between the par- ties was intended to settle the contract in whole or in part is a question for the jury. The onus of shewing that it contained all the terms of the contract is upon the party pro- ducing it. In such a case oral testimony is admissible on behalf of both parties. A ver- dict based upon the appreciation of the evi- dence in such a case ought not to be inter- fered with by an appellate court. Peters v. Hamilton, Cass. Dig. (2 ed.) 763. 9. Jurisdiction of appellate court — Entering new verdict — 37 Vict. c. 7, ss. 32, S3 (Ont.) — 38 Vict. c. 11, ss. 20, 23, 38 {D.) , See Appeal, 130. 10. Insufficient findings of jury — Order for new trial — Final judgment. See Appeal, 172. 977 NEW TEIAL. 978 11. Appeal — Jurisdiction — Criminal law — The Criminal Code, 1892, ss. 742-750 — Con- struction of statute — 55 & 56 Vict. c. 29, s. 7JiZ. See Appeal, 118. 12. Appeal from order for new trial — Juris- diction — i'mai judgment. See No. 5, ante. 13. Special leave to appeal — Jurisdiction — " Judge of court appealed from " — R. S. C. c. 135, s. 42 — Construction of statute. See Appeal, 336. 14. Lihel — Question of privilege — Proof of malice — Improper admission of evidence — Misdirection — Power to grant new trial on ap- peal—if. S. Judicature Act. See No. 40, infra. 3. Criminal Cases. 15. Criminal prosecution — New trial — Jur- isdiction of Provincial Court — Discharge of prisoner ordered ly Supreme Court.'] — In a criminal case reserved thie Court of Queen's Bench (Crown side ) , deferred pronouncing judgment on tlie verdict against the prisoner, being in doubt as to the legality of the admis- sion of certain evidence, and ordered a new trial. This order was affirmed by the judg- ment appealed from. Held, that 32 & 33 Vict. c. 29, repealed so much of C. S. L. C. c. 77, as would authorize any court in the Province of Quebec to order new trials in criminal cases, and since that Act and 33 Vict. c. 26, repeal- ing C. S. L. 0. c. 77, s. 63, the Court of Queen's Bench in that province has no power to grant new trials in such cases. Thereupon the Supreme Court of Canada, in exercise of its appellate jurisdiction, rendered the judg- ment which ought to have been given in the court appealed from and ordered that the prisoner should be discharged from custody. The Queen v. Laliberte, i., 117. 15a. Order for new trial — Sections 742 to 750, Criminal Code — Appeal — Jurisdiction of Supreme Court of Canada. See Appeal, 118. 16. Canada Evidence Act, '1893 — Husband and wife — Competency of witnesses — Privi- lege — Admission of evidence. See Ceiminal Law, 25. 4. Damages. 17. Breach of contract — Dismissal — Notice — Master and servant — Evidence — Measure of damages.] — The plaintiff was master of a ship owned by the company, plaintiff being one of the largest shareholders. Plaintiff's contract was to supply the ship with men and provi- sions for passengers and crew, and sail her as commander for a monthly salary. The ship ™ been accustomed to remain at St. Pierre 48 hours, but the time was lengthened to 60 hours by the company, yet the plaintiff insisted on remaining only 48 hours, against the ex- press directions of the company's agents at St. rierre, and was otherwise disobedient to the agents, in consequence of which he was, with- out prior notice, dismissed from service. The trial judge considering that the plaintiff was not a master in the ordinary sense, held that he had been wrongfully dismissed and found a verdict for .i;2,000. A rule nisi was made abso- lute by the full court for a new trial. Held, affirming the judgment appealed from (2 liuss. & Geld. 54), 1st. That even if the dismissal had been wrongful, the damages were exces- sive and the case should go back for a new trial on that ground. 2nd. Per Kitchie, C.T., and Pournier and Gwynne, JJ., that the fact of the master being a shareholder in the cor- poration owning the vessel, had no bearing on the case, and that it was proper to grant a new trial upon the question as to whether or not the plaintiff so acted as to justify his dis- missal. Guilford V. Anglo-French SS. Co., ix., 303. 18. Improper rejection of evidence — Exces- sive damages — iVcjp grounds on appeal.] — On motion for new trial on grounds of excessive damages, &c., the verdict was sustained. The Supreme Court affirmed the decision, Gwynne, J., dissenting, although the amount of damages found was unsatisfactory. Hoyal Ins. Co. v. Duffus, xviii., 711. See Evidence, 13. 19. Repair of streets — Damages — Evidence — Special injury — i'eidict.] — The proprietor of an omnibus line ran Coaches through some of the principal streets of Halifax under license from the corporation. Owing to the want of repair on some of the streets, and the accumulation of snow and ice, the cons'eyances could not be run according to time table, and there was a falling off in the number of pas- sengers ; moreover, some of the horses were in- jured and vehicles broken or damaged by the rough state of the streets. Held, Ritchie, C.J., dissenting that it was the duty of the Corpor- ation to keep the streets in good repair ; and (Gwynne, J., dissenting), that the plaintiff was entitled to retain his verdict, having prov- ed special injury, and the damages awarded not being too remote nor excessive. Judgment ap- pealed from (4 R. & G. 371) affirmed. City of Halifax v. Walker, Cass. Dig. (2 ed.) 175. 20. Misdirection — Verdict — Proceedings at trial — Questions reserved — Defective state of public bridge — Liability of municipality — Damages — New trial — Practice.] — Action for damages for injury from falling over a bridge at the time very much out of repair, about twenty feet of the railing on one side having fallen away. One of the standing committees of the municipal council was a committee on roads and bridges, whose duty was to report to regular meetings of council the state of the roads and bridges in the county. There was no evidence as to whether or not the bridge was much used as a thoroughfare or otherwise. The only question submitted to the jury was as to amount of damages. The judge charged " that the accident which had occurred to plaintiff was a most disastrous one, resulting from the undoubted negligence of those on whom the duty lay of keeping the bridge in a safe condition, and that the liability of defend- ant was a matter of law which he would re- serve for the full court." — The jury found for plaintiff for $3,000, and defendant failed to obtain a new trial on grounds which did not include misdirection, the court below being equally divided, Rigby and Weatherbe JJ., of opinion that defendant's counsel had agreed in the view propounded by the judge at the trial, and had requested the court to deter- 979 NEW TEIAL. 980 mine the question of law first, as if the issue of negligence had been found against defend- ant, upon sufficient evidence and under a pro- per charge, considered the case disposed of by City of Halifax v. Walker (Cass. Dig. (2 ed.) 175 ; No. 19, ante) and McQuarry v. Munici- pality of St. Mary's (5 R. & G. 493.) — Mo- Donald, C.J., and Thompson, J., held that the reservation at the trial was a reservation for the opinion of the court of a mixed question of law and fact, and they not only doubted their power to draw inferences of fact at all, but were unable to draw the inference of negli- gence, the evidence being silent on material points, such as whether the bridge was much or little travelled, and whether the alleged de- fect ever came to the knowledge of the county officers. Held, affirming the judgment appeal- ed from (6 R. & G. 549), Strong, J., dissent- ing, that the plaintiff was entitled to retain his verdict. — Per Strong, J., dissenting, that there was not sufficient evidence of negligence to warrant the verdict, and the case reserved for the court being on questions of fact as well as of law, a new trial might have been ordered notwithstanding the objection was not taken either at the trial or in the rule nisi. Municipality of Colchester v. Watson, Cass. Dig. (2 ed.) 175. 21. Discretionary ordei — Excessive damages -rCosts.} — Plaintiff declared on a special don- tract for the sale of a vessel to defendant, averring performance of all conditions neces- sary to entitle him to payment of the price, and assigning, as a breach, non-payment by defendant. The plaintiff further declared on the common counts. — ^Defendant pleaded non- assumpsit, non-delivery of the vessel, payment and set-off. — ^The cause was tried with a jury who found a verdict for plaintiff for $3,000. A rule nisi to set aside this verdict was made absolute by the Supreme Court of Hova Scotia on the ground that the damages were exces- sive, observing that it was unnecessary to de- cide whether the verdict was objectionable on other grounds. — On appeal prior to R. S. 0. c. 135, s. 24 (d) as amended by 54 & 55 Vict, c. 25, Held, on motion to quash, Henry, J., duiitante, that the judgment ordering a new trial on the ground of excessive damages pro- ceeded upon matter of discretion only, and that such judgment was not appealable. — Ap- peal quashed with the general Costs of appeal to hearing. By fiat of Taschereau, J., a coun- sel fee of $50 on motion was taxed. McGowan V. Modeler, 13th October 1879 ; Cass. Dig. (2 ed.) 421; Cass. Prac. (i ed.) 81, 82. 22. Excessive damages — Discretionary order — Reduction of verdict or new trial. — Publica- tion in newspaper — Defamatory plea — Inci- dental demand — Excessive damages — Reduc- tion of verdict — New trial.] — Damages were assessed by a jury at $6,000 for a newspaper libel and $4,000 additional on a further libel contained in a defamatory plea. Held, on ap- peal from the Court of Queen's Bench (M. L. R. 4 Q. B. 84) , that the damages were exces- sive ; that they should be reduced to a total of $6,000, and in the event of plaintiff's refusal to accept a reduced verdict for that amount a new trial should be allowed. Mail Printing Go. V. Laflamme, Cass. Dig. (2 ed. ) 493. 23. Action for negligence — Excessive dam- ages — Finding of jury.] — An order for a new trial was affirmed, on appeal, for grounds, amongst others, that the damages were exces- sive under the evidence. York v. Canada At- lantic Ry. Co., xxii., 167. See Negugencb, 15. 24. Negligence -^ Taking damp grain into elevator — Responsibility — General assessment of damages. See Wabehouseman, 3. 24o. Reduction of damages — Evidence — Dis- cretionary order. See No. 27, imfra. 5. DiSCEETIONAEY ORDERS. 25. Discretion of court helow — Verdict against weight of evidence — Appeal.] — Where the court below in exercise of its discretion has ordered a new trial on the ground that the ver- dict is against the weight of evidence, the Su- preme Court will not hear an appeal. Eureka Woollen Mills Go. v. Moss, xi., 91. 26. Nonsuit — Proceedings at trial — Rule to set aside the nonsuit and for new trial— Dis- cretionary order.] — ^A rule to set aside a non- suit and for a new trial was discharged on the ground that the nonsuit was voluntary. The trial judge's notes shewed that the non- suit was moved for, plaintiff's counsel replied and judgment of nonsuit was entered, the judge stating, however, that he believed the understanding to be that the nonsuit should be entered Held, that, as there was doubt as to what took place at the trial, the parties were entitled to the benefit of that doubt, and that the rule to set aside the nonsuit should be made absolute. Levy v. Halifax and Cape Breton Ry. and Coal Co., Cass. Dig. (2 ed.) 579. 27. Evidence as to damages — Discretionary order.] — In a case where the evidence shewed definitely what damages had been sustained and where there appeared to be no good rea- son for remitting the case back to the trial court to take further evidence the Supreme Court of Canada, in reversing the judgment appealed from, refrained from ordering a new trial but directed that the damages as found by the trial judge should be reduced to the amount proved in respect of certain goods wrongfully converted. Armour, J., was, how- ever, of opinion that the judgment of the trial judge ought to have been restored. WUson v. Canadian Development Co., xxxiii., 432. The Privy Council refused leave for an ap- peal, July, 1903. 28. Discretion — Question of law — Costs Jurisdiction. See No. 2, ante. 29. Excessive damages — Discretionary order — Reduction of verdict or new trial. See Libel, 5. 30. Municipal corporation — Construction of sidewalk — Trespass — Action en hornage— peti- tory action — Amendment of pleaimgs—-rr(K- tice — Ceasing litigation^-R. S. C. c. ISO, s. oo. See Practice of Supreme Coxmi, 5. 981 NEW TEIAL. 982 6. Evidence. 31. Sale of machinery — Knowledge of de- feats — Promtssory note — Failure of considera- tion.] — Action on promissory note. Defence, that note was given in payment of a machine for polislung wood, which machine did not do the work it was represented to do. The ma- chine had been used for some time in connec- tion with building cars, and evidence for de- fendant went to prove that the work was un- der the control of a contractor with defend- ant ; that before the machine could be used a fan had to be attached to keep oif the dust ; that it spoiled the boards on which it was used ; ana that the contractor did not inform the defendant as to the defects and he knew nothing of them until the case came on for trial. It appeared, however, that the general superintendent of defendant's business watched the progress of the work in which the machine was used and inspected all the cars before they were delivered. The jury found a verdict for plaintitis and a new trial was refused the Supreme Court (N. B.) holding that defend- ant must be held to be affected with the con- tractor's knowledge or, at all events, that the superintendent was in a position to know if the machine did not work properly. Meld, that the new trial was properly refused. Es- son V. McGregor, xx., 176. 32. Ship's dishursements — Freight balance — Notice to owner — (guarantee on delay of proceedings — Misrepresentation — Defence un- der plea of fraud — Evidence.] — On a ship un- der charter ' being loaded £173 was due the charterer for difference between actual freight and that specified in the charter party and, as agreed, a bill for that amount was drawn by the master on the agents of the ship, and, also, a bill of £735 for disbursements. These bills not being paid at maturity notice of dis- honour was given to V., managing owner, who sent his son to solicitors, who held the bills for collection to request that the matter should stand over until the ship arrived at St. John, where V. lived. This was acceded to and V. signed an agreement in the form of a letter addressed to the solicitors, in whidi, after asking them to delay proceedings on the draft for £735 he guaranteed, on the vessel's arrival or in case of her loss, payment of the draft and charges and also payment of the draft for £173 and charges. On the vessel's arrival he refused to pay the smaller draft and to an ac- tion on his guarantee, pleaded payment and that he was induced to sign the same by fr,aud and misrepresentation. By order of a judge the pleas of payment were struck out. — On the trial the son of V. who had interviewed the solicitors swore that they told him that both bills were for disbursements, but it did not clearly appear that he repeated this to his father. V. contradicted his son and stated that he knew that the smaller bill was for dif- ference in freight, and there was other evi- dence to the same effect. His counsel sought to get rid of the effect of V.'s evidence by shewing that from age and infirmity he was incapable of remembering the circumstances, but a verdict was given against him. It was admitted that if there had been any misrepre- sentation by the solicitors, it was innocent misrepresentation only. Held, affirming the judgment appealed from (28 N. B. Rep. 364), that the defence of misrepresentation set up was not available to V. under the plea of fraud, and, therefore, was not pleaded ; that if available without plea, it was not proved ; that nothing could be gained by ordering an- other trial as V. having died, his evidence would have to be read to the jury who, in view of his statement that he knew the bill was not for disbursements, could not do other- wise than find a verdict against him. Held, further, that the delay asked for by V. was sufficient consideration to make him liable on his guarantee, even assuming that he would not have been originally liable as owner of the ship. Vaughan v. Richardson, xxi., 359. 33. Libel — Justification — Fair comment — Public affairs — Pleading — Rejection of evi- dence — General verdict — Disregard of mate- rial question.] — ^Action for libel in a news- paper article respecting legislation. The in- nuendo alleged by plaintiff (Attorney General of Manitoba when such legislation was enact- ed), was that the article charged him with personal dishonesty. Pleas " not guilty " and that the article was fair comment on a public matter. Defendant put in evidence, under ob- jection, to prove the charge of personal dis- , honesty, and evidence in rebuttal was tendered by plaintiff and rejected. Questions were put to the jury requiring them to iind whether or not the words bore the construction claimed by the innuendo or were fair comment on the subject matter of the article; the jury found generally for the defendant and, in answer to the trial judge, who asked if they found that the publication bore the meaning ascribed to it by the plaintiff, the foreman said : " We did not consider that at all." On appeal from an order for a new trial, Held, affirming the judgment appealed from (8 Man. L. R. 50), that defendant not having pleaded the truth of the charge in justification, evidence to es- tablish it should, not have been received, but as it had been received evidence in rebuttal was improperly rejected ; the general finding for the defendants was not sufficient in view of the fact that the jury stated that they had not considered the material question, namely, the charge of personal dishonesty ; for these reasons a new trial was properly granted. Manitoba Free Press Co. v. Martin, xxi., 518. 34. Malicious prosecution — Reasonable and probable cause — Inferences — Functions of judge — Nonsuit.] — In an action for malicious prosecution, the existence or non-existence of reasonable and probable cause is to be decided by the judge and not the jury. — A., staff inspec- tor of police, laid an information charging M. with keeping a house of ill-fame. In laying the infoi-mation, he acted on a statement made to him by D., a frequenter of the house, suffi- cient, if true, to prove the charge. A warrant issued, M. was arrested and brought before the magistrate, who, after hearing the evi- dence, dismissed the charge. — The action was tried three times, each trial resulting m a nonsuit, which was set aside and a new trial ordered. From the judgment ordering the third new trial A. appealed, and, the judges being equally divided, the order stood. On this last trial it was shewn that A. had re- quested the inspector for the division in which M.'s house was situate to inquire about it, and that, after the information, the inspector re- ported that there were frequent rows in the house, but he thought there was nothing in the charge. The trial judge held that want of reasonable and probable cause was not shewn and withdrew the Case from the jury. The Di- visional Court held that he should have asked the jury to find on the fact of A.'s belief in the statement on which he acted in bringing 983 NEW TEIAL. 984 the charge. Held, Taschereau, J., dissenting, that A. was justified in acting on the state- ment, and, the facts not being in dispute, there was nothing to leave to the jury and the trial judge rightly held that no want of reasonable and probable Cause had been shewn. Lister v. Perryman (L. E. 4 H. L. 521) followed; Abraih v. y orth-Eastern Ry. Co. (11 App.. Cas. 247) considered. Archibald v. McLaren, xxi., 588. 35. Evidence for jury — Improper admission of evidence — Withdrawal of evidence from jury — Practice. 'i — Plaintiff was the licensee of Crown lands to cut timber and logs thereon. The licenses did not mention boundaries, but limits were described as (1) "" Xo. 192 east half block 176 Muzeral Brook, Containing three square miles," and (2) " South of main S. W. Miramichi River, N. .east quarter of block 42, and the southern 1^ miles of block 41." Plaintiff endeavoured by the testimony of B. and F. to identiiEy lands alleged to be included in these licenses, and in their evi- dence and that of I'lynn proved that logs had been cut upon these blocks by two parties, respectively named S. and K., and on the trial the plaintiff offered to prove the statements of these two parties and admissions made Dy them. Defendant's counsel objected to these statements as no evidence against the defend- ant, and the Chief Justice only admitted it on the plaintiff's counsel undertaking to con- nect the defendant with the parties. This he failed to do, but called C, an agent of the plaintiff, to depose as to certain statements of the defendant. Plaintiil's counsel address- ed the jury upon the whole evidence, comment- ing upon all the facts, but the Chief Justice in Charging the jury said that if the case rested on the evidence of B., he was of opinion that the plaintiff failed to make out his case, and also stated his opinion that the declara- tions of S. and K. were not evidence against defendant, and that the plaintiS's case must depend upon the conversations between C. and defendant respecting the logs. The jury found a verdict for the plaintiff for $965. — A rule nisi for a new trial was discharged under au- thority of Wilmot V. Vanwart (1 P. & B. 496), holding that when evidence, improperly received, has been withdrawn by the judge from the Consideration of the jury, the impro- per admission is not a ground for a new trial. — Meld, that the new trial was properly re- fused on the ground of the improper admission of e\idence ; the plaintiff having failed to con- nect the statements of S. and K. with the de- fendant, such evidence was properly and suffi- ciently withdrawn from the jury. But as re- gards C.'s evidence there was not sufficient to go to the jury, and the Chief Justice should have left nothing to the jury. On this ground the rule nisi for a new trial should be made absolute. Judgment appealed from (3 P. & B. .597) reversed. I^nowball v. Nlewart, Cass. Dig. (2 ed.) 57U. 36. Trespass — Description of lands — Metes and bounds — Preponderance of evidence.^ — Action of trespass and trover. The declara- tion alleged a trespass on lands claimed by the plaintiff, and had a count in trover and a count for the trespass to personal property. The pleas traversed the allegations of trespass and conversion, an'd the allegations as to pro- perty in the plaintiff, and justified by title in some of the defendants. — The place of begin- ning in the plaintiff's grant was identified and the description then read " running south 52 chains to a large pine tree marked " J. G.,' and then west," &c. To reach the locus the line should be extended about 50 chains more. To that increased distance the surveyor's line on the ground extended, but there was no pine tree so marked either at the distance expressed in the description, or at the end of the sur- veyor's line. At the latter point, however, a spruce tree was marked " H. G." an3 " J. G." The plan attached to the grant represented the lot as a different shape from that claimed, and the area expressed in the grant was inconsist- ent with plaintiil's contention. — The jury found a verdict for plaintiff, which verdict was set aside by the court en banc. Held, af- firming the judgment appealed from (5 Russ. & Geld. 431 J, that there was evidence for the jury that the lire claimed by plaintiff was the western line of his grant. The case, however, was not so clear as to justify the court in re- versing the decision of the court below, come to on a review of the evidence, but was a pro- per case for further consideration on a new trial. (Henry, J., dissenting). Gates v. Davidson, Cass. Dig. (2 ed.) 847. 37. TSew trial — Improper reception and re- jection of evidence — Nominal damages.} — The appeals were from two decisions in favour of the respondent C, who brought his action for the price of timber supplied to S., imder a written agreement. S. defended on the ground that the timber was not of the quality con- tracted for. The plaintiff obtained a verdict and a new trial was moved for on a great number of grounds, only two of which were relied on in argument. The rule for a new trial was made absolute unless the plaintiff filed a consent to his verdict being reduced, and such consent being filed the rule was dis- charged and the verdict . stood for the reduced amount. — Another action was brought by S. against C. for damages in not supplying tim- ber up to the standard the contract required. In this action a verdict was given for the de- fendant, and a new trial was moved for, the main ground urged being that plaintiff was entitled to nominal damages at least. The court was of opinion that the plaintiff was entitled to nominal damages, but refused a new trial to enable him to have a verdict therefor. (31 N. B. Kep. 250, 265).— Both appeals were dismissed, the Supreme Court being of opinion that the objections to the verdicts for improper reception and rejection of evidence were properly overruled by the court below and the new trial to enable S. to recover nominal damages was properly re- fused. Scammel v. Clarke, xxiii., 307. 38. Findings of jury — Answers to questions — Xcw trial — Negligence — Railway company — Act of incorporation — Change of name.] Where it appeared on the argument before the Supreme Court of Canada, that the jury had not properly answered some of the questions submitted to them at the trial, a new trial was ordered. Pudsey v. Dominion Atlantic Ry. Co., XXV., 691. Note. — In other respects the judgment ap- pealed from (27 N. S. Uep. 498) was affirmed; See JuKT, 3. 39. Libel — Privileged commmioation -j Malice— Charge to jury— Evidence— Vntmna- Uness.]— On the trial of an action claiming damages for, a libel alleged to be contained m a privileged communication the judge enargeu 985 NEW TEIAL. 986 the jury as to privilege and added " if the de- fendant made the communication J)ona fide, believing it to be true, and .the privilege exist- ed that I have endeavoured to explain, then there would be no action against him." Held, that plaintiff was entitled to a more explicit statement of the law on a point directly af- fecting the proof of an issue the burden of which was upon him. — One portion of the communication containing the alleged libel might be read as importing a grave charge against the plaintiff or as an innocuous state- ment of fact. Held, that, as to prove malice the writer's knowledge of the falsity of the fact was the material point, the sense in which he may have used the words was the govern- ing consideration. — The judge's charge was not open to objection for want of an explicit refer- ence to pre-existing unfriendliness between the parties as proof of malice where the only evi- dence of unfriendliness consisted of hard things said of the defendant by the plaintiff. — Judgment appealed from (32 N. S. Rep. 129) affirmed, Gwynne and Sedgewick, JJ., dissent- ing. Green v. Miller, xxxi., 177. 40. Libel — Question of privilege — Proof of malice — Improper admission, of evidence — Mis- direction — Power to grant new trial on appeal —If. 8. Judicature Act, O. 57, R. 5; O. 38, B. 10.] — Where the defendant asked only for a new trial in the court appealed from the Supreme Court of Canada cannot order judg- ment to be entered for him on the appeal. — Evidence as to how the recipient of a letter _ understood it as imputing to the person men-' tioned therein a wrongful retention of money should not be received on the trial of an action for libel as making proof of actual malice ; the reception of such evidence in the case in ques- tion caused a miscarriage of justice and justi- fied the defendant's application for a new trial. — Where the trial judge Charged the jury that the question to be decided was the truth or falsity of the statements in the alleged libel- lous letter it was a misdirection that gave the defendant a right to a new trial as the ques tiou at issue was whether or not, if the state- ments were false, the defendant honestly be- lieved them to be true. — ^Order 57, rule 5 of the Nova Scotia Judicature Act applies only to Cases tried by a judge without a jury and Older 38, rule 10, applies to cases tried with a jury. Green v. Miller, xxxiii., 193. 41. Evidence as to damages — Discretion- ary order — New trial-] — In a case where the evidence shewed definitely what damages had been sustained and where there appeared no good reason for remitting the case back to the trial court to take further evidence the Supreme Court of Canada, in reversing the judgment appealed from, refrained from order- ing a new trial, but directed that the damages as found by the trial judge should be re- duced to the amount proved in respect of cer- tain goods wrongfully converted. Armour, J., was, however, of opinion, that the judgment of the trial judge ought to have been restored. nilson V. Canadian Development Co., xxxiii., 432. [Leave to appeal refused by Privy Council, July, 1903.] 42. Improper admission of evidence — Ex- cessive damages — Telegraph message — Liahili- ty of company.] — The declaration alleged : 1. That plaintiffs were wholesale and retail mer- chants at Halifax. That the company wrong- tully, falsely and maliciously, by their tele- graph lines, transmitted, sent and published trom their office at Halifax to their office in fet. John, and there caused to be printed copied, circulated and published the false and defamatory message following :— •' John Silver & Oo. wholesale clothiers, of Grenville street, have failed; liabilities heavy." 2. That same message was caused also to be published in other parts of the Dominion. 3. That the company agreed with the proprietor or pub- lisher of the St. John "Daily Telegraph" newspaper, and entered into an arrangement with him, whereby the ;:ompany was to collect and transmit, by their telegraph lines, news dispatches to said newspaper from time to time; that the publisher should pay for all such messages, and publish them in his news- paper, and that in pursuance of said agree- ment the company wrongfully, maliciously, and by means of said telegraph, transmitted sent and published from their office in Halifax to their office in St. John and there falsely and maliciously caused to be written, printed Copied, circulated and published the above message, whereby many customers who had heretofore dealt with plaintiffs ceased to do so, and their credit and business standing and reputation were thereby greatly damaged. It was proved that the telegram published in the morning paper was corrected in the evening edition ; that the publisher's agreement was with one Snyder, an officer of the company, to furnish him news at so much for every hun- dred words, but that he only paid for such as he used. The original dispatch was not pro- duced. The only evidence as to damage was of two witnesses, that by reason of the publi- cation they Ceased to do business with the plaintiffs as they had previously been accus- tomed to do. This evidence ^Aas objected to, but was received. The dealings of these wit- nesses with plaintiffs consisted in selling their exchange and sometimes discounting their notes. A motion for nonsuit was refused, and the jury rendered a verdict for the plaintiffs with $7,000 damages. Held, reversing the judgment appealed from (2 Russ. & Geld. IT), Taschereau and Gwynne, JJ., dissenting. 1. That the Company was responsible for the publication of the libel in question. 2. That the damages were excessive, and therefore a new trial ought to be granted. Ritchie, C.J., doubting, and Henry, J., dissenting. — Per Tas- chereau and Gwynne, JJ., dissenting. As- suming the agreement in question to be one within the scope of the purposes for which the company was incorporated, and that Snyder had sufficient authority to enter into it ,on be- half of the company, the evidence established that the company collected, compiled and transmitted the news for the proprietor of the newspaper, as his confidential agents and at his request, and that they were not responsible for the publication by the proprietor and pub- lisher of said news, for which the damages were awarded. Held, also, per Strong, Tas- chereau and Gwynne, J.T. No special dam- ages having been alleged in the declaration, the evidence as to such damages having been objected to, was inadmissible, and therefore a new trial should be granted. Dominion Tele- graph Go. V. Silver, x., 238. 43. Evidence — Art. 1235 0. G. — Commer- cial contract — Rejection of parol testimony. See Evidence, 6. 987 FEW TEIAL. 44. Municipal corporation — Defective side- walk — Contributory negligence — Nonsuit — Evidence — Damages. See Negligence, 39. 45. Delivery of policy — Payment of pre- miums — Escrow — Division of opinion — Prac- tice — T^ew trial ordered. See INSUBANCE. Lite, 8. 46. Verdict against evidence— Entries in, hooks of third party — Admissibility as evi- dence — New trial refused. See Evidence, 10. 47. Marime insurance — Evidence — Re- covery as for partial loss — New trial. See Insurance. Makinb, 41. 48. Improper admission — Cross-examination — Conversation partly given on examination in chief — New trial refused. See Evidence, 12. 49. Improper rejection — Excessive dam- ages — New grounds taken on appeal — Plead- ing — Refusal of new trial. See Evidence, 3. 50. ' Condition of new trial — Remittitur damna — Practice. See Evidence, 14. 51. Improper rejection of evidence — De- livery of policy of life insurance — R. S. N. S. (4 ser) c. 96, s. lil — New trial ordered. See Evidence, 15. 52. Deposit with bank for special purpose — Misapplication of funds — Evidence — Ver- dict — Supreme Court Act, s. Z2— Exercise of discretion — Order for new trial sustained. See Banks and Banking, 5. 53. Improper admission of evidence — Ob- jection at trial — Relevancy — New trial order- ed. See Evidence. 22. 54. Negligence — Reasonable care — Ques- tion for jury — WUUdrawal of case from jury — Evidence — Order for new trial sustained. See Evidence, 163. 55. Evidence — Oral agreement — Written contract — Withdrawal of questions from jury — r\ ew trial ordered. See Evidence, 228. 56. Evidence as to damages — Discretionary order — Reduction of verdict — New trial re- fused. See No. 27, ante. And see Nos. .57 66, infra, and also Criminal Law, 3, 4, 0, 8, 9, 16, 17, 22, 25. 7. Findings of Fact. .57. Neglinence — Joint tort feasors — Joinder of defendants — B. C. Judicature Act — Motion for judgment — Findings of jury — New trial — Practice — Judgment by appellate court.'] — In a case where a tow- ing company made a contract and afterwards engaged the assistance of another transporta- tion company in carrying out the contract, the ship in tow was damaged through care- less and improper navigation by the tugs of both companies employed about the work. Held, reversing the judgment appealed from, that an action in which both companies were joined as defendants was maintainable in that form under the B. C. Judicature Act; that the case coming before the court below on motion for judgment under the order which governs the practice in such cases, and which is identical with the English order 40, rule 10 of the orders of 1875, the court could give' judgment finally determining all matters in dispute, although the jury may not have found on them all, but does not enable the court to dispose of a case contrary to the finding of the jury. In case the court con- siders particular findings to be against evi- dence, all that can be done is to order a new trial, either generally or partially, under the powers conferred by the rule similar to the English order 39, rule 40 ; and that the Su- preme Court of Canada giving the judgment that the court below ought to have given, was in this case in a position to give judgment upon the evidence at large, there being no findings by the jury interposing any obstacle to their doing so, and therefore, a judgment should be entered against both defendants for damages and costs. (See The "Thrasher" Case, 1 B. C. Rep. pt. I., 153.) Sewell v. B. C. Towing Co. and The MooiyvUle Sawmill Co., ix., 527. (The Privy Council granted leave to appeal but the case was settled before hearing.) 58. Negligence — Contributory negligence — Findings of jury — Evidence.'] — On the trial of an action against a street railway company for injuries through the negligence of the company's servants, the jury answered four questions in a way that would justify a ver- dict for the plaintiff. To the fifth question, " Could Eowan by the exercise of reasonable care and diligence have avoided the accident?" the answer was, " We believe that it could have been possible." Beld, that as the other findings established negligence in the defend- ant which caused the accident and amounted to a denial of contributory negligence ; as there was no evidence of negligence on plain- tiff's part in the record ; and as the court had before it all the materials for finally deter- mining the questions in dispute, a new trial was not necessary. Rowan v. Toronto Ry. Co., xxix., 717. 59. New trial — Verdict — Finding of jury — Question of fact — Misapprehension.'] — Where a case has been properly submitted to the jury and their findings upon the farts are such as might be the conclusions of reason- able men, a new trial will not be granted on the ground that the jury misapprehended or misunderstood the evidence, notwithstanding that the trial judge was dissatisfied with the \erdict. (Judgment apnealed from, 32 N. »• Rep. 385, affirmed.) Eraser v. Drew, xxx., 241. 60. Assessment of damages — Estimating by guess — Concurrent findings — Rerersal on appeal — New trial.'] — The evidence being in- suflioient to enable the trial judge to ascertain the damages claimed fOr breach of contract, he stated that he was obliged to guess at the sum awarded and his judgment was affirmed by the judgment appealed from. The Supreme 989 NEW TRIAL. 990 Court of Canada was of opinion that no good result could be obtained by sending the case back for a new trial and, therefore, allowed the appeal and dismissed the action, thus re- versing the concurrent findings of both courts below. Armour, J., howe\er, was of opinion that the proper course was to order a new trial. WiUiams v. Stephenson, xxxiii., 323. 61. Insufficient answers Tiy jury — Final judgment, B. 8. C. c. 135, ss. g;, (g), 30, 61 —Jurisdiction to hear appeal. See Appeal, 172. (32. Evidence — Negligence — care — Unsatisfactory findings. See Railway, 102. Reasonable 63. Direction to jury — Condition pre- cedent ■ — Findings on evidence — Benefit from part performance — Ix'ule for new trial discharged. See CoNTKACT, 59. 64. Employers' LiaMlity Act — Injury to workmen — Evidence — Voluntary exposure — Ifew trial ordered. See Negligence, 87. 65. Action on insurance policy — Findings of jury — Answers to questions — Evidence — New trial refused. See Insurance, Fire, 23. 66. Findings of jury — Answers to ques- tions — Tsegligenoe — Railway company — Act of incorporation — Change of name. See Railways, 150. 8. Misdirection. 67. Ruling as to evidence — Refusal of wttness to answer — Misdirection.'] — The plain- tifE examined as a witness on his own behalf, did not, on cross examination, answer certain questions, relying upon advice of counsel, be- ing interrogated as to his belief that his so doing would tend to criminate him, he re- mained silent and, on being pressed, refused to answer whether he apprehended serious consequences if he answered. The judge then told the jury that there was no identification of the money sought to be recovered and di- rected them that if they should be of opinion that the money was obtained by force or duress they should find for the plaintiff. Reld, Henry, J., dissenting, that the defendant was entitled to the oath of the party that he ob- jected to answer because he believed his an- swering would tend to criminate him. New trial ordered. Power v. Ellis, vi., 1. 68. Issues not suhmitted to jury — Mis- awectton.]— Matters in reference to the na- ture of the terms on which brokers were em- ployed to sell lands and whether the sale went off through the broker's neglect to take an agreement in writing to bind purchasers, T-1V ^^^°^ of vendor's unwillingness or in- aoiiity to complete title were not submitted to the jury. Held, that these matters should nave been submitted with proper directions to the jury by the trial judge, that there had oeen mistrial and that the judgment appealed irom, ordering a new trial, should be affirmed. '^cn.msie V. Champion, xii., 649. 09. Application for insurance — Fair and truthful representations — Direction to jury.] —In an action on a policy of life insurance. It is a proper direction to tell the jury that if there was wilful misrepresentation, or such representation as might mislead the insurer they should find for defendant, but, if the representations in the application for insur- ance were reasonably fair and truthful, to the best of applicant's knowledge and belief, that their verdict should be for plaintiff. Con- federation Life Assur. Go. v. Miller xiv., 330. 70. Deviation on voyage — Loading port — Misdirection — Application to vary or re- verse judgment ordering new trial — Estoppel.] — In an action on a policy of marine insur- ance, where there was a question raised as to " deviation ;" Held, that whether or not Lobos was a " loading port " on the " western coast of South America," within the policy, was a question for the jury and a new trial was ordered on the , ground of misdirection, because it had not been submitted to them. Providence Washington Ins. (Jo. v. Oerow xiv., 731. 71. Directions as to evidence — Giving of credit — Contradictory entries in books of account.] — In an action against McK. & M., as against plaintiffs evidence corroborated by one of the defendants, that goods had been sold to the defendants on their credit, entries in plaintiff's books shewed the goods charged to C. McK. & Co. and credited the same way in the books of C. McK. & Co., and that notes of C. McK. & Co. were taken in payment. M. claimed that the goods had been sold to C. McK. & Co., of which firm he was not a member. The trial judge called the attention of the jury to the state of the entries, the taking of the notes and all the evidence for the defence, and left it entirely to the jury to say as to whom credit was given for the goods. Held, affirming the judgment appeal- ed from (27 N. B. Rep. 42) Strong and Pat- terson, Jj., dissenting, that the case was pro- perly left to. the jury and a new trial was re- fused, ililler V. Stephenson, xvi., 722. 72. Mistrial — Libel — Improper direc- tion — Excessive damages — Reduction of ver- dict.] — Per Strong, Pournier, Taschereau and Gwynne, J.I., where on the trial of an action for libel the case was improperly left to the jury, but the only prejudice occasioned to the defendant thereby was that of excessive dam- ages, the verdict might stand on the plaintiff consenting to the damages being reduced to a sum named by the court. — Per Ritchie, C.J., that as there had been a mistrial the consent of both parties to such reduction was neces- sary. Higgins v. Walkem, xvii., 225. 73. Practice — N. S. Jud. Act, rule ^76— Disposal of whole case on motion for new trial — Direction)! to jury — Observations by judge on issue not pleaded — Dispensing with jury — Equity case.] — In an action for wind- ing up a partnership the defence was that there never was a partnership formed between the plaintiff and the defendants, or, if there was, that it had been put an end to by a verbal agreement between the parties. The Case was tried by a jury and the result de- pended on the credibility to be attached to the respective witnesses on each side who ga\e evidence as to the agreement tnat had been entered into. No issue of fraud was raised 991 NEW TEIAL. 992 by the defendants but the trial judge, In charging the jury, made strong observations in respect to fraudulent concealment of facts from the plaintifO and submitted questions to the jury calling for findings in relation to such fraud. The plaintiff obtained a verdict which was sustained : — Held, reversing the judg- ment appealed from (22 N. S. Rep. 456), Gwynne, J., dissenting, that there should be a new trial. — Per Gwynne, J., unless either party desires to give further evidence the court should render the judgment which the court below ought to have given on the evidence as it stands. — Per Strong, J., under rule 476 of the Judicature Act the court can take a case which has been passed upon by a jury into its own hands and dispose of it. if all the proper materials on which to decide are before it, but in this case the materials es- sential to the final disposition of the case are not before the court and there must be a new trial. — Per Ritchie, G.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 legiti- mately in issue in the cause. — Per Strong, Pournier, Tascher.eau, Gwynne and Patterson, JJ., that the case was essentially an equity case and one in which a jury could advan- tageously have been dispensed with. Hardman V. Putnam, xviii., 714. 74. Charge to jury — Misdirection — Tak- ing accounts.^ — W., a trader, being in finan- cial difficulties assigned all his property to B. who undertook to arrange with W.'s creditors. W. subsequently assigned his property in trust for the benefit of his creditors and the as- signee and some of the creditors brought an action to have the transfer to B. set aside. On the trial, after the evidence on both sides was concluded, plaintiff's counsel asked the judge to instrucft the jury as to what consti- tuted fraud under the Statute of Elizabeth, and he also urged that an account should be taken of the dealings between W. and B. The judge refused to define fraud to the jury as requested and the jury stated that they were unable to deal with the accounts. Judgment having been given for the defendants and af- firmed by the full court. Held, that the re- fusal of the judge to charge the jury as re- quested amounted to misdirection, and there should be a new trial ; that the case could not be properly decided without taking the accounts ; and • that it could be more properly dealt with as an equity case. Griffiths v. Bos- cowit~, xviii., 718. 75. Trespass to land — Misdirection — Mis- conduct of party at view of premises — No- m'liiiil damage^.} — Action for trespass to land by placing ships' knees thereon whereby plain- tiff was deprived of a use of a portion of said land and prevented from selling or leasing it. Defendants denied plaintiff's title. At the trial plaintiff, gave no evidence of actual dam- age but claimed that an action was necessary to protect his title. Evidence was given to shew that the alleged trespass was committed beyond the street line, and plaintiff claimed that the street had never been dedicated to the public and his ownership extended to the centre. Before verdict the jury viewed the premises, one of the terms on which the view was granted being that " nothing said or done by any of the parties or their counsel should prejudice the verdict." The judge charged the jury strongly against the plaintiff and a ver- dict was given in favour of defendants. Plain- tiff moved for a new trial on grounds of mis- direction and of improper conduct of one of the defendants at. the view. The court below refused a new trial. Held, affirming the judg- ment appealed from (30 N. B. Rep. 303) that plaintiff was precluded by the terms on which the view was granted from setting up misconduct thereat in support of the applica- tion ; that there was no misdirection, and that as all plaintiff could obtain at a new trial would be nominal damages it was properly re- fused by the court below. Simonds v. Ches- ley, XX., 174. 76. Misdirection — Negligence — Damage hy fire — Sparlc arrester.] — Action for dam- ages to a barn and its contents by fire, al- leged to have been caused by negligence of defendants in working a steam engine in run- ning a hay press in front of the barn. The main issue was as to sufficiency of a spark arrester, and the judge directed the jury that " if there was no spark arrester in the engine that, in itself, would be negligence for which defendants would be liable." Plaintiff obtain- ed a verdict which was set aside ^nd a new trial ordered for misdirection. Held, affirming the judgment appealed from (23 N. S. Eep. 276), Strong, J., dissenting, that the judge misdirected the jury in telling them that the want of a spark arrester was, in point of law, negligence and ^uch direction may have in- fluenced them in giving their verdict. Peers V. Elliott, xxi., 19. 77. Light and air — Easement — Evidence for jury — Qualification in judge's charge.] — In a case where the complaint was as to clos- ing windows which afforded light and air to an attic it was Held, that the duration of the tenancy of a person holding under the neigh- bouring proprietor when the windows were put into the attic gable was a proper ques- tion for the jury and should have been left to them without qualification as to the owner's knowledge of their existence. Pugsley v. Ring, Cass. Dig. (2 ed.) 241. 78. Partnership — Bookkeeping — Change of system — Direction to jury respecting the keeping of accounts.] — In an action where questions arose as to a dissolution of partner- ship. Held, that it was not misdirection to tell the jury that in considering that question they might, in connection with other evidence, consider the methods of bookkeeping adopted, and whether or not there had been a change in the system at the particular date when the dissolution was alleged to have taken place. O'Brien v. O'Brien, Cass. Dig. C2 ed.) 297. 79. Charge to jury — Advice leading at- tention from special issues — Misdirection.] The judgment appealed from (Q. R. 6 Q. B. 534) affirmed the decision of the Court of Review at Montreal (Q. R. 10 S. C. 316), and a new trial was sought by defendants inter alia, upon the ground that the judge charged the jury in such terms as to lead them away from a proper appreciation of the spe- cial issues of fact and to divert their atten- tion only .to the general question of negli- gence. — In allowing the appeal the Supreme Court observed that the appellant's contention was well founded. Cowans v. MarshaU, xxviii., at p. 172. 993 NEW TEIAL. 994 80. Negligence — Action for damages — Im- proper evidence — Misdirection — 60 Vict. c. U, s. S70 (JV.5.)]— By 60 Vict. c. 24, s. 37U (JS(. B.) "a new trial is not to be granted on tlie ground of misdirection, or of the im- proper admission or rejection of evidence un- less in the opinion of the court some substan- tial wrong or miscarriage has been thereby occasioned in the trial of 'the action." On the trial of an action against the Electric Street Railway Company for damages on account of personal injuries, the vice-president of the company, called on plaintiff's liehalf, was ask- ed on direct examination the amount of bonds issued by the company, the counsel on open- ing to the jury having stated that the company was making large sums of money out ot the road. On cross-examination the witness was questioned as to the disposition of the proceeds of debentures and on re-examination plain- tiff's counsel interrogated him at length as to the selling price of the stock on the Montreal Exchange, and proved that they sold at about 50 per cent, premium. The judge, in charging the jury, directed them to assess the damages as " upon the extent of the injury plaintiff re- ceived independent of what these people may be, or whether they are rich or poor." The plaintiff obtained a verdict with heavy dam- ages. Held, that on cross-examination of the witness by defendant's counsel, the door was not open for re-examination as to the selling price of the stock ; that in view of the amount of the verdict it was quite likely that the gen- eral observation of the judge in his charge did not remove its effect on the jury as to the financial ability of the company to respond well in damages. — The injury for which plaintiff sued was that his foot had been crushed, and on the day of the accident the medical staff of the hospital where he had been taken held a consultation and were ,(livided as to the ne- cessity for amputation. Dr. W., who thought the limb might be saved, was, four days later, appointei} by the company, at the suggestion of the plaintiff's attorney, to co-operate with plaintiff's physician. Eventually the foot was amputated, and plaintiff made a good recovery. On the trial plaintiff's physician swore to a conversation with Dr. W. four days after the first consultation, and three days before the amputation, when Dr. W. stated that if he could induce plaintiff's attorney to view it from a surgeon's standpoint, .and not use it to work on the sympathies of the jury, he might consider more fully the question of am- putation. The judge in his charge referred to this conversation and told the jury that it seemed to him very important if Dr. W. was using his position as one of the hospital staff to keep the limb on when it should have been taken off, and that he thought it very repre- hensible. Held, Strong, C.J., and Gwynne, J., dissenting, that as Dr. W. did not repre- sent the company at the first consultation, when he opposed amputation ; as others of the staff took the same view and there was no proof that amputation was delayed through his instrumentality ; and as the jury would certainly consider the judge's remarks as bear- ing on the contention made on plaintiff's be- half that amputation should have taken place on the very day of the accident, it must have affected the amount of the verdict. — To tell a jury to ask themselves "If I were plaintiff how much ought I to be paid if the company did me an injury?" is not a proper direc- tion. Hesse v. The Saint John Ry. Co., xxx., 218. s. c. D.— 32 81. Charge to jury — Libel suit — Evi- dence of malice — Direction as to issues.] — A plaintiff is entitled to an explicit direction stating the law on points directly affecting issues of which the burden of proof is upon bim. — A judge's charge in a suit for libel is not open to objection for want of an explicit reference to pre-existing unfriendliness be- tween the parties as proof of malice where the only evidence of unfriendliness consisted of hard things said of the defendant by the plaintiff. — Judgment appealed from, 32 N. S. Rep. 129, affirmed. Green v. Miller, xxxi., 177. 82. Negligence — Pleadings — Issues — Evi- dence —7 Contributory negligence — Verdict — • Aew trial — Operation of tramway.] — 'The ac- tion was for damages from injuries to a motor- man through a collision of his car with a special, car returning to the car -barn at unusual speed on the wrong track. A verdict was entered for the plaintiff on the findings of the jury and, on appeal to the Court of Review, defen- dant objected (1) that plaintiff had not denied charges in the statement of defence that the accident had been caused by his fault; (2) that there was misdirection by the trial judge telling the jury that the plaintiff could succeed even if he had himself been ne- gligent if they thought such negligence had not caused the accident; (3) that it had not been alleged that the car which came in collision with that of the plaintiff had no right to be in the place where it was at the time; (4)- that, since the trial, defendant had discovered that plaintiff had stated his age at 47 instead of 45 years; and, (5) that the verdict was against the weight of evidence. Langelier, J., in delivering the judgment appealed from. Held, (1) that objection to the pleadings came too late, after the necessary proof had been made and an amendment permitted ; ( 2 ) that, as in Quebec, contributory negligence would merely tend to reduction of damages, negli- gence not leading to injury could not be con- sidered, and, seeing that the direction did not affect the verdict which attributed the injury solely to the negligence of the defendant, the verdict should not be disturbed; (3) that as evidence had been made without objection on the third point objected to, the objection came too late on the appeal ; (4) that evidence dis- covered after trial must be of a nature tend- ing to change the result of the trial, in order to obtain a new trial, and that the difference of a couple of years in plaintiff's age could not have that effect, and (5) as the evidence was such that a reasonable person could have Concluded as the jury did, there could not be a new trial. The Supreme Court affirmed the judgment appealed from for the reasons stat- ed by Mr. Justice Langelier. Sherbroolce Street R. Co. V. Kerr, 7th November, 1899. 83. D6Ut — Assessment of damages — Ma- terial loss — Injured feelings — Misdirection as to solatium — New trial — Art. 1056 G. C] • — ^In an action of damages brought for the death of a person by the widow and rela- tives under art. 1056, C. p., which is a re-enactment and reproduction of the C S. L. C. c. 78, damages by way of solatium for the bereavement suffered cannot be recovered. Judgment appealed from (M. L. R. 2 Q. B. 25) reversed and new trial ordered. Canadian Pacific Ry. Co. v. Robin- son, xiv.. 105. 84. Mistrial — Answers by jury judgment — Jurisdiction. See Appeax, 174. Final 995 NEW TEIAL. 996 9. Pbactice. 85. Practice — Rule for new trial — Issues on appeal.] — A rule was taken out to set aside a verdict and enter a nonsuit, or for a new trial. The rule was discharged so far as it asked nonsuit, but was made absolute for new trial. On appeal, the Supreme Court held, that although the plaintiff was entitled to re- cover damages, yet, as he had not appealed from the rule ordering a new trial, that rule should be affirmed upon the dismissal of an appeal by the defendant from the judgment of the court below. Canadian Pacific Ity. Co, V. Lawson, Cass. Dig. (2 ed.) 729. 80. Practice — Rule for new trial — Order for nonsuit or verdict for defendant.] — Where the rule had been taken out for a new trial only, the Supreme Court refused to make an order for nonsuit or that verdict for the de- fendant should be entered, but merely af- firmed the rule. Jones v. DeWolff, Cass. Dig. (2 ed.) 767. 87. Evidence — Order for new trial — Prac- iice on appeal.] — Where a verdict for plain- tiff had been set aside by the judgment appeal- ed from and a new trial ordered to try cer- tain questions of fact in the case, such an order will not be interfered with on appeal to the Supreme Court. Scott v. Bank of New Brunswick, xxi., 30. 88. Uisagreement of jury — Motion for judgment — Amendment — New issues ■ — On- tario Judicature Act — Rule 799.] — The judge left to the jury a question of negligence, only reserving other questions for his own decision. . — The jury disagreed. Pending motion by de- fendant for judgment an amendment was al- lowed which had the effect of raising new jssues but, before trial, judgment on the mo- tion was pronounced dismissing the action. field, affirming the judgment appealed from ((which reversed this decision and ordered a new trial ) , that as whether or not the issues involved under the original action or amended pleadings had been considered as passed upon by the judge or jury before they were dis- posed of, the order for new trial was properly piade, and that it was not a case for invoking the process to finally put an end to the action under rule 799. Canadian Pacific Ry. Co. v. Cobban Ufg. Co., xxii., 132. 89. New trial — Consent order — Negligence • — Street railway — Accident to tvorkman — Contributory negligence.] — Plaintiff was in- jured by a car striking him while working on the track. The defence was that he had not been reasonably careful in looking out for the cars. The trial judge, who held that plaintiff was the cause of his own misfortune and could not hold defendant liable, was affirmed by the Dixisional Court but reversed by the Court of Appeal for Ontario, which ordered p. new trial. On the latter decision being af- firmed by the Supreme Court of Can"ada (Gwynne, J., dissenting), counsel for the com- pany stated that a new trial was not desired, ^nd judgment was entered for $500 amount assessed by the jury at the trial. Hamilton Street J!ij. Co. v. Moran, xxiv., 717. 89a. Setting aside judgment for misdirec- tion — Motion for new trial only — Entering judgment on motion or on appeal — Nova S'eotin Judicature Act. 0. 28, r. 10 s O. ]0, r. 10; O. ■')1\ r. 5 — Evidence for jury.] — On mo- tion for new trial it appeared that there was no evidence to go to the jury. The majority of the court (on an appeal from 35 N S Rep. 117), Held, that, as the defendant 'had asked only for a new trial, judgment could not be entered for defendant and, in allowing the appeal a new trial merely was granted. Girouard and Davies, JJ., contra, considered that, under the Xova Scotia Judicature Act rules, the court below could, ex propria motu have entered judgment for the defendant, un- der the circumstances of the case. Per Armour, J. — '• The only course open to us is to allow the appeal, for we cannot, as I had hoped, make a final disposition of the case for order 57, rule 5, of the Xo\a Scotia Judicature Act, applies only to cases tried by a judge without a jury, and order 38, rule 10 to cases tried with a jury." The Chief Jus- tice and Mills, J., concurred with Armour J. Green v. Miller, xxxiii., pp. 19(j 198 212 213, 227. ' ' 90. Equity suit — Construction of statute Persona designata — 5S Vict. c. 4, s. 85 (N B.) See Statutes, 140. 10. Verdict. 91. Action on contract — Unskilful work Counterclaiip, — Verdict for plaintiff — Tech- nical breach by plaintiff — Nominal damages.] — In an action on a contract and also on the common counts to recover the balance of the Contract price for work done for the defend- ant, the evidence shewed that there was a technical breach of the Contract by which, however, the defendant had sustained no sub- stantial damage. A verdict was found for the plaintiff and a rule for a" new trial wais refused by the Divisional Court, and also by the Court of Appeal. Held, affirming the judgment appealed from, that a verdict would not be set aside merely to enter a verdict for nominal damages in favour of the other party. Beatty v. OUle, xii., 706. 92. Uncorroborated testimony of plaintiff — Contradictory evidence — Verdict against weight of evidence.] — Action for goods sold by the plaintiff to defendant's brother; plaintiff gave evidence of an agreement with defendant whereby the latter undertook to give notes at four months_to retire notes at three months given by his brother, the purchaser of the goods. This agreement was carried out for a time, but defendant finally refused to continue it any longer. The evidence shewed that de- fendant always gave his notes to his brother who carried them to plaintiff. Defendant, on the other hand, swore that he never made any such agreement, but only gave notes to his brother to help him in his business. The evi- dence of the plaintiff was entirely uncorrobor- ated. A verdict was found for the plaintiff and new trial was refused. — Held, Ritchie, C.J., and Taschereau, J., dissenting, that the weight of evidence was not sufficiently in favour of the plaintiff to justify the verdict, and there must be a new trial. — Judgment ap- pealed from (24 N. B. Rep. 482) reversed, and new trial granted. Eraser v. Stephenson. Cass. Dig. (2 ed.) 575. 93. New trial — Negligence — Master and ser- vant — Common fault — Jury trial — Assignment of facts— Arts. 353 & iU C. C. P.— Art. 1,$1 C. P. Q. — [neonsi.ttent findings — Misdirectwn — Pleading.] — In an action for injuries alleged to have been caused by negligence, the plain- tiff jnust allege and make affirmative proof of facts sufficient to shew the breach of a duty 997 NONSUIT. 998 owed him by, and inconsistent with due dili- gence on the part of the defendant, and that the injuries were thereby occasioned ; and where in such an action the jury have failed to iind the defendants guilty of the particular act of negligence charged in the declaration as constituting the cause of the injuries; a ver- dict for the plaintiff cannot be sustained and a new trial should be granted. Judgment ap- pealed from, Q. R. 6 Q. B. 534, reversed. Cowans v. Marshall, xxviil., 161. 94. Policy of insurance — Delivery in escrow — Judgment against evidence. See Insurance, Life, 7. 95. Questions of law — Verdict against weight of evidence — Insurable interest — Ap- peal from order entertained. See Appeal, 3G6. 96. Practice — Court of Review — Verdict — Entering judgment — 3^ Vict. c. 4, s. 10 (Que.) —si Vict. c. 6, s. 13 (Que.) See Railway, 108. 97. Collateral agreement to contract — Ques- tions for jury — Verdict — New trial — Duty of appellate court. See No. 8, ante. NONSUIT. 1. Negligence — Adjoining land-owners — Damage from water collecting in cellars — In- jurious user — Action on the case — Declara- tion.^ — Plaintiffs owned a lot in the City of St. John on which they excavated a cellar and erected a building. The soil of the bottom of the cellar and under the foundation was clay. Defendants owned the adjoining lot, on which, in 1848 (when their ancestors purchased it), there was a house with a cellar. S., or his tenant dug another cellar joining the first one, and put up another house on the same lot. Those houses stood until 1871, when they were burned, leaving the cellars uncovered, thus 'leaving one large uncovered hole, bounded on the west by Charlotte street, and on the north by the plaintiff's lot. This hole collected large quantities of water from the street and from the surface, and also by percolation from the land adjoining. When plaintiffs built, the cel- lars being co-terminous with the foundation of the plaintiffs' building, and the soil being clay, the hole retained the water until it gradually softened the clay under plaintiffs' foundation wall, and also gradually destroyed the foundation of the wall itself, and escaped in that way into the plaintiffs' cellar, and thereby caused the side of the plaintiffs' build- ing to settle and the building itself to topple over and damaged it to a large extent. — ^The declaration had a first count for wrongfully, carelessly, negligently and improperly remov- ing the earth and soil of defendant's lot, and negligently continuing it so removed so that there remained holes and excavations, which defendants so negligently managed and left un- covered that large quantities of water Collected and remained in the holes, which water they permitted to flow and escape against, under and through plaintiffs' foundation wall and thereby did damage. Second count. The de- fendants improperly and negligently collected water, &e., and by their carelessness Caused it to flow into the plaintiffs' premises and did Qamage. — The plea was the general issue of not guilty. — A rule for nonsuit pursuant to leave reserved at trial was made absolute on the ground that damage and injury must both concur to afford a right of action, and the evidence shewed only an ordinary and legi- timate use of the defendants' own land, which did not constitute an injury, and therefore they were not liable: Held, affirming the judgment appealed from (2 Pugs. & Bur. 523), that the declaration did not cover the appel- lant's case, and therefore the nonsuit was cor- rect. Trusters of ,St. John Young Men's Christian Ass'n v. Hutchinson, 23rd I'ebruary, 1880; Cass. Dig. (2 ed.) 210. 2. Judge's notes — Voluntary order — Doubt as to consent — New trial.] — On the trial plaintiff was nonsuited, and on rule to set such nonsuit aside, and for a new trial, it was con- tended that the nonsuit was voluntary. The minutes of the trial judge merely stated that a nonsuit was moved for, that the plaintiff's counsel replied, and that judgment of nonsuit was entered, and the judge himself said that he believed the understanding to be that a rule was to be granted. 'The Supreme Court of Nova Scotia held the judgment of nonsuit to be voluntary, and discharged the rule. — On ap- peal the Supreme Court Held, that as there was a doubt as to what took place at the trial, the parties were entitled to the benefit of that doubt, and the rule to set aside the nonsuit must be made absolute. Levy v. Halifax and Gape Breton Ry. and Coal Co., 24th Febru- ary, 1886; Cass. Dig. (2 ed.) 579. 3. Defective sidewalk — Evidence — Findings against fact — Lawful use of street — Contribu- tory negligence — Damages.] — In an action for damages from an injury caused by a defective sidewalk, the evidence of the plaintiff shewed that the accident whereby she was injured happened while she was engaged in washing the windows of her dwelling from the outside of the house, that in taking a step backward, her foot went through a hole in the sidewalk and she was thrown down and hurt ; she knew the hole was there. There was no evidence as to the nature or extent of the hole, nor was affirmative evidence given of negligence on the part of any officer of the corporation. — No motion for nonsuit was made, and the jury were directed that if the plaintiff knew the hole was there, it was contributory negligence ; but if she believed it was firm ground there was no contributory negligence. The jury awarded $300 damages, and a rule nisi for a new trial was discharged. Held, reversing the judgment appealed from (23 N. B. Rep. 559), that there should be a new trial. — Per Ritchie, C.J., and Fournier, J. That the plaintiff was neither walking nor passing over, travelling upon, nor lawfully using the street as alleged in the declaration, and she was, therefore, not entitled to recover. — Per Ritchie, C.J. The damages were excessive. — Per Henry, J. That the plaintiff was lawfully using the street, and there was evidence of negligence on the part of the corporation, but as the question of con- tributory negligence had not been left to the jury as it should have been, there must be a new trial. — Per Tdschereau and Gwynne, JJ. That there was no evidence of negligence to justify the verdict, and a nonsuit should have been granted if moved for. Town of Portland V. Griffiths, xi., 333. 4. Action for malicious prosecution — Pro- bable cause — Inferences — Function of judge — New trial.] — In an action for malicious prose- cution, the existence or non-existence of rea- 999 NOTICE. 1000 sonable and probable cause is to be decided by the judge and not the jury. — A., staff in- spector of police, laid an information charging M. with keeping a house of ill-fame. In lay- ing the information, he acted on a statement made to him by U., a frequenter of the house, sufficient, if true, to prove the charge. A warrant issued, M. was arrested and brought before the magistrate, who, after hearing the evidence, dismissed the charge. — The action was tried three times, each trial resulting in a nonsuit, which was set aside and a new trial ordered. lYom the judgment ordering the third new trial A. appealed, and, the judges being equally divided, the order stood. On this last trial it was shewn that A. had re- quested the inspector for the division in which M.'s house was situate to inquire about it, and that, after the information, the inspertor re- ported that there were frequent rows in the house, but he thought there was nothing in the charge. The trial judge held that want of reasonable and probable cause was not shewn and withdrew the case from the jury. The Divisional Court held that he should have asked the jury to find on the fact of A.'s be- lief in the statement on which he acted in bringing the charge. Held, Taschereau, J., dissenting, that A. was justified in acting on the statement, and, the facts not being in dis- pute, there was nothing to leave to the jury and the trial judge rightly held that no want of reasonable and probable cause had been shewn. Lister v. Perry man (L. R. 4 H. L. 521) followed; Airath v. North-Eastern Ry. Co. (11 App. Gas. 247) considered. Arohi- iald V. McLaren, xxi., 588. NOTARY. 1. Notarial profession in Queiec — Convey- ancing — Duty vn prevention of fraud — Illiter- acy. — Insolvent succession — Acts of adminis- tration — Arts. 646, 650 G. 0.] — A notary, practising his profession as such in the Pro- vince of Quebec, when acting as a conveyancer for illiterate persons, has imposed upon him the duty of explaining to them the effect of the legal and equitable obligations consequent up- on the execution of a deed. Judgment appeal- ed from, 3 Dor. Q. B. 123, affirmed. Ayotte V. Boucher, ix., 460. 2. Board of notaries — Disciplinary powers —R. 8. Q. art. 387i.J— When a charge dero- gatory to the honour of the profession of notary is made against a notary under the provisions of R. S. Q. art. 3871, which amounts t» a Crime or felony, the Board of Notaries has jurisdiction to investigate it without waiting for the sentence of criminal jurisdiction. Judgment appealed from, Q. R. 1 Q. B. 176 ; 17 Q. L. R. 185, affirmed. Trem- blay v. Bernier, xxi., 409. 3. Employment in professional capacity — Qualifivation to act as arbitrator — 44 Vict. c. |tJ (Q«e. )] — ^An award was made by a ma jority of arbitrators on the 1st September, 1883, establishing at the amount of ?4,474 the indemnity to be paid to respondents for land of which they were dispossessed by appellants under 45 Vict. c. 23 (Q.) Action was taken for that sum and costs of arbitration and law costs, amounting altogether to $4,658.20, and a judgment recovered with interest and costs, which was affirmed by the Queen's Bench. The principal defence was that C, being agent of respondents, was disqualified to act as their arbitrator. Held, that the evidence shewed that C. was not in the continuous employ of respondents, but acted for them from time to time only, in his professional capacity as a notary public, and not in any other capacity • he was not disqualified. North Shore Ry. Go V. Ursuline Ladies of Quebec, Oas. Dig. (2 ed. ) 36. NOTICE. 1. Assessment and Taxes, 1, 2. 2. Chaeges on Land, 3-11. 3. Condition Precedent, 12-19. 4. CoNSTEUCTrvE Notice, 20-27. 5. Exemption feom Liability, 28, 29. 6. Peactice and Proceduee, 30 39. 7. Sureties, Notice to, 40-42. 8. Othbe Cases, 43-51. 1. Assessment and Taxes. 1. Sale of land for taxes — Defective pro- ceedings — Halifax Assessment Act, 188S — Healing clauses — Evidence.] — The provision in the Halifax City Assessment Act, 1883, that a tax sale deed shall be conclusive evi- dence of compliance with all provisions of the statute, does not cover failure to give notice of assessmeiit required before the taxes could be imposed. Judgment appealed from, 21 N. S. Rep. 155. 279, affirmed. O'Brien v. Cogs- well, xvii., 420. 2. Resolution of municipal council — Notice of assessment — Local improvements — Quash- ing roll — Payment in error of law — Repetition' de Vindu.'] — ^An objection as to the invalidity of an assessment for want of notice which has not been charged 'in the pleadings nor relied upon at the trial is irrelevant upon an appeal. Bain v. City of Montreal, viii., 252. And see Assessment and Taxes, 49. 2. Chaeges on Land. 3. Trespass — Party wall — Constructive no- tice — Visible incumbrance.] — Per Ritchie, C.J. Where an incumbrance upon a party wall is not so prominent and conspicuous as to be necessarily visible and a purchaser has not actual notice of its existence he is not liable as for the consequences of negligent ignorance on account of the want of extraordinary cir- cumspection in examination of the premises at the time of purchase. Judgment appealed from, 2 Russ. & Geld. 44, reversed. Ross v. Hunter, vii., 289. 4. Mortgage — Agreement to charge lands — Statute of Frauds — Registry .^-^Thf: solicitor of the mortgagee wrote the memo, on one of his letter forms under the printed words " Dear Sir," his own name being at the bot- tom on the left side, and he made an affidavit, as subscribing witness, to have it registered.' Lot 19 having been mortgaged to another per- son, one of the mortgagees of the Christopher farm brought an action to have it declared that she was entitled to a charge or lien thereon, in which action it was contended that the solicitor was not a subsci-ibing witness but only the person to whom the letter was ad- dressed. Held, affirming the judgment ap- pealed from (22 Ont. App. B. 175), that the solicitor signed the agreement as a witness and the registration was, therefore, regular. 1001 NOTICE. 1003 but if not, as the document was upon the re- gistry the subsequent purchaser had actual notice by which he was bound notwithstand- ing the informality in the proof of execution which did not malie the registration a nullity. — Held, per Tasehereau, J., that the agreement did not require attestation, and if the solicitor was not a witness it should have been indorsed with a certificate by a county court judge as required by K. S. O. (1887 J a. 114, s. 45, and as the agreement had been registered the court would presume that the necessary certifi- cate had been obtained. Hooker v. Hoof- siettcr, xxvi., 41. 5. Registered deed ■ — Actual and implied knowledge — Possession in had faith — Inter- ruption of prescription.] — Where the title to lands has been registered a person claiming adverse possession to the grantee is charged with notice either actual or implied as to the limits and boundaries of the lands therein de- iscribed to such an extent as may afCeCt the iona fides of his possession. Chalifour v. Parent^ xxxi., 224. (). Equitable title — Registered deed — Actual notice — Constructive notice — Parol agree- ment. See Registry Laws, 1. 7. Vendor's lien — Agreement for sale of land — Letter to attorney. See Lien, 2. 8. Assignee's sale — Conditions — Mistake — Description of mortgaged property — Estoppel. See Vbndob and Puechasbe, 19. 9. Legacy — Charge on realty — Priority. See EXECXTTOBS and Administrators, 4. 10. Registry laws — Registered deed — Pri- ority over earlier grantee — Postponement. See Registky Laws, 28. 11. Conveyance of trust estate — Notice to equitaile owner — Estoppel. See Title to Land, 7. 3. Condition Precedent. 12. Fire insurance — Condition in policy — Notice of subsequent insurance — InaiUity of assured to give notice.] — ^By a condition in a policy of insurance against fire tlie insured was " forthwith " to give notice to the com- pany of any other insurance made, or which might afterwards be made, on the same pro- perty and have a memorandum thereof in- dorsed on the policy, otherwise the policy would be void ; provided that if such notice should be given after it issued the company had the option to continue or cancel it. Held, aiBrming the judgment appealed from, that this condition did not apply to a case in which the application for other insurance was ac- cepted on the day on which the property in- sured was destroyed by fire and notice of such acceptance did not reach the assured until after the loss. Commercial Union Assur. Co. V. Temple, xxix., 206. 13. Previous insurance — Verbal notice to agent — Representation in application. See Insurance, Fire, 92. 14. Condition in policy of fire insurance — Verbal notice to agent — Waiver — Estoppel. See Insurance, Fiee, 20. 15. Guarantee policy — Honesty of employee — Notice of defalcation. See Suretyship, 7. 16. Condition in fire insurance policy — No- tice of additional insurance -=- Loss before knowledge of acceptance — Duty of insured. See Insurance. Fire. 42. 17. Accident insurance — Condition in policy — Notice — Condition precedent — Action. See Insurance, Accident, 4. 18. Fire insurance — Conditions of policy — Change in risk — Foreign statutory conditions —R. S. 0. (1897) c. 203, s. 168. See Insurance, Fire, 33. 19. Landlord and tenant — Lease for eleven months — Monthly or yearly tenancy — Over- holding. See Landlord and Tenant, 2. 4. Constructive Notice. 20. Conveyance of land — Misrepresentation — Boundaries — Knowledge by purchasei — In- quiry — Rescission of contract. See Title to Land, 2. 21. Shares held " in trust " — Sale of minor's stock— Purchase for value — Account. See Trusts, 7. 22. Shares held in trust — Transfer by trus- tee — Duty as to inquiry. See Pledge, 5. 23. Will — Executors and trustees under — Breach of trust by one — Inquiry — Dealing with assets as executor or trustee. See Trusts, 12. 24. Principal and agent — Agent's authority — Representation by agent — Principal affected by — Advantage to other than principal — ■ Knowledge of agent — Constructive notice. See Principal and Agent, 25. 25. Mortgage — Sale of mortgaged land for taxes — Purchase by mortgagor — Action to foreclose — Pleading. See Mortgage, 35. 26. Bills and notes — Conditional indorse- ment — Principal and agent — Knowledge by agent — Constructive notice — Deceit by bank manager. See Bills and Notes, 26. 27. Registry laws — Prior conveyance — Con- structive notice. See Prescription, 19. 5. Exemption from Liability. 28. Express company's receipt — Limitation of liability — Condition precedent — Notice of action. See Carriers, 12. 29. Liability of Grown — Government rail- way — Negligence — R. S. C. c. 38, s. 50. See Negligence, 219. And see Nos. 40 to 42, infra. Mm.- 1003 NOTICE. 1004 0. Pkaotice and Procedure. 30. Action for false arrest — 0. 8. L. C. c. 101 s. 1 — Practice — Question not directly be- fore court^Art. 22 C. G. P.]— Plaintiff, wliile grand master of tiie Orange Order in Mon- treal, was arrested for disturbing the peace, and brought action against the mayor for false arrest. Notice of action was given as follows : " We give you notice that D. G., of the City of Montreal, salesman and trader, will claim from you personally the sum of $10,000 damages, by him suffered from the abuse made of your authority in causing his arrest illegally and for no cause on the 12th of July last (1878), and that unless you make proper amend and reparation of such damages within a month, judicial proceedings will be adopted against you.". (Sgd.) D., B. & McC, advocates for plaintiff." The Su- perior Court considered that the notice was insufficient in not stating the place where the alleged arrest was effected, and also in not stating the name and residence of plaintiff's attorney or agent, .and this judgment was af- firmed by the Court of Queen's Bench, which further held, that G. was properly arrested, being a member of an illegal association. (2 Dor. Q. B. 197). Held, aflBrming the judg- ment appealed from (2 Dor Q. B. 197; 2 Legal News 393 ; 4 Legal News 354), that the notice of action was insufficient, for the rea- sons given by the Superior Court, and also because the cause or causes of action, as set out in the declaration, were not sufficiently stated in the notice, and that any expression of opinion as to the legality or illegality of the Orange Association would be extra judi- cial and unwarranted. Qrant v. Beaudry, Cass. Dig. (2 ed.) 581. 31. Appeal — Dismissal for want of appear- ance — Application to reinstate — lHotice — Practice — Vosts.'i — An appeal had been regu- larly inscribed on the roll for hearing at the May sittings of the Supreme Court of Canada, and on 18th May, 1898, the case being called in the order in which it appeared upon the roll, no person appeared on behalf of the ap- pellant. Counsel appeared for the respondent and asked that the appeal should be dismissed for want of prosecution. The court referred to the fact that the case had been called in its proper place on the roll on the previous day and allowed to stand over because coun- sel were not present on the part of the appel- lant, and the appeal was dismissed with costs. — On 20th May, 1898, application by motion was made on behalf of the appellant to have the appeal reinstated and restored to its place on the roll for hearing on such terms as the court might deem appropriate, the ground stated for requesting such indulgence being that counsel for the appellant were under a misapprehension as to the time when the hear- ing was to take place. The motion was op- posed by counsel for the respondent, who ob- jected that proper notice of the motion had not been given as required by the rules of practice. — The court refused to hear the mo- tion or to make an order staying the issue of the certificate of the judgment already render- ed dismissing the appeal, but under the cir- cumstances the motion was dismissed without costs. Hall Mines v. Moore, 20th May, 1898. _ 32. Question of local practice — Inscrip- tion for proof and hearing — Peremptory list - — Notice — Requite civile.] — Where a grave injustice had been inflicted upon a party to a suit, the Supreme Court of Canada will inter- fere for the purpose of granting relief, al- though the question involved upon the appeal may be one of mere local practice only. Lamhe v. Armstrong (27 Can. S. C. R. 390) followed. — Under a local practice prevailing in the Superior Court in the District of Mon- treal, the plaintiff obtained an order from a judge fixing a day peremptorily for the ad- duction of evidence, and hearing on the merits of a case by precedence over other cases pre- viously inscribed on the roll, and without no- tice to the defendant. The defendant did not appear, and judgment by default was entered in favour of the plaintiff. Held, reversing the judgment of both courts below, upon the de- fendant's requete eivUe, that the order was improperly made for want of notice to the adverse party, as required by the rules of practice of the Superior Court. Eastern Townships Bank v. Swan, xxix., 193. 33. Hearing of appeal — Order time for notice — Discretion of trial judge. See E1.ECT10N Law, 7. 34. Negligence — Non-repair of municipal drains — Damages — Mandamus — Notice of action— R. S. O. (1887) c. I84. See Dbainage, 2. 35. Action for damages — Highways — Negli- gence — Pleading — 3^ Vict. c. 11 (N. B.) See Municipal Cokpokation, 141. 36. Suit against fishery officer — Trespass — Riparian owner — G. S. N. B. cc. 89, 90. See Fisheries, 3. 37. Bill of lading — Glaim for loss — Time limit — Estoppel — Delivery — Bailment. See Railways, 3. 38. Suits against Grown officers — " Em- ployee " — Government Railways Act, 1881. See Crown, 64. 39. Bailees — Common carriers — Express company receipt for money parcel — Condi- tions precedent — Formal notice of claim — Pleading — Money counts — Special pleas. See Action, 21. 7. Surety, Notice to. 40. Dishonour of note — Mailing notices in post office. See Bills and Notes. 34. 41. Principal and surety — Guarantee bond — Default of principal — Non-disclosure by creditor. See Principal and Surety, 5. 42. Suretyship — Conditional warranty — Notice — Possession of goods — Art. 1959 G. C. See Suretyship, 10. 8. Other Cases. 43. Mining regulations — Publication — Payment of royalties — Dominion Lands Act.J —The provision in s. 91 of the ponnnion Lands Act that regulations made thereunaer shall have effect only after publication for tour 1005 NUISANCE. 1006 successive weeks in tlie Canada Gazette means that tlie regulations do not come into force on publication in the last o£ the four successive issues of the Gazette, but only on the expii-a- tion of one week therefrom. Thus where they were published for the fourth time in the is- sue of September 4th they were not in force until the 11th and did not affect a license granted on September 9th. — Where regula- tions provided that failure to pay royalties would forfeit the claim, and a notice to that effect was posted on the claim and served on the licensee, payment by the latter under pro- test was not a voluntary payment. The King V. Chappelle, dc, xxxii., 58G. H. Term for redemption — Completion of building — Mise en demeure. See Sale, 83. 45. Dissolution of partnership — Expul- sion of partner — Waiver. See Paetnership, 23. 46. Assignment of chose in action — Suit by assignee — R. S. JV. S. (4 ser.) c. 94, ss. S55, 357. 8e,e Chose in Action, 1. 47. Defective use of machinery — Injury to workman — Employer's liah'ility — Failure to report defect. See Mastek and Servant, 32. 48. Composition and discharge — Acqui- escence in new arrangement of terms of settle- ment — Notice of withdrawal from agree- ment. See Composition and Discharge. 49. Negligence — Unsafe premises voluntarily incurred. See Negligence, 5. Risk 50. Cancellation of contract — Gas supply — Shut off for non-payment of gas iUl on other premises — Construction of contract — Construction of statute. See Gas Company. 51. municipal corporation — Waterworks — Rescission of contract — jUise en demeure — Long user — Waiver — Art. 1067 C. U. See Contract, 29. And see Action — Appeal — Assignment — Carriers — Municipal Corporation — Pleading — Practice — Registry Laws Title to Land. NOVATION. 1. Indication of payee — Delegation — Ex- eeption ly oUigee—Arts. 1174, 1-^80 G. C] — The consent of an insurance company to pay the amount of a policy of life insurance, in case of death, to a beneficiary indicated by ije person insured does not effect novation in the case of a policy void ah initio, and the pro- visions of art. 1180 C. C. do not apply in such l^ase. Venner v. Sun Life Ins. Co., xvii., 2. Dissolution of partnership — Assets and ItaMlities — New firm of continuing partner. See Tktjsts, 10. 3. Unpaid note — Security for by deed — Interruption of iJrescriplion — Art. ajfj.^ C. 0. See Prescription, 6. 4. Ve^ndor and purchaser — Agreement for sale of lands — Assignment — Principal and suretij — Deviation from terms of agreement — Giving time — Creditor depriving surety of rights — Secret dealings with principal — Release of lands — Arrears of interest — No- vation — Discharge of surety. See Principal and Surety, 4. 5. Prescription — Arts. 21S8, "d.iG.i. 2'Mi7 C. G. — Waiver — Failure to plead limitation — Defence supplied by court — Reservation of recourse for future damages — Judicial ad- mission — Interruption of prescription — Costs. See Limitation of Actions, 23. And see Contract, 182, 183. NUISANCE. 1. Tannery — Pollution of running stream — Long user — I n junction.] '\', acquired a lot adjoining a small stream and finding the water polluted from noxious substances thrown into the stream brought an action in damages against C, the owner of a tannery situated fifteen arpents higher up the stream, and asked for an injunction. C. and his pre- decessors had from time immemorial carried on tanning there, using the water for tanning purposes to the knowledge of all the inhabi- tants without complaint on their part ; it was the principal industry of the village ; the stream was partly used as a drain by the other proprietors of lands adjoining the stream and manure and filth were thrown in, but every precaution was taken by C. to pre vent any solid matter falling into the creek. \V. had acquired the property long after C. had been using the stream for tannery purposes, and there was no evidence that the property had depreciated in value by the use C. made of the stream. Held, afiirmirg the judgment appealed from (M. L. R. 4 Q. B. 197; that W., under the circumstances proved in this case, was not entitled to an injunction to re strain C. from using the stream as he did. Weir v. Claude, xvi., 575. 2. Municipal drains — Flooding lands — Action by adjoining municipality. 'i — Damages for flooding lands cannot be recovered by an adjoining municipality against the municipal- ity constructing drainage works even though the nuisance occasioned was general, but Com- pensation for repairs to roads washed away might be recovered. Tmvnship of Sombra v. Township of Chatham, xxi., 305. 3. Livery stable — Offensive odours — Noise of horses.] — Though a livery stable is con- structed with all modern improvements for drainage and ventilation, if oifensive odour therefrom, and the noise made by the horses are a source of annoyance and inconvenience to the neighbouring residents, the proprietor is liable in damages for the injury caused thereby. Gwynne, J., dissenting. Drysdale v. Dugas, xxvi., 20. Followed in Gareau v. Montreal Street Ry. Go. (31 Can. S. C. R. 463), No. 6, infra. 4. Constitutional law — Navigable waters — Title to bed of stream — User — Obstruc- 1007 NULLITY. 1008 tion to navigation — Public nuisance — Bal- ance of convenience.'] — An obstruction to navi- gation cannot be justified on the ground that the public benefit to be derived from it out- weighs the inconvenience it causes. It is a public nuisance though of a very great public; benefit, and the obstruction of the slightest possible degree. The Queen v. Moss, xxvi., 322. 5. Municipal corporation — Highway — En- croachment upon street — 'Negligence — 06- struction of show-window — Municipal of- ficers — Action for damages — Misfeasance during prior ownership — Nonfeasance — Sta- tutahle duty.'] — An action does not lie against a municipal corporation for damages in re- spect of mere non-feasance, unless there has been a breach of some duty imposed by law upon the corporation. The Municipality of Pictou V. Geldert (1893) A. C. 524, and The Municipal Council of Sydney v. Bourke (1895) A. C. 433, followed.— An action does not lie against a municipal Corporation by the proprietor of lands for damages in respect thereof, through the mistake or misfeasance of the corporation or its officers, alleged to have occurred prior to the acquisition of his title thereto. — A municipal corporation is not civilly responsible for acts of its officers or servants other than those done within ' the scope of their authority as such. Gity of Mon- treal V. Mulclair, xxviii., 458. 6. Operation of electric railway — Power house machinery — Vibrations, smoke and noise — Injury to adjoining property — Evi- dence — Assessm.ent of damages — Reversal on questions of fact.'] — Notwithstanding the pri- vileges conferred by its Act of incorporation, upon an electric street railway company for the construction and operation of an electric tramway upon the public thoroughfares of the city, the company is responsible in dam- ages to the owners of property adjoining its power house for any structural injuries caus- ed by the vibrations produced by its ma- chinery and the diminution of rentals and values thereby occasioned. Drysdale v. Dugas (26 S. C. R. 20) followed.— In an action by the owner of adjoining property for damages thus caused the evidence was contradictory and the courts below gave effect to the testi- mony of scientific witnesses in preference to that of persons acquainted with the locality. Held, Taschereau, J., dissenting, that notwith- standing the concurrent findings of the courts below, as the witnesses were equally credible the evidence of those who spoke from person- al knowledge of the facts ought to have been preferred to that of persons giving opinions based merely upon scientific observations. — In reversing the judgment appealed from, the Supreme Court, in the interest of both parties, assessed damages, once for all, at an amount deemed sufficient to indemnify the plaintifE for all injuries, past, present and future, result- ing from the nuisance complained of, should she elect to accept the amount so estimated in full satisfaction thereof ; otherwise the record was ordered to be transmitted to the trial court to have the amount of damages deter- mined. Gareau v. ilonlrcul titrcet Ry. Co., xxxi., 4G3. 7. Embankment — Flooding premises — Ob- struction — Trespass — Continuing damages.] — In 1888 the Canada Atlantic Railway Com- pany ran their line through Britannia Ter- race, a street in Ottawa, in connection with which they built an embankment and raised the level of the street. In 1895 the plaintiffs became owners of land on said street on which they have since Carried on their foundry busi- ness. In 1900 they brought an action against the Canada Atlantic Railway Company al- leging that the embankment was built and level raised unlawfully and without author- ity and claiming damages for the flooding of their premises and obstruction to their ingress and egress in consequence of such work. Held, that the trespass and nuisance (if any) com- plained of were committed in 1888, and the then owner of the property might have taken an action in which the damages would have been assessed once for all. His right of ac- tion being barred by lapse of time when the plaintiff's action was taken the same could not be maintained. Ghaudiire Machine & Foundry Co. v. Canada Atlantic Ry. Co., xxxiii., 11. 8. Suffrance — Public property user — Possession. See Estoppel, 1. Long 9. Discharge of steam — Injury to neighbour — Sic utere tuo ut alieno ne Itedas. See Negligence, 3. 10. Level of street — Pence on embankment — Access cut off — Powers and duty of muni- cipal council. See Municipal Coepoeations, 163. 11. Street obstruction — Street railway — Height of rails — Statutory obligation — Ac- cident to horse. See Negligence, 242. 12. Municipal corporation — Public market — Licensing traders and hucksters — Obstruct- ing streets and sidewalks — Loss of rents — Dam,ages, See Municipal Corpobations, 155. 13. Esopropriation of lands — Uses injuri- ous to adjacent property — Depreciation in prdspective value. See Rifle Ranges. NULLITY. 1. Assignment — Prete-nom — Notice — Reg- istration — • Action to annul — Parties in i»- terest.] — The nullity of a deed of assignment can only be invoked by proceedings to which all persons interested in the deed have been made parties. Guertin v. Oosselin, xxvii., 514. 2. Donation in form of sale — Gifts in contemplation of death — Morcal Ulness of donor — Presumption of nullity — -_ 'Validat- ing circumstances — Dation en paiement — Arts. 762, 989 G. C] — During her last illness and a short time before her death, B. granted certain lands to V. by an instrument purport- ing to be a deed of sale for a price therem stated, but in reality the transaction was in- tended as a settlement of arrears of salary due by B. to the grantee, and the consideration acknowledged by the deed was never paid. Held, reversing the decision of the Court or Queen's Bench, that the deed could not be set aside and annulled as void under the pro- visions of article 762 of the Civil Code, as the circumstances tended to shew that ttie 1009 OPPOSITION. 1010 transaction was actually for good Considera- tion (dation en paiement), and consequently legal and valid. Valade v. Lalonde, xxvii., 551. 3. Local improvements — Notice — Illegal assessment — F.ayment in error of law — I'roof — Uepetition de I'indv,. See Assessment and Taxes, 49. 4. Prohibitive law — Parol testimony — Written instrument — Arts. Ik, 123^ G. C. 8ee Appeal, 212. 5. Bond to sheriff — Fraud — New evi- dence — Bequete civile. See Sheriff, 10. 6. Evidence — Estoppel — G. G. arts. Sll and WfS. See Evidence, 49. 7. Assignment for benefit of creditors — Pre- ferences — Moneys paid under voidable assign- ments — Liability of assignee. See Assignments, 6. 8. Title to lands — Sheriff's deed — Limita- tion of actions — Equivocal possession. See Evidence, 239. 9. Life insurance — Wagering policy — Waiver — Estoppel — H Q-eo. III., c. 48 {Imp.)— Arts, mo, 2590 G. G. See Insurance, Life, 21. 10. Fraudulent preference — Bribery legal consideration — Costs. See Assignments, 7. II- 11. Go-relative agreements — Illegal con- sideration — Judicial notice of invalidity. See LoTTEET. 12. Penal statute — Prohibited contract — Railway director — Partnership with con- tractor — Action pro socio — " The Gonsolir dated Railuaij Act. 1879." See Statute, 20. _ 13. Husband and wife — Judicial separa- tum as to property — Debts incurred by hus- band before dissolution of community — Obli- gation by wife — Art. 1301 G. G. — Public policy. See Husband and Wipe, 8. OATH. Adverse mineral claim — Form of affidavit — mght of action — Condition precedent — Blank m jurat— 61 Vict. c. S3, s. 9 (B.C.)— B. C ft«preme Court rule 415 of 1890. See Mines and Minerals, 15. ONTARIO FACTORIES ACT. Negligence — Injury to worlnnan — Proxi- mate cause—Ontario Factories Act— Fault of jeuow-workman. See Negligence, 19, 21. OPPOSITION. 1. Collocation and Distribution, 1. 2. (On) Executions, 2-10. (a) Afl/n d'annuler, 2-5. (6) Afin de charge, 6. (c) A/In de conserver, 7. (d) Afin de distraire, 8-10. 3. (To) Judgments, 11-15. 4. Oppositions en Sous Okdre, 16. 5. Writs of Possession, 17. 1. Collocation and Distribution. 1. Appeal — Collocation and distribution — Hypothecs— Arts. 20', lU and 161 G. G. P. — Assignment — Notice — Registration — Prete- nom — Action to annul deed — Parties in in- terest — Incidental proceedings.] — The appeal from judgments of distribution under art. 761 C. C. P. is not restricted to the pgjrties to the suit, but extends to every person having an interest in the distribution of the moneys levied under the execution. — The provisions of art. 144 C. C. P. that every fact of which the existence or truth is not expressly denied or declared to be unknown by the pleadings filed shall be held to be admitted, applies to inci- dental proceedings upon an appeal in the Court of Queen's Bench. — The nullity of a deed of assignment can only be invoked by proceedings to which all persons interested in the deed have been made parties. Ouertvn v. Oosselin, xxvii., 514. 2. (On) Executions, (o) Afin d'annuler. 2. Practice — Tierce opposition — Opposition afin d'annuler — Will — Exemption from seizure -—Judgment in respect to matters dehors the succession — Locus standi of beneficiaries — Res inter alios acta.'\ — ^The will declared the pro- perty devised insaisissable. save for debts of the succession. Upon seizure of property of the estate in execution of a judgment obtained in respect of a debt contracted by the executor and one of the beneficiaries in a transaction dehors the succession, the bene- ficiaries under the will contested the execu- tion by opposition afin d'annuler. Held, that the beneficiaries were not obliged to contest by means of tierce opposition and were entitled to oppose the execution as they had done on the ground that the judgment was the result of res inter alios acta and the property Could not be seized thereunder. Lionais v. Molsons Bank, x., .526. 3. Appearance by attorney without auth- ority — Judgment by default — Disavowal—- Opposition afin d'annuler — Arts, 483, 484 505 G C. P.— Con. S. L. G. c. 83, s. 112.]— Appellant, jointly with S. J. D., signed a note in favour of Angus JIcDonald, in his lifetime of Becancour, in the Province of Quebec, at Three Rivers, on 20th February, 1862, for $800, payable at the Bank of Upper Canada in Three Rivers, on 25th June, 1862.— On 1st April 1874, the sheriff of Three Rivers wrote to appellant that a judgment against him had been placed in his hands for execution, and this, he alleged, was the first he had ever heard of the note since the day he had signed it. — Appellant being absent at the time and ignor- ant of any proceedings against him, on receipt 1011 OPPOSITION. 1012 of this letter filed an opposition o/im d'annuler and petition. — It appeared that a summons is- sued out of tlie Superior Court at Three Rivers on 10th October, 1866, against the ap- pellant and S. J. D. was served at the domi- cile of S. J. D., but the bailiff returned that he had served a copy at their domicile (although the appellant alleged he had no domicile in Three Rivers at the time) and on the 26th Oc- tober, 1886, an appearance was filed for the de- fendants by D., an advocate, but without any authority from the appellant, who knew no- thing of the proceedings. — The next proceeding, after this appearance, was by a notice served on D., on 5th January, 1874, without any step having been taken by the plaintiff in the meantime. — Proceedings were carried on and services effected on D., of which he appears to have taken no notice up to judgment by de- fault on 2nd March following, of all whic'h the appellant alleged he was in utter ignor- ance, until apprised of the execution as above. — D., upon oath, stated that he was never em- ployed by appellant, never had any communi- cation with* him upon the subject of this suit and never informed him of the proceedings when served with notices in continuation of the suit in 1874. and that shortly after the ap pearance was filed by him in October, 1866, he was informed by the other defendant, who alone had employed him, that the case was settled. — Rolette, J., dismissed the opposition with costs, and this judgment was affirmed by the Court of Queen's Bench. Held, affirming the judgment appealed from, that the opposi- tion Could not be taken to have been made un- der art. 484 C. C. P., the judgment of 2nd March, 1874, having been rendered by the court in term, and against such a judgment this opposition does not lie. That under C. S. L. C. c. 83, s. 112, the appellant should have proved that the place where the process was served was not his real domicile, and this he had not attempted to do. That if made under art. 505 C. C. P., the appearance by attorney covered any defect in the signification or the bailiff's return, or even an entire want of signification, and this would be fatal under art. 505, as well as art. 483. That the only way the appellant could get rid of the appear- ance was by a regular disavowal, according to arts. 192 et seq. C. C. P. No such dfsavowal having been made, he must be taken to have waived, by the appearance filed in his name, all the irregularities in the service and even the entire absence of service. Dawson v. J/oc- donald, CaSs. Dig. (2 ed.) 586. 4. Amount in controversy — Right of appeal — Setting aside order of provincial judge. See Appeal, 320. 5. Seizure for less than $2.000 — Amount in controversy. See Appeal, 47. (6) Afin de Charge. &. Pledge of railway property — Judgment creditoi — Remedy of lien-holder — Oppositions afin de charge or afin de consrrver.'} — Art. 419 O. O. does not give a registered pledgee a right of retention against execution creditors, but the remedy of the pledgee is by opposition afin de conserver. Great Eastern Ry. Co. v. Lamie, xxi., 431. And see Lien, 7.. (c) Afin de Conserver. 7. Pledge of railway property — Judgment creditor — Remedy of lien-holder. See Lien, 7, and No. 6, ante. PI {d) Afin de Distraire. 8. Appeal — Jurisdiction — Amount in contro- versy — Oppoxition afin de distraire— Judicial proceeding — Demand in original action — R. 8. C. c. 135, s. 29.'] — An opposition afin de dis- traire. for the withdrawal of goods from seiz- ure, is a " judicial proceeding " within the meaning of s. 29 of " The Supreme and Ex- chequer Courts Act," and on an appeal to the Supreme Court of Canada, from a judgment dismissing such opposition, the amount in Con- troversy is the value of tlje goods sought to be withdrawn from seizure and not the amount demanded by the plaintiff's action or for which the execution issued. Turcotte v. Dansereau (2(! Can. S. C. R. 578). and McGorUll v. Knight (3 Can. S. C. R. 233; Cass. Dig. 2 ed. 694), followed; Ghampouai v. Lapeirre (Cass. Dig. 2 ed. 426). and Gendron v. McDougall (Cass. Dig. 2 ed. 429), discussed and distm- guished. King v. Dupuis dit Gilbert, xxviii., 388. 9. Seizure of land — Amount in dispute — Supreme Court Act (1879) s. 8 — Appeal — Jurisdiction. See Appeal, 49. 10. Insolvency of execution debtor — Incom- plete assignment — Art. 772 G. C. P. See Execution, 5. 3. (To) Judgments. 11. Appeal — Jvrisdiction — Judicial proceed- ing — Opposition to judgment.'] — An opnosition to judgment under art. 484 C. C. P. is a " judicial proceeding " within the meaning of s. 29 of " The Supreme and Exchequer Courts Act," and there is an appeal to the Supreme Court if, at the filing of the opposition, the principal and interest due under the judgment sought to be annulled amount to $2,000,_ where such appeal depends upon the amount in con- troversy. Turcotte v. Dansereau, xxvi., 578. 12. Service of action — Judgment ty default — Opposition to judgment — Reasons of — " Rescissoire " joined with " rescindant " — Arts. 16, 89 et seg., m, W G. G. P.— Fake return of serrice.] — No entry of default for non-appearance can be made, nor ex parte judgment rendered, against a defendant who has not been duly served with the writ_ of sum- mons, although the papers in the action may have actually reached him through_ a Person with whom they were left by the bailiff.-— The provisions of arts. 483 and following of the Code of Civil Procedure of Lower Canada (respecting oppositions to judgment) relate only to cases where a defendant is legally m default to appear or to plead and have no ap- plication to an ex parte judgment renaered, for default of appearance, in an action whien has not been duly served upon the defendant, and the defendant may at any time seek relier against any such judgment by opposition, and have it set aside notwithstanding that more than a year and a day may have elapsed trom 1013 PARLIAMENT AEY PEACTICB. 1014 the rendering of the same, and without alleg- ing or establishing that he has a good defence to the action on the merits.- — An opposition aslsing to have a judgment set aside, on the ground that the defendant has not been duly served witli the action, which also alleges the defendant's grounds of defence upon the merits, should not be dismissed merely for the reason that the rescissoire had thus been im- properly joined with the rescindant. Turcotte V. Dansereau, xxvii., 583. 13. Revocation of judgment — Pleading — Cross-demand — Art. 1164 0- P- Q-] — In form- ing an opposition or petition in revocation* of judgment the defendant, in order to comply witi art. 1164 C. P. Q., is obliged to include therein any Cross-demand he may have by way of set-off or in compensation of the plaintiff's claim and, unless he does so, he cannot after- wards file it as of right. Judgment appealed from, Q. R. IB S. C. 22, reversed. Magann v. Auger, xxxi., 186. 14. Setting aside judgment — Escheat to Crown — Locus standi of possessor — Interven- tion — Collusion — Champerty — Litigious rights. See Title to Land, 131. 15. Revocation of judgment — Requite civUe — Nullity — Sew evidence — Res judicata — Fraud. See Sheriff, 10. 4. Oppositions en Sous Ordbe. 16. Suh-collocation — Attorney's lien for costs — Opposition en sous ordre — Moneys de- posited in hands of proihonotary — Art. 75S G. C. P.]— Held, per Ritchie, 0. J., Strong and Taschereau. JJ., affirming the judgment ap- pealed from (M. L. R. 3 Q. B. 348), Fournier and Gwynne, JJ., dissenting, that where moneys have been voluntarily deposited by a garnishee in the hands of the prothonotary, and the attachment of such moneys is subse- quently quashed by a final judgment of the court, there being then no longer any moneys subject to a distribution or collocation, such moneys cannot be claimed by an opposition en sous ordre. — Fournier and Gwynne, JJ., dis- senting, on the ground that as the moneys were still subject to the control of the court at the time the opposition en sous ordre was filed, such opposition was not too late. Bar- nard V. Molson, XV., 716. 5. Weits of Possession. 17. Opposition — Action confessoire — Execu- mn of judgment therein — Localisation of right of way—Writ of possession — Appeal to Su- preme Court of Canada. See Title to Land, 40. ORDINANCES. See Statutes. ORDNANCE LANDS. 1. Petition of Right Act. 181 H— Limitation of actions — Litigious rights — Maintenance — Public uses — Reversion — Trusts — Fiduciary agent of the Grown. See RiDEAU Canal Lands, 1. 2. Laying out and ascertaining — Re-vesting of title — Lands not used for canal purposes — Vesting in Grown for use of Canada — Pur- chase in conflict with puMio use. See RiDEAu Canal Lands, 2. OWNERSHIP. 1. Railways — Expropriation — Tenants in common — Proprietaires par indivis — Construc- tion of agreement — Misdescription — Plans and hooks of reference — Indemnity — Registry laws — Estoppel. See Railways, 32. 2. Joint speculation — Partnership or owner- ship par indivis. See Paktnbkship, 5. 3. Emphyteutic lease — Action petitoire — Right of action for damages — Legal and bene- ficial estates. See Title to Land, 8. PARDONS. Representative of Grown — Prerogative — Legislative authority.] — Quwre. Is' the legis- lative power of conferring the prerogative of pardoning upon the representative of the Crown, such as a colonial governor, in the Imperial Parliament only, or. if not, in what legislature does it reside? Attorney-General of Canada v. Attorney-General of Ontario, xxiii., 458. PARLIAMENTARY PRACTICE. Trespass — Assault — Legislative assembly — Powers — Punishment for contempt — Removal of member from his seat — Action against speaker and members — Damages.] — W., a member of the Legislative Assembly of Nova Scotia, on the 16th April. 1874. charged the provincial secretary, without being called to order for doing so, with having falsified a record. The charge was subsequently investi- gated by a committee of the House, who re- ported that it was unfounded. Two days after the House resolved that, in preferring the charge without sufficient evidence to sustain it, W. was guilty of a breach of privilege. On the 30th April, W. was ordered to make an apology dictated by the House, and, having refused to do so, was declared, by another re- solution, guilty of a contempt of the House, and requested forthwith to withdraw until such apology should be made. W. declined to withdraw, and thereupon another resolution was passed ordering the removal of W. from the House by the sergeant-at-arms, who, with his assistant, enforced such order and removed W. W. brought an action of trespass for as- sault against the speaker and certain members 1015 PAETITION. 1016 of the House, and obtained a verdict of $500 damages. Held, affirming the judgment of the Supreme Court of Nova Scotia, that the Legislative Assembly of the Province of Nova Scotia has, in the absence of express grant, no power to remove one of its members for contempt, unless he is actually obstructing the business of the House; and W. having been removed from his seat, not because he was obstructing the business of the House, but be- cause he would not repeatt the apology re- quired, the defendants were liable. KiSley v. Carson (4 Moo. P. C. 63). and Doyle v. Fal- coner (L. E. 1 P. C. 328), commented on and followed. Landers v. Woodworth, ii., 158. PARTIES. Provisional posses- 1. Action for account ■ sion — Executors. See ExBCuTOBS and Administkatoes, 8. 2. Assignment — Hypothecs - Notice — Action to annul deed. See NuLLiTT, 1. • Prete-nom — And see Action — Pleading — Practice of Supreme Coxtet of Canada — Peactice AND PeOCEDUEE. PAKTITION. 1. False inventory — Action to annul — Fraud — Concealment — Error — Compromise — Duress — Setting aside for fraud and coercion.^ — Two appeals argued together. One in an ac- tion by Jane C, wife of A., to set aside a portage of the intestate succession of her bro- ther Ars6ne C, to which she was party dated 4th November, 1870, taken 4th June, 1879, after her marriage with A. It set up that the in- ventory was made by Hyaciuthe C, that he had all his late brother's property in his hands, that he and his brother were co-partners, and that the family had trusted him entirely in all the matters relating to the estate. That being so trusted he had taken the opportunity to de- fraud his co-heirs by representing that he had an equal share in the business as partner ; that he had not accounted for the capital in- vested by his brother ; that he had undervalued the goods, possessed himself of the ready money and debts, and had augmented the lia- bilities of the partnership ; that he had fraudu- lently estimated land at less than half its real value ; that he had affected to buy the shares of two sisters, who had no rights, as they were civilly dead, being nuns of an order which pre- vented them holding property, and that he had offered to give up th^ advantages from this transaction to induce the rest of the family to agree to the partage he was desirous of making. The other members, and particularly respondent, were induced by false representa- tions to agree to the partage. — It was alleged that this inventory was not regularly made as one of the sisters was a minor, and there had been no expertise or curator appointed, and therefore the whole proceeding was null. — ^The conclusions were that the inventory and deed of partage should be set aside as fraudulent and null, defendant condemned to make a new inventory of the partnership effects, . and that there should be a new inventory of the other property and effects of the succession, and a new partage of the whole. — The action was principally directed against Hyacinthe 0. ; the other members of the family were made parties to be subject to the new inventory and partage — On 19th November,' 1879i the Superior Court set aside the inventory and partition of the estate of the late Ars&ne Charlebois on the ground of fraud, concealment and recej, prac- ticed by Hyacinthe Charlebois. Pending an appeal Hyacinthe C. made with defendant A. and plaintiff, on 5th May, 1880, a deed en- titled " Compromise between Jane C, wife of A., and Hyacinthe C," by which in considera- tion of $700, paid to plaintiff, and costs in said cause until judgment and those of appeal paid to the attorneys, the plaintiff desisted from, and renounced her judgment and as- signed and transferred to the defendant Hya- cinthe C. all rights she might have in the estate of Ars6ne C. her brother, and in the estate of her father, Ars6ne C, sr. — The other action was by Jane C. to set aside the deed of com- promise for crainte ( duress ) , error and fraud. She contended that she was intimidated by her husband (who was on the point of leaving the country with another woman ) , into passing this deed with the object, on his part, of pro- curing money to run off with this other per- son, and that the money was never paid to her but to her husband. — The Superior Court an- nulled the compromise and restored the parties to the position they occupied previously, re- serving to defendant his recourse to be reim- bursed what he paid by virtue of this deed. — In the first case the Court of Queen's Bench reversed the Superior Court and dismissed the action and in the other dismissed the action, on the ground that plaintiff recieived the considera- tion money for the deed, which could not be set aside unless she brought back all she received under it. Held, that the evidence did not es- tablish fraud, undue influence, nor pressure in the execution of the deed of compromise, and both appeals must fall together and stand dis- missed. Fournier and Henry, JJ., dissented. Charlebois v. Charlebois, Cass. Dig. (2 ed.) 592. 2. Legacy — Alienation of property be- queathed — Partition of proceeds — Estoppel. See Will. 26. 3. Devise of lands — Severance of tenancy — Evidence. See Tenants in Common, 1. 4. Intestate estate — Feme covert — Statute of Frauds — Statute of Distributions — Revi- sion of statutes — Repeal — Revival of former law — Next of hin — ttesidue. See Husband and Wife, 4. 5. Action for account — Parties— Transfer of shares — Substitution — Specific performance — Mandate. See Account, 4. 6. Constitution. of will — Devise to children and their issue — Distribution — Per stirpes or per capita. See Will, 13. 7. Partnership — Division of assets — Art. 1898 C. C— Mandate— Debtor and creditor- Account. See Paetnekship, 7. 1017 PAKTNEESHIP. 1018 8. Will — Construction of — Donation — Sub- stitution — Partition, per stirpes or per capita CJsufruct — Alvmentary allowance — Accretion hetween legatees. See Substitution, 5. 9. Construction of deed — Charge on lands. See Deed, 1. 10. Opening of substitution — Legacy to sub- stitutes — Partition per sUrpes or per capita. See Will, 22. PARTNERSHIP. 1. Actions between Pabtneks, 1-15. 2. Agency of Partneks, 16-19. 3. Constitution of Partnership, 20-22. 4. Dissolution of Partnership, 23 33. 5. Paetners and Third Parties, 34-46. 1. Actions between Partners. 1. Division of assets — Valuation of plant supplied — Lien — Payment with partnership moneys.] — The bill filed by M. against W. asked a decree declaring" him entitled to a oredit of $40,000, value of plant, used in the works done by them together in partnership. The articles of partnership declared that the stock consisted of the whole of the plant, tools, horses and appliances used for the works by M., also quarries, steam tugs, scows, &c., the whole valued at $40,000, and contained in an inventory annexed for reference, signed by the parties, but that whereas the said plant and other items were subject to a lien to secure claims against M., to the extent of $24,000 ; and whereas W. paid said amount and re- deemed said plant, &c., and now stands the proprietor of the same under a deed of Con- veyance ; it was agreed that the said plant should continue to be the property of W., un- til he received out of the business and profits of the partnership a sum suflicient to %im- burse said $24,000 and interest, after which the whole of the stock should become the pro- perty of the firm, one-half to belong to M., and the other half to W., who had a full half- interest in the contract and all its ' profits, losses and liabilities. The plant had cost ori- ginally $57,000, and was valued at $40,000 at the request of W. ; it was admitted that the profits were sufficient to reimburse W. the $24,000 and other moneys advanced, and that there was still a large balance to the credit of the partnership. Held, Henry and Gwynne, JJ., dissenting, that the plant, furnished by the respondents having been inventoried and valued in the articles of partnership at $40,- 000, the respondents had thereby be- come creditors of the partnership for the $40,000, but as it appeared by the articles Mat the plant was subject at the time to a hen of $24,000, and that said lien had been paid off with partnership moneys, the re- spondents were only entitled to be credited, as creditors of the partnership, with $16,000, bemg the difference between the sum paid by the partnership to tedeem the plant and the value at which it had been so estimated. Judg went of the Court of Appeal for Ontario (7 Ont. App. K. 531) varied. Worthington v. MacDonald, ix., 327. 2. Contract — Mining land — Joint specu- lation — Agreement lapsing — Renewal op- tion.] — T. discovered a mine of pyrites in Newfoundland and on returning to Nova Sco- tia proposed to A. that they should buy it on speculation. A. agreed, and advanced money towards paying T.'s expenses in going to Newfoundland to secure the title. T. made the second journey and obtained an agreement of purchase from the owner of the mine for a limited time, but failing to effect a sale within that time the agreement lapsed. It was renewed, two or three times. A. continu- ing to advance money for expenses. Finally T. effected a sale of the mine at a profit arid had the necessary transfers made for the pur- pose, keeping the, matter of the sale secret from A. On an action by A. for his share of the profit under the original agreement. Held, affirming the Supreme Court (N.S.), that the sale related back, as between T. and A., to the date of the first agreement, and A. could recover. Tapper v. Annand, xvi., 718. 3. Joint account — Purchase of debentures — _ Interest in margin deposited — Partner withdrawing more than his share — Reimburse- ment.] — In May, 1876, W. authorized McC, his broker, to bid for debentures, amount- ing to $220,000, then about to be issued, in the purchase of which he did not wish bis name to appear ; McC. accordingly bid for them, and his bid of 88% per cent, was ac- cepted. When bidding for them MoC. was un- der the impression that he was doing so for W., although McC.'s name was put forward as purchaser. W. was only willing to take a half-interest in the debentures. In order to raise $219,486 to pay for them, negotiations took place bet\\een McC and different banks and at one time it was thought they would be completed with the Bank of Montreal upon the deposit of $13,000 by way of margin, to- gether with the debentures themselves when obtained, and an agreement as to their sale. McC. appears to have had difficulty in raising the one half of the $13,000. W., after being written to by McC. and seeing him on the sub- ject, gave hmi a cheque for $3,250 with a paper containing the following directions : " Please apply $3,250 out of the balance in your hands due to me along with cheque for $3,250 on Molsons Bank of this date, making in all $6,500, as margin on my half of transaction of City of London debentures." In return he took from McC. his receipt in the terms fol- lowing : " Received from Major Walker the sum of $6,500, being his proportion of margin on $219,486, City of Lonuon debentures, bought on joint account." At this time it was expected that the amount required for mar- gin would be $13,000. It was understood between W. and McC. that the latter was to do the best fie could to obtain the amount necessary to secure the debentures. He accordingly applied to C. to become the purchaser of a half-interest, informing him that W. would be interested in the other half, and as he did not wish his name to appear in the transaction, McC. requested C. to keep the information to himself. C. agreed to be- come purchaser of the half, leaving the ne- gotiations for the loan to McC. Negotia- tions with the Bank of Montreal having fallen through, an arrangement was made with the Bank of Commerce by a letter signed by C. on his own behalf, and by McC. in his own name, but for W. The margin $10,000, was paid by C, but one-half ($5,O0O) was reim- bursed to him by McC. Upon close of the 1019 PAETNEESHIP. 1020 transaction by sale of debentures there re- mained in the banli $6,600 of the margin paid. McC. having become insolvent, W. procured the bank to pay him 65 per Cent, of his bal- ance upon the pretence that he was interested to that amount because of his having McC.'s receipt for $6,500 above mentioned. — The Su- preme Court affirmed the judgment appealed from, vifhich held that this payment by the bank to W. was not authorized, but W. and C. haviug been interested in the bonds jointly, and after re-payment to C. of half of the $10,- 000, having been also interested jointly in the amount in the bank to the credit of the mar- gin, he was entitled to be reimbursed by W., the sum required to make up half the amount so remaining to credit of margin. Walker v. Cornell, Cass. Dig. (2 ed.) 595. 4. Public works — Agreement as to tenders — Breach of contract — Fraud hy partners — Hub-contract — Rejection of tenders — Dam- ages.'] — Action by Kane against Wright and Moore for breach of contract. In 1877, the tiuebec Harbour Commissioners advertised for tenders for public works at the mouth of the St. Charles River. — The plain- tiffs, the defendants, and A. P. Macdonald, associated themselves as partners, as " Moore, Wright & Co.," to tender, contract for and execute the works for common profit, share and share alike. It was agreed that they should exert themselves to secure the contract for the whole of the works if possible, but, if that were not possible, to secure what could be obtained by direct contract with the com- missioners, by sub-contract with the success- ful tenderer, or in such other manner as the same might be obtainable, more especially the dredging. The plaintiff procured the necessary information to tender for said works, by and in the name of Moore, Wright & Co., exerted himself to promote success, and kept defend- ants informed of progress of events connect- ed with the letting out of the work. A tender was made by and in the name of Moore, Wright ■&^ Co-, and, at request of the harbour com- missioners, a supplementary tender was like- wise made in their name, but seeing that the commissioners favoured one Peters, and was disposed in case he reduced his prices to give him the contract, defendants, in violation of the agreement with plaintiff and Macdonald, combined with Peters to secure part of the works through him, and Communicated to him the prices at which they were willing to dredge, which were much below the prices, and enabled him to lower his tender^ so that the work was, through him, given to a firm composed of the defendants and Peters, under the name of Peters, Moore & Wright. To ef- fect this defendants withdrew the tenders of Moore, Wright & Co., and fraudulently se- cured the contract to Peters, Moore & Wright, with the understanding that defendants would have the performance of and profits from the larger portion of said works, especially the dredging, to the exclusion, and in prejudice of the rights of plaintiff and Macdonald. — After the defendants had so secured the greater part of said works they offered participation there- in and of the profits to plaintiff and Jlacdon- ald, which they accepted, yet defendants fail- ed and refused to fulfil their offer. Plaintiff had always been willing, and offered to per- form his part of the agreement, and was en- titled to one-fourth of the advantiiges and pro fit from said contract. — The contrMot was for over $500,000, and the prospective profits were presently worth $100,000, whereof plaintiff claimed $25,000. — Defendants admitted the first and supplementary tender with the plain- tilf and Macdonald, but denied that said tend- ers were withdrawn; averred that they were not successful, that no part of the work was or could be secured thereunder, and that they had a right to combine with and secure the work through Peters ; that it was awarded to him, and not to him and them jointly, but Peters sub-let the dredging and concrete work to them and it was nominally arranged that they should be joint contractors with the har- bour commissioners, and by agreement with Peters they would divide and separate the dredging and concrete work to be done by them, and this separation was effected by con- tract, that they were in good faith in procur- ing the work through Peters, and were under no obligation whatever to allow the plaintiff or Macdonald to participate; nevertheless, they had offered to do so, but the plaintiff and Macdonald failed to accept within reasonaole time, and they were obliged to act independ- ently for themselves. — The principal conten- tion was whether or not the partnership was limited to the tenders put in in conjunction with plaintiff and Macdonald. — The Superior Court held that the evidence so limited the partnership and that defendants had not fraudulently or otherwise obtained the rejection of said tenders, and dismissed Kane's action. — The Court of Queen's Bench (1 Dor. Q. B. 297) reversed this judgment, holding that the agreement was that they should be jointly in- terested, not only in the profits of the entire work, but in such portion as could be secured either directly or by sub-contract; that de- fendants in fraud of plaintiff, procured the contract for a large proportion of the works with Peters ; that defendants afterwards of- fered a share in the contract to plaintiff and Macdonald, which offer was accepted, but which the defendants refused to carry out; and awarded the plaintiff $2,500. — On appeal the Supreme Court affirmed the judgment ap- pealed from, Taschereau, J-, dissenting. (See 1 Legal News 482; 4 Legal News 15). Wright V. Kane, Cass. Dig. (2 ed.) 590. 5. Joint speculation — Partnership or owner- ship$par indivis.] — W. & D. entered into a joint speculation in the purchase of real estate ; each looked after his individual inter- ests in the operations resulting from this co- partnership ; no power of attorney or author- ity was given to enable one to act for the other, and they did not consider that any such authority existed by virtue of the relations between them ; all conveyances required to Carry out sales were executed by each for his undivided interest. Upon the death of W. & D., the business was continued by their re- presentatives on the same footing, and the re- presentatives of W. subsequently sold their in- terest to T. W., who purchased on behalf of, and to protect, some of the legatees of W., without any change being made in the man- ner of conducting the business. A book keeper was employed to keep the books required for the various interests, with instructions to pay the moneys received at the office of the co- proprietors into a bank, whence they were drawn upon cheques bearing the joint signa- tures of the parties interested, and the profits vyere divided equally between the representa- tives of the parties inter^ted, some in cash, but generally by cheques drawn in a similar way. M. N. D., who looked after the busi- ness of the representatives of D., paid dili- gent attention to the interests Confined to him 1021 PARTNEESHIP. 1032 and received their share of such profits, but J. C B., who acted in the W. interest, so negli- gently looked after the business as to enable the book-keeper to embezzle moneys" which rep- resented part of the share of the profits com- ing to the representatives of W. In an action brought by the representatives of W. to make the representatives of D. bear a shai-e of such losses: — Held, afhrming the judgment appeal- ed from, that the facts did not establish a partnership between the parties, but a mere ownership par indivis, and that the repre- sentatives of D. were not liable to make good any part of the loss, having by proper vigi- lance and prudence obtained only the share which belonged to them. Even if the part- nership existed, there would be none in the moneys paid over to the parties after a di- vision made. Archbald v. deLisle; Baker v. delAsle; Mowat v. deLisle, xxv., 1. 6. Judicial atandonment — Dissolution — Composition — Suirogation — Confusion of rights — Compensation — Arts. 772 and 776 C. C. P.] — ^A partner in a commercial firm which made a judicial abandonment was in- debted to the firm at the time of abandonment in a large amount overdrawn upon his per- sonal account. Subsequently he made and carried out a composition with the creditors of the firm and, with the approval of the court, the curator transferred to him, by an assign- ment in authentic form, " all the assets and estate generally of the said late firm," . . . " as they existed at the time the said Curator was appointed." At the same time the credit- ors discharged both him and his partners from all liability in respect to the partnership. Held, affirming the decision appealed from (Q. R. 3 y. B. 484), that the effect of the judicial abandonment was to transfer to the curator not only the partnership estate, but also the separate estate of each partner as well as the partner's individual rights as betwefen them- selves. Held, reversing the decision appealed from, Strong, C.J., and Taschereau, J., dis- senting, that the assignment of the estate by the curator and the discharge by the credit- ors, taken together, had the effect of releasing all the partners from the firm debts, but vest- ed all the rights which had been transferred by the abandonment in the transferee per- sonally and could not revive the individual rights of the partners as between themselves, and that, in consequence, any debt owing by the transferee to the partnership at the time of the abandonment became extinguished by confusion. McLean v. Stewart, xxv., '225. J- Partnership — Division of assets — Art. laaS 0. 0. — Mandate — Debtor and creditor — Account] — In the Province of Quebec, when there is no other arrangement between the partners, the partition of the property of a Commercial partnership must be made ac- cordnig to the rules laid down in the Civil Lode m relation to the partition of succes- sions, in so far as they can be made to ap- P'y-~Upon the dissolution of a partnership, "P"^ one of the partners has been entrusted with the collection of moneys due as the mandatory of the others, any of his co- oft' "c^ ™ay bring suit against him directly eiUer for an account under the mandate, or lor money had and received. Lefehvre v. ^•io^y, xxvi., 602. .}■ Settled accounts — Release — Setting "me releases and opening accounts.]— One of i-WQ members of a firm not possessing busi- ness capacity, the other managed and con- trolled all the affairs, presenting at intervals to his partner statements of accounts which the latter signed on being assured of their cor- rectness. In 1891 mutual releases of all claims and demands against each other, based upon statements so submitted by the active partner, were executed by each. In an action against the active partner to set aside these releases and open up the accounts. — Held, that all it WHS necessary to establish was, that in the accounts as settled there were such errors and mistakes as would inflict material in- justice upon the plaintiff if the accounts should be held to be closed. West v. Benjamin, xxix., 282. 9. Constitutional law — Powers of Canadi- an Parliament — Prohibited contract — Con- solidated Railway Act, lii79.] — For the rea- sons given by the judgment appealed from (Q. K. S Q. B. .o.jo) the Supreme Court of (,'anada aflirmed the judgment appealed from which had held, that the " Consolidated Kail- way Act, 1S79," s. 19, s.-s. Hi. was within the legislative jurisdiction of the Parliament of Canada whicli, having power to legislate on railway matters, could also legislate on all in- cidents required to carry out the objects it had in view Connected with and primarily in- tended to assist in carrying out such principal object ; that the capacity of directors was such an object essentially connected with the internal economy of a railway company ; that a contract prohibited by statute is void al- though not specially stated to be so in the statute, which merely provides a penalty against an offender, and that, where tbe pre- sident of a railway company, subject to that Act, entered secretly into partnership with contractors for the construction of the rail- way, no action could be maintained upon the partnership contract by him against^ his part- ners. Macdonald v. Riordon, xxx., 619. 10. Account — Action pro socio — Procedure — Art. 1898 C. C] — The judgment appealed from held that in an action pro socio, it was sufiicient for the plaintiff in his statement of claim to allege fa'cts that would justify an in- quiry into all the affairs of the partnership and for the liquidation of the same without producing full and regular accounts of the partnership affairs. Held, that the appeal in- volved merely a question of procedure in a matter where the appellant had suffered no wrong and, therefore, that the appeal should be dismissed. Higgins v. Stephens, xxxii., 132. 11. Interest in partnership lands — Deal- ings between partners — Laches and acqui- escence. Sec Statute of Li:mitations, 2. 12. Real estate transaction — Signification of transfer — Condition precedent to right of action — Act of resiliation. See Signification, 1. 13. Construction of statute — 20 cC- 21 Vict, c. 51i, s. 12 (Imp.) — Criminal prosecution — Embezzlement of trust funds — Suspension of civil remedy — Stifling prosecution — Partner- ship. See Criminal Law. 18. 1023 PAETNERSHIP. 1024 14. Accounting for moneys — Error as to fact — Payment under threat of prosecution, — Ratification ■ — Transaction — Arts. 101ft, 10Jf9, mo G. 0. — Action condioto indebiti. See Mistake, 3. 15. Contract under seal — Undisclosed prin- cipal — Partnership — Amendment. See Action, 107. ■J. Agency of Paetnebs. 16. Implied authority — Buying and sell- ing land — Stock in trade — Banker — Pay- ment of borrowed money — Joint payees of cheque — Indorsement — Acquiescence in payment — Monthly receipts — Estoppel.] — When a partnership is entered into for the purpose of buying and selling lands, the lands ac'quired in the business of such partnership are, in equity, considered as personalty, and may be dealt with by one partner as freely as if they constituted the stock in trade of a commercial partnership. — The active partner in such business has an implied authority to borrow money on the security of mortgages acquired by the sale of partnership lands. — An amount so borrowed was paid by a cheque made payable to the order of all the partners by name. The active partner had authority, by power of attorney, to sign his partners' names to all deeds and conveyances necessary for carrying on the business, but had no ex- press authority to indorse cheques. Held, that having authority to effect the loan and re- ceive the amount in cash he could indorse his partners' names on the cheque, and the drawees had a right to assume that he did it for partnership purposes and were justified in paying it on such indorsement. Held, also, that if the payment by the drawees was not warranted, the drawers having, for two years after, received monthly statements of their ac- count with the drawees, and given receipts acknowledging the correctness of the same, they must be held to have acquiesced in the payment. Manitoba Mortgage Co. v. Bank of Montreal, xvii., 692. 17. Dissolution — Settlement of accounts — Prior debt of partner for firm's business — Release of maker of collateral note. See No. 34, infra. 18. Use of firm name — Fraud against part- ners — Authority to sign notes. See No. 36, infra. 19. Agency of partner — Factor — Pledge — Right of action. See No. 43, infra. 3. Constitution of Partnership. 20. Working of mine ■ — Interest in mine — Agreement — Evidence.] — In a suit for a share of the profits of a gold mine where the plaintiff relied on an agreement by the de- fendant for a transfer of a portion of the latter's interest in such mine for valuable con- sideration, the evidence was not suflScient to establish a partnership between the parties in the working of the mine and the suit was dis- missed. — Judgment appealed from (23 N. S. R^^l>?^q^slf ™c.^- (Compare 23 Can. S. c. K. 15d, 384). Stuart v. Mott, xiv., 734. 21. Contract —pealing in land — Statute of trauds -—British Columbia Mineral Ac* 1 --^ections 50, 51 of the Mineral Act of 1896 (U. O.) which prohibit any person dealing in a mineral claim who does not hold a free miner s certificate, does not prevent a partner in a claim recovering his share of the nro- ceeds of a sale thereof by his co-partner tliough he held no certificate when he brought his action, having allowed the one he had ud to the time of sale to lapse.— A partnership may be formed by a parol agreement notwith standing it is to deal in land, the Statute of J^rauds not applying to such a case. Juds- ment appealed from (6 B. C. Eep. 260) af- firmed Gwynne and Sedgewick, JJ., dissent- ing. Archibald v. MoNerhanie, xxix., 564. 22. Joint speculation — Relation of parties —-Partnership or owners par indivis.] — W &, D entered into a joint speculation in the pur- chase of real estate ; each looked after his in- dividual interests in the operations resulting from this co-partnership ; no power of attor- ney or authority was given to enable one to act for the other, and they did not consider that any such authority existed by virtue of the relations between them ; all conveyances required to carry out gales were executed by each for his undivided interest. Upon the death of W. & D., the business was continued by their representatives on the same footing and the representatives of W. subsequently sold their interest to T. W., who purchased on behalf of, and to protect, some of the legatees of W., without any change being made'in the manner of conducing the business. A book- keeper was employed to keep the books re- quired for the various interests, with instruc- tions to pay the moneys received at the office of the co-proprietors into a bank, whence they were drawn upon cheques bearing the joint signatures of the parties interested, and the profits were equally divided between the re- presentatives of the parties interested, some in cash, but generally by cheques drawn in a similar way. M. N. D., who looked after the business of the representatives of D., paid diligent attention to the interests confined to him and received their share of such profits, but J. 0. B., who acted in the W. interest, so negligently looked after the business as to en- able the book-keeper to embezzle moneys which represented part of the share of the profits Coming to the representatives of W. In an action brought by the representatives of W. to make the representatives of D. bear a share of such losses : — Held, affirming the judgment ap- pealed from, that the facts did not establish a partnership between the parties, but a mere ownership par indiw, and that the repre- sentatives of D. were not liable to make good any part of the loss, having by proper vigi- lance and prudence obtained only the share which belonged to them. Even if the_ part- nership existed, there would be none in the moneys paid over, to the parties after a di- vision made. Archbald v. delAsle; Baker v. dehisle; Mowat v. deLisle, xxv., 1. 4. Dissolution of Partnership. 23. Dissolution — Breach of conditions — Expulsion of partner ■ — Notice — Warner —■ Goodwill.] — Partnership articles for a firm ot, 1025 PAETNEESHIP. 1026 three persons provided that if any partner should violate certain conditions the others could compel him to retire by giving three mouths' notide of their intention so to do, and a partner so retiring should forfeit his claim to a share of the goodwill of the busi- ness. One of the partners having broken such conditions the other verbally notified him that he must leave the firm and to avoid jpublicity he consented to an immediate dissolution vjfhich was advertised as " a dissolution by mutual consent." After the dissolution the retiring partner made an assignment of his goodwill and interest in the business and the assignee brought an action against the remaining part- ners for its value. Held, reversing the judg. ment appealed from (15 Ont. App. R. 103), Fournier, J., dissenting, that the action of the defendants in advertising that the dissolution was " by mutual consent " did not preclude them from shewing that it took place in Con- sequence of misconduct of the retiring part- ner ; that the forfeiture of the goodwill was caused by the improper conduct which led to the expulsion of the partner in fault and not by the mode in which such expulsion was ef- fected; and, therefore, the want of notice re- quired by the articles of intention to expel Could not be relied on as taking the retirement out of that provision of the articles by which the goodwill was forfeited. Held, also, that if it was a dissolution by one partner voluntar- ily retiring no claim could be made by the re- tiring partner in respect to goodwill, as the account to be taken under the partnership ar- ticles in such cases does not provide therefor. — Semile, that the goodwill consisted wholly of the trade name of the firm. O'Keefe v. Gurran, xvii., 596. 24. Dissolution — Change of name — Acqui- escence hy partners — Account — Gosts.'i — The plaintiff, L., alleged that he and defendants, McL., H., and S., entered into partnership in 1881, and that a written agreement was shortly thereafter entered into. This agreement recited that the parties owned timber limits on Shell River (Man.) in certain proportions and it was agreed that they were to provide means for the erection of a sawmill and for procuring- a plant and supplies for the working of the mill ; a quantity of sawlogs being then in process of being got out for the purpose of being sawn at the mill. (This mill was after- wards erected at Brandon (Man.) instead of at Shell Elver). They were to contribute equally for these purposes and to share equally in the profits ; they were to appoint a manager who was to make a requisition for money which each party was to supply equally ; it was agreed that as soon as practicable, they should form themselves into a joint stock company, limited, to be known as the N. W. Milling Co., limited, and that in the meantime the business should be conducted under the name of the N. W. Milling Co. The capital was not to exceed $12,000 without the consent of all parties, and no one without the Consent in writing of the others should make any contract in the name of the company except so far as might be necessary for the purchase of supplies or transporting material. There was provision made for building the mill and for carrying on the business until the incorporation should be obtamed.— Plaintiff alleged that McL. and H. refused to carry out the agreement or to put up the capital, and he prayed that the ordinary partnership accounts should be taken and a receiver appointed.— S. in his answer admitted s. 0. D. — 33 the partnership, and stated the business of the partnership was carried on by L. under the different names of L., McL. & Co., S. & L L. &. S. and S. & Co., and S. McL. and H were cognizarit of the same during the carrying on ot the business, and from time to time recog- nized the same, and he further stated that the business became financially embarrassed in 1883, and acting for himself and at the re- quest of McL. and H., though only in his ow'n name, he and L. consented to the appointment of a manager of the business and advertised in the ordinary way that the firm of S. & Co., under which name the business was running, was mutually dissolved. And he further al- leged that the incorporation of the Company was prevented by McL. and H., and he as- sented to the taking of the partnership ac- counts. — McL. and H. set out the said agree- ment in full and alleged tliat they never en- tered into any agreement of partnership with L. or S., other than the one set out. They charged L. with acts of misconduct, conversion of money to his own use, refusal in 1881 to give any account of the business of the part- nership during the year, and that he refused to give any account until after the formation of the firm of S. & Co. They charged about No- vember, 1881, L, and S. in fraud of the part- nership and of McL. and H., and with the intent and design of depriving the said last mentioned defendants of their just rights formed a new firm under the name of S. & Co., of which firm they charge the fact to be that L. and S., and no other persons were members, and under the said firm name of S. & Co., proceeded to get out, and did get out a large quantity of sawlogs upon the limits belonging to the firm of the N. W. Milling Co., and converted the same into lumber at the sawmill, and converted the lumber, pro- ceeds thereof, into money, which they appro- priated to their own use. McL. and H. de- nied that they ever became members of the firm of S. & Co., or ever Consented to the operations of the firm of S. & Co., and aJso refused to have anything to do with it, and they claimed that L. and S. should account to them for the values of the properties of the N. W. Milling Co. used by L. and S. They denied all charges of the breach of the part- nership agreement, and said they were willing to perform the same until they discovered the extravagant conduct of L. and his reckless violation of the agreement. • They claimed that L. and S. incurred large liabilities and attempted to incumber by chattel and other mortgages, the property of the partnership and asked to be indemnified against the same, and finally after asking damages of L. and S., sub- mitted to an account of the N. W. Milling Co.— At the trial Wallbridge, C.J., Held, that McL. and H. prevented the incorporation of the defendants and the plaintiff irader the name of the N. W. Milling Co. and were liable to S. and L. for such damages as they might prove to have been occasioned thereby ; that up to 15th December, 1881, the business car- ried on was that of the N. W. Milling Co., composed of the plaintiff and defendants; that subsequent to 15th December, 1881, the business was that of the plaintiff alone; that the mill and property were the pro- perty of the plaintiff and defendants; that the defendants never were nor was any of them members or a member of the firm of L., McL. & Co., or S. & Co., or any com- bination of the name of S., used by the plain- tiff in carrying on said business at any time either before or after 15th December, ]881; 1037 PAETNEESHIP. 1038 that as between the parties, McL. and H. and S. were not chargeable with the liability of S. & Co. or of the plaintiff arising out of the business carried on by the plaintiff in connec- tion with the Shell River limits or Brandon mill from and after 15th December, 1881; that defendants had a right to elect whether they would recognize or assume the business carried on by plaintiff or claim payment for the partnership property used by him as from 15th December, 1881, and that tHey had elect- ed to claim such payment from plaintiff from said last mentioned date, and that inter se de- fendants were not partners with plaintiff from that date ; that any moneys which S. might have paid or might pay in consequence of the Carrying on of the business since 15th Decem- ber, 1881, were a charge on the interest of plaintiff and the proceeds and assets of the business carried on by him since the beginning of the partnership formed between the parties ; that defendants were entitled to have the plaintiff charged on his partnership account witti their value of their three shares of all the logs and timber cut upon the partnership timber limits and with the net value of the logs and lumber of the partnership cut and manufactured by the N. W. Milling Co. on fLad prior to 15th December, 1881, and used Iby plaintiff on and after that date, and also -with the use of defendant's undivided interest in the sawmill property at Brandon; and a -reference was directed to the master to take .the accounts, defendants to have a first lien on .the assets of plaintiff in connection with the N. W. Milling Co. for the amount found due to' them respectively ; that plaintiff should pay (to defendants respectively their costs of the suit such costs to be charged to plaintiff, and .credited to defendants, in taking the accounts as an additional remedy for the recovery of ■such costs. And further directions were re- served with liberty to apply.— The cause was ire-heard at the instance of the defendants McL. and H., the plaintiff also giving notice of re-hearing before Dubuc, Taylor, and Kil- 1am, JJ., who agreed in finding that McL. and H. were in fault in preventing the incorpora- tion of the partnership as found by the Chief Justice, but Taylor and liillam, JJ., came to the conclusion that the business carried on subsequently to 15th December, 1881, was the business of the plaintiff and defendant S., in- stead of the business of the plaintiff alone, and the decree was therefore varied to work cut, on this basiij, the liabilities as between plaintiff and S. on the one part and McL. and H on the other, and also as between the plaintiff and S. — Dubuc, J., dissented, being of opinion that as regards L. and S., no fraud whatever could be imputed to them; that if there had been any concealment or misrepre- sentation, it had been on the part of the de- fendants McL. and H., who by their conduct, acquiescence and actions misled L. and S. mak- ing them believe that th'ey were willing part- ners of the business under the name of S. & Co., or other combination of that kind. He thought the decree should declare all the par- ties to the suit partners in the business no matter under what name it was carried on, and that as McL. and H. had charged fraud and had failed to prove it, and were the cause of the suit, they should bear the costs up to the conclusion of the hearing and also the costs of re-hearing. — S. appealed to the Supreme Court of Canada, and L. gave notice that up- on such appeal he also would ask for a varia- tion of the decree of the court below. Beld, per Fournier, Gwynne and Patterson, JJ., (Strong and Taschereau, J J., dissenting), that upon a consideration of the evidence as a whole and the inferences to be drawn there- from the view taken by Dubuc, J., was cor- rect, and that the original decree of 19th June, 1885, should be varied by changing it into an ordinary partnership decree, regarding the partnership as existing until dissolved by the proceedings taken in the suit ; that McL. and H. should pay to appellant his costs of appeal to the Supreme Court and that each party should pay the costs incurred by him subsequent to the decree of 19th June, 1885, and prior to the commencement of the appeal. Shields V. Leacock, Cass. Dig. (2 ed.) 604. [The Privy Council granted leave to appeal in this case, but the appeal was not prose- cuted.] 25. Dissolution — Winding-up — Extra ser- vices of one partner — Contract to pay for.] — If the business of winding-up a partnership concern is apportioned between the partners and each undertakes to perform the share allotted to him, one of them cannot after- wards claim to be paid salary or other re- muneration merely for the reason that his share of the work has been more laborious or diflBcult than that performed by his co- partner, in the absence of any express agree- ment to that effect, or one to be implied from the conduct of the- parties. Liggett v. Hamil- ton, xxiv., 665. 26. Retired partner — Continuance of firm name — Notice of dissolution — Promissory note — Bill heads — New husiness."] — ^Action against S. W., as a member of the firm of S. W. & Son, on notes by firm in favour of plaintiff. Defence that defendant had retired from the firm long before the notes were given, and al- though his son had carried on the business under the name of S. W. & Son, he had no interest in it ; also that at the most he could only be liable in respect to the business of a general country store, which was the business of the firm before he withdrew, and not for that of buying and selling real estate and in- vesting in securities, which his son alone had carried on and in respect of which the nbtes in question were given. The Supreme Court aiiii-med the judgment appealed from, which held that public notice of dissolution of part- nership between defendant and his son had not been given ; that defendant was aware that his name still appeared as a member of Ihe firm on the bill heads and in other ways ; that he was aware of the general nature of the new business carried on by his son in the firm name, and that he was. ther'efore, liable on the notes. Wigle v. Williams, xxiv., 713. 27. Construction of deed — Continuance after expiry of term — Deceased partner — Purchase of share — Discount — Goodwill.] — ^A deed pro- viding for a partnership during 7 years from its date provided for purchase by the surviv- ors of the share of a deceased partner with a special provision that if one partner should die the value of his share should be subject to a discount of 20 per cent. After 7 years had expired the partners continued the busi- ness by verbal agreement for an indefinite period and while it so continued K. died. Held, varying the judgment appealed from, . that, even if the parties had not admitted that the business was continued under the t^™^ of the partnership deed, such terms would stiU govern as there was nothing in the deed re- pugnant to a partnership at will ; that the sur- ,1039 PAETNEESHIP. 1030 viving partners had, therefore, a right to pur- chase the share of K. and to be allowed the deduction of 20 % therefrom as the deed pro- vided ; and that in the absence of any stipula- tion in the deed to the contrary the goodwill of the business and K.'s interest therein should he taken into account in the valuation to be made for such purpose. Hiiben v. GoUister, XXX., 459. 28. D.eath of partnei — Dissolution — Surety tond to firm — Continuing security — New firm — Liability of surety. See Suretyship, 1. 29. Dissolution — Formation of new firm — Resulting liability — Assets of old firm. See Trusts, 10. 30. Partner continuing business after disso- lution — Settlement of firm debts — Blending old and new accounts. See No. 38, infra. 31. Simulated dissolution — Benefit to wife — Fraud on creditors. See No. 39, infra. 32. Dissolution — Terms of — Change of re- lations — Principal and surety — Discharge of principal. See Mortgage, 62. 33. Insurance of members — Registered de- claration — Evidence to contradict. See Evidence, 21. 5. Partners and Third Parties. 34. Settlement of accounts — Prior debt of partner — Promissory note — Collateral for partnership debt — Release of maker.] — P. lent N. an accommodation note which N. deposited with R. as collateral for the mortgage debt. N. and B. afterwards went into partnership and a new mortgage on partnership property was given to R. for N.'s debt, the note being still left with R. The partnership being dissolved, B. agreed to pay all debts of the firm, includ- ing the mortgage, and in settling the accounts between himself and the mortgagees, B. was given credit for the amount of the note which P. had paid tp the mortgagees. P. sought to recover from B. the amount so paid. Held, reversing the judgment appealed from (15 Ont. App, R. 244), Ritchie, C.J., and Four- nier, J., dissenting, that N. having authority to deal with the note as he pleased, and having given it as collateral security for the joint debt of himself and B., on such security being real- ized by the mortgagees and the amount credit- ed on the joint debt. P., the surety, could re- cover it from either of the debtors. — Semble, Assuming P. not to have been liable to pay the note to the mortgagees and that it was a voluntary payment, it having been credited on the mortgage debt, and B. having adopted the payment in the settlement of the accounts be- tween him and the mortgagee, he was liable to repay it. Purdom v. Baechler, xv., 610. 35. Personal loan to partner — Funds used iy partnership— Art. 1867 C. 0.] — Where a fflember of a partnership borrows money upon his own credit by giving his own promissory note for the sum so borrowed, and afterwards uses the proceeds of the note in the partner- ship business of his own free will without be- ing under any obligation to, or contract with, the lender so to do, the partnership is not liable for such a loan under art. imi C C. Maguire v. Scott (7 L. G. R. 451) distin- guished. Judgment appealed from (M. L R. 4 Q. B. 246) affirmed. Strong and Patter- son, JJ., dissenting. Shaw v. Cadwell xvii.. 357. 36. Fraud against partners — Use of firm name — Promissory note — Authority to sign — Notice — Inquiry.] — E. was a member of the firm of C. & Co. and also a member of the firm of E. & Co., and, in order to raise money for the use of B. & Co., he made a promissory note which he signed with the name of the other firm and, indorsing it in the name of B. & Co., had it discounted. The officers of the bank which discounted the note knew the handwriting of E. with whom the bank had had frequent dealings. In an action against the makers of the note, C. pleaded that it was made by B. in fraud of his partners and the jury found that C. & Co. had not authorized the toaking of the note, but did not answer questions submitted as to the knowledge of the bank of want of authority. Held, reversing the judgment appealed from ( (22 N. S. Rep. 321 ) , that the note was made by E. in fraud of his partners and that the bank had sufficient knowledge that he was using his partners' names for his own purposes to put them on inquiry as to authority. Not having made such inquiry the bank could not recover against C. Creighton v. Halifax Banking Co., xviii., 140. 87. Separate business — Identity of style — Different partners — Dissolution of one firm — Note subsequently made — Debt of subsisting firm.] — Action on a promissory note for $1,260.40. Dunham carried on business in Montreal under the name of J. E. Dunham & Co., in which the defendant Park had no in- terest. While carrying on this business at Montreal, Dunham entered into partnership with .Park, on 1st May, 1886, for carrying on similar business at Toronto under the name of J. E. Dunham & Co. ; partnership to be dissolved on 1st August following, if notice given. Notice was given, the Toronto business being, however, still continued, for the pur- pose of winding it up. On 12th August, while both firms were thus carrying on business separately at Montreal and Toronto respec- tively, a person named Isaacs fraudulently procured Dunham to make the note sued on, ante-dating it to the previous 29th July. The note was afterwards indorsed over to G., and by 6. to the plaintiff. Held, af- firming the Court of Appeal for Ontario, that the note was given by Dunham with re- ference to the business carried on at Montreal, and came within the principle of Standard v. Dunham (14 Opt. R. 67), which was an ac- tion brought on another note, given under the same circumstances and at the same time as the one sued on in the present case. Danks V. Dunham, Cass. Dig. (2 ed.) 89. 38. Dissolution — Partner continuing busi- ness — Settlement of firm debts — Giving time — Blended accounts — Payment.] — H. & McG., in partnership, became indebted to B., plain- tiffs, for goods purchased for which they gave notes of the firm. They dissolved in October, 1876, with the knowledge and approval of B. who assisted in arranging the dissolution. 1031 PAETNEESHIP. 1032 McG. continued the business alone ; B. con- tinued to deal with him ; McG. continued to receive goods on credit, until he became insol- vent, in the early part of 1880, and thereupon B. brought action against H. & McG. on the notes given by the firm. See 31 U. C. C. P. 430. Held, reversing the judgment appealed from (7 Ont. App. R. 33), Ritchie, G.J., and Strong, J., dissenting, that H. was entitled to a verdict on the ground that by the course of dealings of the plaintiffs with McG. subse- quently to the dissolution, viz. : by plaintiffs blending the two accounts, and taking McG.'s paper on account of the blended accounts, up- on which paper McG. from time to time made sufficient payments to pay any balance remain- ing due on the paper of McG. and H. which was in existence at the time of the dissolution, it must be held, as a matter of fact as well as of law arising from the course of the said dealings, that the paper of the firm of McG. and H. had been fully paid. Birkett v. jlfo- Guire, Cass. Dig. (2 ed.) 598; 19 C. L. J. 275. 39. Dissolution of partnership — Married woman — Benefit conferred during marriage — Simulation — Fraud.] — On 10th April, 1886, J. S. M., a retired partner of the firm of McL. & B., composed of himself and W. M., his brother, agreed to leave his capital, for which he was paid interest, in the new firm to be constituted of the said W. M. and one R., an employee of the former firm, and that such capital should rank after the creditors of the old firm had been paid in full. The new firm was to carry on business under the same firm name up to 31st December, 1889. J. S. M. died on 18th November, 1886. His wife, sep- arate as to property, had an account in the books of both firms. On 16th April, 1890, an agreement was entered into between the new firm and the estate of J. S. M., and his widow, by which a large balance was admitted to be due by them to the estate and the widow. The new firm was declared insolvent in Janu- ary, 1891. Claims were filed by the widow and the estate of J. S. M. against the insol- vents, and the Merchants Bank of Canada contested them on the ground, inter alia, that they had been Creditors of the firm and con- tinued to advance to the new firm on the faith of the agreement of April. 1886, that the widow's moneys formed part of the capital of J. S. M., and that the dissolution was simu- lated. — The Supreme Court reversed the judg- ment appealed from (Q. R. 2 Q. B. 431), and restored that of the Superior Court, Pournier and King, JJ., dissenting, and Held, that the dissolution of the partnership was simulated ; that the moneys which appeared to be owing to the widow, after having credited her with her own separate moneys, were in reality moneys deposited by her husband in order to confer upon her, during marriage, benefits contrary to law, and that the bank had a sufiicient interest to contest these claims, the transaction being in fraud of their rights as creditors. Merchants Bank of Canada v. Mc- Lachlan; Merchants Bank of Canada v. ilfc- Laren, 2nd April, 1894; xxiii., 143. 40. Judgment against firm — LiaMUty of re- puted partner — Action on judgment.] — Where promissory notes are signed by a firm as makers, a person who holds hiniself out to the payees as a member of such firm, though he may not be so in fact, is liable as a maker. — ■ In an action upon a promissory note against M. I. & Co., as makers, and J. I. as indorser. judgment was rendered by default agaip^t the firm, and a verdict was found in favour of J. I. as it appeared by the evidence that he had indorsed without consideration for the accommodation of the holders, and upon an agreement with them that he should not be held in any manner liable upon the note. Held, in a subsequent action on the judgment to recover from J. I. as a member of the firm who had made the note, that the verdict in the former suit was conclusive in his favour, the said agreement meaning that he was not to be liable either as a maker or indorser.^Judg- ment appealed from (22 Ont. App. R. 12) af- firmed. Isiester v. Bay, Street & Co., xxvi., 79. 41. Will — Legacy — Bequest of partnership iusiness — Acceptance by legatee — Right of legatee to an account.] — J. and his brother carried on business in partnership for over 80 years and the brother died, his will contain- ing the bequest : " I will and bequeath unto my brother J., all my interest in the business of J. & Co., in the said City of St. Catharines, together ■ with all sums of money advanced by me to the said business at any time, for his own use absolutely forever, and I advise my said brother to wind up the said business with as little delay as possible. " Held, affirming the judgment appealed from, that J., on ac- cepting the legacy was under no obligation to indemnify the testator's estate against lia- bility for the debts of the firm in case the assets should be insufficient for the purpose and did not lose his right to have the accounts taken in order to make the estate of the testa- tor pay its share of such deficiency. Robert- son V. Junkin, xxvi., 192. 42. Insolvent firm — Assignment for benefit of creditors — Composition — Discharge of debt — Release of debtor.] — T. and C. doing busi- ness under the name of T. & Co., made an as- signment for the benefit of creditors, and T. then induced the Dueber Co., a Creditor, to pay off a chattel mortgage on the stock, and a composition of 25 cents on the dollar of unse- cured claimSj the company to receive its own debt in full with interest. The assignee of T. & Co. then transferred all the assets to the Dueber Co., and the arrangement was carried out, the company eventually, as provided in a contemporaneous deed executed by the parties interested, re-conveying the assets to T., tak- ing his promissory notes and a chattel mort; gage as security. In an action by the com- pany against T. & Co. on the original debt: Held, affirming the judgment appealed from (26 Ont. App. R. 295), that the original debt was extinguished and C. w^as released from all liability thei-eunder. Dueb&r Watch Case Mfg. Co. V. Taggart, xxx., 373. 43. Mandate — Agency — Factor — Pledge — Lien — Notice — Right of action — Intervention —Res judicata— Arts. 1739. 1740, 174% l^^^ C. C] — A partner entrusted with possession of goods of his firm for the purpose of sale may, either as partner in the business or as factor for the firm, pledge them for advances made to him personally and the lien of the pledgee will remain as valid as if the security had been given by the absolute owner of the goods notwithstanding notice that the contract was with an agent only. Dingwall v. Mc- Bcan, XXX., 441. 44. Names of partners — Letter heads — Pre- sumption — Representations'] — The represen- 1033 PATENT OF INVENTION. 1034 tation of an agent that his principals are a firm in a distant province, and that such firm is composed of A. and B., coupled with the evidence of receipt by the person to whom the representation is made of letters from one of the alleged members of the firm, written on paper on which the names of such members are printed, in answer to letters from such persons, is primd, fwcie eviaence that A. and B. constitute said firm. (See 28 N. B. Rep. 102.) McDonald v. Gilbert, xvi., 700. 45. Partners dealing m land — Borrowing funds — Indorsement of cheque Tjy one of the joint payees — Mstoppel. See No. 16, ante. 46. Retirement of partner — Notice of disso- lution — Continuance of business in firm name — Liability of old partner. See No. 26, ante. PARTY TV ALL. 1. MitoyenetS — Payment of indemnity — Art. 518 G. 0. — Common wall.'i — An owner of property adjoining a wall cannot make it common unless he first pays indemnity to the proprietor for the part he wishes to render .common, and half the value of the ground on which such wall is built. Joyce v. Hart, 1., 321. 2. Easement — Registration — Trespass — Conveyance. See Registry Laws, 23. Notice 3. Tenant in common — Trustees' powers. See TRtrsTS, 24. PATENT OF CRO-WN LANDS. See Grown, 77 to 108 ; and Title to Lands. PATENT OF INVENTION. 1. Infringement — " Flour Dressing Ma- chine " — ■ Co-operation of constituents — Combination of old elements — Novelty — Patent Act, 1812, 35 Vict. c. 26, ss. 6, 28 (■D.) — Use in Canada — Jurisdiction of com- missioner ' — Judgment in rem — Res judicata — Manufacture before application — • Use be- fore patent.] — ^An invention consisted of the combination in a machine of three parts or elements, A., B. and C, each of which was old and of which A. had been previously com- bined with B. in one machine and B. and C. m another machine, but the united action of which in the patented machine produced new and useful results. Held, reversing the judg- ment appealed from (7 Ont. App. R. 628), Strong, J., dissenting, that the Combination was in itself a novelty and a proper subject of a patent of invention ; that the words in the 6th section of the Patent Act, 1872, " not Demg in public use or on sale for more than "Dsyear previous to his application, in Can- ada, are to be read as meaning " not being jn public use nor on sale in Canada for more man one year previous to his application;" that the Minister of Agriculture, as Commissioner of Patents, or his De- puty, has exclusive jurisdiction over ques- tions of forfeiture under the 28th sec- tion of the Patent Act, 1872, and a defence on the ground that a patent has become for- feited for breach of the conditions in the said 28th section cannot be supported after his de- cision declaring it had not been forfeited by reason of such breach. Smith v. Goldie ix., 46. [Note. — The headnote in the report is ap- parently based to some extent upon matter not referred to in the statement of the case nor commented upon directly in the judgment reported. Compare Cass. Dig (2 ed.) pp. 608-609 and 689-692.1 See No. 8, infra. 2. Validity of patent — Infringement — Want of novelty.'] — C. obtained a patent for the Paragon Black. Leaf Check Book, and in his specification claimed as his invention, " in a black leaf check book of double leaves, one-half of which are bound together, while the other half fold in as fly leaves torn out : the combination of the black leaf bound into the book next the cover and provided with tape across its ends, the said black leaf having the transferring 'composition on one of its sides only." A half- interest in this patent was assigned to the defendant, with whom C. was in partnership, and on the dissolution of such partnership said half-interest was re-assigned to C, who assigned the whole interest in the patent to plaintiffs. Prior to the said dissolution de- fendant obtained a patent for what he called " Butterfield's Improved Paragon Check Book," claiming as his invention the following improvements on check books previously in use : ■■ A kind of type effecting a saving of labour ; a membrane hinge and a protector ; and, a totalling sheet." After the dissolution he proceeded to manufacture check books un- der his patent, and plaintiffs brought suit for an injunction, claiming that their patent was infringed. The Chancellor decreed the relief prayed for, and the Court of Appeal reversed this decision, holding that the plaintiff's pa- tent was void for want of novelty. Held, re- versing the judgment appealed from (11 Ont. App. R. 145), that the patent under which the plaintiff's claimed was a valid patent, and as there was no doubt that it ' was infringed by the manufacture and sale of defendant's books, the judgment of the Chancellor should be restored. Grip Printing and Publishing Co. V. Butterfield, xi., 291. 3. Infringement — New invention — Com- bination — Paris not patentable — New result — Want of novelty.']— \n a suit by H. for infringement of his patent for a bakers oven, his claim of invention was : 1. A fire pot, or furnace, placed within a baker s oven, below the sole thereof, and provided with a door situated above the grate. 2. A fire pot, or furnace, placed within a baker s oven, pro- vided with a door above the level of the sole of the oven,' and connected with the said fur- nace by an" inclined guide. 3. In a baker's oven, a flue leading from below the grate to the main flue. 4. A baker's oven provided with a circular tilting grate, situated below the sole of the oven, and provided with a door. 5. In a baker's oven, a cinder grate placed beneath the fire grate, in combination with a flue leading from below the grate to the main flue. In the specifications the patentee said: 1035 PATENT OF INVENTION. 1036 " What I claim as my invention is — ^in com- bination witli a baker's oven a furnace set witliin the oven, but below the sole." Held, affirming the judgment appealed from (lOOnt. App. E. 449), Strong, J., dissenting, that the combination being a mere aggregation of parts not in themselves patentable and producing no new result due to the combination itself, was no invention, and consequently could not form the subject of a patent. Hunter v. Carrick, xi., 300. See No. 8, infra. 4. Sale of patent rights — Specifio perform- ance — Agreement partly executed and partly executory — SZ & 33 Vict. c. 11, s. 11 (Patent Act) — Consolidation of suits — Mortgage suit.'l — On 1st June, 1877, Powell, the owner of a patent for an improved pump which had only about a month to run, but was renewable for two further terms of five years each, agreed to sell to Park his pump patent for five counties, and by deed of same date granted, sold and set over to Peck " all the right, title, interest which I have in the said invention as secured by me by said letters patent for, to and in the said limits of the counties of," &c. The habendum was " to the full end of the term for which the letters patent are granted ; con- sideration $4,500, of which $1,500 paid, mort- gages given on land and chattels for the resi- due. The patent expired 19th July, 1877, and Powell renewed it in his own name for the further term of five years. Peck having made default in 1878, Powell filed his bill for the balance of purchase money, or sale of the land. About the same time Peck brought a suit for specific performance of the agreement for sale of the patent right for the full period to which Powell was entitled to renew under the patent laws. The causes were heard to- gether in the Court of Chancery and in the Court of Appeal and there was but one judg- ment (26 Gr. 322; 8 Ont. App. R. 498). Held, in the suit Peclc v. Powell, reversing the judgment appealed from, that under the agreement and assignment plaintiffs were en- titled to the extension as well as the current term. — And, in the suit Powell v. Pech, af- firming the Court of Appeal, that Powell was entitled to a decree for the redemption or foreclosure of the mortgaged premises with costs. — Per Strong, J., according to the prin- ciples upon which a court of equity acts in carrying into execution by its decree such con- tracts and agreements as are properly the sub- jects of its jurisdiction, the court will always execute the whole or such parts of the agree- ment as remain executory, but if the parties have thought fit, before the institution of the suit, to carry out any of the terms of the contract, such executed portions will not be disturbed. — Per Henry and Gwynne, JJ., that the decrees in the Court of Chancery should be consolidated and the decree for sale in de- fault of payment in the suit of Powell v. Peck, delayed until Powell had assigned the renewal term. Peck v. Powell; Powell v. Peck, xi., 494. 5. Infringement — Mechanical equivalent — Want of novelty — Element of invention — Sttft- stituted material — Principle void of invention.'] — In a suit for infringement, the alleged in- vention was the substitution in the manufac- ture of corsets of coiled wire springs, arranged in groups and in continuous lengths, for india- rubber springs previously so used. The ad- vantage claimed by the substitution w ag that the metal was more durable, and was free from the inconvenience arising from the use of india-rubber caused by the heat from the wearer's body. Held, affirming the judgment appealed from (12 Ont. App. R. 738), Four- nier and Henry, JJ., dissenting, that this was merely the substitution of one well known ma- terial, metal, for another equally well known material, india-rubber, to produce the same re- sult on the same principle in a more agree- able and useful manner, or a mere mechanical equivalent for the use of india-rubber, and it was, consequently, void of invention and not the subject of a patent. Ball v. Cromfton Corset Co., xiii., 469. 6. Old elements — Want of novelty — Gom- hination — Colourable imitation — Suiseguent patent — Setting aside patent — Scire facias — Infringement — Measure of damages.] — In 1877, L. obtained a patent of invention for new and useful improvements in candle mak- ing apparatus. In 1879, C. obtained a pat- ent for a machine to make candles. L. claim- ed that C.'s patent was a fraudulent imita- tion of his patent, and prayed that 0. be con- demned to pay him $13,200 for profits real- ized by C. in making and selling candles with his patented machine, and also $10,000 ex- emplary damages. C. Contended his patent was valid as a combination patent of old ele- ments; that there could be no action for in- fringement of L.'s patent until C.'s patent was repealed by scire facias; and also that L.'s patent was not a new invention. At the trial there was evidence that there were other machines known and in ■ use for making candles, but there was no evidence as to the cost of making candles with such machines, or what would have been a fair royalty to pay L. for the use of his patent. And it was proved also that L.'s trade had been increas- ing. The Superior Court found that C.'s patent was a fraudulent imitation of L.'s pa- tent, granted an injunction and condemned C. to pay L. $600 damages for the profits he had made on selling candles made by the patented machine. This judgment was affirmed by the Court of Queen's Bench. Held, affirming the judgment appealed from (5 Legal News 412), Henry, J., dissenting, that C.'s machine was a mere colourable imitation of L.'s, based up- on the same principles, composed of the same elements, differing from it only in the arrange- ment of those elements, and producing no re- sults materially different ; therefore L.'s pa- tent had been infringed, and there was no ne- cessity in order to recover damages for in- fringement that C.'s patent should first be set aside by scire facias. Held, also, reversing the judgment appealed from, that in this Case the profits made by the defendants was not a proper measure of damages ; that the evidence furnished no means of accurately estimating the damages, but substantial justice would be done by awarding $100. Collette v. Lasnier, xiii., 563. 7. Patentable device — Carriage tops — Com- bination of elements — Previous use — Novelty.] — D. obtained a patent for an improvement in the construction of carriages by the combina- tion of a folding sectional roof joined in the carriage posts in such a way and in such an arrangement of sections of the roof and of the carriage posts that the .whole carriage top could be made entirely in sections of wood or other rigid materials with glass sashes all round, so that the carriage could be opened in the centre into two principal 1037 PATENT OF INVENTION. 1638 parts and at once converted into an open uncovered Carriage. In an action for in- fringement, Bcld. reversing the judgment ap- pealed from (18 R. L. 250) and restoring the judgment of the Superior Court, Ritchie, C.J., and Gwynne, J., dissenting, that the combina- tion was not previously in use and was a patentable invention. Dansereau v. Bellemare, xvi., 180, 8. Combination — Old elements — New and useful results — Previous «se.] — In an application for patent the object of the inven- tion was stated to be the connection of a spring tooth with the drag-bar of a seeding machine and the invention claimed was " in a seeding machine, in which independent drag- bars are used, a curved spring tooth, detach- ably connected to the drag-bar in combination with a locking device arranged to lock the he,ad block to which the spring tooth is at- tached, substantially as and for the purpose specified." In the action for infringement of this patent, it was admitted that all the ele- ments were old but it was claimed that the substitution of a curved spring tooth for a rigid tooth was a new and useful combination and patentable as such. Held, affirming the decision appealed from, Gwynne, J., dissent- ing, that the alleged invention being the mere insertion of one known article in place of an- other known article was not patentable. Smith V. Goldi& (9 Can. S. C. R. 46) . and Hunter v. Garriek (11 Can. S. C. R. 300), referred to. Wisner v. Coulthard, xxii., 178. See Nos. 1 and 3. ante. 9. Patent of invention — Similar device — Previous use — Same result — Novelty — In- fringement.] — C. & Co., were assignees of a patent for a check book used by shopkeepers in making out duplicate accounts of sales. The alleged invention consisted of double leaves, half being bound together and the other half folded in as &j leaves, with a car- bonized leaf bound in next the cover and pro- vided with a tape across the end. What was claimed as new in this invention was the de- vice, by means of the tape, for turning over the carbonized leaf without soiling the fingers or causing it to curl up. H. made and sold a similar check book with a like device, but instead of the tape the end of the carbonized leaf, for about half an inch, was left without carbon and the leaf was turned over by means of this margin. In an action by C. & Co. against H. tor infringement of fheir patent. Beld,, afiirming the decision appealed from (3 Ex. C. R. 351), that the evidence at the trial shewed the devic?e for turning over the blank leaf without soiling the fingers to have been used before the patent of C. & Co. was issued, and it was therefore not new; that the only novelty in the said patent was in the use of the tape, and that using the margin of the paper instead of the tape was not an infringement. Carter & Co. v. Hamilton, xxiii., 172. . 10. Canadian patent — ■ Expiration of for- etgn patent — Construction of statute — B. I;0c. 61, s. 8—55 & 56 Vict. c. 24. s. 1.]— ■'■™ ^'Xchequer Court declared a patent good, vaUd and subsisting and that it had been in- tnnged by defendants and held that, the ex- pression " any foreign patent " occurring in the concluding clause of s. 8 of the " Patent f-M, must be limited to foreign patents in existence when the Canadian patent was Eranted Tv,^ a„ r\ j. 5j»: j it. judgment appealed from (6 Ex. C. R. 55), and dismissed the appeal with costs. Dresche'l V. Auer Incandescent Light Mfg. Co., xxviii., oOo. See amendment to Patent Act passed in 11. Contract — Sale of patent — Future im- provements — Transferee taking benefit — Varia- tion from caveat.] — By contract under seal M. agreed to sell to B. and S. the pa'tent for an acetylene gas machine for which he had ap- plied and a caveat bad been filed, and also all improvements and patents for such machine that he might thereafter make, and covenant- ed that he would procure patents in Canada and the United States and assign the same to B. and S. The latter received an assignment of the Canadian patent and paid a portion of the purchase, but when the American patent was issued it was found to contain a varia- tion from the description of the machine in the caveat, and they refused to pay the bal- ance, and in an action by M. to recover the same, they demanded by counterclaim a re- turn of what had been paid on account. Held, reversing the judgment appealed from, that the agreement was not satisfied by an assign- ment of any patent that M. might afterwards obtain ; that he was bound to obtain and as- sign a patent for the machine described in the caveat referred to in the agreement ; and that as the evidence shewed the variation there- from in the American patent to be most ma- terial, and to deprive the purchasers of a fea- ture in the machine which they deemed essen- tial, M. was not entitled to recover. Held, further, (Jwynne, J., dissenting, that as B. and S. accepted the Canadian patent and paid a portion of the purchase money In consider- ation thereof and as they took the benefit of it, worked it for their own profit and sold rights under it, they were not entitled to re- cover back the money so paid as money had and received by JI. to their use. Bingham v. McMurray, xxx., 159. 12. Option as to priority — Expiration of foreign patent — Construction of statute — B 8. G. c. 61 s. 8—55 <& 56 Vict. c. 21,, s. /.] — ^Under s. 8 of the " Patent Act " as amend- ed by 55 & 56 Vict, c. 24, s. 1 (D.), it is only in the case of the applicant exercising the option of obtaining a foreign patent be- fore the issue of a Canadian patent for his invention that the Canadian patent will ex- pire by reason of the expiration of a foreign patent in existence at the time the Canadian patent is granted. — Where several applica- tions ai-e made in difEerent Countries upon the same day, the applicant cannot be said to have exercised an election to obtain any one patent before obtaining another. Judgment appealed from (6 Ex. -C. R. 357) reversed. General Engineering Co. v. Dominion iotton Mills Co., xxxi., 75. Reversed on appeal by the Privy Council. See L1902] A. C. 570. See also the amendment to the Patent Act by statute of 1903. 13. Patent of invention — Combination of known devices — Novelty — New result—In- fringement.'] — Action for damages and in- junction for violation of patent of invention for soldering oval cans by causing them to re- volve with regularity and to be evenly dipped :_ - u„j ^f ^^\A.^,. n^ViD /lofoTi/ic» -wnfi that 1039 PAYMENT. 1040 defendant was making use of another patent with the Consent and license of the patentee and that the machine so used possessed ad- vantages superior to the plaintiff's patent. The Supreme Court affirmed the judgment ap- pealed from (7 B .0. Rep. 197) which grant- ed the injunction and condemned defendant for nominal damages. Federation Brand Salmon Canning Oo. v. Short, xxxi., 378. 14. Subjeot of patent — Known proper- ties — ilew purpose — Gleaning pickled eggs —Novelty — Patentaile invention.] — The Supreme Court afSrmed the judgment appeal- ed from (7 Ex. C. R. 198) which held, (1) that the application of well known things to a new analogous use is not properly the sub- ject of a' patent, and (2) that, where a solu- tion of hydro-chloric acid was employed to re- move carbonate deposits on pickled eggs and from the known properties of the acid and its use for analogous purposes this could be ac- complished, the purpose being new and de- fendants the first to discover and use the pro- cess safely and with advantage in the pre- servation and marketing of eggs, that as there was nothing in the mode of employing the solution requiring the exercise of inventive faculties, there was no invention, and that a patent for the process could not be sustained. Wilson V. Meldrum. 7th October, 1902. 15. Expiry of patent of invention — Manu- facture — Extension of time — Acting of- ficer.] — A patent of invention expires in two years from its date or at the expiration of a lawful extension thereof if the inventor has not commenced and continuously carried on its construction or manufacture in Canada so that any person desiring to use it could ob- tain it or cause it to be made. — ^A patent is not kept alive after the two years have ex- pired by the fact that the patentee was al- ways ready to furnish the article or license the use of it to any person desiring to use it if he has not commenced to manufacture in Canada. Barter v. Smith (2 Ex. C. R. 455) overruled on this point. — The power of ex- tension beyond the two years given to the Commissioner of Patents or his deputy can only be exercised once. — Quwre, Can it be ex- ercised by an acting-deputy commissioner ? Power V. Griffin, xxxiii., 39. See amendment to Patent Act by statute of 1903. 16. Patent of invention — Transfer of in- terest — Promissory note given for considera- tion — Bills of Exchange Act, 53 Vict. c. 33, s. 30, s.-s. Jf.] — A promissory note given for the purchase of an interest in a patent of in- vention was held to be void under the Bills of Exchange Act because the words " given for a patent right " were not written across its face. Craig v. Samuel, xxiv., 278. , And see Bills and Notes, 4Q. 17. Patent of invention — Manufaoture and gale under — Failure of patent — Guarantee. — See Guarantee, 2. 18. Statute, construction of — Patent of invention — Expiration of foreign patent — "The Patent Act," R. S. G. c. 61, s. 8—55 & 56 Yiot. c. 2Jf, s. 1. See Statute, 69. 19. Appeal — Jurisdiction — Amount i/n controversy — Affidavits — ConfKotvng as to amount — The Exchequer Court Acta — 50 & 51 Vict. c. 16, ss. 51-53 (D.)—54 & 55 Ftct. c. 26, «. 8 — The Patent Act — U. 8. C. c. 61, S.36. See Appeal, 79. PATERNITY. See Alimentary Allowance. PAWNING. See Pledge. PAYMENT. 1. Deitor and creditor — ■ Payment ly debtor — Appropriation — Preference — R. S. O. {1887) c. 124.]— A trader carrying on business in two establishments mortgaged both stocks in trade to B. as security for indorse- ments on a composition with his creditors, and for advances in Cash and goods to a fixed amount. The coinposition notes were made and indorsed by B., who made advances to an amount considerably over that stated in the mortgage. A few months afterwards the mort- gagor was in default for the advances and a portion of overdue notes, and there were some notes not matured, and B. consented to the sale of one of the mortgaged stocks, taking the purchaser's notes in payment, applying the amount generally in payment of his overdue debt, part of which was unsecured. A few days after B. seized the other stock of goods covered by his mortgage, and about the same time the sheriff seized them under execution, and shortly after the mortgagor assigned for benefit of Creditors. An interpleader is- sue between B. and the execution creditor resulted in favour of B., who received, out of the proceeds of the sale of the goods under an order of the court, the balance remaining due on his mortgage. See Horsfall v. BoisseoM (21 Out. App. R. 663). The assigneeof the mortgagor then brought an action against B. to recover the amount representing the unse- cured part of his debt, which was paid by the purchase of the first- stock, which payment was alleged to be a preference to B. over the other creditors. Held, affirming the decision of the Court of Appeal, that there was no preference to B. within R. S. O. (1887) c. 124, s. 2 ; that his position was the same as if his whole debt secured and unsecured had been overdue, and there had been one sale of both stocks of goods, realizing an amount equal to such debt, in which case he could have appropriated a portion of the proceeds to the payment of his secured debt, and would have had the benefit of the law of set-oft as to the unsecured debt, under s. 23 of the Act; and that the only remedy of the mort- gagor or his assignee was by redemption ue- fore the sale, which would have deprived H. of the benefit of such set-ofE. Stephens v. Boisseau, xxvi., 437. 2. Debtor and creditor — Appropriation of payments — Error in appropriation — Arts. 1160, 1161 G. G.]— A bank borrowed from the Dominion Government two sums of $10U,uw 1041 PAYMENT. 1043 each giving deposit receipts respectively num- bered 323 and 329. Having asked for a fur- tlier loan of a like amount it was refused, but aftervfards the loan was made on the guar- antee of 0., one of the directors of the bank, who became personally responsible for re-payment, and the receipt for such last loan, upon the guarantee, was numbered 246. The Government having demanded payment of $50,000 on account, that sum was transferred in the bank books to the general account of the Government, and a letter from the president to the Finance Department stating that this had been done, enclosed another receipt numbered 358 for $50,000 on special deposit, and con- cluded : " Please return deposit receipt No. 323 — $100,000 now in your possession." Sub- sequently $50,000 more was paid and a return of receipt No. 358 requested. The bank hav- ing failed the Government took proceedings against 0., on his guarantee for the last loan made to recover the balance after crediting said payments and dividends received. The defence to these proceedings was that it had been agreed between the bank and O. that any payments made on account of the borrowed money should be first applied to the guarantee loan and that the president had instructed the accountant so to apply the two sums of $50,- 000 paid, but he had omitted to do so. The trial judge gave effect to this objection and dismissed the information of the Crown. — Held, reversing the judgment appealed from (6 Ex. C. E. 21), Taschereamond Girouard, jj., dissenting, that as the evidence shewed that the president knew what the accountant had done and did not repudiate it, and as the act was for the benefit of the bank, the latter was bound by it ; that the act of the Govern- ment in immediately returning the specific de- posit receipts when the payments were made was a sufficient act of appropriation by the creditor within art. 1160 C. C, no appropria- tion at all having been made by the debtor on the hypothesis of error ; and if this were not so the bank could not now annul the imputa- tion made by the accountant unless the Gov- ernment could be restored to the position it would have been in if no imputation at all tad been made, which was impossible, as the Government would then have had an option which could not now be exercised. The Queen v. Ogilvie, xxix., 299. 3. Money paid — Voluntary payment — Insol- vency of debtor — • Action by assignee — Status.]— S., a trader, in August, 1899, pro- cured the consent in writing of his creditors to payment of his debts then due and matur- ing by notes at different dates extending to tbe following March. V., one of the Creditors insisted on more prompt payment of part of ms claims and took from S. notes aggregating 1° .amount $708, all payable in September, Which b, agreed in writing to pay at maturity, and did pay. In November, 1899, S. assigned lor benefit of his creditors when the arrange- ment between him and V. first became known and the assignee and other creditors brought an action to recover the said sum of $708 from V. as part of the insolvent estate. Beld af- nming the judgment of the Court of Appeal R o?k K^- ^^' ^^^ t'lat at tl^e trial (32 O. "•.^tb), that-S. having paid the notes volun- tarily without oppression or coercion could ~°^, himself have recovered back the amount ana His assignee was in no better position. am, per Taschereau, J. As anything re- covered by the assignee would be for the bene- UC or his cn-nlainf^fFo ««1,. .,,!.„ ^A 4.1 — ceive what would have been an unjust pre- ference if stipulated for by the agreement for extension the plaintiffs had no locus standi in curiA. Langley v. Van Allen, xxxii., 174. 4. Mining regulations — Dominion Lands Act — Payment of royalties — Voluntary pay- ment.] — Where mining regulations provided that failure to pay royalties would forfeit the claim, and a notice to that effect was posted on the claim and served on the licensee, pay- ment by the latter under protest was not a voluntary payment. The King v. Ghappelle; The King v. Carmackj The King v. Tweed & Woog, xxxii., 586. 5. Appropriation — Settlement of accounts — Omission of overdue note. See Limitation of Actions, 2. Payment to 6. Duress — Illegal tax — Protest to avoid execution quash — Estoppel — Waiver'. See Assessment and Taxes, 8. 7. Purchase of land — Note given to agent — 8ale_ under powers — Giving credit — Power of attorney. See Pkincipal and Agent, 5. 8. Partnership debts — Dissolution of firm — Dealings with partner continuing business — Settlement of old liabilities — Appropriation of payments. See Paetnership, 38. 9. Sale of timber limits — Bonus on transfer ■ — Statement of account — Payment to Com- missioner of Grown Lands. See Sale, 75. 10. Appropriation of payments — Imputation of payment — Reference to take account. See Principal and Sukety, 2. 11. Suretyship — Continuing security — Im- putation of payments — Reference to take ac- count. See Principal and Sueety, 2. 12. Appropriation in proportionate ratio — Vendor and purchaser — Agreement for sale of land — Assignment — Terms of agreernent — Giving time — Depriving surety of rights — Secret dealings — Release of lands — Arrears of interest — Novation — Discharge of surety. See Principal and Surety, 4. 13. Debtor and creditor — Security for debt — Security realized by creditor — Appropria- tion of proceeds — Res judicata. See Banks and Banking, 19. 14. Mines and minerals — Lease of mining areas — Rental agreement — R. S. N. 8. (5 ser.) c. 7—52 Vict. c. 23 (N.S.) See Lease, 19. 15. Sale — Donation in form of — Mortal ill- ness of donor — Nullity — Dation en paiement —Arts. 762, 989 C. C. .«»« Sattt Sfi. 1043 PETITION OF EIGHT. lOM 16. Action — Condictio indehiti — Repetition de Vvndu — Evidence — Fictitious claims — Mis- representation — Onus proiandi — Railway sul)- sidies — Insolvent company — Payment of claims by the Grown — Transfer iy payee — Art. 1090 G. G.—SJf Vict. c. 88 (Que.) See Action, 14. 17. Municipal corporation — Railways — Tax- ation — By-laws — Construction of statute — - Voluntary payment — Action en repetition — 29 Vict. c. 57, s. 21 (Can.)— 29 & 30 Vict. a. 57 (Gan.) See Assessment and Taxes, 14. 18. Contract — Lex loci — Lex fori — Fire in- surance — Principal and agent — Payment of premium — Interim receipt — Repudiation of acts of sui-agent. See Insurance, Fire, 1. 19. Joint stock company — Payment for shares — Equivalent for cash — Written agree- ment — Winding up. See Company Law, 45. 20. Life insurance — Condition of policy — Payment of first premium — Delivery of policy —Art. 1233 C. G. See Insurance, Life, 32. 21. Customs duties — Lex fori — Lex loci — Interest on duties improperly levied — Mistake of law — Repetition — Presum,ption of good faith — Arts. 1047, 10Jf9 C. G. See Customs Duties, 5. 22. Debtor and creditor — Accord and satis- faction — Mistake — Principal and agent. See Mistake, 7. PENALTY. Statutory prohibition — Penal statute — Wholesale purchase — Guarantee — Validity of contract — Forfeiture — 'Nova Scotia Liquor License Act — Practice. See Statute, 37. PENSION ALIMENTAIRE. ' See Alimentary Allowance. PENSION DE RETKAITE. Commutation — Transfer or Cession — R 8. Q. arts. 67S to 691.^— T>. a retired employee of the Government of Quebec in receipt of a pension under arts. 676, 677 R. S. Q., sur- rendered his pension for a lump sum, and sub- sequently he and his wife brought action to have it revived and the surrender cancelled. By art. 690 R. S. Q., pensions are not trans- ferable nor subject to seizure, and by art'. 683, the wife of D. on his death, would have been entitled to an allowance equal to one-half of his pension. — Held, reversing the decision ap- pealed from (Q. R. 4 S. C. 426), Strong, C.J., and Sedgewick, J., dissenting, that D. after his retirement was not a permanent official of the Government of Quebec, and the transac- tion was not therefore, a resignation by him of office and a return by the Government, un- der art. 688 R. S. Q., of the amount contri- buted by him to the pension fund, that the- policy of the legislation in arts. 685, 690 R. S. Q. is to make the right of a retired official to his pension inalienable even to the Govern- ment; that D.'s wife had a vested interest jointly with him during his life in the pension and could maintain proceedings to conserve it ; and therefore that the surrender of the pen- sion should be cancelled. Dionne v. The Queen, xxiv., 451. And see Civil Service. PEREMPTION D'INSTANCE. Abatement of action — Retrospective legisla- tion — Arts. 1 and 279 G. P. Q.—Art. J^lf G. C. P.] — When the period of peremption com- menced after the promulgation of the new Code of Procedure of the Province of Quebec the exceptions declared by the fourth para- graph of its first article do not prevent the peremption of a suit pending at the time it came into force under the limitation provided by art. 279. Cooke v. Millar (3 R. L. 446; 4 R. L. 240) referred to. Schwob v. Town of Farnham, xxxi., 471. PERILS OF THE SEAS. See Insurance, Marine. PERJURY. Criminal law — Judicial proceeding —^ De facto tribunal — Misleading justice — Jurisdic- tion — Construction of statute — R. S. Q. arts. 5551, 5561 — Criminal Code, s. US.] — The hearing of a charge by a magistrate assuming to act as a Justice of the Peace having authority to hear it, is a judicial proceediDg within the meaning of s. 145 of the Criminal Code and a person swearing falsely upon sutfb hearing may be properly convicted of perjury, notwithstanding that the magistrate had no jurisdiction over the subject matter of the complaint. Judgment appealed from (Q. K. 11 K. B. 477) affirmed, the Chief Justice and Mills, J., dissenting. Drew v. The King, xxxiii., 228. And see Criminal Law. PETITION OF RIGHT. 1. Appeal — Expiration of time limit — For- feiture—Waiver—Arts. 1020, 1209, 1220 C. P. Q.] — Art. 1220 C. P. Q. applies to appeals in cases of petition of right in the Province of Quebec. Lord v. The Queen, xxxi., 165. 2. Agreement for oontinuous_ possession of Government railway — Breach of assertwn of supposed rights — Joint misfeasaijce — Reduc- tion of damages — 37 Vict. c. 16 (D-) See Tort, 1. 3. Suit against Grown — ¥> ^^^ "■ f (Que.) — Appeal to Supreme Court of Canada. See Appeal, 384. 1045 PLEADING. 1046 i. Remedy against Crown — Title to land — Be-vestmg of lands not use for canal purposes Statute of Limitations — Petition of Right Act See KiDEAU Canal Lands, 2. 5. Contract for puUic work Final certificate — Pleading. See Contract, 61. Extras- 6. Railway subsidy — Application — Discre- tion of Crown — Trust. See Constitutional Law, 55. 7. Constitutional law — Powers of executive councillors — " Letter of credit " — Ohligations Mnding on provincial legislatures — Govern- ment expenditures — Negotiable instrument — " Bills of Exchange Act," 1890 — " The Bank Act," R. S. G. c. 120. See Constitutional Law, 26. 8. B. N. A. Act, 1861, s. Ill— Deferred lia- bility of Province of Canada, 8 Vict. e. 90 (Can.) — Arbitration and award -- Condition -Remedial process. See Statute, 154. PETITORY ACTION. 'ee Action — Title to Land. PHARMACY. 1. Quebec Pharmacy Act, i8 Vict. c. 36, s. 8 — PortnersWp.]— i8 Vict. c. 36, s. 8 (Que.), which provides that all persons who, during five years before the coming into force of the Act, were practising as chemists and druggists in partnership with any other person so prac- tising, are entitled to be registered as licenti- ates of pharmacy, applies to a person who had, during more than five years before the coming into force of the Act, practised as chemist and druggist in partnership with his brother and in his brother's name, and that he was entitled under that section to be registered as licentiate of a pharmacy. Judgment appealed from (M. L. K. 2 Q. B. 362) affirmed. L' Association Ploirmaceutique de la Province de Quebec v. Brunei, xiv.. 738. > 2. Unlicensed sale of drugs — Second offence — ' Quebec Pharmacy Act " — Suit for joint venalties. See Statute, 36. PHOSPHATE. Condition of marine policy — Overloading wiith "stone or ores." See Insurance, Marine, 15. And see Boundary— Mines and Minerals- Title TO Lands. FLANS. I. Reference in deed — Re-subdivision — wrses and distances— Computed area — Evi- Hence of boundaries. &e Boundary, 1, 3, 5, 7— Survey, 2— Title to Lands, 87. 101, 129, 185. 2. Subdivision of lands — Registration of plan — Grant by specific description — Evidence to explain plan — Boundaries. See Title to Land, 129. 3. Sale of land — Lanes on sale plan — Lease by new plan with lane closed^— Estoppel. See Title to Land, 33. 4. Expropriation of land — Tenants in com- mon — Proprietaires par indivis — Construction of agreement — Misdescription — Plans and books of reference — Surveys — Registry laws — Satisfaction of condition as to indemnity. See Railways, 32. 5. Cadastre — Variation of description of lands — Possession beyond boundaries in deed — Notice by registration — Bona fides — Prescrip- tion. See Title to Land, 87. 6. Plan of subdivision — Title to land — Legal warranty — Description — Change in street line — Accession — Troubles de droit — Eviction. See Title to Land, 125. 7. Mines and minerals — Adverse claim — Form of plan — Right of action — Condition precedent — Necessity of actual survey — R. S. B. C. (1897) c. 135, s. 37— R. S. B. G. (1897) 0. 3, s. 16. See Mines and Minerals, 15. 8. Contract for construction of works — Specifications — " From " and " to " streets — Reference to plan annexed — Construction of deed — Mistake — Costs. See Contract, 179. PLEADING. 1. Statement oe Claim or Demand, 1-18. 2. Defence, Exceptions, Oppositions, &o., 19-65. 3. Set-off, Counterclaim, Incidental De- mand, 66-69. 4. Amendments, 70-79. 5. Pleadings Generally, 80-92. 1. Statement of Claim oh Demand. 1. Statement of claim — Exchequer Court — In- sufficiency — Appeal from order in chambers.] — A statement of claim was filed by the At- torney-General for Ontario in the Exchequer Court of Canada, praying "that it may be declared that the personal property of persons domiciled within Ontario, dying intestate and leaving no next of kin or other persons en- titled thereto other than Her Majesty, belongs to the province or to Her Majesty in trust for the province." The Attorney-General for Can- ada in answer prayed that " it be declared the personal property of persons who have died intestate in Ontario since confederation, leav- ing no next of kin or other person entitled thereto except Her Majesty, belongs to the Dominion of Canada, or to Her Majesty m trust for the Dominion of Canada." — No re- ply was filed, and on an application in cham- 1047 PLEADING. 1048 bers for summons for order to fix time and place of trial or hearing, the summons was discharged by Gwynne, J., on the ground that the case did not present a proper case for the decision of the court. Motion was then made before the Exchequer Court (Ritchie, C.J.), by way of appeal, for an order to fix the time and place of trial, which was dismissed with costs, on the ground that he was not pre- pared to interfere with the order of another judge of the same court. — On appeal to the full court, Held, affirming the decisions ap- pealed from, that the pleadings did not disclose any matter in controversy in reference to which the court could be properly asked to adjudge, or which a judgment of the court could affect. Attorney-General of Ontario v. Attorney-General of Canada, xiv., 736. 2. Libel — Special damages — General claim — Verbal slander — Particulars — Loss of custom — Evidence.] — By s. 11 of the Libel Act of Manitoba, 50 Vict. c. 22, actual malice or culpable negligence must be proved in an ac- tion for libel unless special damages are claimed. Held, affirming the judgment ap- pealed from (6 Man. L. R. 578) , that a general allegation of damages by loss of custom is not a claim fori special damages under that section. Per Strong, J., where special damages are sought to be recovered in an action of libel, or for verbal slander wherd the words are actionable per se, such special damage must be alleged and pleaded with particularity, and in case of special damage by reason of loss of custom the names of the customers must be given or otherwise evidence of the special dam- age is inadmissible. Ashdown v. Manitoba " Free Press " Co., xx., 43. 3. Injunction obtained maliciously — Disso- lution — Non-pros. — Loss of trade — Statement of claim — Suggestio falsi — Suppressio veri — Discretion — Demurrer.'] — Action for mali- ciously obtaining an ex parte injunction order from a judge, whereby the plain- tiff was restrained from disposing of lum- ber and sustained damage. It was alleged that plaintiff was possessed as of his own property of lumber, the defendants malici- ously and without reasonable or probable cause, and without any notice to plaintiff, made an ex parte application for an injunc- tion in a suit commenced by them in which defendants were plaintiffs and the plaintiff with others defendants, and procured an em parte order of injunction and caused it to be served on plaintiff ; that plaintiff appeared and put in his answer, but defendants did not fui-- ther prosecute their suit, which was dismissed with costs and the injunction became of no further effect ; that by reason of obtaining and service on plaintiff of said order he was hin- dered and prevented from manufacturing said lumber for a long space of time whereby said lumber was greatly injured and part thereof lost and the plaintiff lost large gains. A de murrer was sustained. — Held, affirming the judgment appealed from (18 N. B. Rep. 469), that the declaration disclosed no cause of ac- tion.— By R. S. N. B. vol. 2 (1854) c. 18, s. 6, (C. S. N. B. [1877] c. 49, s. 24), such an order is granted on a sworn bill, or on the bill and an affidavit, and may be granted ex parte, subject to be dissolved on sufficient ground shewn by affidavit on the part of de- fendant. Here there was no allegation that the injunction was dissolved, or that any ap- plication was made for its dissolution, or that the order was obtained by any suggestio falsi. or suppressio veri on the part of plaintiff, and for aught that appeared in the declaration, the judge exercised a sound discretion in granting the order. Collins v. Everitt, Cass. Die f2 ed.) 210. ^ ^ 4. Malicious proceedings in insolvency — De- claration — Demurrers — Final judgment — Tres- pass^Order for payment of part of verdict as condition of stay of execution — Practice.] — In an action for malicious proceedings in insol- vency the declaration contained eight counts : — 1. For falsely, maliciously, and without rea- sonable or probable cause, on 18th April, 1879, issuing a writ of attachment under the Insol- vent Act of 1875. &c., against plaintiff then a trader, &c., residing and carrying on business in Cariboo, and serving, . publishing and exe- cuting the same, causing plaintiff's property to be taken from him ; but that on petition by the plaintiff praying that the writ and the attachment made thereunder might be set aside, the court ordered that the proceedings on the writ and procedure thereon should be euded> and determined upon judgment setting them aside on appeal, and by reason of the premises, plaintiff was put to expense, inconvenience, anxiety, pain and distress of body and mind, and was prevented from transacting business, collecting debts, and lost many debts, &c., &c., and was in- jured in credit and business, &c., &c. — 2. Set- ting out proceedings same as the first count: And afterwards the judge, on 8th May, 1880, set aside and annulled the attachment, and defendants appealed and set down the appeal for hearing but did not proceed with their ap- peal and, on application of plaintiff, it was ordered that the record be returned, and con demned defendants to pay costs (the alleged expenses, &c. ) — 3. Alleging the proceedings as in first count : — And defendants maliciously appeared before the judge, and opposed the petition to set aside the writ and caused the judge to decline to hear or adjudicate upon the petition. That defendants maliciously opposed an application to shew cause, &c., and thereupon the County Court Judge was order- ed to proceed to hear and adjudicate upon the petition. And defendants maliciously, &c., ap- pealed, but the Supreme Court conhrmed the order and dismissed the appeal. That after- wards when the petition came before the County Court Judge for hearing, defendants again maliciously, &c., opposed it, and caused the judge to dismiss it with costs and direct proceedings in insolvency to go on. That plaintiff appealed and defendants again malici- ously, &c., opposed the appeal, but the Su- preme Court set aside the decision of the County Court Judge. " * (Conclusion as in first count.) — 4. (Same as 3rd to asterisk.) " And thereupon plaintiff applied to said Coun- ty Court Judge in pursuance of said petition to set aside, &c., and defendants again malici- ously, &c., opposed such application, but the County Court Judge . . . made an order annulling the writ and attachment, and ae- fendants maliciously, &c., appealed . ■ • J" the Supreme Court, and . . . caused the appeal to be set down for hearing on 14tti June, 1880. That on 14th June, 1880, it was considered by the Supreme Court, that the de- fendants had not proceeded with the appeal according to law or the rules of practice and on application of plaintiff . . . °''"5™„ that the record (if any) be returned, &c. (Conclusion is in the other counts.)— 5. •S^" plaintiff also sues defendants for that, alter issuing writ of attachment as in 3rd count 1049 PLEADING. 1050 mentioned, defendants maliciously, &c., advis- ed and procured alleged creditors to prove al- leged claims . . . and procured such credi- tors to support the attachment, and said writ was determined as in 3rd count mentioned, and by reason of the premises the said writ remained in force for a longer time than otherwise it would, and the plaintiff was put to expense, inconvenience, anxiety, &c. (Con- clusion as in other counts.) — 6. Same as 5th except that it referred to the issuing and determination of the writ " as in the fourth count mentioned." — 7. " And plaintiff also sues defendants for that at the time of the grievance hereinafter mentioned plaintiff was a trader, &c., in Cariboo, and defendants ma- liciously, &c., Caused and procured plaintiff's houses, at Cariboo, to be entered and plaintiff to be dispossessed thereof for a long time, and his goods and chattels, mines and books of account to be seized and taken from him, and plaintiff to be deprived of the use and enjoy- ment of the same respectively for a long time, and by reason of the premises plaintiff was put to expense, inconvenience, &c. (as before. ) . . . — ^"8. And plaintiff also sues defend- ants for that defendants with force and arms broke and entered plaintiff's houses and mines at Cariboo, dispossessed plaintiff thereof re- spectively, and remained therein and in posses- sion thereof respectively for a long time, . . and also seized and took and detained all his books of accounts, goods, chattels and effects, consisting principally of merchandise and fur- niture, whereby plaintiff lost and was de- prived of the use of the said houses, goods, mines, chattels and effects and thereby the same were greatly damaged, and divers of book debts lost." — " And the plaintiff claimed $30,000." — Pleas, "not guilty," tra- verse of allegations in the several counts, and, as to 7th and 8th counts, justifying under the writ of attachment. Defendants also de- murred to all the counts, except 7th and 8th. The jury returned ; " we find a verdict for the plaintiff and award him no damages before the IBth of May, 1879. Subsequent to that date we award him $5,000." The demurrers were overruled aod on the same day plaintiff moved tor judgment on the verdict, which was or- dered for $5,000 with Costs. On 11th July, 1881, the Chief Justice granted defendants a stay of execution until the cause could be re heard before the full court, on condition of payment of $1,000 and taxed costs to the plaintiff. — ^An appeal to the Supreme Court of Canada was confined to the judgment on the demurrers, and there was no appeal from the judgment ordered to be entered on the verdict. Held, that defendants were entitled to judg- ment both on the demurrers and on the facts. That the 3rd, 4th, 5th and 6th counts of the declaration were admittedly bad, and the 1st and 2nd counts were also bad. It was not alleged that defendants procured the writ of attachment to issue by any false statement, there was no allegation that defendants were not creditors of plaintiff, ctf that he had not tailed to meet his engagements as they became ?ue, or that he was not liable to be put into insolvency. That as to the 7th and 8th counts, tne jury having confined the damages to acts aone subsequently to 16th May, 1879, and de- fendants by their plea to these counts justify- ing under the writ of attachment, and the acts complained of having been committed on tne 3rd May. 1879, under the writ while in wrce, the finding, which was a general one, was in effect a finding in favour of the defend- ants upon the issue joined on the plea to the said counts. That plaintiff should be ordered to re-pay to defendants .$1,000 paid by them under the order of 11th July, 1881, there be- ing nothing in the law to justify the court below m ordering such a payment. — Appeal allowed with costs in both courts; judgment on the demurrers overruled and demurrers al- lowed ; judgment ordered to be entered for de- fendants upon demurrers and upon the 7th and 8th counts ; the order of 11th July, 1881, set aside; and plaintiff ordered to re-pay $1,000 with interest at 6 % from that day, together with the sum paid for costs of suit under that order. Bank of B. A'. A. v. Walker, Cass. Dig. (2 ed.) 214. 5. Status of plaintiff — Special denial — Art. m C. C. P.] — The quality assumed by the plaintiff in the writ and declaration is con- sidered admitted unless it be specially denied by the defendant. (Judgment appealed from, Q. R. 1 Q. B. 144, affirmed.) Martindale v. Powers, xxiii., 597. 6. Railway/ company — Carriers — Connecting lines — Special contract — Loss by fire — jfegli- gence.'i — In a statement of claim, to anticipate and reply to matters of defence is a highly improper practice. Lake Erie and Detroit River Ry. Co. v. Sales, xxvi., 663. 7. Action — Condition precedem — Allegation of performance.} — Under the Ontario Judica- ture Act the performance of conditions prece- dent must still be alleged and proved by the plaintiff. Home Life Ass'n v. Randall, xxx., 97. 8. Action on foreign judgment — Original consideration — Ontario Judicature Act — Counts in declaration.'] — Under Ont. Jud. Act, as before it, the declaration in an action on a foreign judgment may include counts claim- ing to recover on the original Consideration. — Judgment appealed from (Bugbee v. Gler- gue, 27 Ont. App. R. 96) affirmed. Clergue V. Humphrey, xxxi., 66. 9. Admissions in declaration — Agreement as to evidence — Estoppel.] — In one count of his declaration plaintiff admitted a breach of said condition but alleged that it was waived ; on the trial counsel agreed that the facts proved in the case against the Commercial Union Insurance Company" should be taken as proved in the present case. These facts shew- ed, as held by the decision in the previous case, that there was no breach. Held, that the agreement at the trial prevented the pre- sent appellant company from claiming that respondent was estopped from denying that there had been a violation of the condition. Western Assur. Co. v. Temple; xxxi., 373. 10. Controverted election — Form of peti- tion — Jurat — Preliminary objections.] — The jurat of the aflidavit accompanying the petition was subscribed " Grignon & Fortier, Protonotaire de la Cour Supgrieure dans et DOur le District de Terrebonne." — Per Gwynne, J. An objection to the regularity of the subscription to the jurat does not con- stitute proper matter to be inquired into by way of preliminary objection to the petition. Two ilouidainn Election Case; Ethier v. Le- gault, xxxi., 437. 11. Voluntary assignment — Form of ac- tion — Setting aside deed. See Assignments, 1. ;1051 PLEADING. 1052 12. Practice in Nova Sootia — Improper joinder — Go-plaintiffs — Abatement — Amend- ment of record. See Husband and Wife, 2. 13 Proceedings in foreign tribunal — List of contributories — Galls on past members of company — Action thereon — Demurrer. See WiNDiNG-TJP Act, 11. 14. Petition of right — Statement of claim Condition precedent — Amendment of claim. See CoNTEAOT, 58. 15. Petitory conclusions — Recovery of church property — Removal of trustee — 38 Vict. c. 72 (0.) See Action, 119. 16. Supplemental claim — New matter in reply — Ultra petita — Failure to demur — Bstoppel. See No. 30, infra. 17. Cumulative demand — [ncompatible pleas — Petitoire — Possessoire — Reintre- grande — Uvnuiiciation de nouvel osuvre. See Title to Land, 138. 18. Operation of tramway — Negligence — Issues as tried — Verdict — Objections taken on appeal. See New Trial, 82. 2. Defence ; Exceptions ; Oppositions, &c. 19. Insolvency — Puis darrein continuance — Composition and discharge pending suit — Estoppel — " Pinal judgment " — Appeal — Supreme Court Act, s. 17.} — W. sued B., and in June, 1873, B. assigned under tlie Insol- vent Act of 1869. On 6tii August B. secured a deed of composition, and in October pleaded puis darrein continuance, that since action he assigned under the Act, and by deed of com- position and discharge was discharged of all liability. In November the Insolvent Court confirmed the deed of composition and dis- charge, but B. neglected to plead this confir- mation. Judgment was given in favour of W. in January, 1874, and in May, 1876, exe- cution issued. In June, 1876, a rule nisi to set aside judgment and execution was obtain- ed and made absolute. Held, Strong, J., dis- senting, that the rule or order of the court below was one from which an appeal would lie. Held, also, reversing the Supreme Court of Nova Scotia, that B. having neglected to plead his discharge before judgment, as he might have done, was estopped from setting it up afterwards to defeat the execution. Wal- lace V. Bossom, ii., 488. 20. Amending pleas — Point not urged in court below — Justification under statute.'] — In a suit to recover damages for obstruction of a river, the nleas were not guilty, and leave and license. On the trial counsel proposed to add a plea, that the wrong complained of was occasioned by extraordinary freshet, and be- ing objected to as such plea might have been demurred to, the judge refused the applica- tion, because he intended to admit the evi- dence under the plea of not guilty. On ap- peal to the Supreme Court of Canada, it was contended that the obstruction complained of was justified by the statute 17 Vict. c. 10 (N. B.), incorporating the South- West Boom Company. Held, that the defendant, not hav- ing pleaded justification by statute, nor ap- plied to the Supreme Court of New Bruns- wick en banc, for leave to amend the pleas, could not rely on that ground upon the appeal. South-West Boom Co. v. McMillan, iii., 700. 21. Exchequer Court practice — Petition of right — Demurrer — Exception & Iq, forme — Art. 116 G. G. P.] — Suppliant claimed cer- tain parcels of land and the rents, issues and profits derived therefrom by the Government during illegal detention thereof. — The Crown pleaded 1st, by demurrer, alleging that the description of the property was insufficient; 2nd, that the conclusions of the petition were insufficient and vague ; 3rd, that in so far as respects the rents, issues and profits there had been no signification upon the Government of the transfer to the suppliant. Held, that the objection should have been pleaded by exception a la forme, pursuant to art. 116, C. C. P., and as the demurrer was to all the rents, issues and profits as well as those since the transfer, it was too large and should be dismissed, even supposing notification of the transfer was necessary with respect to rents, issues and profits accrued previous to the sale to suppliant. Chevrier v. The Queen, iv., 1. 22. Joint defence — Separate counsel at trial — Cross-examination — Matter of pro- cedure — Discretion.] — ^The defendants ap- peared and pleaded jointly by the same at- torney, their defence being in substance, pre cisely the same, but they were represented at the trial by separate counsel. On examina- tion of plaintiff's witness, both counsel claim- ed the right to cross-examine. Held, affirm- ing the ruling of the judge at the trial, that this was a matter of procedure and within the discretion of the trial judge and that moreover he was right in refusing to allow more than one counsel to cross-examine the witness. Walker v. McMillan, vi., 241. 23. Claim by assignee of insolvent estate — Traverse of allegation of assignment — Jssue — Insolvent Act, 1875 — Trader — Onus of proof.] — The action was brought by an assignee, un- der the Insolvent Act of 1875, for trespasses, and for conversion by defendants of ice tafeen off the property. The last plea was that " the said plaintiff was not, nor is such as- signee as alleged." It was agreed that a ver- dict could be entered for the plaintiff with $10 damages, subject to the opinion of the full court. A rule nisi was taken out that the verdict so entered by consent should be set aside with costs, and for a new trial. The rule was made absolute with costs and judg- ment entered for the defendants against the plaintiff with costs. On appeal to the Su- preme Court of Canada : — Held, Henry, J., dissenting, that by traversing the allegation of plaintiff being assignee, the defendants put in issue the facts implied in the averment, that the plaintiff was assignee in insolvency, and that the assignor was a trader within the meaning of the Act, and. further, as the evidence did not establish that the assignor bought or sold in the course of any trade or business or got his livelihood by buying and selling that the plaintiff failed to prove this issue. Greighton v. Ghittick, vii., 348. 24. Unstamped bill — Double stamping ■- "Knowledge"— J,Z Vict. c. 17, s. ;S.]— The want of proper stamping at the time the state ^ 5 \ il053 PLEADING. lOM of the bill came to the knowledge of the hold er is a question for the judge at the trial and not for the jury and is not a defence that need be pleaded. (Gwynne, J., dissented.) Chap- man V. Tufts, viii., 543. 25. Beddition de compte — Incompatible fleas — Fractice — Right of action.] — In an action en reddition de compte, the defendant denied the right of action, but also claimed that he had already rendered an account and provided an unsworn statement. Held, that, although issue had been joined and enguete made upon the pleadings as filed, the plaintiff was entitled first to have an adjudication as to his right of action, and an order for the pro- duction of a sworn account supported by vouchers. Judgment appealed from (11 Q. L. R 342) reversed. L'Beureusc v. Lamarche, xii., 460. , 26. Payment into court — Conditional plea — Plaintiff withdrawing deposit.'] — In an ac- tion for account defendant after setting up a discharge by plaintiff of his cause of ac- tion against defendant pleaded : " In ease this court should he of opinion that defendant is still liable . . . defendant now brings in- to court, &c., the sum of, &c.. and states that the same is sufficient, &c. The plaintiff took the money out of court." Held, affirming the judgment appealed from (12 Ont. App. R. 1), Strong, J., dissenting, that this was a payment into court in satisfaction which plain- tiff had a right to retain, notwithstanding his action was dismissed at the hearing. Held, per Strong, J., that this plea only recognized plaintiff's right to the money in the event of the court deciding that defendant was not discharged from his liability, but that on the facts presented plaintiff was entitled to judg- ment for the same amount as the, sum paid into court. Fraser v. Bell., xiii., 546. 27. Action for hodUy injuries — Claim iy rep^esentatioes of deceased employee — Pre- imption — Judicially noticed.] — Action by a widow for compensation for death of husband from injuries received in the employ of de- fendant. Held: Fournier, J., dissenting that as at the time of the husband's death his' right of action was prescribed under art. 2262. 0. C, and that this prescription was one to which the courts were bound to give effect al- though not pleaded. Canadian Pacific By. Co. T. Rolimson, xix., 292. [Reversed, as to the holding on the question of the operation of prescription, on appeal to the Privy Council; (1892), A. C. 481.] 28. Trespass — Justification iy statute — Averment in plea — Necessity of act com- mmed of — Demurrer.] — A plea justifying me Cutting of trees under authority of 34 Vict. c. 52, s. 20 (D.) is bad for want of averment that it was necessary to cut the tu '..i' '*' insuflicient to aver merely that me cutting of the trees was deemed neces wry. Dominion Telegraph Co. v. Gilchrist, , Cass. Dig, (2 ed.) 844. k^i. ^'f"ff TT ''''■esP'^ss — Sale of goods ly WMl«e« Bona fides — Judgment of in l«^ tnhunal — Estoppel — Bar to action pSnl ^''?*<'»t* ~ Fraudulent preferences — Z„ ™?-]— K. was a trader and in insolvent S • ^.""^^Z ^^«» lie sold the whole of his SI *™'^« *° ^- At the time of this sale JkZILT'-^I^ *^' t^o of K.'s creditors had "■wovered judgments against him. The sheriff afterwards seized the goods so sold, under executions issued upon judgments subsequent- ly obtained, and upon an interpleader issue tried in the County Court the jury found that Iv. had sold the goods with intent to prefer the creditors who held the prior judgments, but that D. had purchased in good faith and without knowing of such inlention on the part of the vendor. Judgment was thereupon entered against D. in the County Court and the judgment was affirmed by the Supreme Court (B. C.) en banc. — In an action atter- wai-ds brought by D. against the sheriff for trespass in seizing the goods he obtained a verdict, which was, however, set aside by the court eiv banc, a majorUy of the judges hold- ing that the County Court judgment was a complete bar to the action. Held, reversing the judgment appealed from, that as the evF- dence shewed that the goods had been pur- chased in good faith by D. for his own bene- fit, the sale was not void under the statute respecting fraudulent preferences ; that the County Court judgment, being a decision of an inferior tribunal of limited jurisdiction, could not operate as a bar in respect of a cause of action in the Supreme Court, be- yond the jurisdiction of the County Court, and further, that even if such judgment could be set up as a bar, it ought to have been specially pleaded by way of estoppel, by a plea setting up in detail all the facts neces- sary to constitute the estoppel, and that from the evidence in the case it appeared that no .such estoppel could have been established. Taschereau, J., dissented (See 3 B. C. Rep. 35). Davm'vf McMillan, 1st May, .1893. _fi I to. New matter Qet up in reply — Failure .%• to demur — Ultra petita — Issues joined — ■ ' Estoppel.] — Where the plaintiff has supple- mented his claim by setting up new matter in reply, and the defendant has failed to demur to the reply or object to evidence being ad- duced upon the issues generally, it is too late ' afterwards to take objection on the ground that, if the plaintiil had any other claim than the one sued for, it should have been set forth in the declaration. Gilbert v. Lionaix (7 R. L. 339) referred to. Judgment appealed from aSirmed. Kingston Forwarding Co. v. Union Bank of Canada. 9th December, 1895. 31. Immoral contract — Foreclosure — Order for possession — Pleading — Parties.] — Under the Judicature Act (Oht.) an action for foreclosure is not to be regarded as in- cluding a right to recover possession of the mortgaged premises as in ejectment, and the rule that in such action the plaintiff may ob- tain an order for delivery of possession does not apply to a case in which the mortgage sought to be foreclosed is held void and plain- tiff claims possession as original owner and vendor. — Under said Act, as formerly, the plea to an action on a contract that it was entered into for an immoral or illegal consid- eration must set out the particular facts re- lied upon as establishing such consideration. — Judgment appealed from affirmed. — Quwre, Can the purchaser of the equity of redemption set up such defence as against a mortgagee seeking to foreclose, or is the defence confined to the immediate parties to the contract.' Clark V. Hagar, xxii., 510. 32. Sufficient traverse of allegation by plain- tiff — Objection first taken on appeal.] — The plaintiff by his statement of claim alleged a partnership between two defendants, one be- 1055 PLEADING. 1056 ing married whose name on a re-arrangement of the partnership was substituted for that of her husband without her knowledge or auth- ority. Held, reversing the judgment appealed from (3 B. C. Rep. 149), that a denial by the married woman that " on the date alleged or at any other time she entered into partner- ship with the other defendant " was a suflB- cient traverse of plaintiff's allegation fo put the party to proof of that fact. Held, also, that an objecftion to the sufficiency of the traverse would not be entertained when taken for the first time on appeal, the issue having been tried on the assumption that the traverse was sufficient. Mylkts v. Jackson, xxiii., 485. 33. Status of plaintiff — Special denial — Art. llfJf G. G. P.J — ^A defense en fait is not a special denial within the meaning of art. 144 C. C. P. (Judgment appealed from, Q. R. 1 Q. B. 144, affirmed.) Martindale v. Powers. xxiii., 597. 34. Signification of transfer — Issue — De- fense au fonds en fait.} — The want of signifi- cation of a transfer or sale of a debt as a bar to an action by the transferee is put in issue by a defense au fonds en fait. Murphy v. Bury, xxiv., 668. 35. Bailees — Gommon carriers — Express company — Receipt for money parcel — Gon- ditions precedent — Formal notice of clai/m — Pleading — Monev had and received — Spe- cial pleas — " Never indeited."'] — ^An express company gave a receipt for money to be for- warded with the condition indorsed that the company should not be liable for any claim in respect of the package unless within sixty days of loss or damage a claim should be made by written statement with a copy of the contract annexed. Held, reversing the judgment appealed from (10 Man. L. R. 595), that in an action to recover the value of the parcel, on the common count for money had and received, the plea of " never indebted," put in issue all material facts necessary to es- tablish the plaintifE's right of action. North- ern Pacific Express Gompany v.-Martin. xxvi., 135. 36. Joint stock company — Irregular or- ganization — Subscription for shares — With- drawal — Surrender — Forfeiture — Duty of directors — ; Powers — GanceUation of stock — Ultra vires — " The Gompanies Act " — " The Winding-up Act " — Gontributories — Construction of statute.] — ^After the issue of an order for the winding-up of a joint stock company incorporated under " The Companies Act," (R. S. C. c. 119), a shareholder cannot avoid his liability as a contributory by setting up defects or illegalities in the organization of the company as, under the provisions of the Act, such grounds may be taken only upon di- rect proceedings at the instance of the Attor- ney General. (Judgment appealed from, Q. R. 8 Q. B. 128, reversed.) Gommon v. Mo- Arthur, xxix., 239. 37. Life insurance — Benefit association — Payment of assessments — Forfeiture — Waiver. 1 — A member of a benefit association died while suspended from membership for non-payment of assessments. In an action by his widow for the amount of his benefit cer- tificate it was claimed that the forfeiture was waived. Held, reversing the judgment ap- pealed from, that the waiver not having been pleaded it could not be relied on as an answer to the plea of non-payment. AUen v. Mer- chants' Marine Insurance Gompany (15 Can. S. C. R. 488) followed. Knights of Macaiees V. Hilliker, xxix., 397. 38. Leave to amend — Mortgage — Sale of mortgaged land for taxes — Purchase by mort- gagor — Action to foreclose — Pleading.] — Lands under mortgage were offered for sale by the municipality for arrears of taxes and pur- chased by the wife of the mortgagor. The tax sale certificate was afterwards assigned to L., who obtained a deed from the muni- cipality. In an action against the mortgagor, his wife and L. for foreclosure the mortgagee alleged that the purchase at the tax sale was in pursuance of a fraudulent scheme by the mortgagors to obtain the land freed from the mortgage, and the trial judge so held in giv- ing judgment for the mortgagee. The Court of Queen's Bench did not pronounce on the question of fraud, but affirmed the judgment on other grounds. Held, affirming the deci- sion appealed from (12 Man. L. R. 290), that L. c;ould not claim to have been a purchaser for value without notice, as such defence was not pleaded, and it was not a case in which leave to amend should be granted. Laielor v. Day, xxix., 441. 39. Appeal — Jurisdiction — Amount in dispute ■ — Question raised by plea — Inci- dental issue.] — Issues raised merely by pleas cannot have the effect of increasing the amount in controversy so as to give the Su- preme Court of Canada jurisdiction to hear an appeal. Girouard, J., dubUante. Stand- ard lAfe Assur. Go. v. Trudeau, xxx., 308. 40. Appeal — Jurisdiction — Final judg- ment — Plea of prescription — Judgment dis- m,issing plea — Costs — R. S. G. c. 135. s. Zi — Art. 2267 C. C] — ^A judgment affirming the dismissal of a plea of prescription when other pleas remain on the record is not a final judg- ment from which an appeal lies in the Supreme Court of Canada. Hamel v. Hamel (26 Can. S. C. R. 17) approved and followed. Chrif- fith V. Harwood, xxx., 315. 41. Appeal — Jurisdiction — Action for penalties — Plea of ultra vires of statute — Judgment on other grounds — R. S. C. c. 135, s. 19 (a).] — To an action claiming $325 as penalties for an offence against the Phar- macy Act, the pleas were: 1. General denial. 2. That the Act was ultra vires. In the court below the 'action was dismissed for want of proof of the alleged ofEence. Held, Strong, C.J., and Gwynne, J., dissenting, that an ap- peal would lie to the Supreme Court; that if the court should hold that there w^ an error in the judgment which held the offence not proved the respondent would be entitled to a decision on his plea of ultra vires and the appeal would therefore lie under s. /a (a) of the Supreme Court Act. L' Associa- tion Pharmaceutique de Quibec v. Lwernots, XXX., 400. 42. Conversion — Evidence — Defect «> plaintiff's title—Statute of Frauds.]— in an action daiming damages for the conversion or goods the plaintiff must prove an unquestion- able title in himself and if it appears tnat such tide is based on a contract the detena- ant may successfully urge that such contrMt is void under the Statute of Frauds though no such defence is pleaded.— It is on\jV!beK the action is between the parties to the con ti-art which one of them seeks to entorce 'tj 1057 PLEADING. 1058 against the other that the defendant must plead the Statute of Frauds if he wishes, to avail himself of it. — Judgment appealed from (32 N. S. Rep. 549) affirmed. Kent v. Ellis, xxxi., 110. 43. Cross-demand — Set-off — Declinatory ex- ception — Incompatible pleas — Waiver — Cause of action — Jurisdiction — Domicile — Pro- cedure — Opposition to judgment — Arts. 85, 9i, 129, im. ins, 1175, 1176 G. P. Q.]— In forming an opposition or petition In revoca- tion of judgment the defendant, in order to comply with art. 1164 C. P. Q.., is obliged to include therein any cross-demand he may have by way of set-off or in compensation of the plaintiff's daim and, unless he does so, he cannot afterwards file it as of right. • — A cross-demand so filed with a petition for re- vision of judgment is not a waiver of a de- clinatory exception previously pleaded therein, nor an acceptance of the jurisdiction of the court. — In order to take advantage of waiver of a preliminary exception to the compe- tence of the tribunal over the cause of ac- tion on account of subsequent incompatible pleadings, the plaintiff must invoke the alleg- ed waiver of the objection in his answers. — Judgment appealed from, affirming Q. R. 16 S. C. 22, reversed. Magann v. Auger, xxxi., 186. 44. Doctrine of ultra vires — Objection tahen in master's office and on appeal from master's report. See Mortgage, 19. 45. Action in name of corporation — Auth- orization — Stay of proceedings. See Action, 70. 46. English practice in 1870S8 Vict. c. 12 {Man.) — Ejectment — Equitable defence. See TiTtE TO Land, 27. 47. Action on insurance policy — Shabby defence — "Want of a seal" — Equitable replication — Repression of fraud — Estoppel. See Company Law, 28. 48. Statute of Limitations — Petition of Right. See RiDEAU Canal Lands, 1. 49. Equitable pleas — Rules in Nova Scotia. See Banks and Banking, 35. 50. Proceedings against holder of unpaid stock — Transfer as mortgage — Pleas setting 11/p illegal issue. See Company Law, 36. 51. Bill of exchange — Want of stamp — Non- tecit— Issue — Special plea. See Bills and Notes, 42. 52. Set-off — Pleading — Equitable assign- See Set-off, 2. 53. Jfew grounds taken on appeal — New trial. See Evidence, 13. o.^i.^"**"^ of action — Defence not pleaded — H Vict. c. 11 (N. B.) See MtTNiciPAL Cobpoeations, 141. s. c. D.— 34 o5. Estoppel — Traverse of vendor's title- Act confirming title — Crown lands — B N A Act, 1867. See Title to Land, 132. 56. Policy of insurance — Representations in application — Admission of parol evidence — Findings of jury. See Insueance, Fire, 78. 57. Libel — Public affairs — Fair comment — Justification — General issue — Rejection of evi- dence — Verdict. See New Trial, 33. 58. Demurrer — Husband and wife — Trial — Recovery of land. See Ejectment. 1. 59. Temporary exception — Deficiency in area of land sold — Arts. 1501, 1502 C. G. See Sale, 109. 60. Petition of right — Contract for public work — Pinal certificate — Extras — Certificate, not pleaded. See Contract, 61. 61. Plea of litigious rights — Usurper in pos- session — Title to lands — Art. 1582 C. C. — Im- peachment of title by warrantor. See Litigious Rights, 2. 62. Exception a la forme — Arts. IJf, 116, 119 C. C. P. (Old Text)— Procedure. See Action, 84. 63. Plea of res judicata — Estoppel — Bight of action — Intervention — Pledge. See Res Judicata, 19. 64. Prescriptions-Arts. 2188. 2262, 2267, C'. G. — Waiver — Failure to pleal limitation ■ — Defence supplied by court — Reservation of recourse for future damages — Judicial admis- sion'— Interruption of prescription — Novation — Costs. See Action, 47. 65. Operation of tramway — Contributory negligence — Pleadings — Issues — Evidence—^ Verdict — New trial — Objections taken on appeal. See New Trial, 82. 3. Counterclaim ; Set-off ; Incidental De- mand. 66. Solicitor and client — Signed bill of costs — • Sheriff's fees — Counterclaim for over- charges.] — In an action by the sheriff against a solicitor for office fees and charges, the soli- citor cannot counterclaim for overcharges in former bills paid to the sheriff by him in re- spect of matters in which the solicitor may have acted for the parties interested because any such overcharges, if recoverable from the sheriff, do not belong to the solicitor but to the clients for whom he acfted, but, in such an action, the solicitor may set up by way of counterclaim his costs in a suit in which he had appeared for the sheriff notwithstanding his omission to render a signed bill of costs prior to the filing of the counterclaim. Tay- lor V. Robertson, xxxi., 615. 1059 PLEADING. 1060 67. Action for libel — Defamatory plea — In- cidental demand for additional damages. See Damages, 7. 68. Declinatory exception — Opposition to judgment — Cross-demand — Incompatible pleas. See No. 43, ante. 69. Pledge — Deposit with tender — Forfei- ture — Breach of contract — Municipal corpora- tion — Right of action — Damages — Set-off — Restitution of thing pleaded — Practice of ap- pellate court — Irregularity of issues in trial court. See Action, 49. 4. Amendments. 70. Pleading — Estoppel — Failure to deny allegation in statement of claim — Amendment of defence.^ — ^An acceptance whicE had been discharged by an agreement between the drawer and the acceptor, was subsequently put in suit by the cashier of a bank to which it had been indorsed, and the acceptor was obliged to pay the same. He then brought ac- tion against the drawer to recover the amount :So paid, alleging that the acceptance was in- •dorsed as mentioned. The Supreme Court af- firmed the judgment appealed from (28 N. S. Rep. 210), which held, per Graham, C. J., and Henry, J., that the defendant having neglect- .ed to reply to the paragraph in the statement jof claim, alleging the indorsement, was es- topped from denying it ; and per Meagher, J., .that the defendant was entitled to amend his defence in that behalf, and that there should ibe a new trial. Cox v. Seeley, 6th May, 1896. 71. Breach of contract — Evidence — Local nsage — Damages — Practice — Amendment of claim after enquete closed — Arts. 12S4, 1235 C. C] — On appeal the Supreme Court affirm- ed the judgment of the Court of Queen's Bench ^^^'' ^^^^- S- C. Prac. (2 ed.) loo, lo9. 46.^ Constitutional questions — Counsel for Provincial Government.} — In an appeal be- tween private suitors in which the validity of an Act of a Provincial Legislature is ques- tmued, the Attorney Greneral of the province will be heard on the question of provincial legislative jurisdiction. Citizens Ins. Co. v Johnston, Cass. Dig. (2 ed. ) 078. 47. Hearing counsel from different provinces — Rule S2 — Third counsel heard.} — 'The court heard a third counsel for appellants, notwith- standing rule 32, as the laws of two provinces were in question, and there was a cross-appeal. It was stated that the practice permitted un- der the special circumstances should not be considered a precedent. Coleman v. Miller, Cass. Dig. (2 ed.) 678. 48. Searing counsel — Third counsel citing authorities.} — When one counsel from Quebec and one from Ontario had been heard for re- spondent, a third counsel (from Quebec) was heard on French authorities applicable. Rus- sell V. Lefrancois Cuss. Dig. (2 ed.) 679; See 8 Can. S. C. R. at p. 338. 49. Transaction of office work — Correspond- ence — Appointment of agents.} — Conducting business with the registrar's office by corres- pondence is an irregular practice. A solicitor should appoint an agent as required by the Supreme and Exchequer Court rules. Wal- lace V. Burkner, Cass. Dig. (2 ed.) 669; Cass. S. C. Prac. (2 ed.) 138, 139. 50. Counsel — President of railway com- pany, appellants, not entitled to he heard.} — The appellants did not appear by counsel at the hearing, but a Jlr. O'B. appeared and stated that he was the president and proprie- tor of the railway company, appellants, and wished to be heard on their behalf. The ap- plication was refused and the hearing of the appeal was ordered to stand over till next ses- sion. Halifax City Ry. Go. v. The Queen, Cass. Dig. (2 ed.) 679. 51. Constitutional questions — Bearing of counsel — Right to begin — Reply — R. of P. S2.} — Where a question of legislative jurisdic- tion is raised, the party attacking the valid- ity of an Act should begin. In the case in question, counsel for the provinces were first heard. Only one counsel was heard in reply for all the provinces. In re '" Liquor License Act, 1883," Cass. Dig. (2 ed.) 679; Cass. S. C. Prac. (2 ed.) 147. 52. Referred question — Hearing counsel — Right to begin.} — Question whether or not on a reference upon the Canada Temperance Act, 1878. s. 6, had been complied with, and whether proclamation should issue under s. 7. the court directed that the parties seeking to sustain the affirmative, and wishing to shew that the proclamation should issue should be- gin. In re " Canada Temperance Act. 187S," {County of Perth), Cass. Dig. (2 ed.) 679. no? PEACTICE OF THE SUPKEME COURT OF CANADA. 1108 53. Postponement of hearing — Illness of counsel.'i — Motion to postpone hearing till the following session on the ground of unexpected illness of counsel retained. Granted. Adam- son V. Adamson, Cass. Dig. (2 ed.) 686; Que- bec Ins. Co. V. Eaton, May, 1900; Consumers' Cordage Go. v. Connolly, 11th Oct., 1900. 54. Extra counsel — Special circumstances — Intricate questions — Cross-appeal — Rule relaxed.] — On special application, third counsel was heard, intricate questions of law having to be argued, there being a cross- appeal, and counsel stating that the Court of Queen's Bench for Lower Canada had also relaxed its rule which forbids the hearing of more than two counsel on each side. — The court stated that the fact of there being a cross appeal was not of itself sufficient ground to cause the court to depart from its rule. Jones V. Eraser, Cass. Dig. (2 ed.) 678. 55. Non-appearance — Absence of counsel when appeal called for hearing.] ■ — When the case was called for hearing in the order in which it appeared upon the roll no person ap- peared on behalf of the appellant. — On mo- tion by counsel on behalf of respondent the appeal was dismissed for want of prosecution and a motion subsequently made to reinstate the case was refused. Hall Mines v. Moore, 20th May, 1898. 56. Postponement of hearing — .Alteration of roll— Illness of counsel.'i — ^An -application was made on behalf of respondent to have an appeal postponed to a lower position on the list of cases inscribed for hearing, a consent in writing signed by the solicitors for both parties was filed and it was shewn that re- spondent's counsel was seriously ill and unable to attend at the time when the hearing on the appeal would be likely to come on in its position upon the roll. It was accordingly directed by the Chief Justice that the case should be placed in a lower position upon the roll than that in which it had been inscribed. Provident Savings and Assurance Society v. Mowat, 11th Oct., 1901. 57. Default in appearance — Prosecution of appeal — iDismissal.'\ ■ — On default of counsel appearing when the case was called for hear- ing, the appeal was dismissed with costs. Burnham v. Watson, &c., Cass. Dig. (2 ed.) 681. See No. 91, infra. 58. Counsel for party attacking legislative jurisdiction — Hearing — Right to begin.'] — ^The counsel for the Dominion of Canada were ordered to begin at the hearing of a reference to test the validity of a provincial statute. The " Thrasher " Case, 16th May, 1883, Cass. Dig. (2 ed.) 679. See No. 145, infra; and Constitutional Law, 1. 59. Counsel of party attacking statute as ultra vires — Hearing — Right to begin.] — On the reference to test the validity of the " Liquor License Act, 1883," counsel for the provinces were first heard. In re " Liquor License Act, 1883," 23rd Sept., 1884, Cass. Dig. (2 ed.) 679. See No. 145, infra; and Liquor Laws, 7. 60. Foreign counsel — Refusal to hear. See No. 146, infra. 61. Default of appearance — Application to- reinstate — Absence of counsel. See No. 95, infra. 62. Default of appearance — Counsel absent — Application to reinstate — Notice — Costs. See No. 97, infra. 4. Costs. 63. Discretion in awarding — Costs — Court equally divided — 38 Vict. c. 11, s. S8.] — ^Th& judges of flie Supreme Court being equally divided in opinion, and the decision of the court below standing affirmed, the successful party was refused the costs of the appeal. But (per Richards. C..T., at pp. 693-696), by 38th Vict. c. 11. s. 38 (R. S. C. c. 135, s. 62), the Supreme Court being authorized, in its discretion, to order the payment of the costs of the appeal, the decision in this case does not necessarily prevent the majority of the court from ordering payment of costs of appeal in other cases where there is an equal division of opinion amongst the judges. The Liverpool and London and Globe Ins Go. v. Wyld, i., 605. Note. — Up to 1893, the practice in cases of equal division of opinion was to dismiss ap- peals without costs {see Costs, No. 36, and Cass. Dig (2 ed.) p. 676, No. 39). It has, however, been the practice since then to give the respondent costs in such cases, the appel- lant having been unsuccessful on the assertion of the appeal. 64. Printing of case — Unnecessary matter — Cost deducted.] — ^The cost of printing un- necessary and useless matter in case not allow- ed on taxation. L'Heureux v. Lamarche, xii. at p. 465. 65. Costs — Application in chambers — In- creased counsel fee- — Quashing appeal.] — An application for increased counsel fee is not one for the full court, but should be made to a judge in chambers.— Wlien an appeal is quash- ed for. want of jurisdiction, the court may order the taxation and payment of costs. Beamish v. Kaulbach, Cass. Dig. (2 ed.) 677; Cass. S. C. Prac. (2 ed.) 81. 66. Appeal for costs — Habeas corpus — Prisoner at large.] — Where an appeal in a habeas corpus matter had been proceeded with after the discharge of the prisoner and for the mere purpose of deciding the question of costs, the appeal was dismissed with costs. Eraser v. Tupper, 21st June, 1880, Cass. Dig. (2 ed.) 421, 677; Cass. S. O. Prac. (2 ed.) 54, 83. 67. Costs — • Re-payment of — Reversal of Supreme Court judgment — Practice.] — A' judgment of the Supreme Court of Canada allowing an appeal with costs (20 Can. S. C. R. 481), was carried, in further appeal, by the respondents to Her Majesty's Privy Co""" cil, where the decision was reversed ([1893] A. C. 506; 63 L. J. 14). The respondents had, however, in the meantime paid the costs under the order of the Supreme Court. — On motioli in the Supreme Court of Canada, on behalf of the said respondents, it was hem that they were entitled to an order directing the re-payment to them of the costs so paid, the amount of such costs to be settled upon an inquiry before the Registrar of the feu- 1109 PEACTrCB OF THE SUPEEMB COURT OF CANADA. 1110 preme Court of Canada. — (Motion grantefl with costs) . Duggan v. London and Canadian Loan & Agency Co., 23rd March, 1893. 68. Appeal — Acquiescement — Estoppel — Question of costs — Practice — Motion to quash.] — In order to avoid expense the Su- preme Court of Canada will, when possible, quash an appeal involving a question of costs only, though there may be jurisdiction to en- tertain it. ScMomann v. Dowker, xxx., 323. 69. Appeal — Motion to quash — Oijection to jurisdiction taken in factum — General costs — ■ Counsel fee. See Costs, 10. 70. Cross-appeal — Motion to quash — Taxing costs. Bee Costs, 8. 71. Refusal of costs — Scandalous matter in faotum. See No. 15, ante. 72. Question of jurisdiction — Failure to take eseoeption — Uourt acting propria mot-O, — Costs divided. See Costs. 37. 73. Supreme Court Act, s. 24 — Appeal for costs — Hearing refused. , See Appeal, 36. 74. Habeas corpus — Application refused by court below — Appeal dismissed without costs. See Costs, 46. See also note to No. 63, ante. 75. Habeas corpus — Release of prisoner — Afpeal for costs. See Appeal, 275. 16. Motion to quash appeal — Want of jur- isdiction — Delay in application — Refusal of costs. See Costs. 43. "IT. Quashing appeal — Want of jurisdiction —Objection taken in factum — Costs. See Costs, 12. 78. Amendment of pleading — Application for distraction of costs. See Costs, 72. 79. Objection taken on appeal — Prescrip- mn^Costs withheld. See Limitations of Actions, 22. 80. Default of appearance — Dismissal of meal— Application to reinstate — Notice — Costs. See No. 97, infra. 81. Gross-appeal to Privy Council — In- smptton pending such appeal^Stay of pro- ceedmgs— Costs. See No. 192, infra. 82. Misconduct of appellant — Costs. See No. 218, infra. 83. Appeal per saltum — Divisional Court mgment— Order as to costs. See No. 195, infra. 5. Ckoss-appeals. 84. Cross-appeal — Appellate court award- ing substantial damages in lieu of solatium — Appropriate relief.] — A respondent whose ver- dict must be set aside on the ground that it was awarded by way of solatium cannot be given substantial damages where he has fail- ed to give notice of his intention to ask appro- priate relief by way of cross-appeal. City of Montreal v. Labelle, xiv., 741. 85. Cross-appeal — Interference by appellate court — Landlord and tenant — Assessment of damages.] — PlaintifE recovered $5,000 dam- ages in an action for negligence, but the ver- dict was reduced to $3,000 on appeal to the Queen's Bench on the ground that the assess- ment made by the trial court included vindic- tive damages for which the defendant was not liable. TTbie Supreme Court was of opinion that the amount awarded by the Superior Court at the trial was not unreasonable and could not be said to include vindictive dam- ages, but, as there was no cross-appeal by the plaintiff, the court would not interfere to restore the original judgment. Stephens v. Chausse, xv., 379. 8fi. Appeal — Judgment refusing nonsuit and ordering new trial — Failure to cross- appeal.] — A rule was discharged so far as it asked a nonsuit but was made absolute for a new trial. Held, on an appeal by defendant, that although the plaintiff was entitled to re- cover, yet, as he had not appealed from the order for a new trial, the rule should be af- firmed and the appeal dismissed with costs. Canadian Pacific Ry. Co. v. Lawson, Cass. Dig. (2 ed.) 729. 87. Special circumstances — Cross-appeal — Relaxation of rule as to counsel at hearing. See Nos. 46, 47, 48, ante, and see Appeal, 121, 122, 123. 6. Dismissing Appeals Summaeilt. 88. Dismissal for want of prosecution ■ — Order of judge in chambers — Motion to re- scind order.] — Appellant obtained an exten- sion of time for filing case but failed to take advantage of the indulgence, whereupon, on application of respondent, appeal was dis- missed by the judge in chambers. On motion to rescind the order dismissing the appeal. Held, Strong and Gwynne, JJ., dissenting, that under the circumstances of the case the court would not interfere by rescinding the judge's order and restoring the appeal. City of Winnipeg v. Wright, xiii. 441. 89. Factum, further time required to file — • Motion to dismiss appeal — Costs.] — Motion to dismiss appeal refused, but appellant requiring further indulgence to file factum, his applica- tion was granted and he was ordered to pay costs of motion. Dawson v. McDonald, Cass. Dig. (2 ed.) 683. 90. Discretion of judge in chambers — Dis- missal for want of prosecution — Undue delay in filing factum — Inscription.] — Case filed 22nd Oct. 1884; respondent's factum, 18th Nov., 1884. Last day for filing factums 30th Jan., and for inscribing, 2nd Feb., 1885. Ap- peal not being inscribed, respondent gave 1111 PKACTICE OF THE SUPEEME COUKT OF CANADA. 1112 notice of motion on 9th Feb. to dismiss appeal for want of prosecution ; on 14th motion heard. Appellant's agent stated that on 2nd Feb. he had searched for the respondent's fac; turn, and had been informed it had not been filed; and claimed respondent could not take advantage of the delay of appellant. Held, per Fournier, J., in chambers, 16th Feb., 1885, that the undue delay in filing appellant's fac- tum and inscribing appeal had not been satis- factorily accounted for, and the appeal should be dismissed. — On application to the court to rescind or vary the order of Fournier, J., and to allow the appellant to file his factum and inscribe appeal, affidavits were filed to the effect : 1. That appellant's counsel thought that while respondent was in default with re- gard to his factum, it could not be considered there was any undue delay in prosecution of appeal; and 2. That appeal was land fide and serious. Meld, that the court would not interfere with the order of the judge in cham- bers. Whitfield V. Merchants Bank of Can- ada, Cass. Dig. (2 ed.) 681; Cass. S. C. Prac. (2 ed.) 75, 133, 144. 91. Prosecution of appeal — Appellant making default — Dismissing appeal — Costs-J ■ — Where no one appears on behalf of the ap- pellant when an appeal is called for hearing, and counsel for respondent asks for the dis- missal of the appeal, it will be dismissed with costs. Burnham v. Watson; Scott v. The Queen; Western Ass. Co. v. Scanlan, Cass. Dig. (2 ed.) 681. 92. Dismissing appeal — Controverted elec- tion — Discontinuance.'] — Counsel for appel- lant moves to dismiss appeal, not wishing to proceed with it, and having filed a discon- tinuance. — Counsel for respondent consents, on payment of costs. Appeal dismissed with - costs. Soulanges Election Case; FUiatrault v. De Beaujeu, Cass. Dig. (2 ed.) 682; Cass. S. C. Prac. 120. See Nos. 95 and 97, infra. 93. Prosecution of appeal — Diligence re- quired — Dismissal — Costs.] — Neglect to in- scribe for hearing or in depositing factums or any carelessness in compliance with rules ex- poses the appeal to dismissal on motion of respondent or at least to such discipline as may be enforced by the court in ordering pay- ment of costs. Goti V. Stadacona Ass. Co., Cass. Dig. (2 ed.) C82 ; Cass. S. C. Prac. (2 ed.) 133. 94. Dismissing appeal — Motion in cham- iers.] — Motions to dismiss appeals ought not to be brought before the court, but in the first instance, should be made to a judge in chambers. Martin v. Roy, Cass. Dig. (2 ed.) 682; S. C. Prac. (2 ed.) 75, 132; Halton Election Case, xix., 557 ; Chicoutimi & Sague- nay Election Case, 16th May, 1892. 95. Appeal — Dismissal for want of appear- ance — Application to reinstate.] — On motion to reinstate an appeal which had been dis- missed because no counsel had appeared for appellant when the case was called, the only ground stated for asking the indulgence of the court was that counsel had been present not long before the case was called and had felt satisfied that it would not be reached that day, but that the cases before it had been unex- pectedly disposed of. — The court declined to reinstate the appeal and refused the motion with costs. Foran v. Handley, xxiv., 706. See No. 92, ante, and No. 97, infra. 96. Delay in proceedings — Motion to dismiss for want of prosecution — Interlocutory appli- cation — Jurisdiction of judge in chambers — S. 0. rules 26, 39, 53.] — In a case which had not been inscribed on the roll for hearing, a motion was made on behalf of the respondent, before the full court, to dismiss the appeal for want of prosecution, under the 53rd rule of practice of the Supreme Court of Canada. — The court refused to hear the motion, as it was an interlocutory proceeding within the jurisdiction of a judge in chambers, and direct- ed that the motion should be made in cham- bers. Fournier v. Barsalou, 3rd May, 1898. 97. Appeal — Dismissal for want of appear- ance — Application to reinstate — Notice — '■ Practice — Costs.] — The appeal had been regu- larly inscribed on the roll for hearing at the May sittings of the Supreme Court of Can- ada, and on 18th May, 1898, the case being called in the order in which it appeared upon the roll, no person appeared on behalf of the appellant. Counsel appeared for the respon- dent and asked that the appeal should be dismissed for want of nrosecution. The court referred to the fact that the case had been called in its proper place on the roll on the previous day and allowed to stand over be- cause counsel were not present on the part of the appellant, and the appeal was dismissed with costs. — On 20th May, 1898, application by motion was made on behalf of the appellant to have the appeal reinstated and restored to its place on the roll for hearing on such terms as the court might deem appropriate, the ground stated for requesting such indulgence being that counsel for the appellant were un- der a misapprehension as to the time when the hearing was to take place. The motion was opposed by counsel for the respondent, who objected that proper notice of the motion had not been given as required by the rules of practice. — ^The court refused to hear the mo- tion or to make an order staying the issue of the certificate of the judgment already ren- dered dismissing the appeal, but under the circumstances the motion was dismissed with- out costs. Hall Mines v. Moore, 20th May, 1898. See Nos. 92 and 95, ante. 98. Decision of domestic tribunal -^ Inter- ference 'on appeal — Church discipline.] — Where an- appeal raised the question of the proper or improper exercise of disciplinary powers by the Conference of the Methodist Church, the Supreme Court, without calling upon counsel for the respondent, refused to interfere, the matter complained of being with- in the jurisdiction of the Conference. Ash v. The Methodist Church, xxxi., 497. 99. Equal division in opinion — Dismissal of appeal — Effect inter partes — Bes judicata. See No. 172, infra. 100. Controverted election — Discontinuance — Dismissal on motion by appellant. See Nos. 104-107. infra. 101. Motion to quash appeal — Summary application ordered to stand, the court refus- ing to make such an order till hearing on the merits. See Election Law, 14. 102. Habeas corpus — Change in relation of parties pending appeal. See No. 135, infra. 1113 PEACTICE OF THE SUPEEME COUET OF CANADA. 1114 7. EuECTiON Cases. 103. Controverted election — Appeal — Disso- lution of Parliament — Petition lapsing — Re- turn of deposit.'] — Pending an appeal from a decision on 8th Nov., 1890, in a controverted election case and the sittings of the court. Parliament was dissolved, and by effect of dis- solution the petition dropped. Respondent in order to have costs out of the deposit in the court below moved before a judge of the Supreme Court in chambers (on reference from the full court) to dismiss the appeal for want of prosecution, or to have the record re- mitted to the court below. The petitioner claimed his deposit. — Patterson, J., held, that the final determination of the right to costs being kept in suspense by the appeal the mo- tion should be refused, but inasmuch as the deposit in the court below ought to be dis- posed of by an order of that court the Regis- trar of the Supreme Court should certify to the court below that the appeal was not heard, and that the petition dropped by reason of dissolution of Parliament on 2nd February, 1891. [Note. — The petitioner subsequently moved the Supreme Court of Canada for an order directing the re-payment to him of the deposit in the court below, shewed that a simi- lar application in the High Court of .Justice for Ontario had been dismissed and that the order by Patterson, J., had not been appealed from. On 15th March, 1893, the Supreme Court ordered that a certificate should issue reciting the proceedings that had taken place and declaring that the petitioner was entitled to have his deposit returned.] Halton Elec- tion Case; Lush v. Waldie, xix., 557. 104. Dismissing appeal — Motion in cham- lers.] — ^A motion to dismiss appeal should not be brought before the court but, in the first instance, should be made to a judge in chambers. Martin v. Roy, Cass. Dig. (2 ed.) 682; S. C. Prac. (2 ed.) 75. 132. Halton Election Case, xix., 557. Ghicoutimi and Saguenay Election Case, 16th May, 1892. 105. Dismissing appeal — Controverted elec- tion case — Order in chambers 6i) consent — Application to full court.] — ^^Counsel for re- spondent moves for an order dismissing appeal in a controverted election case. An order had been obtained in chambers, on consent, but doubts had been raised as to whether the order should not have been an order of the court. Granted. North York Election Case, Cass. Dig. (2 ed.) 682; S. C. Prac. (2 ed.) 75. , 106. Election case — Expediting proceed- ings.] — When an election appeal is properly in court and in a position to be set down for nearmg, an application may be made under tHe provisions of the Supreme Court Act, to expedite the proceedings. Bothwell Election ■^asg; Smith v. Hawkins, Cass. Dig. (2 ed.) DOD. 107. Controverted election — Discontinuance ~A.ppeal dismissed.]— T\ie appellant filed a oiscontmuance and moved to dismiss his ap- peal, counsel for respondent consenting, on payment of costs. The appeal was dismissed with costs. Soulanges Election Case; Filia- trault V. DeBeaujeu, Cass. Dig. (2 ed.) 682. ,i^^^-^Peal^8upreme Court Act. 1879, s. jU—siS Vict. c. 11. s. 48 — Decision on prelim- mary ohjections— Trial on merits. See Election Law, 6. 109. Controverted elections — Appeal — Set- ting down for hearing— Notice— Extension of time—Discretion of trial judge— Jurisdiction. See Election Law, 7. 110. Service of election petition — Extension of time — Discretion — Preliminary oljectionn. See Election Law, 65. 111. Taxation of witnesses in cases not ap- pealed — Motion to vary minutes. See No. 177, infra. 112. Irregular inscription — Pactum filed too late — Hearing ex parte refused. See No. 152, infra. 8. Exchequer Couist Appeals. 113. Setting down appeals for hearing — Ap- peal not promptly prosecuted — Re-inscrip- tion.] — Where the registrar has set down an appeal and it is not brought on for hearing, the registrar should not set it down a second time without an order. (Per Pournier, J.) McQueen v. The Queen, Cass. S. C. Prac. (2 ed.) p. 108. 114. Hearing — Setting down exchequer ap- peal — Lapse of time' — Exchequer Court rules 138, 2.il, 263 — Supreme Court rule Ji4 — Sup. & Ex. Courts Act, 1875, s. 68 — Ex post facto rule — Costs.] — Application for a direction to the registrar to set down for hearing an ap- peal from the Exchequer Court. The judg- ment had been pronounced at Quebec, 17th October, 1877. The contract on which peti- tion of right was brought was signed at Que- bec, and the work was done on the I. C. Ry. in New Brunswick. On 9th November, 1877, the deposit of $50 as security for costs, was made. Exchequer Court rule 231 had been previously made applicable to cases in which the cause of action had arisen in Quebec, but rule 138 had not been expressly declared ap- plicable to such cases. On 12th February, 1878, rules 138 to 142, both inclusive, were declared applicable to actions in which the cause of action had arisen in Quebec. — On the 7th January, 1878, an application for a rule nisi to set aside the judgment was made to Taschereau, J. ; on 7th February, he re- fused it. Subsequently proceedings were taken in the Exchequer Court, and an order was ob- tained directing all the papers to be transmit- ted to the acting registrar at Quebec for the ' purposes of a taxation. The registrar did not set the appeal down for hearing, and no steps were taken relating to the appeal, nor to have judgment entered, nor had application been made to the registrar to set the appeal down for hearing until shortly before the date of appli- cation, 22nd February. 1883. Held, that the order declaring rules 138 to 142 applicable in Quebec cases did not apply retroactively to proceedings in pending causes, and that the re- gistrar not having set the appeal down for hearing as required by s. 68, and not having entered the judgment, the appeal was not out of court by the operation of Supreme Court rule 44. Motion granted, (Ritchie, C. J., dissenting), but without costs, the point of practice involved being a new one. Berlinquet v. The Queen, xiii. 26. 115. Exchequer appeal — .Assessment of dam- ages — Interference with findings of Exchequer Court judge.] — The Exchequer Court judge ,1115 PEACTICE OF THE SUPEBME COURT OF CANADA. 1116 heard witnesses and upon his appreciation of contradictory testimony awarded damages to the respondents. The Crown appealed on the ground that the damages were excessive. Held, Gwynne and Girouard, JJ., dissenting, that as it did not appear from the evidence, that there was error in the judgment ap- pealed from, the Supreme Court would not interfere with the decision of the Exchequer Court Judge. The Queen v. Armour, xxxi., 499. 116. Appeals from Exchequer Court — Final judgments — Decisions — Supreme and Exche- quer Courts Act, s. 68. See Appeai, 159. 117. Exchequer Court — Petition of right — Time for application — Discretionary order. See Costs, 69. 118. Appeal from Exchequer Court — Ex- tension of time — Questions at issue on the ap- peal—Final judgment. See Appeal, 183. 119. Appeal hy the Crown — Expiration of time limit — Special grounds — Extension of time. See No. 123, infra. 9. Extension of Time foe Appeai. 120. Extension of time — Notice of ap- peah-R. S. C. y the Crown — Special grounds — -Extension of time.] — Where an application was made by the Crovsm for an extension of time for leave to appeal after the time pre- scribed by 50 & 51 Vict. c. 16, s. 51, as amended by 53 Vict. c. 35, and special grounds were not disclosed in the material read on the application as reasons for such extension, the application was refused. MacLean v. The Queen, 4 Ex. C. R. 257. 124. Notice of appeal — Extension of time — Application after time expired.] — The time for giving notice under s. 41 of R. S. C. c. 135, can be extended as well after as before the twenty days have elapsed. Vaughan v. Rich- ardson, xvii., 703. 125. Controverted election — Appeal — Set- ting down for hearing — Notice — Discretionary order. See Election Law, 136, 137, 138. 126. Time for .appealing — Vacation — Leave to appeal when entry of judgment is delayed — Special rule for Quebec cases. See Appeal, 425. 127. Time for appealing — Varying minutes — Settlement of substantial questions — Delay in entry of judgment. See Appeal, 427. 128. Appeal from Exchequer Court — aBfeten- sion of time — Oaestions at issue on the ap- peal — Pinal judgment. See Appeal, 183. 129. Extending time for appeal — Order by court — Delays by respondent — Settling case in appeal. See No. 33, ante. 130. Obstacles placed in the way of appeal — Delays caused through no fault of appellant — Time extended by order of court. See No. 33, ante. 131. Appeal — Time limit — Commencement of — Pronouncing or entry of judgment — Se- curity — Delay in filing — Extension of time — Order of judge — Vacation — R. 8. C. c. 1S5, ss. JfO, 42, 46 — Pronou/ncing judgment — Report of referee — Order of judge — Waiver — Forfei- ture — Special grounds. See Appeal, 425,-436. 10. Habeas Coupus Appeals. 132. Supreme and Ex. Courts Acts — R. S. 0. (.1877) c. 70 — Jurisdiction.] — The only appellate power conferred on the court in criminal cases, is by s. 49 of the Supreme and Exchequer Courts Act, and it could not have been the intention of the legislature, while limiting appeals in criminal cases of the highest importance, to impose upon the court the duty of revision in matters of fact ot summary convictions by magistrates. — Section 34 of the Supreme Court Amendment Act, 1876, does not in any case authorize the issue of a writ of certiorari to accompany a writ of habeas corpus, granted by a judge of the Supreme Court in chambers ; and, as tte proceedings before the full court on habeas corpus arising out of a criminal charge are only by way of appeal from the decision oi 1117 PEACTICB OF THE SUPREME COUET OF CANADA. 1118 such judge in chambers, that section does not authorize the court to issue a writ of certiorari in such proceedings; to do so, would be to assume appellate jurisdiction over the inferior court. — Semtle, per Kitchie, C.J., that R. S. 0. (1877) c. 70, relating to habeas corpus. does not apply to the Supreme Court of Canada. In re Trepanier, xii.. 111. And see Habeas Corpus, 1. 133. Ealeas corpus — Appeal — Proceedings to appeal — Time for filing case.} — In a haleas corpus appeal the first proceeding is the fil- ing of the case with the registrar — this must be done within 60 days after the pronouncing of judgment appealed from. In re Smart, xvi., 396. 134. Habeas corpus — Notice — nearing.'\ — An application to be allowed to bring a habeas mrpus appeal on for hearing after short notice, must not be ex parte. Be Boucher, Cass. Dig. (2 ed.) 687. And see Habeas Coepus, 4. 135. Habeas corpus — Change in relation of parties pending appeal.'i — Upon the calling for hearing of the appeal (which was from a judg- ment of the Supreme Court of British Colum- bia, refusing a writ of habeas corpus, for the possession of Quai Sing, a Chinese female, un- der age) , counsel for the respondent produced to the court an order of the Supreme Court of British Columbia, dated subsequently to the judgment appealed from, by which it appeared that the respondent, the matron of a rescue home, had been appointed by that court as guardian to the infant in question, whereupon the Chief Justice intimated that, under the circumstances it was useless to proceed with the hearing of the appeal, it being impossible that any order could be made thereon respect- ing, the possession of the infant being given to the appellant. — The appeal was consequently dismissed with costs. Seid Sing Raw v. Bowes, 17th May, 1898. 136. Appeal — Habeas corpus — Extradition —necessity to quash.] — By s. 31 of the Su- preme and Exchequer Courts Act (R. S. 0. c. 135) "no appeal shall be allowed in any case of proceedings for or upon a writ of habeas^ corpus arising out of any claim for extradition made under any treaty." On ap- plication to the court to fix a day for hearing a motion to quash such an appeal ; Held, that the matter was coram non judice and there was no necessity for a motion to quash. In re Lanier, xxix.. 630. 137. Practice — Habeas corpus — Binding effeci of judgment in provincial court.] — ^An application for a writ of habeas corpus was referred by the judge to the Supreme Court or the province and, after hearing, the appli- cation was refused. On application subse- quently made to Mr. Justice Sedgewick, in chambers. Held, that under the circumstances, It would be improper to interfere with the decision of the provincial court. In re White, JKi., 383. 138. CrimiMof matters—Writs of habeas cor- W^Notioe— Delays—Exercise of discretion ~-^ppeUate jurisdiction. See Appeal, 274. 139. Criminal cases — Grimes at common law Mrju offences— Issue of writ of habeas See Habeas Coeptjs, 2. 140. Costs not allowed in habeas corpus matters. See Costs, 46. 141. Habeas corpus — Release of prisoner — Appeal for costs. See Appeal. 275. 142. Appeal for costs — Prisoner at large — ■ Habeas corpus. See No. 66. ante. 143. Territorial divisions — Judicial notice — Jurisdiction of Supreme Court judge. See Habeas Cokpus, 7. 144. Quashing appeal — Extradition case. See Habeas Corpus, 9. 11. Heaking. 145. Counsel — Right to begin — Case refer- red Supreme Court of British Columbia.] — ■ Inasmuch as all statutes should primd facie be considered within the jurisdiction of the Legis- lature passing them, any one attacking a stat- ute should begin. Therefore counsel for Dom- inion Government was first heard. The " Thrasher " Case, Cass. Dig. (2 ed.) 481, 679. And see No. 52, ante. 146. Foreign counsel — Not heard.] — Counsel residing in the State of New York wishing to be heard on behalf of appellants in an appeal pending before the Supreme Court of Canada was refused. Halifax City Ry. Co. v. The Queen, Cass. Dig. (2 ed.) 679. 147. Case filed too late for session — Record incomplete — Hearing — Factum not filed.]— A motion to have appeal heard, notwithstanding that the case and factum of appellant had not been filed 30 days before the first day of the session, and that no 'factum was yet filed on behalf of the Crown, (counsel for Crown con- senting) , was refused. O'Brien v. The Queen, V. S ttlli va n, Cass. Dig. (2 ed.) 686. 148. Submitting appeal on factum.] — By consent of both parties an appeal may be sub- mitted on factums and reporters' notes of a former argument before the court. Lawless V. Sullivan, Cass. Dig. (2 ed.) 684. 149. Ex parte hearing — Notice of inscription ■ — Proof of service.] — On an appeal being heard ex parte, the court requires an afiBdavit proving service of notice of inscription for hearing. Kearney v. Kean; Domville v. Cam- eron, Cass. Dig. (2 ed.) 684. 150. Argument of appeal — Submitting ap- peal on factums.] — Court refuses to allow ap- peal to be submitted on the factums. but de- cides it must be orally argued. Charlevotx Election Case; Yalin v. Langlois, Cass. Dig. (2 ed.) 684. i51. Re-hearing — Case submitted on fac- tums.] — Where a re-hearing became necessary owing to a change in the personnel of the court, the judge who had not heard the appeal consenting, and counsel for all parties desiring it, the court assented to the appeal being sub- mitted on the factums. McKenzie v. Kittndge, Cass. Dig. (2 ed.) 165. 1119 PEACTICE OP THE SUPREME COUET OP CANADA. 1120 152. Irregular appeal — Default iy both par- ties — Factum not filed in time — Searing ex parte refused.] — When the appeal was called, for hearing, counsel for the appellant ap- peared, no one appearing on behalf of the re- spondent. It appeared that the appellant's factum had not been filed until the morning of the day on which the appeal was so called, instead of three clear days before the first day of the session, as required by rule 54. — The court refused to hear the appellant ex parte as the case was thus irregularly in- scribed. Levis Election Case; Belleau v. Dua- sault, Cass. Dig. (2 ed.) 686. 153. Inscription — Appeal — Consent iy coun- sel — Application to expedite hearing.] — In an appeal perfected after the day for inscribing,, an application was made by counsel for appel- lant, counsel for respondent consenting, to have appeal heard at the session of the court then proceeding. Held, that the appeal must come on in the regular way the following session, there being no circumstances shewn to induce the court to interfere to expedite the hearing. Bank of Toronto v. Les GurS, &c., de la 8te. Yierge, Cass. Dig. (2 ed.) 687. 154. Re-hearing — Motion to re-open appeal — Reconsideration of question as to writ of prohibition — Costs.] — The Supreme Court had refused a writ of prohibition to prevent the taxation of respondent's costs by the county judge, such taxation having been made before the judgment of the Supreme Court was given ; but the court stated that the respondent was not entitled to costs. — Counsel for appellants moved to re-open argument of that part of the appeal as to the right to the prohibition, and for a re-consideration thereof, on the ground that the amount taxed to respondent had been paid into the County Court, and that the county judge might make an order directing the money so paid into his court to be paid out to respondent unless prohibited. Held, that the application which was really for a re-hear- ing of the appeal, which had been duly con- sidered and adjudicated upon by the court, could not be entertained ; that the court could not assume that the County Court judge would act illegally, and in defiance of the judgment of the court to the effect that the respondent was not entitled to costs ; . but that if the County Court judge should propose so to act, the appellants would have their remedy against him, and might apply to one of the superior courts for a writ of prohibition. — Counsel for appellants not called upon. — Motion refused with $25 costs. Ontario & Quebec Ry. Co. v. Philirick, Cass. Dig. (2 ed.) 687. 155. Appeal — Hearing — Submitting on fac- iums by consent.] — On application of counsel for appellants, counsel for respondent assent- ing, the court consented to have appeal sub- mitted on factums without oral argument. Muirhead v. Sheriff, Cass. Dig. (2 ed.) 684. 156. Appeal — Resignation of judge — Dis- qualification — Re-hearing — Practice.] — Where one of the judges who sat during the hearing of an appeal in which judgment had been reserved, resigned his commission before the judgment was rendered, and thereby be- came disqualified from adjudicating upon the appeal, the practice of the Supreme Court of Canada is to order that the case should be re- heard at the next following session of the court. Wright v. The Queen, 15th March, 1895. 157. Illness of counsel — Postponement of hearing.] — On the calling of the case in its order as inscribed on the roll for hearing, it was shewn that leading counsel for the appel- lant had been taken suddenly ill and was un- able to be present in court. The hearing was consequently postponed till a subsequent day during the session, in accordance with the usual practice of the court in guch cases. Consumers' Cordage Co. . v. Connolly, llth October, 1900. And see Nos. 47, 48, 51, 53, 54 and 56, ante. 12. Inscription. 158. Inscription — Case filed after time.] — Counsel for appellant moves for leave to in- scribe appeal for hearing, though the case had been filed after the time limited for inscribing, all parties being desirous of having appeal heard and consenting. Motion refused, ffrtp Print. t& Pub. Co. v. Butterfield, Oass. Dig. (2 ed.) 687. * 159. Hearing — Motion to strike out inscrip- tion — Notice.] — A motion to strike an appeal off the list of appeals inscribed for hearing must be on notice. Parker v. Montreal Ci^ Pass. Ry. Co., Cass. Dig. (2 ed.) 686. 160. Controverted election — Setting dovm appeal for hearing — Notice. See Election Law, 7. 161. Filing case too late — Cross-appeal — In- scription — Hearing refused. See No. 27, ante. 162. Notice of inscription — Ex parte hearing — Proof of service of notice. See No. 149, ante. 163. Late filing of case — Factum,s not filed — Irregular inscription — Hearing ex parte re- fused. See No. 152, ante. 164. Cross-appeal to Privy Council — In- scription pending such appeal — Stay of pro- ceedings — Costs. See No. 232, infra. 13. Interest. 165. Settlement of minutes — Appeal from N. B. — Interest on amount of verdict.] — In an appeal from New Brunswick In 1880, on a special application to the court, it was held that interest should be allowed on the princi- pal sum from the last day of the term after verdict. Clark v. Scottish Imp. Ins. Co., Cass- Dig. (2 ed.) 688; Cass. S. C. Prae. (2 ed.) 87. 166. Stay of judgment — Allowing interest- Question for court ex mero mot<2.] — The ques- tion of allowing interest for time judgment has been stayed, pursuant to s. 36, Sup. & Ji'.^j Courts Act, is a matter which the court will dispose of on its own motion. Jl^ cyuew v. Phwnia Fire Ins. Co., Cass. Dig. (2 ed.) 6»»; Cass. S. C. Prac. (2 ed.) 87. 1121 PEACTICE OF THE SUPREME COURT OF CANADA. 1132 167. Notice of application to vary minutes —Addition of interest. See No. 173, infra. 168. Interest against the Crown — Consent to reversal. „ ^ „ See Intekest, 6. And see also Interest, 1-28. 14. Judgments. 169. Minutes of judgment — Question arising on settlement — Intimation iy court — Supple- mentary opinion after delivery of judgment.'] —By memorandum at the end of the reported case (5 Can. S. 0. K. 90), it appears that, a dispute having arisen as to whether the court had held the action prematurely brought, on a reference, the court intimated that such had, in fact, been the opinion of the court, al- though it did not appear as one of the reasons for the judgment delivered. Mutual Fire Ins. Co. V. Prey, v., 82. 170. Negligence — Joint tort feasors — Joinder of defendants — B. G. Judicature Act — Motion for judgment — Findings of jury — New trial — Practice— Judgment iy appellate court.] — In a case where a towing company made a con- tract and afterwards engaged the assistance of another transportation company in carrying out the contract, the ship in tow was da.maged thrcrugh careless and improper navigation by tha tugs of both companies employed about the work. Eeld, reversing the judgment appealed from, that an action in which both companies were joined as defendants was maintainable in that form under the B. C. Judicature Act ; that the case coming before the court below on motion for judgment under the order which governs the practice in such cases, and which is identical with the English order 40, rule 10 of the orders of 1875, the court could give judgment finally determining all matters in dispute, although the jury may not have found on them all, but does not enable the court to dispose of a case contrary to the finding of the jury. In case the court considers particular findings to be against evidence, all that can be done is to order a new trial, either generally or partially, under the powers conferred by the rule similar to the English order 39, rule 40 ; and that the Supreme Court of Canada, giving the judgment that the court below ought to have given, was in this case in a position to give judgment upon the evidence at large, there being no findings by the jury interposing any obstacle to their doing so, and therefore, a judgment should be entered against .both de- fe2,dants for damages and costs. (See The 'Thrasher" Case, 1 B. C. Rep. pt. I., 153.) Sewell V. B. C. Towing Co. and The Moody- mile Sawmill Co., ix., 527. [The Privy Council granted leave to appeal, out the case was settled before hearing.] And see No. ISlo, infra. 171. Appeal direct— R. 8. C. c. 135, s. 26— ofiecml circumstances — Judgment of Privy <^ouneil~Rule— Costs.] — An appeal came be- lore the Supreme Court, by consent, from the Hecision p£ the Judge in Equity (N.B.), with- ont an intermediate appeal to the Supreme «>utt of the province, and. after argument, was dismissed (9 Can. S. 0. R. 617). The judgment of the Supreme Court was subse- quently reversed by the Privy Council, and tne case sent back to the Judge in Equity to s. C. D.— 36 make a decree. The plaintiffs being dissatis- ned with the decree pronounced by the Judge in Equity applied for leave to appeal direct under R. S. C. c. 135, s. 26. Held, Tascher- eau and Gwynne, JJ., dissenting, that under the circumstances of the case such leave should be granted. — Where a judgment of the Su- premp Court of Canada has been reversed by the Privy Council the proper manner of en- forcing the judgment of the Privy Council is to obtain an order making it a rule of the Supreme Court of Canada. — ^Where such judg- ment of the Privy Council was made a rule of court, the court ordered the re-payment by one 9f the parties of costs received pursuant to the judgment so reversed. Lewin v. Howe. xiv.. 722. 172. Equal division of court — Effect of dis- missal of appeal — Precedent — Res judicata.] — When the Supreme Court of Canada in a case in appeal is equally divided so that the deci- sion appealed against stands unreversed the result of the case in the Supreme Court afEects the actual parties to the litigation only and the court, when a similar case is brought be- fore it, is not bound by the result of the pre- vious case. Stanstead Election Case; Rider V. Snow, XX., 12. 173. Notice — Interest — Application to vary minutes of judgment.] — An application to vary minutes of judgment by inserting a direction that interest be allowed for the period during which the appeal has been pending, must be on notice. Trust & Loan v. Ruttan, Cass. Dig. (2 ed.) 688. 174. Minutes of judgment — Application to vary — Reference to judge in chamiers.] — A motion to vary minutes was referred to Strong, J., in chambers, to be subsequently heard pro forma before the court. Bickford v. Grand Junction Railway Co., Cass. Dig. (2 ed.) 175. Error in minutes of judgment — Amendment in chamber application.] — ^The judgment of the Supreme Court, as settled and entered, having directed that the costs should be paid by the appellant to the respondent on application of respondent, the order was amended by directing that the costs should be paid by the appellant's " next friend " to the respondent, the appellant having sued and prosecuted the appeal by his next friend. — Per Ritchie, C. J., in chambers. Penrose v. Knight, Cass. Dig. (2 ed.) 689; Cass. S. C. Prac. (2 ed.) 86, 149. 176. Application to vary terms of judgment — Questions disposed of — Reference to judge in chambers.] — Counsel for respondent moves for leave to address court on question of ap- pointment of valuators and question of costs, disposed of by final judgment of court. Re- ferred to Taschereau, J., in chambers, who stating to the court that the respondent seeks to practically reverse the judgment of the court, the motion is dismissed with costs. Reeves v. Oerriken, Cass. Dig. (2 ed.) 689. 177. Controverted election — Taxation of wit- nesses in cases not appealed — Costs — Election appeal^Motion to amend judgment.] — Counsel for appellant moved to amend final order of Supreme Court as to costs, such order declar- ing that the respondent should pay the costs in the court below, but the trial judge having refused to tax to appellant the costs of certain witnesses examined in cases not appealed to 1123 PEACTICE OF THE SUPREME COURT OF CAKADA. 1124 the Supreme Court. Held, that the judge was right. Motion refused with $25 costs. Soii- langes Election Case, Cass. Dig. (2 ed.) 676. 178. Application in court — Mistake in set- tling minutes — Petition to vary judgment as entered — Amended judgment ordered to ie read nunc pro tunc.^ — On a petition presented in court, (five judges being present of the six who had heard the appeal), it was shewn that an error had occurred in drawing up the min- utes. The court ordered the judgment as en- tered to be amended and so varied as to malie it conform to the intention of the court, and the principles upon which it was based, and that the judgment so amended should be read nunc pro tunc. (Mr. Justice Strong was absent when this order was made.) Smith v. Goldie, Cass. Dig. (2 ed.) 689; Cass. S. C. Prac. (2 ed.) 86, 149. [Note. — For form of the order as amended see Cass. Dig. (2 ed.) 689-691.] 179. Mistake in calculation — Application in court — Error in judgment — Amending — Power of court over its own judgments — Order upon court ielow — Transmission of record for correction-'] — Present: The Chief Justice and Fournier, Henry, Taschereau, and Gwynne, JJ. — Motion to amend final judgment in ap- jjeal. The court when delivering judgment during the last session, stated that a sum of •$2,399 should be awarded to plaintiff. The .order in appeal providing for the payment of that sum was settled and sent to the court be- low. Counsel for appellant contended that it -clearly appeared there had been an error in the calculation, and that in arriving at the ■sum awarded certain sums had been twice de- ducted, depriving the plaintiff of a sum of :$3,218.98. Counsel for respondent contended that it did not appear upon the face of the ireasons for judgment that an error had been made, and therefore the application was in the nature of a re-hearing. Under the practice of the Privy Council this could not be allowed. Held, that it being clear that by oversight or mistake an error had occurred, the court had power of its own motion to amend its judg- ment to make it conform to the intention of the court and the principles upon which its judgment was based. Order to be made direct- ing the registrar to call upon the proper officer of the court below to have the judgment of the court returned to be amended. (See Montreal Ass. Co. V. McGUlivray, 11 L. C. R. 325.) Rattray v. Young, Cass. Dig. (2 ed.) 692; Cass. S. C. Prac. (2 ed.) 86, 149. 180. Jurisprudence of Supreme Court of Canada — Binding effect of dedsions.l — The Supreme Court is competent to overrule a .iudgment of the court differently constituted, if it clearly appears to be erroneous. Per Gwynne, J., in Burrard Election Case; Duval V. Maxwell, xxxi., 459. 181. Varying minutes — Saving clauses added — Costs.] — The judgment on appeal (31 Can. S. C. R. 196) ordered a variation of the de- cree appealed from so that appellant should be entitled to immediate specific performance, but that respondent should have his costs in the original action. On motion before the full court (Present: Sir Henry Strong, C.J., and Taschereau, Gwynne, Sedgewick and Girou- ard, JJ.), to vary the minutes of judgment as settled by the registrar it was ordered that a clause should be inserted as follows : — " That the appellant should not be obliged to pay the costs of the original action unless and until the respondent delivers to him a good and sufficient conveyance in fee simple of the property mentioned." No costs were allowed on the motioii. Millard v. Barrow, 14th May. 1901. 181a. Setting aside judgment for misdirec- tion — Motion for new trial only — Entering judgment on motion or on appeal — - Nova Scotia Judicature Act, O. 28. r. lOj 0. Jfi, r. ^lOj 0. 57, r. 5 — Evidence for jury.] — On motion for new trial it appeared that there was no evidence to go to the jury. The majority of the court (on appeal from 85 N. S. Rep. 117), Held, that, as the defendant had asked only for a new trial, judgment could not be entered for defendant and, in allowing the ap- peal a new trial merely was granted. Girouard and Davies, JJ., contra, considered that, un- der the Nova Scotia Judicature Act rules, the court below could, ex propria motu, have en- tered judgment for the defendant, under the circumstances of the case. Per Armour, J. — ■■ The only course open to us is to allow the appeal, for we cannot, as I had hoped, make a final disposition of the case, for order 57, rule 5, of the Nova Scotia Judicature Act, applies only to cases tried by a judge without a jury, and order 38, rule 10, to eases tried with a jury." The Chief Justice and Mills, J., con- curred with Armour, J. Green v. Miller, xxxiii., pp. 196, 198, 212, 213, 227. See No. 170, ante. 1816. Judgments certified to court telow — Issue of execution — Special leave.] — Under the provisions of R. S. C. c. 135, s. 67, a judgment of the Supreme Court of Canada, certified to the proper officer of the court of original juris- diction, becomes a judgment of the inferior court for all intents and purposes, and it is not necessary to obtain special leave to issue execution in order to levy the costs of the party awarded costs on the appeal to the Supreme Court of Canada. Ex parte Jones, 35 N. B. Rep. 108. 182. Division of opinion — New trial. See Insurance, Life, 8. 183. Varying minutes — Special recitals — Certificate of proceedings — Appeal to Privy Council. See Pkivt Council, 4. 15. Leave to Appeal. 184. Special circumstances — No quorum in provincial Court of Appeal — Appeal direct from trial court — Supreme Court Act, 1879, s. 6.] — On application of the defendant against whom a decree had been made at the hearing, an order was made by the Chief Justice un- der s. 6 of the Supreme Court Amendment Act, 1879, granting leave to appeal direct to the Supreme Court of Canada, it being shewn that there were then only two judges on the bench in Manitoba, the Chief Justice, who was plam- tifE in the cause, and Dubuc, J., from whose decree the appeal was sought. Schultn v. Wood, vi., 585. 185. Appeal — Certificate of deposit — Security for vosts—Rule 6—38 Vitt. c. 2, «• 31 — Court of Review (Que.) ]— The certificate filed with the printed case, as complying with Rule 6, shewed that the defendant had de- posited $500 in the court below as security, in appeal before the Supreme Court.— On motion to quash. Held, per Ritchie, O.J., and Strong, 1125 PEACTICE OP THE SUPEBME COUET OF CANADA. 1126 Fournier and Henry, JJ. — The deposit of the $500, in the court below, without a certiticate that it was made to the satisfaction of the court appealed from, or one of its judges, was nugatory and inetfectual as security for the costs of the appeal. — Fer Henry, J. Although not within the functions of the Supreme Court to decide upon the sufficiency of the security, the court might have allowed appellant reason- able time to obtain the necessary certiticate, bad it been asked to do so within a reasonable time after the appeal was first inscribed, but no such request having been made and so long a time having elapsed, the court should not now permit such a course to be taken. — Jr'er Taschereau, J. The case should be sent back to the court below in order that a proper certi- ficate might be obtained. — Per Strong and Tas- chereau, JJ. An appeal does not lie from the Court of Review (Que.; to the Supreme Court of Canada. (Henry, J., oowtro) . See Danjou •?. Marquis (3 Can. S. C. R. 251). MacdonaU V. Abbott, iii., 278. [Appeals now lie from the Court of Review, 54 & 55 Vict. c. 25, s. 3, s.-s. o ; 56 Vict, c 29, s. 2.] , 186. Prosecution of appeal — Form of appeal bond— Objection — Application in chambers to dismiss — Waiver.'] — ^A bond for security of costs of appeal to Supreme Court should pro- vide for the prosecution of the appeal. — If an objection is made to the form of a bond for security for costs on appeal to the Supreme Court it should be by application in chambers to dismiss, and if not so made the objection will be held to be waived. Whitman v. Union Bank of Halifaw, xvi., 410. 187. Appeal from interlocutory judgment — Application for leave to appeal — Refusal by murt below — Renewal of application to Su- preme Court.] — An appellant may apply to a judge of the Supreme Court to settle the case and approve security on appeal notwithstand- ing that he may have already applied to a judge of the court below who has refused the application. Ontario <& Quebec Ry. Co. v. Marcheterre, xvii., 141. See No. 198, infra. 188. Leave to appeal — Winding-up Act — • Time extended after argument — Order nunc pro tunc] — A case under the " Winding-up Act" having been set down for hearing with- out leave obtained under s. 76 of that Act, after it had been, argued, appellant, with the consent of respondent, obtained from a judge of the court below an order to extend the time for bringing the appeal, and subsequently be- fore the time expired he got an order from the Registrar of the Supreme Court, nunc pro to' giving leave to appeal in accordance with s. 76, and the order declared that all proceed- ings had upon the appeal should be considered as taken subsequent to the order granting leave to appeal. Ontario Banh,v. Chaplin, xx., 152. 189. Appeal direct — Court of original juris- diction— Supreme Court Act. (i879), s. 6.]— Appeal allowed without any intermediate appeal to any court in the Province of a^itish Columbia. Bank of B. N. A. v. Walker Cass. Dig. (2 ed.) 671; Cass. S. C. Prac. (2 ed.) 35. .190. Leow to appeal — Application in vaca-^ iwnr-JVotjce.]— On 23rd Aug., 1881 (in vaca- tion) the agent of the defendants' solicitor applied to a judgp of the Supreme Court ^ strong, J.), for leave to give security under s. 31, Supreme and Exchequer Courts Act as amended by sec. 14, Supreme Court Amend- ment Act, 1879.— The judge refused to make any order on two grounds : — 1. Because it did not appear to him a proper application for vacation, not being urgent; and 2. Because the application ought to be made on notice and not ex parte. Bank of B. N. A. v. Walker Cass. Dig. (2 ed.) 706. 191. Leave to appeal — Approval of security — Application in chambers.] — Motion on be- half of defendant for approval of security and allowance of appeal. Held, that a similar application having been made to Gwynne, J., in chambers, and refused, and the application being in any event one which should be made in chambers, the application could not be en- tertained. MacNab v. Wagler, Cass. Dig. (2 ed.) 699; Cass. S. C. Prac. (2 ed.) 70. 192. Appeal — Jurisdiction — Special leave — R. 8. C. c. 1S5, ss. 40, 42— Form of applica- tion and order.] — In an order granting special leave to appeal to the Supreme Court of Can- ada under the provisions of s. 42. Supreme- Court Act, after the expiration of the time limited by s. 40, it is not necessary to set out the special circumstances under which such leave to appeal has been gran ted. nor to state that such leave was granted under special circumstances. Bank of Montreal v. Demers, xxix., 435. 193. Appeal — Jurisdiction — Case originating in County Court — Transfer to High Court.] — There is no appeal to the Supreme Court of Canada in a case in which the action was commenced in the County Court and trans- ferred by order to the High Court of Justice in which all subsequent proceedings were carried on. — Per Gwynne, J., contra. Where the cause is transferred because the pleas oust- ed the County Court of jurisdiction an appeal lies. — ^Leave to appeal cannot be granted un- der 60 & 61 Vict. c. 34, s. 1 (e), in a case not appealable under the general provisions of R. S. C. c. 135. Tucker v. Young, xxx., 185. 194. Appeal — Divisional Court judgment — Appeal direct — R. S. C. c. 1S5, s. 26, s.-s. 3 — Appeal from order in ^chambers.] — Held, per Strong, C.J., and Gwynne. J. (Taschereau and Sedgewick, J J., contra) that under s. 26, s.-s. 3, of the Supreme and Exchequer Courts Act, leave to appeal direct from a judgment of a divisional court of the High Court of Justice for Ontario may be granted in cases where there is no right of appeal to the Court of Appeal. Farquharson v. Imperial Oil Co., XXX., 188. See Nos. 196, 197 and 198, infra. 195. Appeal ner saltum — Divisional Court judgment— 62 Vict, (g) c. 11, s. 27 (Ont.)-^ Constitutional question — Indian lands — Legis- lative jurisdiction — Costs.] — Per Girouard, J., (in chambers'). Under the provisions of s. 26, s.-s. 3, of the Supreme and Exchequer Courts Act, leave to appeal direct from the final judgment of a divisional court of the High Court of Justice for Ontario may be granted in cases where there is a right of ap- peal to the Court of Appeal for Ontario, and the fact that an important question of con- stitutional law is involved and that neither party would be satisfied with the judgment of the Court of Appeal, is sufficieat ground for granting such leave. (It was ordered that the costs of the motion for leave to appeal per saltum should be costs in the cause to the 1127 PEACTICE OF THE SUPEEME COUKT OF CAKADA. 1128 successful party.) Ontario Mining Go. v. Seyhold, xxxi., 125. 196. Ontario appeals — Special leave — 60 & 61 Vict. 0. 34, s. 1 (e).n — Special leave to ap- peal from a judgment of the Court of Appeal for Ontario under 60 & 61 Viet. c. 34, s. 1 (e) , will not be granted where the questions in- volved are not of public importance and the judgment of the Court of Appeal appears to be well founded. Royal Templars of Temper- ance V. Hargrove, xxxi., 385. See No. 194, ante. 197. Appeal per saltum — Jurisdiction — R. S. G. 0. 135, s. 26 (3).]— Leave to appeal di- rect to the Supreme Court from a judgment of a Divisional Court of the High Court of Justice under s. 26, s.-s. 3 of the Supreme and Exchequer Courts Act, cannot be granted un- less it is clear that there is a right of appeal from such judgment to the Court of Appeal for Ontario. Ottawa Electric Go. v. Brennan, xxxi., 311. See No. 194, ante. 198. Special leave to appeal — Application refused in provincial court — Suisequent appli- cation — 60 & 61 Vict. 0. 3Jf (D.)]— The Su- preme Court of Canada will not entertain an application for special leave to appeal under 60 & 61 Vict. c. 34 (D.), after a similar ap- plication has been made to the Court of Ap- peal and leave has been refused. Town of Aur'ora v. Village of Markham, xxxii., 457. See Nos. 187 and 194, ante; also No. 200, infra. 198a. Appeal per saltum — Extension of time for appealing — Jurisdiction — Supreme and Exchequer Courts Act. ss. \Q, 4^ — Yukon Territory Act, 62 & 63 Vict., c 11 — North-west Territories Act, R S. G. c. 50.] — ^A judge of the court appealed from has no jurisdiction to extend the time for appealing per saltvm to the Supreme Court of Canada. — ^After the expira- tion of sixty days from the signing, entry or pronouncing of judgment, leave to appeal per saltum to the Supreme Court of Canada can- not be granted. — Quwre. Whether under the provisions of section six of the Yukon Terri- tory Act. 62 d 63 Vict. c. 11, and of the North- West Territories Act, R. S. C. c. 50, s. 42, thereby made applicable to the Territorial Court of Yukon Territory, three judges of that court are necessary to constitute a quorum for the hearing of appeals from judg- ments upon the trial of cases therein? Barrett V. Syndicat Lyonnais du Klondyke, xxxiii., 677. See Amending Act of 1903. 199. Appeals from Exchequer Court — Amount involved less than $500 — Discretion of judge in chambers.} — Where the amount in- volved in a suit in the Exchequer Court is under $500, leave to appeal should not be _ granted unless it appears to the judge hearing the application that the judgment is clearly erroneous or that it might be reversed on a point of law or because the conclusions are not justified by the evidence. Per Gwynne, J. (in chambers), 6th May, 1899. Schultue v. The Queen, 6 Ex. C. R. (note), 273. 200. Leave to appeal — Extension of time — — Appeal from order — Practice of Ontario courts — Discretion.} — An appeal does not lie in the Ontario courts from a judge in the Court of Appeal for Ontario extending the time for appealing under the Supreme and Ex- chequer Courts Act, s. 26. Neill v. Travellers' Ins. Go. (9 Ont. P. R. 54) ; Re Central Bank of Canada (17 Ont. P. R. 395). Compare Nos. 187, 194, 196, 197 and 198, ante. 201. Security for costs — Appeal to Supreme Court — Amount of bond.'i — Per Osier, J. The court has no discretion to increase the amount of security on an appeal to the Supreme Court of Canada, fixed by R. S. C. c. ^35, s. 46, at $500, because of the number of respondents. Archer v. Severn, xii., Ont. P. R. 472. See No. 202, infra. 202. Bond on appeal — Separate issues — Number of respondents.'] — Upon application to file bond of security for costs of an appeal to the Supreme Court of Canada, several respond- ents who had appeared separately in the Su- perior Court and in the Court of Appeal, urged that they were respectively entitled to separate security bonds from each of four ap- pellants, i. e., four bonds of $500 each. HeU, per Hall, J., that leave for the appeal should be granted upon the furnishing of a single bond for the amount of $500. Archer v. Severn (12 Ont. P. R. 472) followed. Bon- sack Machine Go. v. Falk, Q. R. 9 Q. B. 355. See No. 201, ante. 203. Granting leave to appeal — Approval of security — Ouster of jurisdiction. See Appeal, 309. 204. Appeal per saltum — Question of law — Binding provincial decision. See Appeal, 310. 205. Appeal per saltum — Opinion expressed on merits hy court ielow. See Appeal, 311. 206. Reversal of judgment by Privy Council ■ — Decree of judge in equity — Appeal direct under special circumstances. See No. 171, ante. 207. Appeal after time limit — Vacation — Quashing for want of jurisdiction — Appeal per saltum on terms — Stay of execution. See Appeal, 186. 315, 317, 318. 208. Appeal direct from trial court — Time limit. See Appeal, 317. 209. Leave to appeal — Jurisdiction to allow — Privy Countcil rule — Appeal in forrnd pau- peris — Mode of granting leave. See Appeal, 314. 210. Allowance for security — Leave to ap- peal — Stay of proceedings in court below. See Appeal, 323. 211. Appeal per saltum — Expiration of time for application. See Appeal, 317. 212. Leave to appeal — Expiration of time limit — Effect of approving security — Evoca- tion of cauhe — Discretion of court below — Re- scinding order of refusal. See Appeal, 322, 1139 PEACTICE OF THE SUPEEME COUET OF CANADA. 213. Appeal per saltum — Leave granted registrar — Special circumstances. See Appeal, 313. 16. New Grounds Taken on Appeal. 214. Efect of deed given in evidence — Ques- tion not raised at trial nor in court telow — ■ Right to argue point on appeal.'^ — An appel- late court cannot refuse to entertain a ques- tion as to the effect of a deed given in evi- dence, on the ground that it was not raised at the trial nor in term. Oahes v. Turquand (L. R. 2 E. & I. App. 825), referred to by Strong, J. — Judgment appealed from (1 Ont. App R. 112) reversed. Gray v. Bichford, ii., 431. 215. Want of parties — Objection taken on appeal.] — It is too late to raise an objection for the first time on the argument before the Supreme Court that the legal representatives o£ the assured were not made parties to an action on a policy of life insurance. Venner V. Sun Life Ins. Co., xvii., 394. 216. Point not raised iy factum — Postpone- ment of hearing.] — Where appoint was raised at the hearing which was not taken in the factum, and counsel objects that he is not pre- pared to argue it, the Court adjourned the hearing for a week. Western Counties By. Co. V. Windsor & Annapolis By. Go., Oass. Dig. (2ed.) 683. 217. Landlord and tenant — Conditions of lease — Construction of deed — Practice — Ob- jections first taTcen on appeal.] — Where the issues have been joined in a suit and judgment rendered upon pleadings admitting and relying upon a written instrument, an objection to the validity of the instrument taken for the first time on an appeal to the Supreme Court of Canada comes too late and cannot be enter- tained. The Queen v. Poirier, xxx., 36. 218. Practice on appeal — Supplementary evidence — Qljections not taken at trial — Amendment of pleadings — Costs.] — On hear^ iug of appeal, objection was taken for the first time to the suflaciency of plaintiff's title, whereupon he tendered a supplementary deed to him of the lands in question. — Held, fol- lowing Exchange Bank of Canada v. Oilman (17 Can. S. C. R. 108), that the court must refuse to receive the document as fresh evi- dence can not be admitted upon appeal. — Beld, also, that defendant could not raise the question as to the suflBciency of the plaintiff's title, for the first time, on appeal. — The alle- gations and conclusions of the declaration were deficient and the court, under s. 63 of the Sup. and Ex. Courts Act, ordered all ne- cessary amendments to be made thereto for the purpose of determining the real contro- versy between the parties as disclosed by the pieadmgs and evidence. Piche v. City of Que- iep, Cass. Dig. (2 ed.) 497; Gorman v. Dixon (26 Can. S. C. R. 87), followed.— ^ Under the special circumstances of the case and improper actions of the defendant, the Plaintiff was awarded costs in all the courts, ^ne judgment appealed from, Q. R. 8 Q. B. 534, was varied.) City of Montreal v. Bogan, xxxl, 1, 219. New points raised on hearing of appeal \jQmsel allowed to proceed — Supplementary 1130 factums.] — On the hearing of the appeal counsel for appellant suggested a question for argument which was pertinent to the issues but had not been taken in the factum nor raised in the courts below. He was permitted to argue the question on the understanding that both parties would be permitted to file supplementary factums on the points raised after the hearing closed. Counsel for respon- dent made no objections to arguing the new points on the terms settled. Hosking v. Le Boi, No. 2 (Limited), 27th October, 1903. 220. New grounds of oijection raised on appeal. See Appeal, 348. 221. Filing new evidence on appeal. See Appeal, 345. 222. Form of bail hand — Technical objec- tion first taken on appeal. See Appeal, 349. 223. Technical objection first taken on ap- peal — Bule of Privy Council-. — Improper recep- tion of evidence. See Appeal, 352, and see Contract, 11. 224. Improvement of watercourses — Art. 55S5 B. S. Q. — Arbitration — Condition pre- cedent — New grounds on appeal — Assess- ment of damages — Interference by appellate court. See Appeal, 242. 17. Parties. 225. Death of party after hearing — Entry of judgment — Nunc pro tunc] — ^The respond- ent, assignee of an insolvent estate, died be- tween the day of hearing of the appeal and the day of rendering judgment. On motion of counsel for appellant the court ordered the judgment in appeal to be entered nunc pro tunc as of the date of hearing. Merchants Bank v. Smith, Cass. Dig. (2 ed.) 688; Cass. S. C. Prac. f2 ed.) 78. 226. Assignment of plaintiff's interest — Diligence in making application — Adding parties — Art. 15J, C. C. P.—S. C. rules SB 38 — Costs — Hearing on case-] — Motion under S. C. rule 36 to add B. as a co-re- spondent, on the ground that he had obtained a notarial assignment from respondents of all their interest in the suit. The suit had been instituted by plaintiff in forma pauperis, and the Superior Court condemned appellants to pay $1,200, judgment being affirmed by the Queen's Bench. The alleged assignment had been made after the judgment by the Superior Court and before appeal to the Queen's Bench, but no application had been maae to the lat- ter court to make B. a party. The appellant claimed that under art. 154 C. C. P. an in- tervention could be had or forced at any time before final judgment ; and if any question as to liability of the person sought to be added should arise, the court could remit the case under S. C. rule 38, to the Superior Court to have such question decided. — It was ad- mitted that the object of the application was to have a party who would be answerable for the costs of the appeal. Held, that the appli- cation should have been made at the earliest opportunity to the Court of Queens Bench, 1131 PEACTICB OF THE SUPREME COURT OF CANADA. 1133 the assignment to B. having been made be- fore the appeal to that court. The question as to the liability of B. to be forced into the cause as a party was not one which, under the circumstances, the Supreme Court should be called upon to decide. The appeal should be heard on the case as settled in and trans- mitted by the court below. (Henry, J., dis- senting.) Motion dismissed with costs fixed at $25. Dorion v. Crowley, Oass. Dig. (2 ed.) 694, 78. 227. Judgment reserved — Death of party — Judgment, nunc pro tunc.] — On motion of counsel for respondent, supported by affidavit shewing that one of the parties had died be- tween the date of hearing and the date upon which judgment delivered, the court directed judgment to be entered nunc pro tunc as of the day of hearing. Merchants Bank v. Smith; Merchants Bank v. Keefer; Ontario and Que- bec Ry. Co. V. Philbrick.. Cass. Dig. (2 ed.) 688; Cass. S. C. Prac. (2 ed.) 78. 228. Special bail — Exoneretur — Parties — Discretion of court below — Jurisdiction.'] — S. brought an action against J. and issued a writ of capias. Bail was given and special bail entered in due course, but the bail piece was not filed nor judgment entered against J., for some months after. On application to a judge in chambers an order was made for the discharge of the bail on account of delay in entering up judgment, and the full court re- fused to set aside the order. An appeal was brought to the Supreme Court of Canada en- titled in the suit against J., from the judg- ment of the full court, and the bond for secur- ity for costs was given to J. Held, that as the bail, the only parties really interested in the appeal, were not before the court and not entitled to the benefit of the bond, the appeal must be quashed for want of proper security. Held, also, that the appeal would not lie as the matter was simply one of practice, in the discretion of the court below. Soammell v. James, xvi., 593. 228o. Parties on appeal — Practice — PrOf ceeding in name of deceased party- — Amend- ment — Jurisdiction — Interference with discre- tion On appeal.] — Between the hearing of a case and the rendering of the judgment in the trial court, the defendant died. His solicitor by inadvertence inscribed the case for revision in the name of the deceased defendant. The plaintiffs allowed a term of the Court of Re- view to pass without noticing the irregularity of the inscription but, when the ease was ripe for hearing on the merits, gave notice of mo- tion to reject the inscription. The executors of the deceased defendant then made a motion for permission to amend the inscription by substituting their names is quality. The Court of Keview allowed the plaintiffs' mo- tion as to costs only, permitted amendment and subsequently reversed the trial court judg- ment on the merits. The Court of King's Bench (appeal side), reversed the judg- ment of the Court of Review on the ground that it had no jurisdiction to allow the amend- ment and hear the case on its merits, and that, consequently, all the orders and judg- ments given were nullities. Held, reversing the judgment appealed from (Q. B. 10 K. B. 511), the Chief Justice and Taschereau, J., dissenting, that the Court of Review had jur- isdiction to allow the amendment and that, as there had been no abuse of discretion and no parties prejudiced, the Court of King's Bench should not have interfered. Price v. Fraser, xxxi., 505. 18. Pbivy Council Appeals. 229. Record of appeal — Application for rule — Privy Council judgment.] — ^A judgment of the Privy Council reversing the judgment of the Supreme Court should be made a rule of the Supreme Court. The application should be made in chambers. Lewin v. Howe, xiv., 722. 230. Notice of appeal to Privy Council.] — Notice of intention to apply to the Supreme Court of Canada for leave to appeal to the Privy Council should not be put on the mo- tion paper. Nasmith v. Manning, Cass. Dig. (2 ed.) 695. 231. Appeal — Privy Council — Cross-ap- peal — Practice — Costs.] — ^Where the re- spondent has taken an appeal from the same judgment as is complained of in the appeal to the Supreme Court of Canada, to the Judicial Committee of Her Majesty's Privy Council, the hearing of the appeal to the Supreme Court will be stayed until the Privy Coundl appeal has been decided, upon the respondent undertaking to proceed with diligence in the appeal so taken by him. — In the case in ques- tion the costs were ordered to be costs in the cause. Eddy v. Eddy, 4th October, 1898. 232. Cross-appeal to Privy Council — In- scription pending such appeal — Stay of pro- ceedings — Costs.] — Where the appellant had inscribed an appeal for hearing in the Su- preme Court of Canada after he had received notice of an appeal taken in the same matter by the respondent to the Privy Council, upon motion on behalf of the respondent the pro- ceedings on the Supreme Court appeal were stayed with costs against the appellant pend- ing the decision of the Privy Council upon the respondent's appeal. {Eddy v. Eddy [No. 231, ante] followed.) Bank of Montreal V. Demers, xxix., 435. 233. Appeal to Privy Council — Stay of execution.] — A judge in chambers of the Su- preme Court of Canada will not entertain an appeal to stay proceedings pending an appeal from the judgment of the court to the Judicial Committee of the Privy Council. Adams & Burns v. Bank of Montreal, xxxi., 223. 234. Appeal in formd pauperis — Leave to appeal to Privy Council — Transmission of record — Payment of Supreme Court fees.] — On 7th October, 1902, present. Sir Henry Strong, C.J., and Taschereau, Sedgewick, Girouard, Davies and Mills. JJ. A motion was made for an order directing the Registrar of the Supreme Court of Canada to transmit the record to the Registrar of His Majesty s Privy Council, on an appeal by the respond- ent, without the payment of the fees m stamps as required by the statute and rules of practice of the «;ourt. After hearing coun- sel for the parties, the motion was allowed and the order made as applied for, the ohiet Justice stating that, as this was an extra- ordinary case in which the Judicial Commit- tee of the Privy Council had granted special leave to appeal in formS, pauperis, the ordin- ary rules could not apply. DomvMOni^an- ridge Co. v. McArthur, 7th October, 190i 1133 PEACTICB OF THE SUPEBME COrET OF CANADA. 235. Reversal by Privy Council — Re-pay- ment of costs. See No. 67, ante. 236. Appeals to Privy Council — Jurisdic- tion of Superior Court of Canada — Motion paper. See Pbivt Counch,, 2. 237. Cross-appeal pending in Privy CouncU — Stay of proceedings. See Appeal, 121, 422. 19. Peoceduke in CJouets below. 238. Amending pleadings — Order of court Mow — Procedure.]- — The Supreme Court of Canada will not interfere on appeal with an order made by a provincial court granting leave to amend the pleadings, such orders be- ing a matter of procedure within the discre- tion of the court below. Williams v. E. Leon- ard & Sons, xxvi., 406. 239. Appeal — Question of local practice — Inscription for proof and hearing — Peremp- tory list — notice — Surprise -^ Artifice — BegM^ie cimle — Arts. 234, 235, 505. C. C. P. (old te(Dt)—K. of P. (S.G.) i.F.]— Where a grave injustice has been inflicted upon a party to a suit, the Supreme Court of Canada will interfere for the purpose of granting appro- priate relief although the question involved upon the appeal may be one of local practice only. Lamhe v. Armstrong (27 Can. S. C. R. 390) followed. — Under a local practice pre- vailing in the Supreme Court, in the District of Montreal, the plaintiffs obtained an order from a judge fixing a day peremptorily for the adduction of evidence and hearing on the mer- its of a ease by precedence over other cases previously inscribed on the roll and without notice to the defendants. The defendants did not appear when the case was taken up for proof and hearing and judgment by default was entered in favour of the plaintiffs. The defendant filed a requete civile asking for the revocation of the judgment to which the plain- tiffs demurred. On appeal to the Supreme wnrt of Canada against the judgment main- taining the demurrer and dismissing the re- tme with costs : — Held, reversing the de- cision of the Court of Queen's Bench, that the ortter was improperly made for want of no- nce to the adverse party as required by the Jk I 2^ practice of the Superior Court, and me defendant was entitled to have the judg- ment revoked upon reguete civUe. Eastern ■f omiships Bank v. Swan, xxix., 193. wlfi*' -^PPeai -- Order on matter of pro- eeave « court JeJow.]— The Supreme Court «l ^1^^°^ ""i" °°t entertain an appeal from mattpr fn"?^^*^^ "P^J? ^ ™°"o° " a practice Vat^l n '^« appellate court below. Dueler watch Case Co. v. Taggart. 24th April, 1900. soa!" ■^"'■*"^j''»P — Account — Action pro inl„r/'"'"'^''«''« — ^'■*- 1S98 C. C.l— The mS; T^"-^^^ ^L°^ ¥d *at ^^ an action viSL'L^^f sufficient for the plaintiff in wouKf«f -"^'^'"^ *° a"«se facts that pSnershin^^ ^""^V^ i"t° all the affairs of the same withn"?^ ^'*'-*''^ liquidation of the COTntsTf tvo P'f °"?? f"" and regular ac- th" aPoeal ?nvSf "^""'■''''P, ^^^airs. Held, that appeal involved merely a question oi pro- 1134 'xxxiif r3'2' '^ -^'^-^^^ S«'/v'1*:^L:^' vf3r/'^^^t7~T.9''^'J'°'' ■ °f procedure — verdict — Weight of evidence.']— T\ie: Su- preme Court of Canada refused to iutlrfere' with a decision of the Court of Appeal for On- tario m a manner of procedure, namely whe- ci=T LIa^^}"^ r?,(a jury was a general or spe-' cial verdict.— The court also refused to dis- turb the verdict on the ground that it was against the weight of evidence after it had been affirmed by the trial judge and,'the Court of Appeal, Toronto Ry. Co. v. Balfour,, xxxii., 243. Issues irregularly joined — Procedure in trial court — Interference on appeal.] — The Supreme Court of Canada will not, on ap- peal, interfere with the action of the Courts below m matters of mere procedure where no injustice appears to have been suffered in con- sequence although there might be irregulari- ties in the issues as joined which brought be- fore the trial court a demande almost differ- enl; for the matter actually in controversy. Finnic v. City of Montreal, xxxii., 335. 244. Appeal — Concurrent findings of courts below — ■ Reversal on questions of facts — Im- proper rulings — Reversal on a matter of pro- cedure.] — Where the findings of the trial courts are manifestly erroneous and the trial appears to have been irregularly conducted, the Supreme Court of Canada reversed the concurrent findings of the courts below, and also reversed the concurrent rulings of the courts below refusing leave to amend the state- ment of claim by alleging an account stated. Belcher v. McDonald, xxxiii., 321. [Leave to appeal to Privy Council granted, Aug., 1903.] 245. Non-interference in matters of pro- cedure — Adding pleas — Discretion of court below — Insufficient cause shewn — Stay of proceedings pending appeal — Interlocutor}/ judgment — Notice of appeal — Entry of final judgment.] — Defendant applied by mo- tion for permission to file new pleas, which was refused by the Superior Court on account of insufficiency of the affidavit in support thereof, and, therefore, defendant served notice of intention to appeal from this interlocutory judgment to the Court of Queen's Bench. Notwithstanding this notice, plaintiff moved for and obtained judgment in the Superior Court, and this judgment was affirmed by the Court of Queen's Bench. — ^On appeal to the Supreme Court of Canada, Held, per Ritchie, O.J., and Strong and Taschereau, JJ., that on a question of procedure an appellate court should not interfere. — Per Pournier and Henry, JJ., that the affidavit filed by the ap- pellant in support of his amended plea was insufficient, not being sufficiently positive and precise. — Per Taschereau, J. Only a rule for leave to appeal would have the effect of stay- ing proceedings, not a mere service of a mo- tion for leave to, appeal. Appeal dismissed with costs. Dawson v. Union Bank, Cass. Dig. (2 ed.) 428; Cass. S. C. Prac. (2 ed.) 31, 85. 245a. Judgments certified to court below — Issue of execution — Special leave.] — Under the provisions of R. S. C. c 135, s. 67, a judgment of the Supreme Court of Canada, 1135 PEESBYTEEIAN CHUECH. 1136 certified to the proper officer of the court of original jurisdiction, becomes a judgment of the inferior court for al) intents and purposes and it is not necessary to obtain special leave to issue execution in order to levy the costs of the party awarded costs on tlie appeal to the Supreme Court of Canada. Ex parte Jones, 35 N. B. Rep. 108. 246. Action confessoire — Intervenant — Joint condemnation — Procedure — Interfer- ence with on appeal. See Seevitudb, 3. 247. Opposition — Contestation — Re- moval from Superior Court — Venditioni ex- l.-^naa — Appeal. See Appeal, 393. 20. Stat of Pboceedustgs. 248. Stay of proceedings — Execution for costs — Amount in dispute — Jurisdiction.'] — AVhile the proceedings were pending on an op- position filed 30th December, 1880 (see Kes Judicata), another writ of execution issijed in the original cause for costs awarded to re- spondents by the Supreme Court on the 10th June, 1880. See Opposition. 3.) To this writ appellant filed a second opposition on 18th January, 1881, which was dismissed by the Superior Court, the judgment being affirmed by the Queen's Bench, refusing an appeal on the ground that the amount in dispute was not sufficient. — On motion for an order to sus- pend proceedings under the execution opposed, on 18th January, 1881, and for leave to ap- peal from the judgment on said opposition, the Supreme Court Held, that there was no ground for staying the execution. The court had properly dismissed the appeal on the case presented, and that was a final decision in itself and it was no ground for staying the execution, that there were other proceedings in the court below which might possibly shew that the defendant should have succeeded in the original action. — Motion refused with costs. Dawson v. Macdonald, Cass. Dig. (2 ed.) 588. 249. Judgment — Stay of execution of — Re- guSte civile.] — The judgment of the Supreme Court must, under s. 46, Sup. and Ex. Courts Act, be entered and sent to the court below before defendant can have recourse to a pro- ceeding by requHe civile. A requete civile does not stay execution as a matter of course. The defendant would have to apply to a judge of the Superior Court or a judge thereof for an order. A judge in chambers should not grant an order staying execution of a judg- ment, especially when defendant has had ample time to apply to the full court. — (Per Taschereau, J.) Dawson v. Macdonald, Cass. Dig. (2 ed.) 688. 250. Appeal per solium — Stay of execu- tion. See Appeal, 315. 2.31. Matter of procedure in court bel^w — Stay of proceedings pending appeal. See Appeal, 391. 252. Cross-appeal to Privy Council — Order to stay proceedings in Supreme Court. See No. 231, ante. 253. Cross-appeal to Privy Council — In- scription pending such appeal — Stay of pro- ceedings — Costs. See No. 232, ante. 254. Appeal to Privy Council — Stay of execution. See No. 233, ante. 21. Vacation. 255. Time for appealing — Vacation — Delayed entry of judgment — Special rule in Quebec. See Appeal, 425. 256. Time for appealing — Jurisdiction — Appeal per saltum — Stay of execution. See Appeal, 315. 257. Filing case — Computation of time m vacation ■ — Extension of time. See No. 34. ante. PRECEDENT. Dismissal of appeal on equal division of court — Binding effect of judgment.] — ^A judg- ment appealed from standing unreversed on an equal division of opinion among the judges is not a binding precedent when a similar case comes before the court. Stanstead Election Case, XX., 12. FBEFEBENCES. See Assignment — Chattel MoBiaAGE — Debtob and Cbeditok — Feaudttlent Conveyances — Feaudttlent Peefeb- ences — Insolvency — Mobtgage. FKEMIUM NOTE. 1. Accident insurance — Renewal of policy — Payment of premium — Promissory note — Instructions to agent — Agent's authority — Finding of jury. See INSUEANCE, Accident, 3. 2. Non-payment — Forfeiture — Conditions — Collateral agreement. See Insueance, Life, 29. PREROGATIVE. Of Crown — Pardoning power — Represen- tative of Crown — Legislative authority to confer. See Constitutional Law, 44. And see Cbown, 73, 76. And see ALScf Pbivt Council, 7. PRESBYTERIAN CHURCH. "Union Act"— 38 Vict. c. 72 (OO—Be- covery of church property — Trustees — Petitory 1137 PEESCRIPTION. 1138 flofion— 38 Vict. c. 72 (Q.)]— By deed on 23rd November, 1871, duly registered, plaintiff, de- fendant, and two others as trustees of the Presbyterian Church of COte St. George, in connection with the Church of Scotland, be- came purchasers of the ground upon which a church was subsequently erected. At the time of action the trustees with the exception of the plaintiff and defendant, were dead. A union of the Presbyterian Churches of Canada took place in June, 1875. To further this union and remove any obstructions which might arise out of the trusts by which the property of any of the churches was held, the "Union Act," (38 Vict. c. 72 (Q.)) was passed, which by s. 2, provided " that if any congregation in connection or communion with any of the said churches decide, at any meet- ing of the said congregation regularly con- vened, according to the rules of the said con- gregation, or the custom of the church with •which it is in connection, and held in the two years after such union, by the majority of the votes of those who, according to the rules of the said congregation, or the custom of the church with which it is in connection, are entitled to vote at such meeting, not to form part of the said union, but on the con- trary to separate itself therefrom, then and in such case, the property of the said congrega- tion shall not be affected by this Act. nor by any of the provisions thereof." Plaintiff claimed that no meeting of the congregation had been regularly convened, or conducted according to its rules or the custom of the church, and that consequently the property was affected by the statute, and should be held and administered for the benefit of the congregation in connection with the united church, i.e., "The Presbyterian Church in Canada." Plaintiff also alleged that defend- ant had ceased to be a trustee, and, acting with a minority of the congregation who re- fused to enter into the united church, had taken forcible possession of the church prop- erty and excluded therefrom the plaintiff and tile congregation, for which he was trustee. Plaintiff as sole surviving and acting trustee,' suing for himself in his said quality, and for the congregation, claimed the property and that defendant be ordered to quit and aban- don the same, and be declared not to be a trustee of said property. Defendant admitted that he was not a trustee, but, while saying that he had no quality to defend the action, alleged that three regularly convened meetings nad been held, within the two years, the effect ot which was to take the church and property out of the union and that, at these meetings, trustees were legally apnoinfcd to replace Mose deceased. The Superior Court dismissed we action on the sole ground that because the trust deed said nothing about survivors, but provided for a succession, there could be no action unless the succession was first filled up. we Lourt of Queen's Bench affirmed this judg- S f i n ™^i'"'ity presumably on the ground tw A ^'^°^^' J" alone giving as his reason cnat the meetings referred to were sufficient compliance with the law to take the property out of the union. Held, affirming the judg- ment appealed from, that the action being nvnlFli.^"'^. defendant having pleaded and K™ ™at he was not and had never pre- niSffi °^ '° possession of the property, piw/f .""""* *^il; 'iiid ftat he was not trnlfi t° ^. .ludgment declaring one not a trustee who did not pretend to be and admitted iZ M^? °°* a trustee, Henry, J., dissent- mg. Mormon v. McGnaig, 19th June, 1883 ; ^ass. Dig. (2 ed.) 642. PRESCRIPTION. 1. Criminal Conversation, 1. 2. Crown Cases, 2, 3. 3. Imprescriptible Eights, 4, 5. 4. Interruption- of Prescription, 6-12. 5. Plea of Prescription, 13, 14. 6. Possession, 15-25. 7. Time Required for Pkesceiption, 26-30. And see " Limitations of Actions." 1. Criminal Conversation. 1. Statute of Limitations — Criminal conver- sation. See Criminal Conversation. 2. Crown Cases. 2. Damages arising from, public work — Negligence of Crown offlcials — Limitation of action — Art. 2261 G. 0.] — The prescription established by art. 2261 of the Civil Code of Lower Canada applies to damages for injuries to property caused by the negligence of Crown officials to keep a public work in proper or- der. Letourneux v. The King, xxxiii., 335. 3. Petition of right — Demurrer — Grown, pleading prescription — Good faith — Trans- lator)/ title — Judgment of confirmation — Inscription en faux — Improvements — In- cidental demand. See Title to Land, 76. 3. Imprescriptible Rights. 4. Water lots — Easement — Interference with navigation.} — Public navigable waters, while open for navigation, are not subject to prescription by which any private easement may be acquired in respect thereto. (12 Ont. App. R. 327, affirmed.) London & Canadian Loan & Agency Go. v. Warin, xiv., 232. 5. Right of succession — Sale by co-heir — Retrait successoral — Art. 110 G. G. See Retrait Suocessorai. 4. Interruption of Prescription. 6. Accounts — Action — Promissory note — Acknowledgment and security by notarial deed — Novation — Arts. 1169 and 1171 G. C— Onus probandi—Art. 1213 G. G.— Prescription — Arts 2227, 2260 G. 0.]— A prescription of 30 years is substituted for that of five years only where the admission of the debt from the debtor results from a new title which changes the commercial obligations to a Civil one. — In an action of account instituted in 1887, plain- tiff claimed inter alia the sum of $2,361.10, being the amount due under a deed of obliga- tion and constitution d'hypothique, executed in 1866, and which on its face was given as security for an antecedent unpaid promissory note dated in 1862. The deed stipulated that 1139 PEESCEIPTION. 1140 the amount was payable on the terms and con- ditions and the manner mentioned in the said promissory note. The defendants pleaded that the deed did not efEect a novation of the debt, and that the amount due by the promissory note was prescribed by more than five years. The note was not produced at the trial. Held, reversing the judgment appealed from (Q. K. 2 Q. B. 489), that the deed did not efEect a novation. Arts. 1169 and 1171 C. C. At most, it operated as an interruption of the prescription and a renunciation to the benefit of the time up to then elapsed, so as to pro- long it for five years if the note was then overdue. Art. 2264 C. C. And as the onus was on the plaintiff to produce the note, and he had not shewn that less than five years had elapsed since the maturity of the note, the debt was prescribed by five years. Art. 2260 0. C. Pare v. Par6. xxiii., 243. 7. Rendering account — Acknowledgment in writing — Interruption of prescription. See No. 26, infra. 8. Possession — Married woman — Re- nunciation of community — Estoppel by deed. See Title to Land, 75. 9. Interruption of prescription — Letter by party charged. See CONTBAOT, 11. 10. Purchase of land — Registered hypothec — Knowledge of circumstance — Presumption of good faith — Art. 2251 G. C. See No. 17, infra. 11. Interruption of prescription — Neces- sary way — Implied grant — User — Obstruc- tion of way — Acquiescence — R. S. N. S. (5 ser.) c. 112. See Limitation of Actions, 4. 12. Title to land — Description — Posses- sion beyond boundaries — Sale to married wo- man — Metes and bounds — Construction of See No. 18, infra. 5. Plea of Prescription. 'iZ. Petition of right — Demurrer — Grown pleading prescription — Good faith — Trans- latory title — Judgment of confirmation — In- scription en faux ■ — Improvements — Incident- al demand. See Title to Land, 76. 14. Appeal — Pleading prescription — ■ Judgment dismissing plea — Final judgment — Art. 2267 0. G. R. S. G. c. 135, s. 24. See Pleading, 40. 6. Possession. 15. Title to land — Statute of Limitations — Trespass on wild lands — Isolated acts — Misdirection — Verdict against evidence.'] — Isolated acts of trespass, committed on wild lands from year to year, will not give the tres- passer a title under the Statute of Limita- tions, and there was no misdirection in the judge at the trial of an action for trespass- on such land refusing to leave to the jury for their consideration such isolated acts of tres- pass as evidencing possession under the sta- tute. — To acquire such a title there must be open, visible and continuous possession known or whicli might have been known to the owner, not a possession equivocal, occasional, or for a special or temporary purpose. Doe d. Des- Barres v. White (1 Kerr. N. B. 595) ap- proved. — ^Judgment appealed from afiSrmed.- Gwynne, J., dissented on the ground that the finding of the jury on the question submitted to them was against evidence, and further that the acts done by the defendant were not mere isolated acts of trespass, but acts done in as- sertion of ownership during a period exceed- ing thirty-five years, and the evidence of such acts should have been submitted to the jury and the jury told that if they believed this evidence they should find for the defendant. Sherren v. Pearson, xiv., 581. 16. Occupation as qaretaker — Acts of own- ership — Title to land — Possession — Statute of Limitations — Severance of title.] — ^In an ac- tion against O. to recover possession of land it was shewn that he had been in possession for over 20 years ; that he was originally in as caretaker for one of the owners ; that after- wards the property was severed by judicial de- cree and such owner ordered to convey portions to the others, that after severance O. perform- ed acts shewing that he was still acting for the owners ; and that he also exercised ads of ownership by enclosing the land with a fence and in other ways. Held, reversing the judg- ment appealed from (18 Ont. App. R. 529), that the severance of the property did not alter the relation between the owners and 0. ; that no act was done by O. at any time de- claring that he would not continue to act as caretaker ; and that his possession, therefore, continued to be that of caretaker and he had acquired no title by possession. Ryan v. Ryan (5 Can. S. C. R. 487) followed. Hew- ard V. O'Donohoe, xix., 341. 17. Possession by subsequent purchaser — Bona fides — Knowledge of incumbrance — Art. 2251 C. C] — Actual knowledge of a registered hypothec or bailleur de fonds claim is sufficient to rebut the presumption of good faith in the possession of a subsequent purchaser. — Judg- ment appealed from reversed. Baker v. 8o- oiete de Construction Metropolitaine, xxii., 364. 18. Title to 'land — Descriptiov — Metes and bounds — Sale en^bloc — Possession beyond boundaries — Acquisitive prescription — Regis- tration — Constructive notice — Interruption of prescription — 'Construction of deed — Sale to married woman — Propre de communauti — Ca- dastral plan and description — Arts. 1503, ^1§S. 2174, "'^185, mo, 2227, 22/,2, 2251. 2254 0. C] —In June, 1868. by deed of gift, P. granted to his son F., an emplacement, described by metes and bounds and stated to have 30 feet front- age, " tel que le tout est actuellement . . • et que I'acquereur dit bien connattre " declar- ing in the deed, that the donation had actu- ally been made in 1860, although no deed had been executed, and that since then F. had been in possession as owner and erected buildings. Under this donation the donee and his vendees claimed 36 feet frontage as having been actu- ally occupied by him and them since F. took possession as owner in 1860, and also that plaintiff had acquired a prescriptive title by 1141 PEESCRIPTION". 1142 10 years' possession under the deed, at the time of the action in 1897 to recover possession of the 6 feet then in occupation of defendant, whom plaintiff alleged to be a trespasser. Eeld, that the deed in 1868 operated as an interruption of prescription and limited the title to 30 feet frontage as therein described. — Plaintiff's wife purchased from P. in 1885 by deed describing the emplacement in a manner similar to the description in the donation, but also making reference to its number on the cadastral plan of the parish which desc*ibed it as of greater width. Held, that the description in the deed of 1885 left the true limits of the emplacement subject to determination according to the title held by the plaintiff's auteur which granted only 30 feet frontage; that by the registered title, plaintiff was charged with either actual or implied no tice of this fact and that, consequently, he had not, in good faith, possessed more than 30 feet frontage under this deed and could not invoke an acquisitive prescription of title to the disputed 6 feet by ten years' possession thereunder, and further, that no augmentation of the lands originally granted could take place in consequence of the cadastral descrip- tion of the emplacement. — The words " Tel que le tout est actuellement et que I'acqugreur dit bien connaltre " used in the deed of gift, cannot be interpreted in contradiction of the special description that precedes them and can only be construed as extending " dans les lim- ites ci-dessus dSerites." — A prescriptive title to lands beyond the boundaries limited by the de- scription in the deed of conveyance can only be acquired by 30 years' possession.-;-Oa(Ere, Is a deed of sale of lands in Quebec to a mar- ried woman without the authorization of her husband, sufficient to support a petitory ac- tion? Would such a deed be null for defect of form and insufficient, under art. 2254 G. C, to serve as the ground for a prescription of the title by 10 years' possession? Chalifour V. Parent, xxxi., 224. 19. Railways — Location of permanent way —Fencing — Laying out of boundaries- — Gon- struction of deed — Registry laws — -Notice of prior title — Riparian rights — Possession animo iomini — Acquisitive prescription — Arts. Ii87, 2393, 2196, 2U2, 2251 G. G.—Art. 77 G. P. Q.] —A railway company purchased land from P., bounded by an unnavigable river, as " selected and laid out " for the permanent way. Stakes were planted to shew the side lines but the railway fencing was placed inside the stakes above the water line, although the company could not have the quantity of land conveyed mless they took possession ad filum aquw. r. remained in possession of the strip of land °^'ween the fence and the water's edge and of the bed of the stream and, subsequently to "■f registration of the deed to the company, sold the rest of his property including water nghts, mills and dams constructed in the stream to defendant's auteur, described as " in- cluding that part of the river which is not included in the'right of way, &c." Plaintiffs never operated the railway but, immediately on Its completion, under powers by their char- ter and The Railway Act, 14 & 15 Vict. c. 51, anfi " ^^ y^^"^^ *o another company W «, railway has been ever since operated "y other companies under such lease. The ac- non pttitowe, including a claim for damages, Zl S^*' amongst other defences, by pleas ; S l?^ l^^^^ °^ ^ay sold never extended be- niil J Mnc'ing, such being the interpretation P'acea upon the conveyance by P. and the company in permitting him to retain posses- sion of the strip of land in question and the river ad medium filum; that bj ten years' pos- session as owner in good faith under trans- latory title the defendant had acquired owner- ship by the prescription of ten years, and that, by thirty years' adverse possession without title, the defendant and his auteurs had ac- quired a title to the strip of land and riparian rights in question. — On appeal the Supreme Court, Held, 1. That the description in the deed to the railway company included, ex jure natures, the river ad medium filum aquw as an incident of the lands thereby granted and their title could not be defeated under the subse- quent conveyanc'e by their vendor and war- rantor, notwithstanding that they may not have taken physical possession of all the lands described in the prior conveyance. 2. That the possession of the strip of land and the waters and bed of the river ad medium filum by the vendor and his assigns, after the convey- ance to the company, was not the possession animo domini required for acquisitive prescrip- tion of ten years under art. 2251 C. C, but merely an occupation as tenant by sutErance upon which no such prescription could be based. 3. That the failure of the vendor to deliver the full quantity of land sold and the company's abstention from troubling him in his possession of the same could not be con- strued as conduct placing a construction upon the deed different from its clear and unambigu- ous terms or as limiting the area of the lands conveyed. 4. That the terms of the descrip- tion in the subsequent conveyance by P. to the defendant's auteur were a limitation equiva- lent to an express reservation of that part of the property which had been previously con- veyed- to the company and prevented the de- fendant acquiring title by ten years' prescrip- tion, more especially as he was charged with notice of that prior conveyance through the registration of the deed to the company. 5. That the acquisitive prescription of thirty years under art. 2242 C. C, could not run in favour of the original vendor who had war- ranted title to the lands conveyed to the com- pany because, after his sale to them, he could not possess any part of the property he had failed to deliver animo domini nor in good faith. Massawippi Valley tiy. Go. v. lieei, xxxiii., 457. 20. Gonstruction on public property — 8uf- france — Long user — Possession — Trespass — Nuisance. See Estoppel, 1. 21. Arts. 2211, 2251, 2206 G. G. — Plea ly the Grown — Bona fides — Translatory title — Impenses et ameliorations. See Title to Land, 76. 22. Easement — User in common — Title to land. See User, 1. 23. Right of way — Way of necessity — lA- cense — User — Adjoining lands. See Basement, 11. 24. Light and air— Long user— Measure of damages — Misdirection. See Basement, 4. 1143 PEESCEIPTION". 1144 25. Farm crossing — Right of way. See Railway, 44. 7. Time Required foe PKESCBiPTioiir. 26. Prescription commenced tefore Civil Code came into force — Limitation of action for debt — Claims of a commercial nature — Loan hy a non-trader to a trader — Arrears of inter- est — Acknowledgment in writing — Entries in merchant's hooks — Interruption of prescrip- tion^Evidence—Arts. 2250, 2260— C. S. L. G. 0. 67.] — In 1858, W. D., sr., opened a credit of $584, in favour of liis daughter I. D., with W. D. & Co. (a firm consisting of appellant and T. D. ) , W. D. & Co. charging AV. U., t,r., and crediting I. D. with that amount. In 1860, W. D., a sole executor of the will of D. D., credited I. D. in the books of VV. D. & Co. (appellant at that time being the only mem- ber of the firm), with a further sum of $800, amount of a legacy bequeathed by such will. These entries in the books of W. I). & Co., with entries of interest in connection with said items, were continued from year to year. An account current was rendered to I. L). exhibit- ing details of the indebtedness up to the 31st December, 1861. After 31st December, 1864, the firm of W. D. & Co. consisted of appellant and '£. D. In December, 1865, another ac- count was rendered to I. D., which shewed a balance due her at that time of $1,912.08. The accounts rendered were unsigned, but the second account current was accompanied by a letter, referring to it^ written and signed by the appellant. I. D. died, and in a suit brought by (j. T., her husband and universal legatee, to recover the $1,912.08, with interest from 31st December, 1865 ; R eld, affirming the judgment appealed from (21 L. C. Jur. 92), 1. That a loan of moneys, as in this case, by a non-trader to a commercial firm is not a " commercial matter " or a debt of a '" com- mercial nature ;" that, therefore, the debt could not be prescribed, either by 6 years un der G. S. L. O. c. 67, or by 5 years under the Civil Code, but only by the prescription of 30 years. Whishaw v. Gilmour (15 L. O. R. 177) approved. — 2. That, even if the debt were of a commercial nature, the sending of the account current accompanied by the letter referring to it signed hy the appellant would take the case out of the statute. — 3. That the prescription of -5 years against arrears of interest, under art. 2250 C. C, does not apply to a debt, the prescription of which was commenced before the Civil Code came into force. — 4. That en- tries in a merchant's books make complete proof against him. Darling v. Brown, 1., 360. 27. Debats de compte — Taking of accounts of joint executors — Liability for moneys col- lected — Limitation of action — Art. 22Jf2 G. C?.] — The action against executors for an account of their administration of monej'S received or which or ought to have been collected by them in their capacity as such executors is prescrib- ed only by the lapse of 30 years. Darling v. Brown, ii., 26. 28. Use and occupation of land — Quasi- dUit— Prescription — Arts. 1608, 2188, 2150. 2261, 2267 C. C. — Judicial notice of bar to action although not pleaded.] — Action by ap- pellant, W. B., to recover compensation for the use of lands on the River ChaudiSre, occu- pied by H. K. & Co., for storing logs, attach- ing booms in summer and storing booms in winter, and which were submerged by means of a dam erected for that purpose, and made use of for about five years as a booming- ground for sawlogs coming down the river to their mills: — The declaration contained counts for damages, and for value of use and occupa- tion. — Respondent pleaded by demurrer a pre- scription of two years as for a quasi-d&it under arts. 2261 and 2267, C. C. ; that the alleged works were for the eflBcient work- ing of the mill, and that arbitration pro- ceedings should have been taken under C S. !L. C. e. 51, by which the remedy by action had been taken away. By perpetual exception re- spondent repeated the plea of prescription and set up that on 5th December, 1877, at a sale of the land by licitation it was purchased by J. B. ; that from that date, respondent had no interest in the mills ; and that no proceedings under C. S. L. C. c. 51, had been adopted by appellant ; respondent further pleaded the gen- eral issue. — The demurrer was dismissed. The trial judge found that appellant was entitled to $1,600, compensation for the use of the pre- mises for four years, at $400 per annum.^The Court of Queen's Bench, on an appeal, re- duced the amount to $200, value of the land for agricultural purposes. Held, revers- ing the judgment appealed from (7 Q. L. R. 286; 15 R. L. 514), that the prescrip- tion of two years under art. 2261 C. 0., did not apply, because C. S. L. C. c. 51, recog- nizing the right of a proprietor, in the case of improvement of watercourses, to erect works which may have the effect of damming back the water on a neighbouring property, the con- struction of a dam having that effect, as in this case, could not be considered a quasi-dilit, but rather as a right of servitude which gave to him who was injured by it a legal recourse for indemnity for the damage. Held, further, that the owner's claim should be considered as being one for rent or value of the use and oc- cupation of the lands and subject to the pre- scription of 5 years under art. 2250 C. C, such prescription being one which is to be judicially noticed although not pleaded under art. 2188 C. C, by an appellate court. Breakey v. Garter, Cass. Dig. (2 ed.) 463. Othee Cases. 29. C ommencement of prescription — Con- tinuing damage — Tortious act.] — The pre- scription of a right of action for injury to property runs from the time the wrongful act was committed, notwithstanding the injury re- mains as a Continuing cause of damage from year to year, when the damage results exclu- sively from that act, and could have been fore- seen and claimed for at the time. Kerr v. Atlantic and Aorth-West liy. Co., xxv.. 197. 30. Acknowledgment of debt — Novation- New title — Substituted prescription. See No. 6, ante. And see Limitations of Actions. FKESSUKE. Assignment for benefit of creditors — Pre- ference — Intent — Criminal liability. See Fraudulent Conveyances, 1. And see Duress. 1145 PEINCIPAL AND AGENT. 1146 PRESUMPTION. Sale — Donation in form of — Gifts in contemplation of death — Mortal illness of donor — Presumption of nullity — Validating cireumstanoes — Dation en paiement — Arts, m, 9S9 C. 0. See NrtLiTT, 2. Akd see Evidence, 123-145. See also, Pbe- SOEIETION, 17. PRETE NOM. l.Swit ly trustee — Art. 19 C. 0. P.— Estoppel. See Trusts, 5. 2. Transfer of chose in action — Judicial admission — Action. See Sale, 107. 3. Assignment — Action to annul — Par- ties in interest. See NuLUTY, 1. 4. Building societies — Participating tor- rowers — ■ Shareholders — G. 8. L. G. c. 68 — 42 if 4S Vict. (0.) c. 32 — Liquidation — Ex- piration of classes — Assessments on loans — Notice of — Interest and bonus — Usury laws — C. S. G. c. 58— Art. 1785 G. G .—Administra- tors and trustees — Sales to — Art. I484 G. G. See Building Society, 3. PRINCE EDAVARD ISLAND. 1. Constitutional law — B. N. A. Act, 1867 — Representation of P. E. I. in House of Com- mons.} — The representation of the Province of Prince Edward Island in the House of Commons of Canada is liable to be reduced below the original number of six members, under s. 51, s.-s. 4, B. N. A. Act, 1867, after a decennial census. In re Representation of P. B. Island m House of Commons, xxsiii.. 2. Statutes of Dominion — Interpretation of acts applicable to the province.'] — The Inter- pretation Act (31 Vict. c. 1) applies to sta- tutes of the Dominion of Canada relating to the Province of Prince Edward Island whether such statutes were passed before or after the admission of that province into the Dom- imon. Fitzgerald v. McKinlay, Cass. Dig. (2 ed.) 107. See Canada Temperance Act, 4. PRINCIPAL AND AGENT. 1. Action on Contract bt Agent, 1. 2. Liability for Contract by Agent, 2-18. 3. Liability for Acts of Agent, 19-47. 4. Liability of Agent to Third Parties, 48. 0. Rights and Liabilities between Princi- pal AND Agent, 49-55. 1. Action on Contract by Agent. 1. Undisclosed principal — Sale of goods— Uepcient deUvery— Acceptance of bill of lad- mg—Re-weighing — Estoppel — Pleading — lender and payment into court— Acknowledg- ment of haUhty.]— Action for |3,038 M price of 810 tons, 5 cwt. of coal sold by their agents T., M. & Co.. through a broker, as per following note. "Jlessrs. T. M. & Co. ■— I have this day sold for your account to ar- fi^'^'u-,^? ^^^ ^- Hudon Cotton Mills Co., the 810 tons, 5 cwt. . . . coal per bill of .'^.',"?i,>P,^"^' ' ^^^^ Ontario,' at $3.75 per ton ot ^,^40 lbs., duty paid, ex ship ; ship to have prompt dispatch. Terms, net cash on delivery or 30 days adding interest, buyers' option! Brokerage payable by you, buyer to have privilege of taking bill of lading, or re-weigh- ing at sellers' expense." Defendants pleaded that the contract was with T., iU. & Co. personally, that plaintiffs had no action ; that the cargo contained only 755 tons, 580 lbs. = $2,808.72, which they had offered T., M. & Co., together with the price of 10 tons more to avoid litigation, in all $2,890.72, which they brought into court, without ac- knowledging their liability to plaintiffs, and prayed dismissal of action as to any greater sum. Held, per Ritchie, C.J., and Taschereau and Gwynne, J J., (Pournier and Henry, JJ., dissenting,) that it was unnecessary to decide the question as to whether the action could be brought by the undisclosed principal, for by their plea of tender and payment into court the defendants had acknowledged their liability to the plaintiffs, although such tender and de- posit had been made " without acknowledging their liability." — Per Strong, J. That the ac- tion by respondents (undisclosed principals) was maintainable. — Per Fournier and Henry, JJ., (dissenting), that the action by respond- ents (undisclosed principals) was not maintain- able, and that the appellants were not preclud- ed from setting up this defence by their plea of tender and payment into court. — It was proved that defendants agreed to take the coal as per bill of lading without having it weighed. They, however, caused it to be weighed in their own yard, without notice to the vendors, and the cargo was found to contain only 755 tons, 580 lbs. About three weeks after hav- ing received the bill of lading, when called upon to pay, they claimed a reduction for the deficiency. Held, Pournier and Henry, JJ., dissenting, that defendants had no right to refuse payment for the cargo on the grounds of deficiency in delivery, considering that the weighing was done by them in the absence of plaintiffs wifhout notice to them, and at a time when defendants were bound by the op- tion they had previously made of taking the coal in bulk. Judgment appealed from (2 Dor. Q. B. 356) aflBrmed. V. Hudon Cotton Co. V. Canada Shipping Co., xiii., 401. 2. Liability fob Contract by Agent. 2. False bill of lading — No goods shipped — Accepted drafts with bill attached— Advance on consignment — Fraud of agent — Liability of company.] — C, freight agent of the railway company, and a partner in the firm of B. & Co., issued bills of lading in the form com- monly used by the company signed by him as the company's agent to B. & Co., for flour which had never in fact been delivered to the company, which acknowledged that the com- 1147 PEINCIPAL AND AGENT. 1148 pany had received from B. & Co. the flour addressed to E. The bills of lading were at- tached to drafts drawn by B. & Co., and ac- cepted by E. C. received the proceeds of the drafts and absconded. In an action to recover the amount of the drafts, Held, affirming the judgment appealed from (3 Ont. App. R. 446) , Fournier and Henry, JJ., dissenting, that the act of C. in issuing false bills of lading for goods never delivered to the company, was not an act done within the scope of his authority as the company's agent, and the Company was therefore not liable. Erb v. Great Western B. W. Co., v., 179. 3. Appointment of agent — Authority to iind principal — Fire insurarwe company — In- terim receipts — Agent delegating authority.^ — Action brought on an interim receipt, signed by one S., as agent for the company. The plea denied that S. was an authorized agent, as alleged. The point general managers for Ontario had appointed W. as a general local agent and S. was employed by W. to solicit applications, but had no authority from, or correspondence with, the head office of the company. The jury found that S. was au- thorized by W. to sign interim receipts. There was some information given to one of the joint general managers, but there was no evi- dence that the other knew that S. was acting in any capacity for the company. Held, af- firming Court of Appeal for Ontario, that the general local agent had no power to delegate his functions, and that S. had no authority to bind the company by signing interim receipts. — Per Strong, J. That the general managers, being joint agents, could only bind the com- pany by joint concurrent acts ; any ratifica- tion of the appointment of S. by one of them without the concurrence of the other, would not have been sufficient to give S. authority to bind the company. Summers v. Commercial Union Ins. Co., vi., 19. Followed in the Canadian Fire Ins. Go. v. Robinson (31 Can. S. C. R. 488). See No. 33, infra. 4. Sale of goods in one lot — Independent principals — Contract by agent of two firms — Lump price — Excess of authority — Ratifica- tion.] — An agent of two independent and un- connected principals has no authority to bind his principals or either of them by the sale of goods of both in one lot, when the articles included in such sale are different in kind and are sold for a single lump price not susceptible of a rateable apportionment except by the mere arbitrary will of the agent. — There can be no ratification of such a contract unless the parties whom it is sought to bind have, either expressly, or impliedly by conduct, with a full knowledge of all the terms of the agree- ment come to by the agent, assented to the same terms and agreed to be bound by the contract undertaken on their behalf. Came- ron V. J'ate, XV., 622. 5. Sale of lands — Power of attorney — Au- thority to give credit — Power of sale in mort- gage — Application of proceeds — Inquiry — Pay- ment.] — A power of attorney by mortgagees authorized their agent to enter and take pos- session of the mortgaged lands and sell the same at public or private sale, and for the best price that could be gotten for them, and to ex- ecute all necessary receipts, &c., which receipts " should effectually exonerate every purchaser or other persons taking the same from all lia- bility of seeing to the application of the money therein mentioned to be received and from be- ing responsible for the loss, mis-application or non-application thereof." The agent took pos- session and sold the land, receiving part of the purchase money in cash and, for the balance the purchaser's note payable to himselfl which he discounted, appropriating the pro- ceeds. The purchaser paid the note to the holders at maturity. Held, affirmingthe judg- ment appealed from (27 N. B. Rep. lYS), that the power of attorney did not authorize a sale upon credit, and the sale by the agent was, therefore, invalid, and the purchaser was not relieved by the above clause from seeing that the authority of the agent was rightly exer- cised. -The sale being invalid the subsequent payment of the note by the purchaser could not make it good. Rodburn v. Swinney, xvi., 6. New-' agreement with agent — Principal standing by — Right of action.] — W. sold land under power of sale, and F. became the pur- chaser, and paid part of the price, the balance was to be paid in notes. Shortly after A. brought a deed to F. and demanded the notes. The deed was left with F. on his delivering to A. a writing as follows: — "Received from E. A. a deed given by W. for a certain piece of land bought at auction. . . . The above mentioned deed I receive only to be examined, and if lawfully and pro- perly executed to be kept, if not lawfully and properly executed to be returned to E. A. When the said deed is lawfully and properly executed to the satisfaction of my attorney, I will pay the anrount of balance due on said deed, $572, provided I am given a good warrantee deed, and the mortgage, which is on record, is properly cancelled if required." The deed was not returned and A. brought action for the $572. — A verdict was given for defendant, under the direction of the judge, and leave reserved to plaintiff to move for a verdict in his favour for nominal damages, the purchase money having in the meantime been paid to W. On plaintiff moving for leave the Supreme Court set aside the verdict, and en- tered verdict for the plaintiff. Held, revers- ing the judgment appealed from (19 N. B. Rep. 22), Strong, J., dissenting, that the memorandum did not constitute a new con- tract between plaintiff and defendant to pay the purchase money to plaintiff, who was merely the agent of W., and therefore the verdict for defendant should stand. — Per Strong, J. That the writing did constitute a new agreement between the parties, but that if A. was merely an agent of W. in the transaction, he could still sue, as his principal had not interfered. Appeal allowed with costs. Fawcett v. Anderson, Cass. Dig. (2 ed.) 8. 7. Contract for towage — Quantum meruit] — Steamships brought by defendant from Glas- gow to run on the Upper Lakes, having to be cut in two to be taken through the St. Law- rence Canals, an arrangement was made by B. (the person who was to manage the ves- sels) with the D. S. & W. Co., that this com- pany should furnish tugs at specified rates per hour. The terms were contained in a letter in which, after specifying the rates per hour for the tugs, and when the time was to begin, it is stated as follows : " The company to fur- nish the main towing hauser free of charge and to send Capt. D. to superintend the tow- ing and transportation of the vessels, and to 1149 PEINCIPAL AND AGENT. 1150 use his best endeavours to successfully Com- plete the same, but in case you should require his services before the ordering of our boats or after their discharge, then this company to charge ten dollars per day for such extra ser- vices rendered by him." Nothing stated as to the place from or to which the vessels were to be taken. At that time it had not been de- finitely settled where the vessels should be re- fitted. Eventually it was decided to join the two parts of the vessels at Buffalo, and fix them up at Port Colborne. The two parts of ths " Athabasca " left Montreal m tow of tugs furnished by the T>. S. & W. Co. in charge of Captain D. After pass- ing the St. Lawrence Canals the two pieces were fastened together at Prescott, and when they got to Kingston they were refastened more securely and started for Port Dalhousie. On arriving off Port Dalhousie, Capt. D. ar- ranged with the owners of the tug " Bennett," the owners of the tug " Aikens," and the cap- tain of the tug " Augusta," that these tugs should tow the two sections of the " Atha- basca " from Port Dalhousie to Port Colborne, and should be paid at the rate of $4 per hour when running, and $3 an hour when lying still. The ■' Athabasca " was taken to Port Colborne by these three tugs accordingly. Defendants re- fused to pay the owners of .the tugs for these services, and proceedings were taken in the Maritime Court for Ontario against the ship. Defendants shewed that before D. made the bargain, B., the general manager of the de- fendants' vessels, had entered into an agree- ment with Cloy, to take one or more of the vessels (at B.'s option) through the canal at a price much less than that agreed to be paid by D., and contended that D. had no authority to make any contract for the towing of the vessels through the canal, and that before the plaintiffs did anything under the contract they had notice of this and also of the bargain with Cloy from B., and were forbidden to take the vessel through the canal, and also that at the tune plaintiffs made the agreement with D. they were aware that an arrangement had been made with Cloy, of which D. was ignor- ant, and that in contracting with D. under the circumstances they were guilty of a fraud. — The judgment was in favour of the owners of the tugs for the amounts claimed, holding that D. had authority to make the contract with plaintiffs, that the amounts claimed were rea- sonable, and that defendants had the benefit of the work done, and should pay therefor. — The Supreme Court of Canada affirmed the judg- ment appealed from, Henry and Taschereau, JJ., dissenting, on -the ground that the au- thority of D. to make the contract was not es- tablished. Canadian Pacific Railway Co. v. Neelon; Canadian Pacific Railway Co. v. amwell; ''The Athalasca," Cass. Dig. (2 ed.) 522. . 8. Sale of goods — Sale through irokers — ^iency~Acquiescence.'\ — If parties in Canada contract to purchase goods in New York tuough brokers, first by telegram and letters, and completed by exchange of bought and sold notes signed by the brokers, the latter may be regarded as agents of the purchasers in Can- ada; but if not, if the purchasers make no oD]ection to the form of the Contract or to ™nt of authority in the brokers, and after ine goods arrive refuse to accept them on fi™f Sronuds, they will be held to have rati- nes the contract. (20 Ont. App. R. 673, af- nrmed ) Trent Valley Woollen Mfg. Co. v. fJelnehs, xxiii., 682. 4,?fj. ■? I """^ purchaser — Sale of land- Authority to agent — Price of sale.j — M owner of an undivided three-quarter interest in land at Sault Ste. Marie, telegraphed to her solicitor at that place, " Sell if possible, writ^ «?£,S^^^'^"'^''^'.'^"' S'^« y°" g°od commis- sion, c. agreed to purchase it for $600 and the solicitor telegraphed M. "Will you sell three-quarter interest sixty-seven acre parcel, ^°™''-,|°'^ SIX hundred, half cash, balance y.^^r-n ^^^^ stating commission." M. replied will accept offer suggested. Am writing particulars ; await my letter." The same day she wrote the solicitor, " Telegram received. I will accept $600, $300 cash and $300 with interest at one year. This payment I may say must be a marked Cheque at par for $300, minus your commission $15, and balance $300 secured. The property was incumbered to the extent of over $300 and the solicitor de- ducted this amount from the purchase money and sent M. the balance which she refused to accept. He also took a conveyance to himself from the former owner paying off the mort- gage held by the latter. In an action against M. for specific performance of the contract to sell ; Held, affirming the judgment of the Court of Appeal, that the only authority the soli- citor had from M. was to sell her interest for $585 net and the attempted sale for a less sum was of no effect. Held, further, that the conveyance to the solicitor by the former owner was for JI.'s benefit alone. Clergue v. Murray, xxxii., 450. 10. Carrier's contract — Shipping receipt — Limitation of liability — Damages — Negligence — Connecting lines — Wrongful conversion — Sale of goods for non-payment of freight — Prin- cipal and agent — Varying terms of contract.'] — A shipping receipt with conditions relieving the carrier from liability for loss or damages arising out of " the safe-keeping and carriage of the goods," even though caused by the negligence, carelessness or want of skill of the officers, servants or workmen of the Carrier, without his fault or privity, and restricting claims to the cash value of the goods at the port of shipment, agreed for the carriage by the defendants' and other connecting lines of transportation and made the freight payable on delivery of the goods at the point of des- tination. The defendants had previously made a special contract with the plaintiff, but de- livered the receipt to his agent at the point of shipment with a variation of the special terms made with him in respect to all ship- ments to him as consignee during the season of 1899, the variation being shewn by a clause stamped across the receipt of which the plaintiff had no knowledge. One of the ship- ments was sold at an intermediate point on the line of transportation on account of non- payment of freight by one of the companies in control of a connecting line to which the goods had been delivered by the defendants. Held, that the plaintiff's agent at the ship- ping point had no authority, as such, to con- sent to a variation of the special contract, nor could the carrier do so by inserting the clause in the receipt without the concurrence of the plaintiff ; that the sale, so made at the intermediate point, amounted to a wrongful conversion of the goods by the defendants, and that they were not exempted from Ii?,b^iLffi,,..^ respect thereof, at their full value^(fTf^«5« ajs/ V. Canadian Development Co., xxxiii., 432. O^ Leave to anneal refused by the Privy Coun-WS cil, July, 1903. /u*> 1151 PEINCIPAL AND AGENT. 1152 11. Authority of station agent — Railways — Perishahle freight — Bill of lading — Con- dition stated verbally. See Caeeieks, 15. 12. Commission merchant — Shipment of perishable goods — Delivery — Condition of prepayment — Loss on damaged cargo — Ownership. See Contract, 210. 13. Buying and selling land — Stock in trade — Partner indorsing cheques — Implied authority — Estoppel. See Paetneeship, 16. 14. Stock speculations — Instructions to broker — Margins paid — Action. See Beokee, 2. 15. Vendor and purchaser — Principal and agent — Mistake — Contract — Agreement for sale of land — Agent exceeding authority — Specific performance — Findings of fact. See Ck)NTBACT, 178. 16. Statutory board of commissioners — Municipal waterworks — Contract — Action — Parties. See Municipal Ooepoeations, 65. 17. Debtor and creditor — Payment -^ Ac- cord and satisfaction — Mistake — Principal acting on agent's report. See Mistake, 7. 18. Contract under seal — Undisclosed prin- cipal — Partnership — Amendment. See Action, 107. 3. Liability foe Acts of Agent. 19. Revendication by trustee — Bonds pledg- ed as collateral — Right of recovery on per- formance of condition precedent — Interest of plaintiff ."l — ■ B., as trustee for H. C. & Co., deposited with D. bonds of the M. C. & S. Ky. Co., as collateral security for drafts ac- cepted by B. for the accommodation of H. G. & Co., to be availed of only upon failure of the Government to pay a subsidy previously transferred to D., and D. agreed that, on the subsidy being paid, he would return the bonds to B. The subsidy was paid and B. sued D. to recover back the bonds, but H. G. & Co. were not joined in the action. Meld, that B. was not merely an agent for H. C. & Co., but being a party personally liable on the bills secured by the subsidy, and having complied with all the necessary conditions, was, as against D., the legal owner and entitled to recover possession of the bonds. Drummond V. Baylis, ii., 61 20. Deposits in bank — Husband and wife — Agency — Payment — Action ■ — Art. 1143 C. C. — Parties.} — G. acquired during the life of his first wife, immoveable property, which formed part of the communauti between them. At his death, after marriage with his second wife, he was greatly involved. His widow accepted sous benefice d'inventavre his uni- versal usufructuary legacy in her favour, con- tinued in possession of her estate as well as that of the first wife, and administered them both, employing L. G. to collect, pay debts, &c. At a meeting of creditors, of whom the bank was chief, a resolution was adopted authorizing the widow to sell the properties, with the advice of an advocate and the cashier of the bank, and that the money should be deposited with the bank, to be apportioned among G.'s creditors pro rata. L. G. con- tinued to collect the revenues and acted gen- erally for the widow and under this advice, and deposited both the moneys derived from the estate of G. and those derived from the estate of the first wife, with the bank in an account headed " Succession S. G." A bal- ance remained for which the action was brought by the heirs of the first wife. Held, affirming the judgment appealed from (See 26 L. C. Jur. 110), (Ritchie, C.J., and Four- nier and Henry, J J., contra) — That as be- tween the heirs of the first wife and the bank there was no relation of creditor and debtor, fiduciary relation, nor any privity whatever ; and as the moneys belonging to such heirs were so collected by L. G. as agent of the widow and not as agent of the bank, and received by the bank in good faith, as applic- able to the debts of the estate, and as the representatives of the widow were not parties to the action, the plaintitts could not recover. Giraldi v. Banque J acques-C artier, ix., 597. 21. Agent of bank dealing with funds con- trary to instructions — Discounting for his own accommodation.} — K., agent of a bank and also a member of a business firm, pro- cured accommodation drafts from a customer of the bank which he discounted as such agent, and, without indorsing them, used the Eroceeds, in violation of his instructions, in the usiness of his fiim. The firm having be- come insolvent the question arose whether these drafts constituted a debt due from the estate to the bank, or whetlier the bank could repudiate the act of its agent and claim the whole amount from the solvent acceptors. JBeld, affirming the judgment appealed from (22 N. S. Rep. 200), Gwynne, J., dissenting, that the drafts were debts due and owing from the insolvents to the bank. Held, per Strong and Patterson, JJ., that the agent be- ing boimd to account to the bank for the funds placed at his disposal he beca.me a debtor to the bank, on his authority being re- voked, for the amount of these drafts as money for which he had failed to account. Mer- chants Bank of Halifax v. Whidden, xix., 53. 22. Acts of agency — Issue of policy^ of in- surance — Evidence.} — A policy of marine in- surance was signed by R. as the company's agent ; he issued and countersigned it as agent, received the premium and acted throughout as such agent and was so recognized by the pre- sident of the company. Held, affirming the judgment appealed from (23 N. B. Rep. 105), that this was sufficient primd facie evidence on which a jury might find that R. was agent of the company. Providence Washington Ins. Co. v. Chapman, Cass. Dig. (2 ed.) 386. 23. Assignment of debt — Confidential re- lations — Knowledge of book-keeper.}— A con- tractor being in difficulties, his sureties took an assignment of the contract and assumed financial Control of the business which was carried on as usual, the only accounts there- of being kept by the contractor's book-keeper through whom the disbursement of all moneys was made and who appeared from the evi- dence to have been acting in the most conn- 1153 PKINCIPAL AND AGENT. 1154 dential relations with the sureties, at least in so far as concerned the carrying on of that contract. Beld, that under the circumstances, the book-keeper must be regarded as the agent of the sureties in respect of the contract in question and that consequently they were bound by his knowledge of an assignment and admission of a debt accruing due to a sub- contractor. Scoullar v. McGoll, 24th March, 1896. 24. Trustees and administrators — Fraudu- lent conversion — Past due honds — Negoti- aUe security — Debentures transferable hy delivery — Equities of previous holders — Art. 2287 ,0. G. — Estoppel — Brokers anA factors — Pledge — Implied notice — Dutp of inauiry — innocent holder for value — Arts. U81, U90, 2202 C. 0.]— Quebec Turn- pike Trust bonds (issued under special Acts and Ordinances, see R. S. Q. Supp. p. 505), are payable to bearer and transferable by de- livery. Certain of these bonds belonging to the estate of D. D. Y., deceased, had been exhibits and marked as such in a case in court, and were afterwards lost and advertised for in a newspaper. About ten years afterwards W., the administrator of the estate, had the bonds in his possession as such, and pledged them to a broker for advances on his own account, the bonds then being long past due, but payment being provided for under statutes. Held, af- firming the judgment appealed from (Q. R. 3 Q. B. 539), Pournier and Taschereau, JJ., dissenting, that neither the advertisement nor the marks upon the bonds, nor the broker's knowledge of the agent's insolvency, were no- tice to pledgee of defects in the pledgor's title ; and that the owners of the bonds, having by their act enabled their agent to transfer them by delivery, were estopped from asserting their title to the detriment of a hond fide holder. Young v. MacNider, xxv., 272. 25. Agent's authority — Representation iy agent — Advantage to other than principal — Knowledge of agent — Constructive notice.] — Where an agent does an act outside of the ap- parent scope of his authority, and makes a representation to the person with whom he acts to advance the private ends of himself or some one else other than his principal, such representation cannot be called that of the principal. — In such a case it is immaterial whether or not the person to whom the rep- resentation was made believed the agent had authority to make it. — The local manager of a bank having received a draft to be accepted, induced the drawee to accept by represent- ing that certain goods of his own were held by the bank as security for the drafts. — In an action on the draft against the acceptor, Beld, that the bank was not bound by such representations; that by taking the benefit of tlie acceptance it could not be said to adopt what the manager said in procuring it which would burden it with responsibility instead of conferring a benefit ; and that the knowledge of the manager with which the bank would be attected should be confined to knowledge of what was material to the transaction and the anty of the manager to make known to the bank. Judgment appealed from (33 N. B. Kep. 412) affirmed. Richards v. Bank of «ova Scotia, xxvi., 881. See No. 34, infra. 26. Fire insurance — Conditions in policy — ^''eachr—Wamiet^— Recognition of existing risk mer breach— Authority of agent.]— A policy s. c. D.— 87 of fire insurance on a factory and machinery contained a condition making it void if the said property were sold or conveyed or the interest ot the parties therein changed. Held, affirm- ing the decision appealed from, that by a chattel mortgage given by the assured on said property his interest therein was changed and 1?*',^^?"'^? forfeited under said condition. Jieid, further, that an agent with powers limit- ed to receiving and forwarding applications for insurance had no authority to waive a for- feiture caused by such breach. Torrop v Im- perial Fire Ins. Co., xxvi., 585. 27. Accident insurance — Renewal of policy — Payment of premium — Promissory note — In- structions to agent — Agent's authority — Find- ing of jury.] — ^A policy issued by the insur- ance company in favour of P., contained a provision that it might be renewed from year to year on payment of annual premium. One condition was that it was not to take effect unless the premium was paid prior to any acci- dent on account of which a claim should be made, and another that a renewal receipt, to be valid, must be printed in office form, signed by the managing director, and countersigned by the agent. P. was killed) by accident. Pay- ment was refused on the ground that the policy had expired and not been renewed. It was shewn that the local agent of the company had requested P. to renew and had received from him a promissory note for .$15 (premium being $16), which the father of assured swore the agent agreed to take for balance of premium after being paid the remainder in cash. He also swore that the agent gave P. a paper pur- porting to be a receipt and gave secondary evidence of its contents. The agent's evidence was that while the note was taken for a por- tion of the premium it was agreed between him and P., that there was to be no insurance un- til it was paid, and that he gave no renewal receipt and was paid no cash. Some four years before this the agent and all agents of the company had received instructions from the head office not to take notes for premiums as had been the practice theretofore. The note was never paid but remained in possession of the agent, the company knowing nothing of it. The jury gave no general verdict, but found in answer to questions that a sum was paid in cash and the note given and accepted as pay- ment of the balance of premium, and that the paper given to P. by the agent, as sworn to by P.'s father, was the ordinary renewal re- ceipt of the company. Upon these findings judgment was entered against the company. Held, aflirming the judgment appealed from (29 N. S. Rep. 124, 551), Gwynne, .T., dis- senting, that the fair conclusion from the evidence was, that as the agent had been em- ployed to complete the contract and had been entrusted with the renewal receipt, P. might fairly expect that he was authorized to take a premium note, having no knowledge of any limitation of his authority, and the policy not forbidding it; and that notwithstanding there was no general verdict, and the specific ques- tion had not been passed upon by the jury, such inference could be drawn by the court according to the practice in Nova Scotia. Held, further, that there was evidence upon which reasonable men might find as the jury did; that an inference might fairly be drawn from the facts that the transaction amounted to payment of the premium and it was to be assumed that the act was within the scope of the agent's employment; the fact that the agent was disobeying instructions did not pre- vent the inference though it might be con- 1155 PEINCIPAL AND AGENT. 1156 sidered in determining whether or not such in- ference should be drawn ; and that a new trial should not be granted to enable the company to corroborate the testimony of the agent that he had no renewal receipt in his possession except one produced at the trial, as the com- pany might have supposed that the plaintiff would seek to shew that such receipt had been obtained and were not taken by surprise. Manufacturers Aocident Ins. Co. v. Pudsey, xxvii., 374. 28. Fire insurance — Condition in policy — Time limit for submitting particulars of loss — Condition precedent — Waiver — Authority of agent. ~\ — A person not an officer of an insur- ance company, appointed to investigate the loss and report thereon to the company, is not an agent having authority to waive compli- ance with conditions precedent to liability, and if he has such authority he can not, after the fifteen days for delivery of proofs have expired, extend the time without express authority from his principal — Judgment appealed from (31 N. S. Rep. 348) reversed. Atlas Ass. Go. V. Brownell, xxix., 537. See No. 29, infra. 29. Fire insurance — Construction of con- tract — ** Until " — Condition precedent — Waiver — Estoppel — Authority of agent."] — Neither the local agent for soliciting risks nor an adjuster sent for the purpose in investi- gating the loss under a policy of fire insur- ance, has authority to waive compliance with conditions precedent to the insurer's liability or to extend the time thereby limited for their fulfilment, and as the policy in question specially required it, there could be no waiver unless by indorsement in writing upon the policy signed as therein specified. Atlas Assurance Co. v. Brownell (29 Can. S. C. R. 537) followed. — ^Judgment appealed from (31 N. S. Rep. 337) reversed. Commercial Union Ass. Co. V. Margeson, xxix., 601. See No. 28. ante. 30. Partnership — Mandate — Factor — Pledge — Lien — Notice — Right of action— Intervention —Res judicata — Arts. 1739, IHO, 1742, 1975 C. C] — ^A partner entrusted with possession of goods of his firm for the purpose of sale may, either as partner in the business or as a factor for the firm, pledge them for advances made to him personally and the lien of the pledgee will remain as valid as if the security had been given by the absolute owner of the goods, not- withstanding notice that the contract was with an agent only. Dingwall v. McBean, xxx., 441. 31. Life insurance — Agency — Art. 610 C. C. — Unworthy beneficiary — Murder of assured — Exclusion from succession.] — The action to cancel policies was against the representatives of a deceased policy holder who was murdered by his wife and her lover, who were executed for the murder. Deceased left all his prop- erty to his wife, and had no issue surviving. The widow was judicially deprived of all rights as beneficiary under the policy and the will, as unworthy of succession. The company charged the remaining beneficiaries with en- deavouring to take advantage of fraud and the felony. The judgment appealed from held that as there was no evidence that, at the date of the policies, assured was aware of the evil intentions of his wife, nor that she was acting as agent in effecting the assurances, the fact that she might then have had such intentions and subsequently murdered her husband would not have the effect of discharging the insurer from liability under the policies towards the legal representatives of the assured. The judg- ment appealed from (Q. R. 9 Q. B. 499) was affirmed by the Supreme Court of Canada. The Standard Life Assurance Company v. Trudeau, et al., xxxi., 376. 32. Promoters of company — Agent to solicit subscriptions — False representations — Ratifi- cation — Benefit.] — Promoters of a company employed an agent to solicit subscriptions for stock and W. was induced to subscribe on false representations by the agent of the num- ber of shares alreadv taken up. In an action by W. to recover the amount of his subscrip- tion from the promoters ; Held, affirming the judgment of the Court of Appeal (2 Ont. L. R. 261) that the latter, having benefited by the sum paid by W., were liable to re-pay it, though they did not authorize and had no knowledge of the false representations of their agent. Held, per Strong, C.J., that neither express authority to make the representations nor subsequent ratification or participation in benefit were necessary to make the promoters liable ; the rule of respondeat superior applies as in other cases of agency. Milburn v. Wil- son, xxxi., 481. 33. Contract — Lea; loci — Lex fori — Insur- ance agent — Payment of premium — Interim receipt — Repudiation of acts of sub-agent.] — The appointment of a local agent of a fire in- surance company is one in the nature of de- lectus persona!, and he cannot delegate his authority nor bind his principal through the medium of a sub-agent. Summers v. The Com- mercial Union Assurance Company (6 Can. S. C. R. 19) followed. — The local agent of a fire insurance company was authorized to effect interim insurances by issuing receipts counter- signed by him on the payment of the premiums in cash. He employed a canvasser to solicit in- surances, who pretended to effect an insur- ance on behalf of the company by issuing an interim receipt which he countersigned as agent for the company, taking a promissory note payable in three months to his own order for the amount of the premium. Held, that the canvasser could not bind the company by a contract on the terms he assumed to make, as the agent himself had no such authority. Held, further, that even if the agent might be said to have power to appoint a sub-agent for the purpose of soliciting insurance, the em- ployment of the canvasser for that purpose did not confer authority to conclude contracts, to sign interim receipts, nor to receive premiums for insurance. Canadian Fire Insurance Co. V. Robinson, xxxi., 488. See No. 3, ante. 34. Banlcing — Bills and notes — Conditional indorsement — Principal and agent — Knowledge by agent — Constructive notice — Deceit.] — A promissory note indorsed on the express under- standing that it should only be available upon the happening of a certain condition is not binding upon the indorser where the condition has not been fulfilled. Pym v. Campbell (6 B. & B. 370) followed.— The principal is affected by notice to the agent unless it appears that the agent was actually implicated in a fraud upon the principal, and it is not sufficient for the holder to shew that the agent had an in- terest in deceiving his principal. Kettlewell v. Watson (21 Oh. D. 685), and Richards v. The Bank of Nova Scotia (26 (Pan. S. O. B- 381), 1157 PEINCIPAL AND AGENT. 1158 referred to. Commercial Bank of Windsor v. Morrison, xxxii., 98. See No. 25, ante. 35. Principal and agent — Police constaMe — Negligent performance of duty— Liability of municipal corporation.'] — A police officer is not the agent of the municipal corporation which appoints him to the position and, if he is negligent in performing his duty as a guar- dian of the public peace, the corporation is not responsible. Judgment appealed from (35 N. B. Eep. 296) affirmed. McCleave v. City of Moncton, xxxii., 106. 36. Sale of goods of principal by agent in lis own name — Contra account against agent — Right of set-off in action by principal. See Set-off, 1. 37. Sale by agent — Simulated purchase — Fraudulent conveyance — Laches. See Tkusts, 1. 38. Railway — Construction of Parkdale sub- ways — Injury to property — Liability for mis- feasance. See TOBT, 2. 39. Testamentary executor — Mandate — Fit- ness of agent — Misappropriation — Negligence. See Trusts, 9. 40. Application for insurance — Plan made iv canvasser — Misdescription — Authority to lini insured. See INSTJEANOE, FlEE, 77. 41. Application for insurance — Representa- tions — Concealment — Authority of ship's hus- land. See INSTJKANCE, Marine. 49. 42. Assignment in trust for creditors — Power of attorney by trustee — Authority of attorney to use principal's name — Sale of goods — Credit. See Debtor and Creditor, 46. 43. Agent of creditor — False representation as to agency — Obtaining payment from debtor —Ratification — Fraud. See Debtor and Ceeditoe, 17. 44. Debtor and creditor — Composition and dtscharge — Acquiescence — New arrangement of terns of settlement — Waiver of time clause — ftinctpal and agent — Deed of discharge — Notice of withdrawal from agreement — Fraud- Wnt preferences. See Composition and Discharge. 45. Streets commissioners — Municipal drain —Irespass — Verdict. ' See Municipal Coeporation, 95. - -■ -if'-yvy.^ce — Personal injuries — Drains that each year there was an employment of W. distinct from, and independent of, those of pre- vious years ; that the position of the sureties on re-appointment was the same as if other persons had signed the bond of the preceding year; and that the company was under no obligation, on taking a new bond, to inform the sureties that W. had not punctually performed his undertakings in respect of previous employ- ment, nor did the non-disclosure imply a re- presentation to the sureties when they signed a new bond that they had been punctually per- formed. Kiagara District Frmt Growers Stotck Co. V. Walker, xxvi., 629. 6. Recourse of sureties inter se — Ratable contrilution — Action of warranty — Banking — Discharge of co-surety — Reserve of recourse-— Trust funds in possession of a surety — Arts. 1156 1959 C. C]— Where onei of two sureties has moneys in his hands to be applied towards payment of the creditor, he may be compelled by his co-surety to pay such moneys to the creditor or to the co-surety himself if t^ credi- tor has already been paid by him.— -Where a creditor has released one of several sureties with a reservation of his recourse against the others and a stipulation against warranty as to claims they might have against the surety so released by reason of the exercise of such recourse reserved, the creditor has not thereby rendered himself liable in an action of war- ranty by the other sureties. Macdonald y. Whitfield; Whitfield v. Merchants Bankx^of Canada, xxvii., 94. ' 1163 PEIVY COUNCIL. 1164 7. Action — Suretyship — Promissory note — Qualified indorsement.] — D. indorsed two pro- missory notes, pour aval, at the same time marking them with the words " not negotiable and given as security." The notes were in- tended as security to the firm of A. & R. for advances to a third person on the publication of certain guide-books which were to be left in the hands of the firm as further security, the proceeds of sales to be applied towards re-im- bursement of the advances. It was also agreed that payment of the notes was not to be re- quired while the books remained in the posses- sion of the firm. The notes were protested for non-payment, and, A. having died, R. as sur- viving partner of the firm and vested with all rights in the notes, sued the maker and indorser jointly and severally for the full amount. At the time of the action some of the books were still in the possession of R., and it appeared that he had not rendered the indorser any statement of the financial situa- tion between the princiiJal debtor and the firm. Held, that the action was not based upon the real contract between the parties and that the plaintiff was not. under the circumstances, en- titled to recover in an action upon the notes. Held, further, per Sedgewick, J., that 'neither the payee of a promissory note nor the drawer of a bill of exchange can maintain an action against an indorser where the action is founded upon the instrument Itself. Robertson v. Davis, xxvii., 571. 8. Trustee — Misappropriation — Surety — Evidence — Knowledge by cestui que trust — Es- toppel — Parties.] — Funds held by F. as trustee for C. were misappropriated by being deposited with the firm of F. F. & Co.. of which F. was a member, and after being so kept on deposit for a period of upwards of six years, were lost in consequence of the failure of the firm. In an action against the defendants, who were sureties for F., to compel them to make good the funds so misappropriated and lost, the de- fence relied upon the knowledge of the mis- appropriation on the part of 0., which know- ledge was sought to be shewn by the fact that payments of interest were made to C, from time to time, by cheque of the insolvent firm. — The Supreme Court (N. S.), en tanc held, that the manner in which these payments were made was not evidence of knowledge on the part of C, that she, was bound to communicate to the sureties ; that at most it shewed nothing more than assent by C. to the deposit of the income to which she was entitled with the firm of which her trustee was a member. The court also held, that the trial judge could have dis- posed of the contention raised on behalf of the defendants without making C. a party to the suit. And it also seemed to the court that knowledge on the part of C. that some part of the trust fund had been placed by the trus- tee temporarily with F. F. & Co., awaiting investment on good security, would not be held to be knowledge, assent or acquiescence by C. in the misconduct of. the trustee which led to the loss of the funds. — On appeal, the Supreme Court of Canada afiirmed the decision appealed from (30 N. S. Rep. 173, suh nomine, Eastern Trust Go. V. Forrest), and dismissed the ap- peal with costs. Bayne v. The Eastern Trusts Co., xxviii., 606. 9. Interference with rights of surety — Dis- charge. See SuEETYSHip, 5. 10. Discharge of mortgage — Security for joimi note — Release of joint maker. ^^ See Mortgage, 62. 11. Right of action — Conveyance subject to mortgage — Obligation to indemnify — Assign- ment of — Principal and surety — Implied con- tract. See Action, 137. And see Suretyship. PRIVILEGE. Prior claim — Insolvent bank — Lien of note- holders— R. 8. C. c. 120. See Constitutional Law, 80. And see Breach op Privilege — Libel — Pri- vileges AND Hypothecs — Public Officer. PRIVILEGES AND HYPOTHECS. 1. Sale by sheriff — Folle encMre — Re-sale for false bidding — 690 et sea. V. G. P. — Ques- tions of practice — Appeal — Art. 688 G. C. P. — Sheriff's deed — Registration of — Absolute nul- lity — Rectification of slight errors in judgment — Duty of appellate icourt. See Sale, 68. 2. Unpaid vendor — Conditional sale — Move- ables incorporated with the freehold — Immove- ables by destination — Arts. S75 et seq. C. C. See Moveables, 1 — Immoveable Property, 1. 3. Collocation and distribution — Art. 761 G. G. P. — Hypothecary claims — Assignment — No- tice — Prete-nom — Arts. 20 & lU G. G. P.— Nullity of deed — Incidental proceedings — Ap- peal — Parties. See Judgment, 1. And see Lien — Mortgage — Registry Laws . — Title to Land. PRIVY COUNCIL. 1. Enforcement of judgment — Rule of court ■ — Costs.] — Where the Privy Council reverses the judgment of the Supreme Court of Canada, its judgment is enforced by obtaining an order to make the Privy Council judgment a rule of the Supreme Court and, upon such rule being made, the costs received under the judgment so reversed may be ordered to be re paid. Lewin V. Howe, xiv., 722. 2. Leave for appeal — Jurisdiction of Su- preme Court of Canada — Practice — Motion paper.] — The Supreme Court of Canada has no jurisdiction in respect to the granting or re- fusal of applications for leave to appeal to the Judicial Committee of the Privy Council, and notice of such an application ought not to be put upon the motion paper. Kelly v. Sulli- van; Moore v. Connecticut Mutual Ins. Co.; Queen Ins. Co. v. Parsons, Cass. Dig. (2 ed.) 695. 3. Appeal — Privy Council cross-appeal — Practice — Costs.] — Where the respondent has taken an appeal to the Judicial Committee ot Her Majesty's Privy Council, from the same judgment as is complained of in an appeal to the Supreme Court of Canada, the hearmg ot the appeal to the Supreme Court will be stayea 1165 PEOCEDUEE. 1166 until the Privy Council appeal has been decided upon the respondent undertaking to proceed with diligence in the appeal so taken by him. !^In the case in question the costs were or- dered to be costs in the cause. Uddy v. Eddy, 4th October, 1898. 4 Settlement of minutes of judgment— In- terierence of court to varii minutes— Special certificate as to proceedings— Appeal to Privy Council.]— A motion was made before the court to vary the minutes as settled by the registrar by reciting special features as to the proceedings (see 31 Can. S. C. K. 246-247) , for the purposes of a proposed appeal to the Privy Council. The Chief Justice took no part, but the remainder of the court (Taschereau, Gwvnne, Sedgewick and Girouard, JJ. , were of the opinion that the applicant should take nothing by his motion and refused to interfere with the minutes as settled, stating, however, that the registrar should grant a certificate to the applicant shewing the nature of the pro- ceedings had for the purpose of being used upon the appeal to the Privy Council. Con- sumers' Cordage Co. v. Connolly, 7th May, 1901. Note.— See Contract. No. 165.— The Privy Council granted a new trial on terms, other- wise the Supreme Court order to be set aside and the judgment of the Court of Review to stand. 5. Practice — Appeal to' Privy Council — Stay of execution.] — ^A judge in chambers of the Supreme Court of Canada will not entertain an application to stay proceedings pending an appeal from the judgment of the court to the Judicial Committee of the Privy Council. Adams & Burns v. Bank of Montreal, xxsi., 6. Appeal in form& pauperis — Leave to ap- peal to Privy Council — Transmission of record —Payment of Supreme Court fees.] — On 7th October, 1902, Present: Sir Henry Strong, C.J., and Taschereau, Sedgewick, Girouard, Davies and Mills, JJ. A motion was made for an order dired:ing the Registrar of the Su- preme Court of Canada to transmit the re- cord to the Registrar of Her Majesty's Privy Council, on an appeal by the respondent, with- out the payment of the fees in stamps as re- quired by the statute and rules of practice of the court. After hearing counsel for the par- ties the motion was allowed and the order made as applied for, the Chief Justice stating that, as this was an extraordinary case in which the Judicial Committee of* the Privy Council had granted special leave to appeal in formd pauperis, the ordinary rules could not apply. Dominion Cartridge Go. v. Mc- Artlmr, 7th October, 1902. 7. Prerogative — Discretion in granting leave to appeal — Statutes affecting Supreme Court of Canada.] — On refusal of leave for an appeal, Lord Watson (in the Judicial Committee of the Privy Council) stated that the principles upon which leave to appeal to the Privy Council will be allowed do not admit of exhaustive definition. All rules must be subject to qualification. Prince v. Gagnon (8 APP- Cas. 103) was commented on. Ecclesias- yes de St. Sulpice de Montreal v. City of Montreal, xvi., at p. 407. Note. — On the question as to the principles apon which an appeal will be allowed from the Bupreme Court to the Privy Council, the cases referred to in Appendix B., may be consulted. — As to the prerogative right to allow an ap- peal as an act of grace, see Johnston v. St. Andrew's Church (3 App. Cas. 159). and Gushing v. Dupuy (5 App. Cas. 409). On a petition for special leave to appeal from the Supreme Court of New Brunswick, the Judi- cial Committee gave reasons for refusing the application, to the following effect. — 1. The policy of the Dominion Legislature is to discountenance appeals in matters of in- solvency, so much so that not even an appeal to the Supreme Court of Canada is allowed, and the final decision is made to rest with the highest court in each province. — 2. The Dominion Legislature cannot affect the prerogative of the Crown to grant special leave to appeal, but in advising Her Majesty whether the prerogative should be exercised, the Privy Council pays attention to the ex- pressed wishes of the colony, and will not re- commend its exercise except in cases.of general interest and importance, and then only when it manifestly appears that the court below has erred in a matter of law. — 3. But. if it should be shewn that the court below has so erred, leave will be refused, if it appear that the court below has decided the case independently of any point of law upon a particular view of the facts, for the Privy Council adopts the facts as found by the court below, and will not review such findings in an appeal enter- tained as an act of grace. Bank of New Brunswick v. McLeod, June, 1882, Cass. Dig. (2 ed.) 644. 8. Privy Council practice — Appeal in forma pauperis — Supreme Court Act. See Appeal, 314. 9. Reversal of Supreme Court judgment — Reimbursement of costs paid under Supreme Court order. See Practice of Supreme Court, 67. 10. Cross-appeal pending in — Stay of pro- ceedings — Practice. See Appeal, 121. 11 Appeal — Jurisdiction — Special leave — R. S G c. 135, ss. 4Jf-Jf2—Form of application and order — Cross-appeal to Privy CouncU — Inscription pending such appeal — Stay of pro- —■»-'"■""'' — Costs.. See Appeal, 247, 423. ,f 12 Appeal— Court of Review— Right of ap- peal to Privy Council— Construction of -statute —Final judgment— R. 8. C c 135. ss. 2Jf (;), 28 d 29-5 J, £ 55 Vict. c. 25, s. 3 {D.). See Appeal, 197. 13 Appeal— Stay of execution on Supreme Court judgment — Alleged appeal to Pnvy Council— Refusal of certiorari. See Certiorari, 2. PROBABLE CAUSE. See Malice. PBOCEDTTRE. See Practice and Procedure— Practice of Supreme Court of Canada. 1167 PROHIBITIVE LAWS. 1168 PKOCES VERBAL. 1. Municipal road — Statute labour — Contes- tation — Charge on land — Appeal. Bee Appeal, 22. 2. Appeal — Jurisdiction — Annulment of proc^s-verbal — Matter in controversy. See Appeai, 292. PROCURATION. See Attorney. PROHIBITION. 1. County Court Judge — Judicial functions ■ — Inferior tribunal — Municipal affairs — 7n- quiry ordered by 'city council — R. S. 0. (1887) c. 184, s. AT1.'\ — The city council, under R. S. O. (1887) c. 184, s. 477, passed a resolution directing a County Court Judge to inquire into dealings between the city and persons who were or had been contractors for civic works and ascertain if the city had been defrauded in con- nection with contracts ; to inquire into the whole system of tendering, awarding, carrying out, fulfilling and inspecting contracts with the city ; and to ascertain in what respect, if any, the system of city business in that respect was defective. G., who had been a contractor and whose name was mentioned in the resolution, attended before the judge and claimed that the inquiry as to his contracts should proceed only on specific charges of malfeasance or mis- conduct, and, the judge refusing to order such charges to be formulated, he applied for a writ of prohibition. Held, aflirming the judgment appealed from (16 Ont. App. R. 452), Gwynue, J., dissenting, that the County Court Judge was npt acting judicially in holding this inquiry ; that he was in no sense a court and had no power to pronounce judgment imposing any legal duty or obligation on any person ; and he was not, therefore, subject to control by writ of prohibition from a Superior Court. Held, per Gwynne, J., that the writ of prohibi- tion would lie and in the circumstances shewn it ought to issue. Godson v. City of Toronto, xviii., 36. 2i^uris diction of County Court (JV. S.) — Proceedings after plea to jurisdiction sustained on demurrer — Pleading.] — In an action of tro- ver in the County Court (N. S.) defendaiits pleaded a number of pleas including one to the jurisdiction of the court based on an alle- gation that the goods for which the action was brought, were of the value of $600, the jurisdiction of the court in actions of tort being limited to $200. Plaintiff's demurrer to this plea was overruled. No appeal was taken but plaintiff gave notice and entered the cause for trial at chambers before the County Court Judge, who announced his intention of trying the same on the remaining pleas. Defendants obtained a rule nisi for a writ of prohibition to restrain the judge from trying the cause, on the ground that the judgment on the de- murrer disposed of the whole case. The rule was discharged. — On appeal. Held, Strong, J., dissenthig, that the effect of the judgment on the demurrer was to ouash the writ, and the rule nisi for a writ of prohibition should be made absolute. — Per Strong. J., dissenting. The judgment on the demurrer did not dispose of the case, but he had a right to reconsider the same on the trial of the issues raised by the other pleas ; that the plea to the jurisdic- tion by attorney was null and void and if judgment had been entered of record on the demurrer such judgment would have been like- wise null and void; and that the amount claimed by the plaintiff's declaration being over $200 the court had jurisdiction. — Appeal al- lowed with Costs. Wallace v. O'Toole, Cass. Dig. (2 ed.) 713; Cass. Prac. (2 ed.) 23. 3. Game laws— Arts. U05-U09 R. 8. Q.— Seizure of furs killed out of season— Justice of the Peace — Jurisdiction.'] — Under art. 1405 read in connection with art. 1409 R. S. Q., a game-keeper is authorized to seize furs on view on board a schooner, without a search warrant, and to have them brought before a Justice of the Peace for examination. A writ of pro- hibition will not lie against a magistrate acting under arts. 1405-1409 R. S. Q., in examination of the furs so seized where he clearly has juris- diction and the only complaint is irregularity in the seizure. Company of Adventurers of England v. Joannette, xxiii., 415. 4. Discipline — Jurisdiction — Irregular pro- cedure — Domestic tribunal — Powers — Arts. 3504 et seq. R. S. Q.—58 Vict. c. 36 (Que.)] — ^A writ of prohibition will not lie to prevent the execution of the sentence of an inferior tribunal where there has not been absence or excess of jurisdiction in the exercise of its powers. Honan v. Bar of Montreal, xxx., 1. 5. Canada Temperance Act, 1878 — Powers of Parliament — Sale of intoxicating liquors. See CoNSTiTTJTiONAi, Law, 14. 6. Writ of injunction — Quashing assess- ment — Remedy against proposed sale of lands for taxes — Art. 1031 C. C. P. See Assessment and Taxes, 19. 7. Licensed brewers — Quebec License Act — 41 Vict. G. 3 {Que.) — 43 Vict. c. 19 (D.) — Constitutional law — Jurisdiction of Court of See LiQTJOE Laws, 4. 8. Sale of liquor — Sale by retail — 53 Vict, c. 56, s. IS (0.)—S4 Vicl^ c. 46 (0.)— Local option — Powers of Legislature — Canada Tem- perance Act. See Constitutional Law, 45, 46. PROHIBITIVE LAWS. 1. Arts. 14, 1234 G. C. — Parol testimony— yulUty — Public order. See Appeal, 212. 2. Nullity— Art. 14 C. C.—The Bank Act— Special charter — Pledge of bank stock to an- other bank. See Banks and Banking, 16. 3. Constitutional law — Legislative powers — Ciiminal Code, 1892 — Quebec lotteries — In- dictable offences — Illegal consideration of con- tract — Nullity — Invalidity judicially noticed — Co-relative agreements. See Constitutional Law, 81, 58. And see Liquor Laws. 1169 PUBLIC OFFICBE. 1170 PROMISE OF SALE. See CONTEACT — Sale. PROMISSORY NOTE. See Bills and Notes. PROTEST. Payment of taxes under protest — Appeal from assessment. See Res Judicata, 20. PROTHONOTABY. Controverted election — Status of petitioner — Evidence — Form of petition — Jurat on affi- davit of verification — Preliminary objections. See Election Law, 108. PROVINCIAL SUBSIDIES. Construction of statute — British North America Act, 1867, ss. IIZ, 114, 115, 116, 118— S6 Tict. c. SO (D.)—Jfl Vict. c. 4 {B.) — Half-yearly payments — Deduction of interest. See CoKSTiTUTiONAL Law, 3, 4, 7, 9. PROVISIONAL POSSESSION. See Envoie en Possession. PROXIMATE CAUSE. See Negligence, 14^28. PUBLICATION. Mining laio — Royalties — Dominion Lands ^ot — Publication of regulations — Renewal of license — Paiiment of royalties — Voluntary pay- vmt—R, S. C. c. 54, ss. 90, 91.] — The provi- sion of s. 91 of the Dominion Lands Act that the regulations made thereunder shall have ef- fect only after publication for four successive weeks in the Canada Gazette, means that the regulations do not come into force on publica- tii}^ the last of the four successive issues ot the Gazette, but only on the expiration of one week therefrom. Thus, where they were Py'W'lheii for the fourth time in the issue of tl .°^P'8°'''er, they were not in force until the Uth, and did not affect a license granted on ath September. The King v. Ohappelle; Jfte King v. Carmackj The King v. Tweed & Woog, xxxii., 586. Leave to appeal and cross-appeal was grant- ed by the Privy Council, 4th March, 1903. hee Can. Gaz. vol. xl., p. 569. And see Libel. PUBLIC INQUIRIES. Crownr-Contract—Right of action— PuUic "^^r—SolMiitor and client— R. 8. G. oc. lU, "0 Kemmeration of commissioners — Quan- tum meruit. See Public Oepicer, 2. PUBLIC INSTRUCTION. School corporation — Decision of superinten- dent of puilio instruction — Appeal— Final ju dgment — Mandamus practice. See Mandamus, 2. 3. And see Constitutional Law, 2, 69 — ■ Pub- lic Policy, 1. PUBLIC LANDS. Constitutional law — Navigable waters — Title to bed of stream — Crown — Dedication of pub- lic; lands by — Presumption of dedication — User — Obstruction to navigation — Public nuisance — Balance of convenience. See Constitutional Law, 81. And see Cbown, 77-108. PUBLIC OFFICER. 1. Chief post office inspector — Appointment of — Discharge of official duty — SI Vict. c. 10, s. 14 — Offence under Post Office Act — Slander — Privileged communication.^ — The chief post office inspector was making enquiries into irre- gularities at the St. John post office and in conversation with a clerk, alone in a room in the post office, charged him with abstracting missing letters. The assistant postmaster was called in, and the inspector said : " I have charged Mr. W. with abstracting the letters. I have charged Mr. W. with the abstractions that have occurred from those money letters, and I have concluded to suspend him." The plaintifiE in an action for slander against the inspector, was allowed to give evidence of the conversation between himself and appellant. There was no evidence that the inspector was actuated by motives of personal spite or ill- will. The jury found that the inspector was not actuated by ill-feeling in making the ob- servation to the plaintiff, but found that he was so actuated in the communication made to the assistant postmaster, and plaintiff got a verdict which was sustained by the full court — On appeal. Held, reversing the judgment ap- pealed from (8 Pugs. & Bur. 225). that in the making of the charge and in communicating the decision against the clerk the inspector acted in the due discharge of his duty as a Public officer duly appointed under the Post Ofhce Act, and that the words addressed to the as- sistant postmaster were privileged. Dewe v. Waterlury, vi., 143. 2 Crown — Contract — Right of action — Solir- citor and client— R. 8. C. cc. 114, 115— In- quiry as to public matters — Remuneration of commissioner — Quantum meruit.~\ — The judg- ment appealed from (7 Ex. C. R. 3ol) held that a person appointed under R. b. C. c. I-LO, as commissioner to make inquiry and report on conduct in office of an officer or servant of the Crown, could not recover for his services as such commissioner, there being no provision lor such payment ; that such service was not ren- dered in virtue of any contract, but merely by virtue of appointment under the statute, and that such appointment partakes more ot tue character of a public office than of a mere employment under a contract express or im- plied. The Supreme Court affirmed the judg- ment appealed from. Strong, C.J., and b-ir- 1171 PUBLIC WOEK. 1172 ouard, J., dissenting. Tucher v. The King, xxxii., 722. 3. Action for false arrest — Form of notice. See Notice, 30. 4. Summary dismissal of municipal official — Notice — Libellous resolution. See Libel, 6. 5. Officers and employees of municipality — Superintendence of works — Lialility of cor- poration. See Negligence, 124. 6. Expiry of patent of inventionr-— Manufac- turing in Canada — Extension of time limit — Acting-Deputy-Gommissioner. See Patent of Invention, 15. And see Constable — Police Officer. PUBLIC ORDER. 1. Prohibitive law — Nullity — Receipt — Error — Parol testimony — Arts. Ik, l^SJf C. C. See Evidence, 222. 2. Prohibitive law — Nullity — Pledge of bank shares to another bank — Special charter. See Banks and Banking, 16. 3. Laws of public order — Matters judicially noticed — Malurn prohibitum. See Conspiracy. PUBLIC POLICY. 1. Will — Condition of legacy — Religious liberty — Public policy — Restrictions as to marriage — Education — Exclusion from succes- sion.J — In the Province of Quebec the English law rules on the subject of testamentary dis- positions, and, therefore, in that province, a testator may validly impose as a condition of a legacy to his children and grandchildren, that marriages of the children should be cele- brated according to the rites of any church recognized by the laws of the province, and that the grandchildren should be educated ac- cording to the teachings of such church and may also exclude from benefit under his will any of his children marrying contrary to its provisions and grandchildren born of the for- bidden marriages or who may not have been educated as directed. Renaud v. Lamothe, xxxii., 357. 2. Company law — " The Companies Act, 1890" (B.if.), and amendment — Construction of statute — Memorandum of association — Con- ditions imposed by statute — Public policy — Preference stock — Election of directors.^ — In the memorandum of association of a joint stock company formed under the provisions of the British Columbia " Companies Act, 1890," and its amendment in 1891, there was a clause purporting to give to the holders of a certain block of shares, being a minority of the Capital stock issued, the right at each elec- tion of the board of directors to elect three of the five directors or trustees for the man- agement of the business of the company, not- withstanding anything contained in the Act. Held, that the shares to which such privilege was sought to be attached could not be con- sidered preference shares within the meaning of the statute, and that such an agreement was ultra vires of the powers conferred by the statute, and null and void, being repugnant to the conditions as to elections of trustees and directors imposed by the Act as matters of public policy. Judgment appealed from (9 B. C. Rep. 275) reversed. Colonist Printing and Publishing Co. et al. v. Dunsmuir et al., xxxii., 679. 3. Foreign corporation — Telegraph lines — Exclusive right — Restraint of trade. See Comity. 4. Husband and wife — Judicial separation as to property — Debts incurred by husband be- fore dissolution of community — Obligation by wife— Art. 1301 C. C— Nullity. See Husband and Wife, 8. 5. Monopoly — Trade combination — Unlaw- ful consideration — Matters judicially noticed. See CoNSPiEACY. 6. Gift — Confidential relations — Parent and child— Principal and agent. See Gift, 1. And see Company Law, 2 — Dedication, 1 — FOKESHOBE. PUBLIC PRINTING. Controverted election petition — Imprint of Queen's Printer — Certified copy of voters' list — Evidence — Status of petitioner. See Election Law, 108. And see Publication. PUBLIC WAY. See Highway — Municipal Cokpoeation. PUBLIC -WORK. 1. Intercolonial Railway — Acceptance of tender by commissioners — Liability of Crown — Breach of contract — Extras— Damages- Executed contract — 31 Tict. c. 13— 31 Vict. c. 15 — Certificate of engineer — CondiUon precedent — Woroer.] — In January, 1»T4 the commissioners of the Intercolonial Railway called for tenders for the erec- tion of engine houses, and in, October tol- lowing, I. was instructed by them to pro- ceed in the execution of work, according to his accepted tender, the price being |21.9S9. The work was completed and delivered to tne Government in October, 1874. The specifi- cation provided.— " The commissioners will provide and lay railway iron, and will also provide and fix cast-iron columns, iron gira- ers, and other iron work required for sup- porting roof." In September, 1873, 1. was unable to proceed further with his work, in consequence of neglect in the supply ot uon girders, &c., until March following, and ow- ing to the delay he suffered loss. During tne work, he was directed by the commissioners, 1173 PUBLIC WOEK. 1174 or their engineers, to perform, and did per- form, extra works not included in his tender, and not according to the plans, drawings and specifications. — I. claimed $3,795.75 damages, and $8,505.10 for extras. — The Crown demur- red, traversed negligence and delay, admitted extras to the amount of $5,056.60, and set up 31 Vict. c. 13. s. 18, which required the certificate of the engiueer-in-chief as a condition precedent to payment. — By 37 Vict, c. 15, on 1st June, 1874, the railway became a public work, under the control of the Min- ister of Public Works, all powers and duties of the commissioners were transferred to the minister, 31 Vict. c. 13, s. 3, was repealed, with the other inconsistent parts of the Act. Held, by the Exchequer Court of Canada, Pournier, J. : That the tender and its ac- ceptance by the commissioners constituted a valid contract binding on the Crown ; that the delay and neglect on the part of the com- missioners, acting for the Crown, to provide and fix the cast-iron columns, &c., to be pro- vided and fixed by them, was a breach of the contract, and the Crown was liable for dam- ages resulting from such breach ; that the extras claimed being for less than $10,000, the commissioners had power to order the same under the statute 31 Vict. c. 13. s. 16, and suppliant could recover, for such part of the extras claimed as he had been directed to perform; 3. That the 18th section of 31 Vict. c. 13, not having been embodied in ihe agreement, as a condition precedent to pay- ment for work executed, the Crown could not now rely on that section of the statute in re- spect of work done, accepted, and received by the Government; 4. That 37 Vict. c. 15, abolished the office of chief engineer of the Intercolonial Railway, and for work per- formed and received on or after 1st .Tune, 1874, dispensed with the condition precedent as to obtaining his certificate, in accordance with 31 Vict. c. 13, s. 18. Isiester v. The Queen, vii.. 696. 2. Oovernment railway — Agreement bind- ing on Crown — Damages to property — Parol undertaking by chief engineer.] — Where by the Government railway works in St. John, the pipes for city water supply were interfered with, the cost reasonably and properly incur- red to restore the property to its former safe and serviceable condition, may be recovered under arrangement with the chief government railway engineer, and upon his undertaking to indemnify the city. Judgment appealed from (2 Ex. C. R. 78) affirmed, Strong and Uwynne, JJ., dissenting, on the ground that ™ chief engineer had no authority to bind toe Crown to pay damages beyond any injury done. The Queen v. St. John Water Commis- sioners, six., 125. 3. Crown — Construction of public ivork — Interference with publio rights — Injury to mvate owner.]— The Exchequer Court of ^nada refused compensation to the suppliant lor injury to his property by the construction M a public work.— The suppliant owned a sawmill m Cape Breton, and claimed that he was prevented from rafting his lumber to a snipping point, as formerly, by the construc- non of a bridge across a pond some distance if S A ™'"- ™ connection with the building »t the Cape Breton railway. The Exchequer pii! A^''^^^ Ex. C. R. 251), that the right alleged to be interfered with was a right com- »ff \ 1 V ^ public, and that an individual inected by the interference was not entitled to compensation. — The Supreme Court dismis- sed an appeal from this decision with costs. Archibald v. The Queen, xxiii., 147. 4. Interference with private property — In- jury to property caused by public work — Damages peculiar to property in question — Compensation — Eminent domain.] — ^The Ex- chequer Court of Canada (4 Ex. C. R. 439), awarded the suppliant damages for injurious affection of his wharf at St. John, N. B., caused by the construction of a branch of the Intercolonial Railway along- the water front of Conrteuay Bay, holding, at the same time, that in order to entitle the owner of prop- erty to compensation for alleged injury caused through the construction of a public work, it should appear that there was an interference with some right incident to his property, such as a right of way by land or water, which differs in kind from that to which Her Majesty's subjects are ordinarily exposed and .that it was not enough that the interference should be greater in degree only than that which is suffered in common with the public. — ^On appeal to the Supreme Court of Canada, the decision of the Exchequer Court was affirmed and the appeal dismissed with costs. The Queen v. Robinson, xxv., 692. 5. Public works — Railways and canals — R. 8. C. 0. 37, s. 23 — Contracts binding on the Grown — Goods sold and delivered — Verbal or- der — Crown officials — Supplies in excess of tender — Errors and omissions in accounts — Findings of fact — Interest— Arts. 1061 & 1077 C. C.—50 & 51 Vict. c. 16, s. 33.]— The pro- visions of the twenty-third section of the " Act respecting the Department of Railways and Canals" (R. S. C. c. 37), which requires all contracts affecting the department to be signed by the minister, the deputy of the minister, or some person especially authorized, and countersigned by the secretary, have reference only to contracts in writing made by the de- partment. (Gwynne, J., contra). — Where goods have been bought by and delivered to officers of the Crown for public works, under orders verbally given by them in the perform- ance of their duties, payment for the same may be recovered from the Crown, there being no statute requiring that all contracts by the Crown should be in writing. (Gwynne and King. JJ.. contra). — Where a claim against the Crown arises in the Province of Quebec and there is no contract in writing, the thirty- third section of " The Exchequer Court Act " does not apply, and interest may be recovered against the Crown, according to the practice prevailing in that province. — Judgment ap- pealed from (6 Ex. C. R. 39) affirmed. The Queen v. Henderson, xxviii., 425. 6 Formation of contract — Ratification — Breach.] — On November 22nd. 1879, the Gov- ernment of Canada entered into a contract with C. by which the latter undertook to do all the Government binding for five years from said date. The contract was executed under the authority of 32 & 33 Yict. c. 7, s 6, and on November 25th. 1879, was assigned to W. who performed all the work sent to him up to December 5th, 1884, when, the term fixed by the contract having expired, he received a letter from the Queen's Printer as follows : " I am directed by the Honourable the Sec- retary of State to inform you that, pending future arrangements, the binding work of the Government will be sent to you for execution under the same rates and conditions as under 1175 PUBLIC WOEK. 1176 the contract which has just expired." W. performed the work for two years under auth- ority of this letter and then brought an ac- tion for the profits he would have had on work given to other parties during the seven years. Held, that the letter of the Queen's Printer did not constitute a contract binding on the Crown ; that the statute authorizing such contracts • was not directory but limited the power of the Queen's Printer to make a contract except subject to its conditions ; that the contractor was chargeable with notice of all statutory limitations upon the power of the Queen's Printer, and that he could not re- cover in respect of the work done after the original contract had expired. — On October 30th. 1886, an order-in-council was passed, which recited the execution and assignment of the original contract, the execution of the work by W., after it expired, and the recom- mendation of the Secretary of State that a formal contract should be entered into ex- tending the original to December 1st. 1887, and then authorized the Secretary of State to enter into such formal contract with W. but subject to the condition that the Govern- ment should waive all claims for damages by reason of non-execution or imperfect execu- tion of the work, and that W. should waive all claims to damages because of the execution of binding work by other parties up to the date of said extension. W. refused to accept the extension on such terms. Held, that W. could not rely on the order-in-council as a ratifica- tion of the contract formed by the letter of the Queen's Printer ; that the element of con- sensus enters as much into a ratification of a contract as into the contract itself ; and that W. could not allege a ratification after ex- pressly repudiating its terms and refusing to be bound by it. — Judgment appealed from (6 Ex. C. R. 12) reversed. The Queen v. Woodburn, xxix., 112. 7. Government rifle range — 50 & 51 Vict. c. X6, s. 16 ic) (D.)—R. 8. C. c. U, ss. 10, 69.] — ^A rifle range under control of the Depart- ment of Jlilitia and Defence is not a " public work" within the meaning of s. 16 (c) of the Exchequer Court Act. Judgment appealed from (6 Ex. C. R. 425) affirmed. Larose v. The King, xxxi., 206. 8. Expropriation of land — Damages — Valu- ation — Evidence.] — The Crown expropriated land of L. and had it appraised by valuators who assessed it at $11,400, which sum was tendered to L. who refused it and brought suit by petition of right for a larger sum as compensation. The Exchequer Court awarded him $17,000. On appeal by the Crown, Meld, reversing the judgment ap- pealed from, Girouard, J., dissenting, that the evidence given on the trial of the petition shewed that the sum assessed by the valuators was a very generous compensation to L. for the loss of his land and the increase by the judgment appealed from was not justified. — The court, while considering that a less sum than that fixed by the valuators should not be given in this case expressly stated that the same course would not necessarily be followed in future cases of the kind. The King v. Likely, xxxii., 47. 9. Contract — Puilic work — Abandonment and substitution of work — Implied contract.] — The suppliants contracted with the Crown to do certain work on the Cornwall Canal, the contract providing that they should pro- vide all labour, plant, &c., for executing and completing all the works set out or referred to in the specifications, namely, " all the dredging and other works connected with the deepening and widening of the Cornwall Canal on section No. 8 (not otherwise provided for)" on a date named; "that the several parts of this contract shall be taken together to explain each other and to make the whole consistent; and if it be found that anything has been omitted or misstated which is neces- sary for the proper performance and comple- tion of any part of the work contemplated the contractors will, at their own expense, ex- ecute the same as though it had been properly described;" and that the engineer could, at any time before or during construction, order extra work to be done or changes to be made, either to increase or diminish the work to be done, the contractors to comply with his writ- ten requirements therefor. By s. 34 it was declared that no contract on the part of the Crown should be implied from anything con- tained in the signed contract or from the posi- tion of the parties at any time. After a por- tion of the work had been done the Crown abandoned the scheme of constructing dams contemplated by the contract and adopted an- other plan the work on which was given to other contractors. After it was completed the suppliants filed a petition of right for the pro- fits they would have made had it been given to them. Held, affirming the judgment of the Exchequer Court (7 Ex. C. R. 221), that the contract contained no express covenant by the Orown to give all the work done to the sup- pliant and s. 34 prohibited any implied cov- enant therefor. Therefore the petition of right was properly dismissed. Gilbert Blasting & Dredging Go. v. The King, xxxiii., 21. 10. Injury from public tcork — Negligence of Crown officials — Right of action — Liability of the Crown— 50 & 51 Vict. o. 16, ss. 16, ZS, 58 — Jurisdiction of the Exchequer Court — Prescription — Art. 2261 C. C] — Lands in the vicinity of the Lachine Canal were injuriously affected through flooding caused by the negli- gence of the Crown officials in failing to keep a siphon-tunnel clear and in proper order to carry off the waters of a stream which had been diverted and carried under the canal and also by part of the lands being spoiled by dumping excavations upon it. Held, reversing the judgment appealed from (7 Ex. C. R. 1). Davies, J., dissenting, that the owner had a right of action and was entitled to recover damages for the injuries sustained and that the Exchequer Court of Canada had exclusive original jurisdiction in the matter under the provisions of the 16th, 23rd and 58th sections of the Exchequer Court Act. The Queen v. Filion (24 Can. S. C. R. 482) approved; City of Quebec v. The Queen (24 Can. S. C. R. 430) referred to. The prescription estab- lished by art. 2261 of the Civil Code of Lower Canada applies to the damages claimed by appellant in his petition of right. Letourneux V. The King, xxxiii., 385. 11. Ship channel — Navigation of River St. Lawrence — Negligence — Repair — Parlia- mentary appropriation — Discretion as to ex- penditure.) — Action for damages to SS. '' Arabia,"^ sustained by striking an obstruc- tion in the River St. Lawrence ship channel, which had been deepened by the Department of Public Works and subsequently swept once. The suppliants contended that the Crown was obliged to keep the channel clear and that 1177 PUBLIC WOEK. 1178 failure to do so amounted to negligence, The judgment appealed from (7 Ex. C. R. 150) held that the channel was not a public work after the work of deepening was completed and' even if it was, no negligence had been proved to make the Crown liable under s. 16 (c) of the Exchequer Court Act (1887). It also decided that the department charged with the repair and maintenance of the work with money voted by Parliament for that purpose was not obliged to expend the appropriation as such matters were within the disci'etion of the Governor-in-Council and minister who were responsible only to Parliament in re- spect thereof. The Supreme Court affirmed the judgment appealed from. Bamhurg American Packet Co. v. The King, xxxiii., 252. [Leave to appeal to Privy Council granted, July, 1903.] 12. Expropriation of lands — Damages for use of rifle range — Mode of assessment — Valu- ation roll — Present uses — Prospective value — Evidence.] — The judgments appealed from (see 8 Ex. C. R. 163) decided, in effect, that as the lands taken for use as part of a rifle range, at the time of expropriation, had a prospective value for residential and other uses beyond that which then attached to them as lands in use for agricultural and other similar purposes, such prospective values should be taken into consideration in assess- ing what would be sufficient and just com- pensation to be paid upon the expropriation of the lands for such public uses as would, in various ways, affect the lands injuriously and diminish their prospective values. — In making the assessment of such compensation, the court below consulted the municipal as- sessment rolls, not as a determining con- sideration, but as affording some assistance in arriving at a fair valuation of the lands expropriated. The Supreme Court of Can- ada affirmed the judgment appealed from. The TurniuU Real Estate Go. v. The King; Corkery et al. v. The King; DeBury et al. V. The King, 6th October, 1903, xxxiii., 677. 13. Assignment of contract — Assent iy Grown — Evidence — Knowledge hy Crown offi- oers — Cancellation — Breach of contract — Right to damages. See Contract, 93. 14. Statutory extinction of right of way — Access to alluvial lands — Indemnity for ob- strmtion. See Title to Land, 32. 15. Contracts binding on the Crown — 31 VKt. c. 12 (D.)--Extras— Certificate of en- gineer — Orders hy subordinate officers. See Contract, 89. 16. Payment of tolls — Contract binding on the Crown — Negligence of public servants — tommon carriers. See Action, 109. .17. Intercolonial railway — Extras — En- flraeer's certificate— Tort— Fraud or miscon- nct iy Crown servants — Misrepresentation — ivme limit — Forfeiture — Liquidated damages. See Contract, 90. 18. Executory contract — Appropriation by Parliament — Unauthorized expenditure — Peti- tion of right — Quantum meruit — 31 Vict c 12, ss. 7, 15, 20. See CoiSTTRACT, 91. 19. Bideau canal lands — By estate — Con- tract by trustee. 'See RiDEAU Canal JjAnds, 1. 20. Government railways — Public servants — Misfeasance — Non-feasance — Negligence — Petition of right. See Railways, 100. 21. Expropriation of lands — Reversion of lands not used for canal purposes — Mainten- ance. See RiDEAU Canal Lands, 2. 22. Claim for extras — Certificate of en- gineer — Condition precedent — Reference ta arbitration — Waiver of legal rights. See Aebiteations, 20. 23. Intercolonial railway — " Employee " — - Notice of action — Expropriation. See Trespass, 1. 24. Claim for extras — Condition precedent — Chief engineer's certificate. See Contract, 96. 25. Negligence of servant — Liability of Crown. See Negligence, 206. 2i6. Contract for — Authority of Government engineer to vary terms — Delay. See Contract, 97. 27. Injury to property by — Obstruction of canal — Evidence of use of canal. See Expropriation, 2. 28. Injury to property on — Liabilitg of Crown for tort— 50 & 51 Vtct. c. 16 (D.). See Constitutional Law, 25. 29. Contract — Final certificate of engineer — Previous decision — Necessity to follow. See Res Judicata, 9. 30. Contract — Public work — Progress esti- mates — Engineer's certificate — Revision by succeeding engineer — Action for payment on monthly certificate. See Action, 111. 31. Progress estimates — Arbitration — En- gineer's certificate — Approval by head of de- partment — Final estimates — Condition prece- dent — Arbitration. See Contract, 101. 32 Contract binding on the Crown — Public work— Formation of contract— Order-m-coun- cil — Ratification — Breach. See Contract, 103. 33. Breach of contract — Appropriation of plant — Damages — Interest. See Contract, 21. 1179 QUEBEC TUENPIKE TEUST. 1180 PUPPET. See Action — Pbete-nom. QUAKERS. Title to land — Society of Friends, or Quakers —r Lands held in trust for — Author- ity of governing T}ody.'[ — The supreme or gov- erning body of the Society of Friends, or Quakers, in Canada, as well in respect to matters of discipline as to the general govern- ment of the society, is the Canada yearly • meeting. — The Canada yearly meeting having adopted a book of discipline which certain members of the society refused to accept, these dissentient members, therefore, could not hold, nor exercise any right over, property granted to a subordinate branch of the society to which they had formerly belonged. Judgment ap- pealed from (12 Ont. App. R. 543) affirmed. Jones V. Borland, xiv., 39. QUANTUM MERUIT. 1. Towage of vessel — Contract 'by agent in charge — Action for services rendered. See Principal and Agent, 7. 2. Crown — Contract — Right of action — Public officer — Solicitor and client — R. S. C. cc. 114, 115 — Inquiry as to public matters — Remuneration of commissioner. See Action, 112. QUASH, MOTION TO. See Appeal -Costs — Peactice or Supreme Court. QUASI-DELIT. Action for damages — River improvements — Arbitration — C. S. L. C. c. 51. See Prescription, 28. And see Negligence — Tort. "QUEBEC EI,ECTIONS ACT." Controverted election — Preliminary objec- tions — Status of petitionei — Dominion fran- chise — Construction of statute — Right to vote. See Election Law, 98. QUEBEC FIRE. Continuation of 37 Vict. c. 15 (Que.) suits — Prescription. See Contract, 10. QUEBEC HARBOUR 'WORKS. Bulk sum contract — Extras — Engineer's certificate — Errors in calculation — Deductions — Interest. See Contract, 57. " QUEBEC PHARMACY ACT." Construction of statute — Retroactive leg- islation — Second offence — Unlicensed sale of See Statute, 36. QUEBEC TURNPIKE TRUST. 1. North shore roads — 4 Vict. e. 17 {Can.) —16 Vict. c. S35 (Can.) — Debentures— Leg- islative acknowledgment — Liability of the Crown for acts by agents.'] — Held, Ritchie, O.J., and Gwynne, J., dissenting, that the trustees of the Quebec North Shore Turnpike Trust, appointed under ordinance, 4 Vict. c;. 17, when issuing debentures, under 16 Vict, c. 235, were agents of the late Province of O.nada, and that province was obliged to provide for the payment of the principal of the debentures when they became due. — Per Henry and Taschereau. JJ. That the Pro- vince of Canada had, by its conduct and leg- islation, recognized its liability to pay the de- bentures and that the trustees were entitled to succeed on their cross-appeal as to interest from the date of the maturing of the deben- tures. — Per Ritchie, C.J., and Gwynne, J. That the trustees, being empowered by the' or- dinance to borrow moneys " on the credit and security of the tolls thereby authorized to be imposed, and of other moneys which might come into the possession and be at the disposal of the said trustees, under and by virtue of the ordinance, and not to be paid out of or charge- able against the general revenue of this pro- vince," the debentures did not create a lia- bility on the part of this province in respect of either the principal or interest thereof. — Belleau v. 2'Ae Queen, vii., 53. [The Privy Council reversed the judgment of the Supreme Court (7 App. Cas. 47b).] 2. Width of roads — Title to right of way — Middle of roadway — Quebec North Shore Turnpike road trustees — Petitory action — Possession by trustees — User by public — Ex- propriation — 36 Geo. ///. c. 9 — -} Vict. c. 17 —18 Vict. c. 100, s. Jfl (Q.) ]— The trustees! of a turnpike road, from Quebec to Saut ^-la- Puce, instituted the suit to remove an en- croachment upon the road, alleging : " that in June, 1880, or about that time, defendant illegally and without any right whatsoever, unjustly took possession of a part of the property belonging to plaintiffs, to wit : of a part of the road, about 20 feet by 6 feet in depth, situate in the parish of Chateau Richer on the north side of said road, opposite a lot of land belonging to and possessed by defendant. . . . That defend- ant dug deeply in and under the road and erected and built on the said piece of land a building or cellar, and committed other acts and encroachments, which he had no right to commit, thereby decreasing the legal width of the road by at least 5 feet." — The time limited for action en demolition having expired, plain- 1181 QUEEN'S COUNSEL. 1183 tiffs asked to be declared proprietoj-s in pos- session of said road and to tiave the said building or cellar removed in the ordinary course o£ law. — Pleas: — (1) general issue (2) peremptory exception that the part of the said road which ran through defendant's land was a portion of said lanu ; and he acquired said land at sheriff's sale ; that he was owner of the land on each side of the road, which, at the locus in quo, was bounded on the north by a ditch and on the south by a fence, and that the building of the said cellar in no way encroached upon the road in question. — The road was put under control of the trustees by 16 Vict. c. 235, s. 5, s.-s. 9, in 1853. The width of main roads or the King's highways was regulated then by 36 Geo. III. c. 9, s. 2, at 30 feet t French measure) between 2 ditches, each 3 feet wide, and of sutficient depth to drain off the water, and where the said highways were not already 30 feet wide, the Grand Voyer, if he thought it necessary and practicable, should cause them to be widened by the person bound to repair the same. — The trust ordinance, 4 Vict. c. 17, s. 3, vested the trustees with all powers which were vested in Grand Voyers or municipal councils by 36 Geo. III. c. 9, and by ordinance, 4 Vict, c. 4, ss. 37 and 45 ; 8 Vict. c. 40, ss. 28 and 30; 10 & 11 Vict. c. 7, ss. 33 and 39, and enacted that the trustees, in the manner which they deem fit, might cause the said roads, and the bridges thereupon, to be improved and widened, repaired and made anew, and might, for the purposes aforesaid, or any of them, _ by themselves, their agents and servants, go ' into and enter upon, and take any land or real property. — In support of their contention that the road should be 36 feet wide (French measure) the ditches forming part of the road, appellants cited 18 Vict. c. 100, s. 41, as to the width of highways, and argued that this Act must have been based on the general custom which had existed up to that time of making all front roads 30 feet wide (French measure). — In 1854 appellants macadamized the road and made the ditch on the north side, thereby fixing, themselves, the limit of the road; and the evidence shewed they placed it there because there is on the north side of the road a hill which terminates at the ditch, and at the distance of one foot, and one foot mne inches from the edge of the ditch, in tront of the cellar, the ground is four feet some mches higher than the level of the road, therefore it was not possible to pass there, or to make a ditch to drain the road. — The appellants made the ditch at the foot of the nui, the only place where it was practicable to make it ; and they thereby left beyond the ditch and consequently beyond the road the r^!j nS'*'' claimed as forming part of the ;S r .^ ^°"* ^''Je of t^e road was bound- ™ oy a fence, and between the fence and the ™JJ of 3(^ feet, and from the edge of the north-east side of the ditch to that of the cor- ner ot the cellar, there was a width of one root nine inches; at the north corner the math was nme inches less.— The action was 0»^i?f^'^ '? ^^^ Superior Court and the P ft??'"^^''*'^^''^^'^ tli« judgment (3 Dor. ttat. 1 ;'T;7^'? appeal the trustees claimed a'?L-9'„-J'''l''^^ ^ "S"^' to bring the 38 ?o.V 5 i^- v-*^"^^ 7°a'i 1° question should be meamro^ ^^f"^^ ("""''' *" ^^ *eet French Sh.i.^''"^^ ^\ ^^a^t; aid Srdly. Respon- nent had decreased the legal width of the road tMorp ffi^ ^^«'' ""^^^^ ^^ was bound to C J L!? ^^ appellants.— He?d, per Ritchie, road t»= ^°"™i?r and Henry, JJ., that the " was an ancient road which was not of the width of 30 feet (French measure) when the appellants received control of it; that the law clearly recognized such roads, and con- templated that the Grand Voyer, if he should tnmt It necessary and practicable, should cause such roads to be widened, and this he had never done as regaras this road ; that the appellants, in 1854. appear to have taken the road in the state it then was, and never to have exercised the power of widening it given them by 4 Vict. c. 17, upon paying an in- demnity to the proprietor; and that whether or not the road was the legal width the appel- lants had no right to any ground beyond what formed part of the road, and served as such for the use of the public and for the ditches, if any, and therefore could not claim the ground beyond the ditch on the north side of the road which could not be, and never was, used by the public, and never formed part of the road. — Per Strong and Henry, JJ., that the property of the road was vested in the Crown, and the effect of the statutes was not to take the property out of the Crown and vest it in the trustees, but to make them cus- todians of the road and the tolls for the benefit of the bondholders and the public. The appellants failed to shew either title or possession, and the action therefore failed. — Appeal dismissed with costs. (Gwynne, J., dissenting.) Quelec North Shore Turnpike Road Trustees v. Vezina, 8th March, 1884; Cass. Dig. (2ed.) 758. QUEEN'S COUNSEL. Prerogative — Appointment — Precedence —37 Vict. cc. 20, Zl (N. S.)— Retrospective legislation — Great seal of Nova Scotia — 40 Vict. ic. 5 (D.}—40 Vict. c. 2 {N .8 .) —Appeal — Jurisdiction — Prerogative.'] — By 37 Vict. c. 20 (N.S.), the Lieutenant-Governor was authorized to appoint Queen's Counsel for the province, and by 37 Vict. c. 21 (N.S.) to grant to any member of the bar a patent of precedence in the courts of the province. R. was appointed on the 27th December, 1872, under the great seal of Canada, a Queen's Counsel, and by the uniform practice of the court he had precedence over all members of the bar not holding patents prior to his own. By letters patent, dated 26th May. 1876, un- der the great seal of the province, several members of the bar were appointed Queen's Counsel for Nova Scotia, and precedence was granted to them, as well as to other Queen's (iounsel appointed by the Governor-General after the 1st July, 1867. A list of Queen's Counsel to whom precedence had been thus given by the Lieutenant-Governor, was pub- lished in the Royal Gazette, and the name of R. was included, but it gave precedence and pre-audience before him to several persons, in- cluding appellants, who did not enjoy it be- fore. R. obtained a rule nisi to grant him rank and precedence over all Queen's Coun- sel appointed in and for the Province of Nova Scotia since the 26th December, 1872, and to set aside, so far as they affected R.'s pre- cedence, the letters patent, dated the 26th May, 1876. This rule was made absolute by the Supreme Court of Nova Scotia which held. — 1. That the letters patent of prece- dence, issued by the Lieutenant-Governor of Nova Scotia, were not issued under the great seal of the Province of Nova Scotia ; 2. That 37 Vict. c. 20, 21 (N.S.). were not ultra vires; 3. That s. 2, c. 21, 37 Met., was not retrospective, and that the letters patent of 1183 EAILWAYS. 1184 the 26th May 1876, issued under that Act could not affect the precedence. A prelimin- ary objection was raised to the jurisdiction of the court to hear the appeal. — ^n the argu- ment in appeal before the Supreme Court of Canada the question of the validity of the great seal of Nova Scotia was declared to have been settled by 40 Vict. c. 3 (D.) and 40 Vict. c. 2 (N.S.) and it was Held, 1. That the judgment of the court below was one from which an appeal would lie to the Supreme Court of Canada; (Fournier, J., dissenting). 2. Per Strong; Fournier and Taschereau, JJ. That 37 Vict. c. 21 (N.S.), has no retrospec- tive effect, and letters patent issued under it could not affect the precedence of the Queen's Counsel appointed by the Crown. 3. Per Henry, Taschereau and Gwynne, JJ. That the B. N. A. Act, 1867, ^has not invested the Legislatures of the provinces with any con- . trol over the appointment of Queen's' Counsel ; that Her Majesty forms no part of the Pro- vincial Legislatures, as she does of the Dominion Parliament, and therefore no pro- vincial Act can affect Her prerogative right to appoint Queen's Counsel in Canada direct- ly, or through Her representative, the Gover- nor-General, nor vest such prerogative right in the Lieutenant-Governors of the provinces ; and that 37 Vict. cc. 20 & 21 CN.S.) are ultra vires and void. (See Note.) 4. Per Strong and Fournier, JJ. Thas this court ought never, except in cases when such adjudi- cation is indispensable to the decision of a cause, to pronounce upon the constitutional power of a Legislature to pass a statute, and that there was no necessity in this case to express an opinion upon the validity of the Acts in question. Lenoir v. Ritchie, in., 575. [Note. — Reversed in Maritime Bank v. Re- ceiver-General of New Brunswick (20 Can. S. C. R. 695) and Atty.-Gen. of Can. v. Atty.- Gen. of Ont. (23 Can. S. C. R. 458).] See Constitutional Law, 44, 80. QUORUM. 1. Appeal — Disqualification of judge — Quorum in such case — 52 Vict. c. 37, s. 1 — Practice.'] — Where a judge of the Supreme Court of Canada had, before his appointment, sat during the hearing of the cause upon the appeal in the court below, he is disqualified from sitting or taking part in the hearing or adjudication of an appeal from the judgment rendered therein to the Supreme Court of Canada, notwithstanding that he did not give any opinion nor take any part in the adjudi- cation of the court below nor .in the trial eoiirt. — The opinion of the court was asked by His Lordship, Mr. Justice King, as to his qualification to sit on the appeal to the Su- preme Court of Canada under the above men- tioned circumstances. His Lordship Sir Henry Strong, C.J., was of opinion that un- der the first section of the Act, 52 Vict. c. 37, Mr. Justice King was disgualified. Four- nier, Taschereau and Sedgewick, JJ., concur- red. His Lordship Mr. Justice King there- upon retired from the bench and the hearing of the appeal was proceeded with before the four other judges constituting a quorum un- der the statute cited. Grunt v. McLaren, 9th May. 1894. 2. Territorial court of Yukon Territory — Quorum to constitute court for hearing ap- fdals.J — Semble, Under the provisions of the ukon Territory Act, 62 & 63 Vict. c. 11, s. (>, and s. 42 of c. 50, R. S. C. thereby made applicable to the Territorial Court of Yukon Territory, three judges of that court are necessary to constitute a quorum for the hearing of appeals from judgments rendered upon the trial of causes therein. Barrett v. Le Syndicat Lyonnais du Klondike, 24th Au- gust, 1903, xxxiii., 667. See Amending Act of 1903. 3. Absent in Court of Appeal ielow — Ap- peal direct to Supreme Court — Sup. Ct. Act 1879, s. 6. See Peactice of Sttpeeme Cotjbt, 184. QUO ■WARRANTO. Appeal — Jurisdiction.'] — No appeal lies from a judgment on proceedings by quo war- ranto to the Supreme Court of Canada. Walsh V. Hefferman, xiv., 738. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. RAII.AVAYS. Caebying Goods, 1-7. Oaeeting Passengees, 8-15. Condition of Wat; Woeks, &c., 16-23. Citstoms Duties, 24. expeopeiations, 25-40. Faem Ceossings, 41-46. INJUETES TO Peesons, 47-67o. INJUEIES TO Pbopeett, 68-81. Lease oe Sale of Railway, 82-86. Municipal Aid ; Conteol of Streets, &c., 87-98. Operation of Railway, 99-131. Subsidies, 132-134. Taxes, 135-139. Telegeaph Lines, 140. Traffic Aerangements, 141-144. Other Matters, 145-166. 1. Carrying Goods. 1. BUI of lading — Verbal condition — Perishable freight — Agent's authority — Negligence.] — The station agent of a railway company in the ordinary course of business agreed that oil shipped should be carried in covered cars and with dispatch. — ^The hill of lading had no such clause, but stated that such goods should be carried "at owner's risk." — In an action for negligent breach, Beld, affirming judgment appealed from (28 U. C. C. P. 587), that evidence of the condition by parol was admissible, that it became incorpor- ated with the bill of lading as part of the contract for carriage; that the agent had authority to make the condition with the ship- per ; that it was negligence on the part or the company to fail to provide fit and pro- per means of transportation for such perish- able goods, and that by failure to carry in covered cars with dispatch the company was estopped from setting up the printed condi- tion as to carriage " at owner's risk in or- der to avoid liability. Grand Trunk By. Oo. V. Fitzgerald, v., 204. 1185 EAILWAYS. 1186 2. Bill of lading — Notice — Condition -^ — Carriage iy railway — Contract against lia- liUiji — Negligence — Live stock at owner's rjgfc — Bo««)02/ Act, 1S68, SI Vict. c. 68, s. 20 J .s_ ^_3^ Vict. 0. J,3, a. 5—42 Vict. c. 9.] — !i dealer in horses hired a car from the com- pany to transport stock over their road, and signed a shipping note by which he agreed to be bound by the following, among other con- ditions : — " The owner of animals undertakes all risks of loss, injury, damage and other contingencies, in loading, &c." " 3. When free passes are given to persons in charge of animals, it is only on the express condition that the railway company are not responsible fop any negligence, default, or misconduct of any kind, on the part of the company or their servants, or of any other person or persons whomsoever, causing, or tending to cause the death, injury or detention of any person or persons travelling upon any such free passes, . . . the person using any such pass takes all risks of every kind, no matter how caused," —The horses were carried over the Grand Trunk Railway in charge of a person em- ployed by the owner, such person having a free pass for the trip. Through the negli- gence of the company's servants a collision oc- curred by which the said horses were injured. —On appeal from the Court of Appeal for Ontario (10 Ont. App. R. 162), affirming the judgments of the Divisional Court (2 0. B. 197) in favour of the defendants, Held, per Ritchie, C.J., and Fournier and Henry, JJ., that as the General Railway Act, 1868 (31 Vict. c. 68, s. 20, s.-s. 4). as amended by 34 Vict. c. 43, s. 5, re-enacted by Consol. Ry. Act, 1879 (42 Vict. c. 9. s. 25, s. ss. 2, 3, 4), prohibits railway companies from protecting themselves against liability for negligence by notice, condition or declaration, and which ap- plies to the Grand Trunk Ry. Co., the com- pany could not avail themselves of the above stipulation that they should not be respon- sible for the negligence of themselves or their servants. — Per Strong and Taschereau, JJ., dissenting. That the words " notice, condition or declaration," in the said statute contem- plate a public or general notice, and do not prevent a company from entering into a spe- cial contract to protect itself from liability. Brand Trunk By. Go. v. Vogel; Grand Trunk By. Go. V. Morton, xi., 612. [Of. — Grand Trunk Ry. Co.. v. McMillan (16 Can. S. C. E. 543) ; Robertson v. Grand Trunk Liy. Go. (24 Can. S. C. R. 611) ; Glen- 90il Steamship Go. v. Pilkington (28 Can. S. C. R. 146) ; The Queen v. Grenier (30 Can. S. C. R. 42).] Note. — The decision in Grand Trunk By. Co. V. Vogel may be considered as overruled by subsequent jurisprudence. See Nos. 3, 5. 3. Bill of lading — Conditions — Connect- ing lines — Carriage beyond terminus — Con- tnct for whole transit — Loss after transit— 'Warehousemen — Bailment — Notice in writ- •iff — Statutory liability — Joint tort feasors —Partial loss — ■ Release — Estoppel — R. S.C. c. 109 — Pleading — Res judicata.] — Where a railway company undertakes to carry goods to a point beyond the terminus or its own line its contract is for carriage of the goods over the whole transit, and the other companies over whose lines they must pass are merely agents of the contracting company for such carriage, and in no privity o: contract with the shipper. Bristol & Exe- ter Ry. Co. V. Collins (7 H. L. Cas. 194) s. c. D.— 38 followed. — Such a contract being one which a railway company might refuse to enter into s. 104 of the Railway Act (R. S. C. e 109) does not prevent it from restricting its lia- bility for negligence as carriers or otherwise in respect to the goods to be carried after they had left its own line. The decision in Vogel V. G. T. R. Go. (11 Can. S. C. R. 612) does not govern such a contract. — One of the conditions in a contract to carry goods to P., a place beyond the terminus of the com- pany's line, provided that the company " should not be responsible for any loss, mis- delivery, damage or detention that might hap- pen to goods sent by them, if such loss, mis- delivery, damage or detention occurred after said goods arrived at the stations or places on their line nearest to the points or places which they were consigned to, or beyond their said limits." Held, that this condition would not relieve the company from liability for loss or damage occurring during transit, even if such loss occurred beyond the limits of the com- pany's own line. Held, per Strong and Tasche- reau, JJ., that the loss having occurred after transit was over, and the goods delivered at P.., and the liability of the company as car- riers having ceased, this condition reduced the contract to one of mere bailment as soon as the goods were delivered, and also exempted the company from liability as warehousemen, and the goods were from that time in custody of the company on whose line P. was situate, as bailees for the shipper. Fournier and Gwynne, JJ., dissenting. — Another condition provided that no claim for damage, loss, or detention of goods should be allowed unless notice in writing, with particulars, was given to the station agent at or nearest to the place of delivery within 36 hours after delivery of the goods in respect to which the claim was made. Held, per Strong, J., that a plea set- ting up non-compliance with this condition having been demurred to, and plaintiff not having appealed against a judgment overruling the demurrer, the question as to the sufficiency in law of the defence was res judicata. Held, also, per Strong, J. (Gwynne, J., contra) that part of the consignment having been lost, such notice must be given in respect to the same within 36 hours after delivery of those which arrive safely. — Quwre, In the present state of the law is a release to, or satisfaction from one of several joint tort feasors, a bar to an action against the others? — Judgment appealed from (15 Ont. App. R. 14) reversed. Grand Trunk By. Go. v. McMillan, xvi., 543. [Leave to appeal to the Privy Council was refused on the ground that the case did not affect considerable value and was not of very substantial character, and the judgment did not determine a question of great public interest, nor of legal importance. Gagnon j. P"nce (8 App. Cas. 103) approved, 17th May, 1889. See Cass. Dig. (2 ed.) 741; Wheeler, P. C. Law, 982.] 4 Carriage of goods — Carriage of connect- ing Unes— Contract for— Authority of agent— i^hipment to order of consignor — Delivery.] E in British Columbia, being about to pur- chase goods from G. in Ontario, signed, on request of the freight agent of the JN. P. Ry. Co. in B. C, a letter to G asking him to ship goods via G. T. Ry. and C. & N. W., Care N. T> Rv at St Paul. This letter was forward- fd fo^the freight agent of the N. P. Ry. Cc. at Toronto, who sent it to G., and wrote to him " I enclose you card of advice and if you 11'87 EAILWAYS. 1188 will kindly fill it up when you make the ship meat seud it to me. 1 will trace and hurry them thi'ough aud advise you or delivery to consighee."- G. shipped the goods as suggested in this letter deliverable to his own order in B. C. Held, affirming the decision appealed from (21 Ont. App. K. 322), that on arrival of the goods at St. Paul, the N. P. Ky. Co. was bound to accept delivery of them for car- riage to B. C. and to expedite such carriage ; that they were in the care of said company from St. Paul to B. C. ; that the freight agent at Toronto had authority so to bind the com- pany ; and that the company was liable to G. for- the value of the goods which were de- livered to E. at British Columbia without an order from G. and not paid for. Northern Pacific liy. Co. v. Grant, xxiv., 5-16. 5. Construction of statute — Railway Act, 1888, s. 2Jf6 (S)^Carriage of goods — Contract ■limiting liability — N egligenc6-'\ — By the Rail- way Act, 1888 (51 Viet. c. 29 [U.]), s. 246 (3), "every person aggrieved by any neglect or refusal in the premises shall have an action therefor against the company, from which ac- tion the company snail not be relieved by any notice, condition or declaration, if the damage arises from any negligence or omission of the company or of its servants." Held, affirming the decision appealed from (21 Unt. App. R. 204), that this provision does not disable a railway company from entering into a special contract for the carriage of goods and limiting its liability as to amount of damages to be re covered for loss or injury to such goods, aris- ing from negligence. Vogel v. Grand Trunk Ry. Co. (11 Can. S. C. B. 612) and Bate v. Canadian Jfacifia Ry Go. (15 Ont. App. B. 388), distinguished. — The Grand Trunk Ry. Co. received from B. a horse to be carried over its line, and the agent of the company and R. signed a contract for such carriage which con- tained this provision : " The company shall in no case be responsible for any amount ex ceeding $100 for each and any horse," &c. Held, affirming the decision appealed from, that the words " shall in no case be respon- sible " were sufficiently general to cover all Cases of loss however caused, and the horse ha^'ing been killed by negligence of servants of the company, R. could not recover more than $100, though the value of the horse largely exceeded that amount. Roiertson v. Grand Trunk Ry. Co., xxiv., 611. See No. 8, infra. 6. Carriage of goods — Connecting lines — Special contract — Loss by fire in warehouse — A'egligence.'i — In an action by S.. a merchant at Merlin, Ont., against the Lake Erie and Detroit River Railway Co., the statement of claim alleged that S. had purchased goods from parties in Toronto and elsewhere to be delivered, some to the G. T. R. Co., and the rest to the C.P.R. Co. and other companies, by the said several companies to be, and the same were, transferred to the Lake Erie, &c., Co., for carriage to Merlin. That on receipt by the Lake Erie Co. of the goods it became their duty to carry them safely to Merlin and de- liver them to S. There was also an allegation of a contract by the Lake Erie Co. for storage of the goods and delivery to S. when requested, and a lack of proper Care whereby the goods were lost. The goods- were destroyed by fire while stored in a building owned by the Lake ,Erle Co. at Merlin. HeQ., reversing the deci- sion appealed from, that as to the goods der livered to the G. T. R. Co. to be transferred to the Lake Erie Co. as alleged, if the cause of action stated was one arising ex delicto it must fail as the evidence shewed , that the goods were received from the G. T. R. Co. for carriage under the terms of a special contract contained in the bill of lading and shipping note given by the G. T. B. Co. to the con- signors, and if it was a Cause of action found-' ed on contract it musl; also fa.il as the con- tract under which the goods we're received by the G. T. R. Co. provided among other things, that the company would not be liable for the loss of goods by fire, that goods stored should be at sole risk of the owners, and that the provisions should apply to and for the benefit of every carrier. Held, further, that as to the goods delivered to the companies other than the G. T. Co. to be transferred to the Lake Erie Co., the latter company was liable under the contract for storage ; that the goods were in its possession as warehousemen, and the bills of lading contained no Clause, as did those of the G. T. R. Co., giving subsequent carriers the benefit of their provisions ; and that the two courts below had held that the loss was caused by the negligence of servants of the Lake Erie Co., and such finding should not be interfered with. Held, also, that as to goods carried on a bill of lading by the Lake Erie Co., the company was not liable as there was an express provision therein that owners should incur all risk of loss of goods in charge of the company, as warehousemen ; and that such condition was a reasonable one as the Company only undertakes to warehouse goods of necessity and for convenience of shippers. Lake Erie and Detroit River Ry. Co. v. Sales, xxvi., 663. 7. Carriage of goods — Special instructions — Acceptance by consignee — Warehousemen — Negligence — Amendment.'] — F. Bros., dealers in scrap iron at Toronto, for some time prior to and after 1897 had sold iron to a Rolling Mills Co. at Sunnyside in Toronto West. The G- T. R. Co. had no station at Sunnyside, the nearest being at Swansea, a mile further west, but the Rolling Mills Co. had a siding capable of holding three or four cars. In 1897 P. Bros, instructed the G. T. B. Co. to deliver all cars addressed to their order at Swansea or Sunnyside to the Rolling Mills Co., and in October, 1899, they had a contract to sell cer- tain quantities of different kinds of iron to the company and shipped to them at various times up to 2nd January, 1900, five cars, one addressed to the company and the others to themselves at Sunnyside. On 10th January the company notified P. Bros, that previous shipments had contained iron not suitable for their business, and not of the kind contracted for and refused to accept more until a new arrangement was made, and about the middle of January they refused to accept part of the five cars and the remainder before the end of January. On 4th February the cars were placed on a siding to be out of the way and were there frozen in. On 9th February P. Bros, were notified that .the cars were there subject to their orders, and two days later F., one of the firm, went to Swansea and met the company's manager.. Xiey could not get at the cars where they were and P. arranged with the station agent to have them placed on the company's siding and he would have what the company would accept taken to the mills in teams. The cars could not be moved until the end of Api-il when the price of the iron had fallen and F. Bros, would not ^ccept them, but after considerable correspondence .1189 RAILWAYS. 1190 and negotiation they took them away in the following October and brought an action against the G. T. R. Go. founded on the fail- ure to deliver the cars. It appeared that in previous shipments the cars were usually for- warded to the- rolling mills on receipt of an order therefor from the; company, but some- times they were sent without instructions, and on 3rd February the station agent had written to F. Bros, that the cars were at Swansea and would be sent down, to the rolling mills, a eW, affirming the judgment of the Court of Appeal, th^t the Rolling Mills Co. were con- signees of all the. cars and that they had the right to reject them at Swansea if not accord- ing to contract. Having exercised such right the railway company were not liable as car- riers, the transitus having Come to an end at Swansea by refusal of the company to receive them. — The Court of Appeal, while relieving the railway company from liability as carriers, held them liable as warehousemen and ordered a refer-ence to ascertain the damages on that head. Held, reversing such decision, Mills, J., dissenting, that the action was not brought against the railway company as warehouse- men, and as they could only be liable as such for gross negligence and the question of negli- gence had never been raised nor tried, "the ac- tion must be dismissed in toto, with reserva- tion of the right of F. Bros, to bring a fur- ther action should they see fit. The Grand Trunk iiy. Co. v. Frankel, xxxiii.; 115. 2. Cakkying Passengers. 8. Passenger ticket — Loss of 'baggage — Spe- cial contract — Reduced fare — Notice of condi- tions — N egligence.'i — Plaintiff purchased from an agent of the company at Ottawa what was called a " land seeker's ticket," the only kind of return ticket issued on the route, for a passage to Winnipeg and return, paying less than the single fare each way. The ticket was not transferable and had conditions print- ed on it, one of which limited the liability of the company for baggage to wearing apparel not exceeaing $100 in value, and another re- (jnired the signature of the passenger for the purpose of identification and to prevent a transfer. The agent obtained plaintiff's signa- ture to the ticket explaining that it was for the purpose of identification ; but did not read nor explain to her any of the conditions, and having sore eyes at the time she was unable to read them .herself. On the trip to Winnipeg an accident happened to the train and plain- tifE's baggage, . valued at over $1,000, caught fire and was i destroyed. The jury found for plaintiff for the alleged value -of the baggage. add, reversing the judgment appealed from (15 Ont. App. R. 888), Gwynne, J., dissent- ing, that there was sufficient evidence that the loss of the baggage was caused by defendants' negligence, and, the special conditions printed on the ticket not having been brought to the notice of plaintiff, she was not bound by them and Could recover her loss from the company. J^ate V. ' Canadian Pacific By. Co., xviii., 697. ■ ■-... , . See No. 5, ante. 9. Passenger — Implied contract — Produc- tion of ticket — Refusal — Ejectment from train —Uaiility — General . Railway. Act, 51 Vict. ».2fl (p.), ss. 2^7 and 24S.]— By '51 Vict. c. , '0| s. 248, any passenger on a railway train Who refuses to pay his fare may be put off the tram. Held, reversing the decision ap- pealed from (20 Ont. App. R. 476) Fournier J., dissenting, that the contract between the person buying a railway ticket and the com- pany on whose J line it is intended to be used implies that such ticket shall be produced and delivered up to the conductor of the train on which such person travels, and if he is put off a train for refusing or being unable so to produce and deliver it up, the company is not liable to an action for such ejectment. Grand Trunk Ry. Co. v^ Beaver, xxii., 498. 10. Carriage of passengers — Derailment — Broken rail — Latent defects — Arts. 1053, 1673 1675 C. C] — Where the breaking of a rail is shewn to be due to the severity of the climate and the suddenly great variations of the de- grees of temperature, and not to any want of care or skill upon the part of the railway company in the selection, testing, laying and use of such rail, the company is not liable in damages to a passenger injured by the derail- ment of a train through the breaking of such rail. Fournier, J., dissented, and was of opin- ion that the accident was caused by a latent defect in the rail which was known or ought to have been known to the company, and that a railway company is responsible under the Civil Code, for injuries resulting from such a defect. — Judgment appealed from (M. L. R. 3 Q. Q. 324) reversed. Canadian Pacific Ry. Co. v. Chalifoux, xxii., 721. 11. Railway ticket — Right to stop over.]-^ By the sale of a railway ticket the contract of the railway company is to convey the pur- chaser in one continuous journey to his desti- nation ; it gives him no right to stop at any intermediate station. Craig v. Great Western Ry. Co. (24 U. C. Q. B. 509) ; Briggs v. Grand Trunk Ry. Co. (24 U. C. Q. B. 516) ; and Cunningham v. The Grand Trunk Ry. Go. (9 L. C. Jur. 57; 11 L. C. Jur. 107), ap- proved and followed. Judgment appealed fr m (4 Ex. C. R. 321) affirmed. Coomls v. The Queen, xxvi., 13. 12. Government railway ■ — Non-feasance — Misfeasance — Public service — Carriers — " The King can do no wrong."'] — In 1880, a passen- ger travelling on the P. E. I. railway, owned by the Dominion of Canada, and operated un- der the management of the Minister of Rail- ways and Canals, sustained injuries through an accident to the train.; — The Exchequer Court found that the railway was in a most unsafe state from the rottenness of. the ties, that the safety of life had been recklessly jeopax'dized by running trains over it with passengers, and that there had been a breach of contract to carry the suppliant safely and securely upon his transportation ticket, and awarded damages for the injuries sustained. — Held, reversing the judgment appealed from (8 Can. S. C. R. 2), Fournier and Henry, JJ., dissenting, that the fistablishment of Gov- ernment railways in Canada, of which the Minister of Railways and Canals has the man- agement, direction and control, under ■ statu- tory provisions, for the benefit and. ad vantage of the public, is a branch of the public ser- vice created by statute for public convenience, and not to be treated as a private and mer-- cantile speculation, and , that a petition of right does not lie against , the Crown for in- juries resulting, from the non-feasance or mis- feasance, wrongs, negligences or omissipns of duty of the subordinate officers or agents em- ployed on such . railways ; that the Crown is 1191 RAILWAYS. 1192 not liable as a common carrier for the safety and security of passengers using such rail- ways. The Queen v. McLeod, viii., 1. 13. Conductor calling " All aboard " — ^Acct- dent to passenger boarding train — Contribu- tory negligence — Running of trains — Tacit li- cense — ■ Estoppel — Boarding moving train — Right of action.l — Plaintiff, having a first- class ticket by the Intercolonial Railway, in tended going home by the mixed freight and passenger train which, on that day, was un- usually long and, when it stopped at the sta- tion, the forward part of the first-class car was opposite the platform. It was then about ten minutes after the advertised time of de- parture. Plaintiff was on the platform when the train came in, but did not then get aboard. The conductor (defendant) got off the train and went to a hotel for dinner. While he was absent the train was, without his knowledge, backed down, so that only the second-class car remained opposite the platform. The jury found that the first-class car did not remain at the platform long enough to enable plaintiff to get on board. The defendant, after dinner, came over hastily (being behind time and therefore in somewhat of a hurry), called " all aboard," glanced down the platform, saw no person attempting to get on board, crossed the train between two box cars to signal the driver to start (it being necessary to cross the train in order to be seen by the driver, owing to a curve in the track), and almost immediately the train started.^The 124th regulation pre- scribes that conductors must not start the train while passengers are getting on board, and that they should stand at the front end of the first passenger car when giving the signal to the driver to start, which was not done in this instance. Plaintiff and a friend were on the platform, and when they heard " all aboard," went towards the cars quickly, but plaintiff, who had a paper box in her hands, in attempting to get on board, caught the hand-rail of the car, slipped owing to the motion of the train and was seriously injured. The jury found that the call " all aboard " was a notice to passengers to get on board. Held, aflfirming the Supreme Court of New Brunswick (19 N. B. Eep. 340 ; 19 N. B. Rep. 586) , that although the plaintiff's contract was with the Crown, the defendant owed to her, as a passenger, a duty to exercise reason- able care, and that there was ample evidence of negligence for the jury. Taschereau and Gwynne, JJ., dissented. — Per Ritchie, C.J. There was no obligation on the part of the passengers to go on board the train until it was ready to start or until invited to do so by the intimation from the conductor " all aboard." It was the duty of the conductor to have had his first-class car up in front of the platform. Should circumstances have prevent- ed this, it was his duty to be careful before starting his train to see that sufficient time and opportunity were afforded passengers to board the car in the inconvenient position in which it was placed, and the evidence shewed that the defendant exercised no care in this respect. — Per Henry, J. There was no satis- factory proof of contributory negligence on the part of plaintiff. The package she carried was a light one, and such as is often carried by passengers with the knowledge and sanction of railway conductors and managers, and a tacit license is therefore given to passengers to carry such parcels with them into the cars. — The plaintiff violated regulations in attempt- ing to get on the ear while in motion. But the defendant could not shelter himself under those regulations, for when be gave the order " all aboard " he knew, or ought to have known, that the first-class car was away from the platform, and he ought to have advanced the train and stopped it, so that the plaintiff could have entered that car. The conductor was estopped from complaining that the plain- tiff did what, by calling " all aboard," he in- vited her to do. After the notification " all aboard " is given by a conductor, it is his duty to wait a reasonable time for iJassengers to get to their places. — Per Taschereau and Gwynne, JJ., dissenting. Whether the omis- sion to stop the first-class car at the platform, or the conductor's failure to wait a reasonable time after calling " all aboard " before giving the starting signal were or were not breaches of the defendant's duty, such breaches could not be said to have caused the accident if the plaintiff had not voluntarily attempted to get on the train while it was in motion, which she was not justified in doing. Hall v. McPad- den, Cass. Dig. (2 ed.) 723. 14. Train extending beyond platform — Ac- cident to passenger — Contributory negligence.^ — L. was the holder of a ticket, and passenger on the company's train from Levis to Ste. Marie, Beauce. When the train arrived at Ste. Marie station the car upon which L. had been travelling was some distance from the station platform, the train being longer than the plat- form, and L. fearing that the car would not be brought up to the station, the time for stop- ping having nearly elapsed, got out of the end of the car, the distance to the ground from the steps being about two feet and a half, and in so doing he fell and broke his leg, which had to be amputated. The action was for |5,000 damages, alleging negligence and want of pro- per accommodation. The defence was contri- butory negligence. Upon the evidence, the Superior Court, the judgment being affirmed by the Court of Queen's Bench, decided in fa- vour of L. and awarded him the full amount of damages claimed. On appeal to the Su- preme Court of Canada, held, reversing the judgment appealed from, that in the exercise of ordinary care, L. could have safely gained the platform by passing through the car for- ward, and that the .accident was wholly attri- butable to his own fault in alighting as he did and that, therefore, he could not recover. Fournier, J., dissenting. Quebec Central By. Co. V. Lortie, xxii., 336. 15. Injury to passenger in sleeping berth — Running of train — Negligence.'\ — ; While in a sleeping berth at night a passenger believing that she was riding with her back to the en- gine, tried to turn around in the berth and, the car going round a curve at the time, she was thrown out on to the floor and injured. In an action against the railway company for damages it was not shewn that the speed of the train was excessive or that there was any defect in the roadbed at the place where the accident occurred to which it could be attri- buted. Held, reversing the judgment appealed from, that the accident could not be attributed to any negligence of the servants of the com- pany which would make it liable in damages to S. therefor. Canadian Pacific Ry. Co. v. Smith, xxxi., 367. 3. Condition of Wat; Works, &c. 16. Approach — Crossings — Construction of road — Level of crossing — Impairing usefulness 1193 RAILWAYS. 1194 of highway — Liability by «ser.]— A railway company , has no authority to build its road with part of the road bed considerably below the level of the highway unless upon the ex- press condition that the highway shall be re- stored so as not to impair its usefulness, and the company so constructing its road and any other company operating it is liable for in- juries resulting from the dangerous condition of the highway to persons lawfully using it. — Judgments appealed from (18 Ont. App. R. 184) affirmed. Grand Trunk Ry. Go. v. 8ib- ialdj' Grand Trunk By. Co. v. Tremaine, xx., 259. 17. Construction of statute — 51 Vict. c. 29, s. 26$ (D.) — Railway crossings — Packing rail- way frogs, wing-rails, <&c. — Negligence.'] — The proviso of "The Railway Act" (51 Vict. C. 29 (D.), s. 262, s.-s. 4, does not apply to the fillings referred to in the third sub-section, and confers no power upon the Railway Committee of the Privy Council to dispense with the fill- ing in of the spaces behind and in front of railway frogs or crossings and the fixed rails and switches during the winter months. Judg- ment appealed from (24 Ont. App. R. 183) reversed. Washington v. Grand Trunk Ry. Co., xxviii., 184. [Affirmed by the Privy Council, 24th Febrii- ary, 1899, (1898) A..C. 275.] 18. Negligence — Grass on siding — Injury to employee.'] — For a railway company to per- mit grass and weeds to grow o-n a side track is not such negligence as will make it liable for compensation to an employee who is injured in consequence of such growth while walking on the side track. Wood v. Canadian Pacific Ry. Co., XXX., 110. 19. Special leave to appeal — Matter in controversy — Special reasons against judg- ment in court below — Railways — Overhead bridge — Headway — Car of foreign com- pany — " Used on railway." — 51 'Vict. c. 29, S.192 (D.) — Transfers from connecting lines.'] — In affirming a judgment for $500 damages, the Court of Appeal for Ontario (1 Ont. L. R. IBS), held that "when a car of a foreign' railway company forms part of a train of a Canadian i?ailway company, it is ' used ' by the latter company within the meaning of s. 192 of the Railway Act, 51 Vict. c. 29 (D.), so as to make the company liable in damages for the death of a brakeman caused by the Car being so high as not to leave the pre- scribed headway between it and an overhead bridge." On special application for leave to appeal from this judgment, it was urged that the car had been taken over from an Ameri- can line to which the Act limiting the height of cars in the Dominion could not apply, that the company was by statute obliged to accept and haul the car, that in hauling the car the company could not, at most, be subject to any °™^ tt^an the penalty prescribed by statute, ano that, in any case deceased was insured against accidents in the company's association \l "'^.Representatives could claim no more Lnan ;|)250 for which he was insured. The application was refused, (Present: Tasche- reau, fawynne, Sedgewick, King and Girouard, "■'■} on the ground that a sufiicient primd no?f ^^^ *°' granting special leave for an ap- /<■., ^ °°' '•een made out. Grand Trunk «!/. Co. V. Atchison, 5th March, 1901. 20. Government railway — Injury to pas- senger — Rotten ties — Public service. See No. 100, infra. Climatic influences — 21. Broken rail Latent defect. See No. 10, ante. 22. Derailment of train — Defective bridge — Defective snow-plough — Negligence. See No. 49, infra. 23. Sparks from engine — Rubbish on rail- way berm^Damage by fire — Findings of jury — Uvidence — Concurrent findings of courts ap- pealed from. See Negligence, 217. 4. Customs Duties. 24. Custorns duties — Exemptions from duty -^Street rails for use on railways — Applica- tion to street railways.] — The exemption from duty in 50 & 51 Vict. c. 39, item 173, of "steel rails weighing not less than 25 pounds per lineal yard, for use on railway tracks," does not apply to rails to be used for street rail- ways which are subject to duty as " rails for railways and tramways of any form " under item 88. Strong, C.J., and King, J., dissent- ing. Judgment appealed from (4 Ex. C. .R. 262) affirmed. Toronto Ry. Co. v. The Queen, XXV., 24. [On appeal to Privy Council this decision was reversed ([1896] A. C. 551).] 5. EXPEOPEIATIONS. 25. Expropriation of land — Abandonment of notice — Enforcing award — Possession — R. S. C. c. 109, s. 88, s.-ss. 26, Sl—JiS Vict. c. 9, s. 9.] — Per Gwynne and Patterson, JJ., an aban- donment of a notice to take lands for railway purposes, under R. S. C. c. 109, s. 8, s.-s. 26, must take place while the notice is still a no- tice, and before the intention has been ex- ercised by taking the lands. — The proper mode of enforcing an award of compensa- tion, made under the Railway Act, is by an order from the judge. — Qumre, Whether the Act R. S. C. c. 109, s. 8, s.-s. 31, permits posses- sion to be given before the price is fixed and paid of any .land, except land on which some work of construction is to be at once proceeded with. Canadian Pacific Ry. Co. v. Little Seminary of Ste. Therise, xvi., 606. 26. Expropriation of land — Damages — R. S G c 39 s. 3 s.-s. (e) — Farm crossings — R. S. G. c. 38, s. 16.] — Where land is taken by a railway company for use of gravel, the owner is entitled to compensation only as for farm land, where there is no market for the gravel. — The compensation for damages sus- tained by reason of anything done under and by authority of R. S. C. c. 89, s. 3, s.-s. (e), or any other Act respecting public works or government railways, includes damages result- ing to the land from the operaton as well as from the construction of the railway.— The right to have a farm crossing over one of the government railways is not a statutory right, and in awarding damages full compensation for the future as well as for the past for the 11^5 RAILWAYS:- 1196 want of a farm erosfeing should be grafted. — Per Gwynne, J-., dissenting, the owner had the option of demanding,' and the government had a like option of giving, a crossing in lieu of compensation, and on the whole case, full compensation had been awarded by the court below. Judgment appealed from (2 Ex. C. R. 11, reversed, and see 52 Vict. c. 38, s. 3). Vezina v. The Queen, xvii., 1. 27. Expropriation — Government railway — Severance of land — Farm crossings — Com- pensation.] — When land expropriated for gov- ernment railway purposes severed a farm the owner, although not at the time entitled to a farm crossing apart from contract, was en- titled to full compensation covering the fu- ture as well as the past for the depreciation of his land by want of such a crossing. Gwynne, J., dissented on the ground that the owner was entitled to a crossing as a matter of law. Judgment appealed from (2- Ex. 0. R. IS, reversed, and see 52 Vict. c. 38, s. 3.) Guay V. 2'he Queen, xvii., 30. 28. Deviation from line located — Exten- sion — Completion of railway — Expropriation of land — Description in map or plan filed — 42 Vict. c. 9.] — a' railway company built its line to the termini mentioned in the charter and then wished to extend it less than a mile in the same direction. The time limited for the completion of the road had not expired, but the company had terminated the repre- sentation on the board of directors which, by statute, was to continue during construction and had claimed and obtained from the city exemption from taxation on the ground of completion of the road. To effect the desired extension it was sought to expropriate lauds which were not marked or referred to on the map or plan filed under the statute. Held, affirming the judgment appealed from (11 O. R. 320. 582 ) , that the statutory provisions that land required for a railway shall be in- dicated on a map or plan filed in the De- partment of Railways before it can be expro- priated applies as well to a deviation from the original line as to the line itself, and the company, having failed to shew any statutory authority therefor, could not take the said land against the owner's consent. Held, also, that the proposed extension was not a devia- tion within the meaning of the statute, 42 Vict. c. 9, s. 8, S.-S. 11 (D.)— Per Ritchie, C.J., Strong, Foumier and Taschereau, JJ., that the road authorized was completed as shewn by the acts of the company, and upon suc'h compensation the compulsory poNver to expropriate ceased. — Per Gwynne, J., that the time limited by the charter for the comple- tion of the road not having expired the com- pany could still file a map or plan shewing the lands in question, and acquire the land under 42 Vict. c. 9, s. 7, s.-s. 19. Kingston & Pemhrohe Ry. Go. v. Murphy, xvii.,, 582. 29. Expropriation — R. 8. Q., art. 5164, ss. 12, 16, 11, 18, 2J, — Award — ArUtrators — Jurisdiction — Lands injuriously affected — iS & 44 Vict, c: 43 (Que.) — Appeal — Amount in controversy.'] — On an expropriation respond- ent, naming his arbitrator, declared he only appointed him to watch over the arbitrator of the company, but the company recognized him officially and subsequently an award of $1,- 974.25 damages and costs for land expropri- ated was made under art. 5164, R..S. Q. The demand for expropriation as formulated i!n the notice to arbitrate was fdr the width of the track, but the award granted damages for three feet outside of the fences on- each side as being valueless. In an actfon by the com- pany to set aside the award; Held, afBrmiflg- the judgment appealed from (following 15 Q. L. R. 300), that the appointment of respond- ent's arbitrator was valid under the statute and bound both parties, and that in award- ing damages for land injuriously affected On each side of the track the arbitrators had not exceeded their jurisdiction. — Strong and Tas- chereau, JJ., douMed if the matter in contro- versy was within the appellate jurisdiction, but assuming, without deciding, that it could be maintained, concurred in the judgment, dis- missing the appeal on the merits. Quehec, Montmorency & Charlevoix Ry. Co. v. Ma- thieu, xix., &6. 30. Appeal — Jurisdiction — 54 d 55 Vict, c. 25, s. 2 — Prohibition — Expropriation of lands — Arhitration — Death of arbitrator pending award — 51 Vict. e. 29^ ss. 156, 157 — • Lapse of time for making award — Statute, construction of — Art. 12 G. C] — ^The provi- sions of the second section of the statute, 54 & 55 Vict. c. 25, giving the Supreme Court of Canada jurisdiction to hear appeals in mat- ters of prohibition, apply to such appeals from the Province of Quebec as well as to all other parts of Canada. — In relation to the expro- " priation of lands for railway purposes, ss. j56 and 157 of "The Railway Act" (51 Viet c. 29, D.), provide as follows: — "156. A ma- jority of the arbitrators at the first meeting after their appointment, or the sole arbitrator, shall fix a day on or before which the award shall be made ; and, if the same is not made on or before such day, or some other day to which the time for making it has been pro- longed, either by consent of the parties or by resolution of the arbitrators, then the sum of- fered by the company as aforesaid, shall he the compensation to be paid by the company." " 157. If the sole arbitrator appointed by the judge, or any other arbitrator appointed by the two arbitrators, dies before the award has been made, or is qualified, or refuses or fails to act within a reasonable time, then in the case of the sole arbitrator, the judge, upon the application of either party, and upon be- ing satisfied by afSdavit or otherwise of such death, disqualifitJation, refusal or failure, may appoint another arbitrator in the place of such sole arbitrator ; and in the case of any arbitrator appointed by one of the parties, the company and party respectively may each appoint an arbitrator in the place of its or his arbitrator so deceased or not acting'; and in the case of the third arbitrator appointed by the two arbitrators, ' the provisions 'of s. 151 shall apply; but no re-commencement or repetition of the previous proceedings shall be required in any ease." — Section 151 pro- vides for the appointment of a third arbi- trator either by the two arbitrators or by a judge. Held, that the provisions of the 157th section apply to a case where the arbitrator appointed by the proprietor died before the award had been made and four days prior to the date fixed for making the same: that in such a case the proprietor was entitled to be allowed a reasonable time for the appoint- ment of another arbitrator to fill the vacancy thus caused and to have the arbitration pro- ceedings continued although the time so fixed had expired without any award having been made or the time for the making thereof hav- ing been prolonged. , ' Shannon v. Montrea* Park and Island Bi/. Co., xxviii.', 374. IIW BAILWAYS. 1198 31. Eminent domain — Expropriation of lands — Arhitrdtion, — Evidence — Findings of faat — Duty of appellate vourt — 51 Vict, c. 29 (D.) ]^0n an arbitration in a matter of the expropriation of lanlS under the pro- visions of "'The Railway Act " the majority of th? arbitrators appeared to have made their computation of the amount of the indemnity awarded to the owner of the land by taking an average of the different estimates made on behalf of both ' parties according to the evi- dence before them. Held,' reversing the deci- sion appealed from and restoring the judg- ment of the Superior Court (Taschereau and Girouard, JJ., dissenting), that the award was properly set aside on the appeal to the Superior Court, as the arbitrators appeared to h^ve proceeded upon a wrong principle in the estimation of the indemnity thereby award- ed. Grand Trunk By. Co. v. Coupal, xxviii., 531. Followed in Fairman v. City of Montreal (31 Can. S. C. E. 210). See Expropriation or Lands, 12. 32. Expropriation of land — Tenants in com- mon — Proprietaires par indivis — -Construc- tion of agreement — Misdescription — Plans and ioohs of reference — Condition — Indemnity — Registry laws — Estoppel — R. 8. Q. arts. 51G3, 51tH—Art. 1590 C. C] — In matters of expro- priation -where the railway company has com- plied with the directions and conditions of arts. 5163 and 5164, R. S. Q., as to deposit of plans and books of reference, notice and settlement of indemnity with the owners, or with at least one-third of the owners par in- divis, of lands taken for railway purposes, the title to the lands passes forthwith to the com- pany for' the whole of the property by mere operation of the statute, even without the con sent of the other owners par indivis, and without the necessity of formal conveyance by deed or compliance with the formalities pre- sd'ibed by the Civil Code as to registration of real rights. — The provisions of the Civil Code respecting the registration of real rights have no application to proceedings in matters of ex- propriation of lands for railway purposes un- der the provisions of the Revised Statutes of Quebec. — Pending expropriation proceedings begun against lands held in common, (par in- divis,) for the purposes of appellant's railway, tjie following instrument was signed and de- livered to the company by six out of nine of , the owners par indivis, viz. : " Be it known by these presents that we the legatees P. of the Parish of Beauport, County of Quebec, do promise and agree that as soon as the Q., M. and ,C' Ry. is located through our land in the parishes of Notf e-Dame des Anges, Beau- port and L'Ange G'ardien, and in consideration of Its being so located, we will sell, bargain and ti-ansfer to the Q., M. and C. Ry. Co., tor the sum, of one dollar, such part of our said land as may be required for the construC- twp and maintenance of the said railway, and exempt the said company from all damages to the rest of the said property and that, pend- 'ug the execution of the deeds,, we will permit ™/o°struction of the said railway to be pro- ceeded with over our said laAd, without hind- erance of any kind, provided that the said rail- way IS located to our satisfaction. As wit- Tf,n °?L^^i"is at Quebec this 11th day of "ne, ,1886." Afterwards, the line of the rail- way was altered and more than one year "3™ without the deposit of an amended Hm? f ^°°^ °^ reference to shew the devia- tion irom the line as originally located. The company, however, took possession of, the land and constructed, the railway across- it and. in August, 1889, the same persons who had signed the above instrument granted an ab- solute deed of the lands to the company for a consideration of five dollars, acknowledged to have been paid,, reciting therein that the said lanas had " been selected and set apart by the said railway company for the ends and pur- poses of its railway and being already in the possession of the said railway company since the 11th of June, 188G, in virtue of a certain promise of sale sous seing prive by the said vendors in favour of the said company." Neither of the instruments were registered. G. purchased the New Waterford Cove property in 1889 and, after registering his deed, exe- cuted by ail the owners par indiois, brought a petitory action to recover that part of the property taken by the railway company, al- leging that the instruments mentioned consti- tuced a aonation of the lands and did not come within the operation of arts. 5163 and 5164 R. S. Q. Held, that the terms of s.-s. 10 of art. .5164, K. S. Q., were sufficiently wide to include and apply to donations ; that the in- strument in question was not properly a do- nation, but a valid agreement or accord within the provisions of said tenth sub-section, under onerous Conditions of indemnity which ap- peared to have been satisfied by the company; that, as the agreement stipulated no time within which the new plan should be filed and the location appeared .to have been made to the satisfaction of the required proportion of the owners, it was sufficient for the company to file the amended plan and book of reference at any time thereafter and that, as the in- demnity agreed upon by six out of nine of the owners par indivis had been satisfied by changing the location of the railway line as desired, the requirements of art. 5164 R. S. Q., ■ had been fully complied with and the plaintiff's action could not, under the cir- cumstances, be maintained. Quehec, Mont- morency and Charlevoix Ky. Go. v. (j-ihsone; Oibsone v. Quebec. Muiitmorcncy and Charle- voix Ry. Co., xxix., o40. 33. Construction of Raihcay Act — Tram- way for transportation of material — Expro- priation— 51 Vict. c. 29, s. nil- (D.)—Z Edw. VII c. 29 (D.)] — The place where materials are found referred to in the one hundred and fortieth section of " The Railway Act " means the spot where the stone, gravel, earth, sand or water required for the construction or maintenance of railways are naturally situ- ated and not any other place to which they may have been subsequently transported. — Per Taschereau and Girouard, JJ. The provi- sions of the one hundred and fourteenth sec- tion of •■ The Railway Act " confer upon rail- way companies a servitude consisting merely in, the right of passage and do not confer any right to expropriate lauds required for laying the tracks of a tramway for the transporta- tion of materials to be used for the purposes of construction. Quebec Brtdge Co. v. Roy, xxxu. 572. 34. Expropriation — Arbitration — Bjj*)mo- tion of award — Refusal of costs.j — Under special circumstances, it was held, amrming the decision of the Court of Appeal for On- tario, Gwynne, X, dissenting, that neither party was entitled to costs. Ontano & Que- bec Ry. Co. V. Philbrick. xii., 288. See Arbitrations, 28.. 1199 EAILWAYS. 1300 35. Expropriation — Description of land — oijeetion to award — ^3 <& Ji4 Vict. c. iS, s. 9 ( Que. ) J — Where no uncertainty exists as to the description of the property, the judgment of the Court of Queen's Bench reversing the Superior Court judgihent was set aside. Beau- det V. North Shore By. Co., xv., 44. See Abbiteations, 42. 36. Obstruction of riparian rights — Award for lands taken — Compensation for beach privileges — Misdescription in award — Tort.] — Adequate descriptions of the expropriated lands are suflScient. — Compensation may be exacted by a riparian owner for the loss of egress and access to a navigable river. Bigou- atte V. North Shore Ry. Co., xvii., 363. See ExpEOPEiATioN of Lands, 21. 37. Expropriation — Estimating damage's — Prospective capabilities of property — Value to owner — Unity of possession — Advantage ac- cruing to paper town — Railway terminus — Set-off.] — Value to the owner and the effect of severing the unity of real estate are proper grounds to consider in estimating compensa- tion. — The advantages of a station terminus and probable town site may be set off on an expropriation for railway purposes. Paint v. The Queen, xviii., 718. See EXPEOPEIATION OF Lands, 22. 38. Disqualification of arbitrator — 4-4 Vict. c. 43 (Que.) See Abbiteations, 9. 39. Valuation of lands — Town plot — Assess- ment of damages — Crossings. See EXPEOPEIATION or Lands, 1. 40. H Vict. c. 1, s. 18 — Powers of Canadian Pacific Ry. Co to take and use foreshore -^ 49 Vict. c. 32 (B. C.) — City of Vancouver — Right to extend streets to deep water — Cross- ing of railway — Jus publicum — Implied ex- tinction by statute — Injunction. See Municipal Coepoeation, 110. 6. Faem Ceossings. 41. Farm crossing — Parol agreement — Re- liance on statutory provisions — Estoppel — H & 15 Vict. c. 51, s. 13 — Substitution of " at " for " and " — C. S. C. c. 66, s. 13 — Construction of statute.] — The company for the purposes of their railway took lands of C, made a verbal agreement with C, through their agent, for purchase at $662, and also agreed to make 5 farm crossings on C.'s farm, 3 level a,nd 2 under crossings ; that one of such under crossings should be of sufficient height and width to admit of the passage through it, from one part of the farm to the other, of loads of grain and hay and reaping and mowing ma- chines ; and that such crossings should be kept and maintained by the company for all time for use of C, his heirs and assigns. C. wished the agreement to be reduced to writ- ing, and particularly requested the agent to reduce to writing and sign that part of it relative to the farm crossings, but he was as- sured that the law would compel the com- pany to build and maintain such crossings without an agreement in writing. C. having received advice to the same effect from a lawyer whom he consulted in the matter, the laud was sold to the company without a writ- ten agreement and the purchase money paid. The farm crossings agreed upon were furnish- ed and maintained for a number of years un- til the company determined to fill up the por- tion of their road on which were the under crossings used by C, who thereupon brought a suit against the company for damages for the injury sustained by such proceeding and for an injunction. Held, reversing the judgment appealed from (11 Out. App. R. 287), Rltcnie, C.J., dissenting, that the evidence shewed that plaintiff relied upon the law to secure for him the crossings to which he considered himself entitled, and not upon any contract with the company, and he could not, therefore, compel the company to provide an under crossing through the solid embankment formed by the filling up of the road, the cost of which would be altogether disproportionate to his own esti- mate of its value and of the value of the farm. — Held, also, that the company were bound to provide such farm crossings as might be neces- sary for the beneficial enjoyment by C. of his farm, the nature, location, and number of said crossings to be determined on a reference to the master of the court below. — The substitu- tion of the word " at," in C. S. C. c. 66 for the word " and " in 14 & 15 Vict. c. 51, s. 13, is the mere correction of an error and was made to render more apparent the meaning of the latter section, the construction of which it does not alter nor affect. Brown v. Toron- to & Nipissing Ry. Co. (26 U. C. C. P. 206) overruled. Canada Southern Ry. Co. v. Glouse, xiii., 139. See Nos. 42, 43, infra. 42. Farm crossing — Under crossing — Agree- ment for cattle pass — Trestle bridge — Em- bankment.] — An agreement was reduced to writing, in negotiating for lands taken for railway purposes, which had a clause to the effect that the owner of lands taken could remove for his own use all buildings on the right of way, and in the event of construction on the same lot of a trestle bridge of sufficient height to allow the . passage of cattle that the company would con- struct their fences to each side thereof, so as not to impede the passage thereunder. — Held, reversing the judgment appealed from (11 Out. App. R. 306), Ritchie, C.J., dissenting, that unaer the agreement the only obligation on the company was to maintain a cattle pass so long as the trestle bridge was in existence, and did not prevent the discontinuance of the trestle and substitution of a solid embankment therefor without providing a pass under the embankment. {Canada Southern By. Co. v. Clouse (13 Can. S. C. R. 139) referred to.) Canada Southern Ry. Co. v. Erwin, xiii., 162. See No. 41, ante. 43. Farm crossings — Servitude — Arts. 540-5U C. C— Right of way— Brand Trunk Railway of Canada — Interpretation of Statute — " The RaUioay Act " of Canada, s. 191 — 16 Vict. c. 37, s. 2—18 Vict. c. S3, s. 4—U cG lo Vict. c. 51—42 Vict. c. 9, s. 16 (i>.)— Constitutional law—Jurisdiction of Provincm Lcnislature.] — An owner whose lands adjoin a railway subject to " The Railway Act " of Canada, upon one side only, is not entitled to have a crossing over such railway under the provisions of that Act, and the special sta- tutes in respect of the Grand Trunk Railway of Canada do not impose any greater liabihty in respect to crossings than " The Railway Act " of Canada. Midland By. Go. v. CribUe. 1801 EAILWAYS. 1203 ffl895] 2 Ch. 827) and Canada Southern Ry. ho. V. Clo-use (13 Can. S. C. R. 139) [No. 41, ante,] referred to. — The Provincial Legisla- tures in Canada have no jurisdiction to make regulations in respect to crossings or the struc- tural condition of the roadbed of railways sub- ject to the provisions of " The Railway Act " of Canada. Canadian Pacific Ry. Co. v. Corporation of Notre-Dame de Bonsecours ([1899] A. C. 367) followed. Grand Trunk Ry. Co. v. Therrien, xxx., 485. 44. Farm crossings — Pilling in at trestle — Easement — Right of way — JJser — Prescrip- tion.] — A railway passed over N. % lots 32, 33 and 34, respectively, 8th concession, North Dumfries, having a trestle bridge over a ravine on 34, near the boundary of 33. G., owner of 33 (except the part owned by the railway com- pany) for a number of years used the passage under the trestle to reach a lane on S. % 34 over which he could pass, his predecessor in title (who owned all these lots), having used the same route for the purpose. The company having filled up the ravine, G. applied for in- junction to have it re-opened. Held, revers- ing the judgment appealed from (27 Ont. App. E. 64) that such user could never ripen into a title by prescription of the right of way nor entitle G. to a farih Crossing on lot 34. Can- adian Pacific Ry. Co. v. Outhrie, xxxi., 155. 45. Railway culverts — Fencing — Negligence —Cattle on highway — 51 Vict. c. 29, s. 19Jf — • 53 Vict. c. 28, s. 2.] — A railway company is under no obligation to erect or maintain a fence on each side of a culvert across a water- course and where cattle went through the cul- vert into a iield and thence to the highway and straying on to the railway track were killed, the company was not liable to their ovfner. Taschereau, J., dissenting. Orand Trunk Ry. Co. v. James, xxxi., 420. 46. Riparian rights — Access to river — Ob- struction of way. See No. 68, infra. 7. Injuries to Persons. 47. Notice at crossing — Negligence — Run- ning trains through town — Contributory negli- gence — Insurance on life of deceased— Reduc- tmn of damages.] — In an action for causing the death of plaintiff's husband by negligence. It was proved that the accident occurred while the train was passing through the Town of btrathroy; that it was going at a rate of over 30 miles an hour; and that no bell was rung nor whistle sounded until a few seconds before the accident. Held, affirming B i7?f™^°' appealed from (13 Ont. App. *'• 174), that the company was liable in aamages.— For the defence it was shewn that v?''!- ^^^ driving slowly across the track wuh his head down and that he did not at- tempt to look out for the train until shouted to Dy some persons who saw it approaching, wnen he whipped up his horses and endea- wn J t° ^™^ across the track and was oiled. Against this there was evidence that there a curve in the road which would prevent the train being seen, and also that the Zi °?^, at. the station would interrupt the tHhv,V ^ ^yy fo"tid that there was no con- anS w ^ negligence. Held, per Ritchie, C.J., and Fouruier and Henry, jf J., that the fending VI cue jury should, not be disturbed. Strong, Taschereau and Gwynne, JJ., contra. — The lite of deceased was insured, and the judge de- ducted the insurance from the damages as- sessed. The Divisional Court overruled this, and directed the verdict to stand for the full amount found by the jury. This was af- firmed by the Court of Appeal. Held that the judgment appealed from (13 Ont. App R , 174). m this respect should be affirmed. Grand Irunk Ry. Go. v. Beckett, xvi., 713. [Leave to appeal to Privy Council was re- fused. In Grand Trunk Ry. Co. v. Jennings (13 App. Cas. 800), this case was discussed and approved.] 48. Negligence — Broken rail — Effect of cli- mate — Latent defects — Arts. 1053, 1675 C. C] — Where the breaking of a rail is shewn to be due to the severity of the climate and the suddenly great variation of the degrees of tem- perature, and not to any want of care or skill upon the part of the railway company in the selection, testing, laying and use of such rail, the company is not liable in damages to a passenger injured by the derailment of a train through the breaking of such rail. Pournier, J., dissenting, on the ground that as the acci- dent was caused by a latent defect in the rail in use, which was known or ought to have been known to the com??any, the company were responsible. Judgment appealed from (M, L. R. 3 Q. B. 324) reversed. Canadian Pacific Ry. Co. V. Ghalifoux, xxii., 721. 49. Defective snow-plough and bridge — De- railment of train — Contributory negligence — findings of jury — Failure to answer questions — Nev} trial.] — A locomotive engineer in the company's employ was killed through the de- railing of a snow-plough and consequent break- ing of a bridge. The jury found that the de- railing was the proximate cause of the acci- dent ; that deceased was not guilty of .contri- butory negligence ; that the snow-plough and bridge were defective and that the train crew was insufficient. They answered, " We do not know " to the questions, as to whose negli- gence caused the accident ; whether or not the defects were known to defendant before or at the time of accident, or could have been dis- covered by careful inspection ; whether de- fendant was aware of insufficiency of the crew ; whether different construction of the bridge would have secured tho safety of the train ; whether deceased knew the train was off the track before it reached the bridge, and if by reasonable care of the deceased or crew, the accident could have been prevented. The court below were equally divided as to neces- sity for a new trial. The trial judge instruct- ed that the proximate cause was what Caused the accident and not that without which it would not have happened. The court below were also divided in opinion on this point. The Supreme Court of Canada ordered the new trial and affirmed the holdings of the judgment appealed from (27 N. S. Rep. 4:98), in other respects. Pudsey v. Dominion At- lantic Ry. Co., XXV., 691. 50. Regular depot— Traffic facilities— Rail- way crossings — Negligence — Walking on Ime of railway — Trespass — Invitation — License — 51 Vict. c. 29, ss. 21fO, 256, HIS (D.) J— A pas- senger aboard a railway train stormbound, at a place called Lucan Crossing, on the Grand Trunk Railway, left the train and attempted to walk through the storm to his home a few miles distant. Whilst proceeding along the line of the railway', in the direction of an ad- 1'203 EAILWAYSt 1204 jacent public highway, he was struck by a locomotive engine and killed. There was no depot or agent maintained by the company at Lucan Crossing, but a room in a small build- ing there was used as a waiting room, pas- senger tickets were -sold and fares Charged to and from this point, and, for a number of years, travellers had been allowed to make use of the permanent way in order to reach the nearest highways, there being no other passage way provided. — In an action by his adminis- trators for damages : — Held, reversing the judgment appealed from (24 Ont. App. R. 672), Taschereau and King, JJ., dissenting, that notwithstanding the long user of the per- manent way in passing to and from the high- ways by passengers taking and leaving the company's trains, the deceased could not, un- der the circumstances, be said to have been there by the invitation or license of the com- pany at the time he was killed, and that the action would not lie. Grand Trunk liy. Vt>. V. Anderson, xxviii., 541. 51. Qovernment railways — Injury to em- ployee — Lord Campbell's Act — Art. 1056 G. G. — Exoneration from liability — R. S. G. c. 38, s. 50. J — Art. 1056 C. C. embodies the action previously given by a statute of the Province of Canada re-enacting Lord Campbell's Act. Robinson v. Canadian Pacific Ry. Go. ( 11892] A. C. 481) distinguished. — A workman may so contract with his employer as to exonerate the latter from liability for negligence, and such renunciation would be an answer to an action under Lord Campbell's Act. Griffiths v. Earl Dudley (9 Q. B. D. 357 followed.*— In s. 50 of the Government Railways Act (R. S. C. c. 38) providing that " Her Majesty shall not be relieved from liability by any notice, con- dition or declaration in the event of any dam- age arising from any negligence, omission or default of any oiEcer, employee or servant of the minister," the words " notice, condition or declaration " do not include a contract or agreement by which an employee has re- nounced his right to claim damages from the Crown for injury from negligence of his fel- low-servants. Grand Trunk Ry. Go. v. Vogel (11 Can. S. C. R. 612) disapproved. An em- ployee on the Intercolonial Railway became a member of the Intercolonial' Railway Relief Assurance Association, to the funds of which the Government contributed annually $6,000. In consequence of such contribution a rule of the association provided that the members re- nounced all. claims against the Crown arising from injury or death in the course of their em- ployment. The employee having been killed in discharge of his duty "by negligence of a fellow servant ; Held, reversing the judgment of the Exchequer Court (6 Can. Ex. C. R. 276); that the rule of the association was an answer to an action by his widow under art. 1056 C C. to recover compensation for his death.* — The doctrine of common employment does not prevail in the Province of Quebec. The Queen v. Filion (24 Can. S. C. R. 482) followed. ' The Queen v. Grenier, xXx., 42. 52. Operation of passenger trains — Negli- gence — Injury to passengers in sleeping ierih-J —While in a sleeping berth at night a passen- ger believing thai she was riding with her back to the engine, tried to turn around in the berth and, the car going round a curve at the time, she was thrown out on to the floor and injured. In an action against the ' railway ' See foot note to col. 9(57, ante. ■ company for damages it was- not shewn that the speed of the' train was .excessive or that there was any defect in the roadbed at the place where the accident occurred to which it could be attributed. Meld, reversing the judg- ment appealed from, that the accident could not be attributed to any negligence of the ser- vants of the company which would make it liable in damages to S. therefor. Canadian Pacific Ry. Go. v. Smith, xxxi., B6T. 53. Public work — Negligence of Grown ser- vant — 50 (& 51 Vict. c. 16.\ — The Crown is liable for negligence of its servants in the ope- ration of a Government railway. The Queen v. Martin, xx.. 240. See NEGLlGEisrcE, 206. 54. Defective Air-brakes — Level crossing — Vis major — Operation of railway. See No. 99, infra. 55. Government railway — Injury to passen- ger — Condition of roadbed. See No. 100, infra. 56. Operation of railways-Ringing beU and whistling at level crossing — Injury to person using highway. See No. 101, infra. 57. Train approaching siding — Bells and whistles — Horses taking fright — Negligence. See No. 104, infra. 58. Running trains — Ringing bell — • Em- ployee injured in station yard — Workmen's Compensation Act — Contributory negligence. See No. 105, infra. 59. Public planked way — • Invitation — Im- prudence — Negligence — Running of trains. See No. 106, infra. 60. Running of trains — Injury to persons and venicle on highway — Ringing bell, &c — Horse taking fright. See No. 107, infra. 61. Ferry landing — Insufficient lighting of wharf — Want of due care — Gates left open. See Negligence, 85. 62. Carriage of passengers — Broken rail — Latent defect. See No. 10, ante. 63. Packing of frogs, wing-rails, dc. — Per- sonal injuries — Negligenoe. See No. 17, ante. ^ 64. Injury to employee — Negligence 'of con- ductor — Authority — Unsatisfactory findings of jury- — Interference on appeal. See Negligence, 212. 65. Injury to employee — Grass on siding-^ Negligence. ' See No. 18, ante. 66. Shunting cars — Injury to person using level , crossing — Warning — Negligence. See No. 112, infra.. 120S EAILWAYS. 1206 ; atia.D^feative %og,ys — Loch on switph — As- sessment of damages. 'See No. 113, infra. G7. Operation of railway — Defective ma- ehinery — Contributory negtigenca — Disobedi- ence of orders — Hunning rules. See No. 119, infra. 67o. Overhead Iridge — Headway — Foreign car transferredr^Liabilit'y of Canadian com- pany — Infury to hrakesman standing on top of car higher .than permitted J)y regulations. See No. 19, ante. 676. Heavily loaded train — Running up- grade — lipdrks from engine — Negligence. See No. 69, infra. a. Injuries to Pkopebty. 68. Ripa/rian rights — Navigahle river — Ac- cess— Ohstruction — Damages — 43 d 4i Vict. c.iS (Que^) — Action.] — A riparian owner can recover damages from a railway company for injury and diminution of value to his pro- perty, by reason of obstruction of access be- tween it and a navigable river and where the comBany has npt complied with the provisions of 4a & 44 Vict. c. 43, s. 7, s.-ss. 3-5 (Que.), the owner has a remedy by action. The judg ment appealed from (4 Uor. Q. B. 258; 12 Q. L. K.' 205) was reversed. Pion v. North more liy, Co., xiy., 677. [This judgment was affirmed on further ap- ' (MApp. Gas. 612) by the Privy Coun- cil. 69. ■Rurmim.g'. of- trains' — Negligence — Sparks from locomotive-^B.- 8. G. c. 109, s. 27 — 51 Vict. c. 29, s. 287 — Limitation of actions — "Damage."] — ' Running a train too heavily laden on an up-grade, when there was a strong wind, caused an unusual quantity of sparks to escape from the. locomotive, whereby the respondents' barn, situated in close proximity to the railway track, was set on fire and de- sti'oyed. . Held, affirming the judgment appeal- ed from (M. L. R. 5 Q. B. 122; 34 L. C. Jur. 06), that there was sufficient evidence of negli- gence to make the company liable for the dam- age caused by the fire.— Per Gwynne, J. The damage" referred to in R. S. 0. c. 109, s. ^7, and 51 Vict. c. 29, s. 287, is " damage " "one by the railway itself, and not by reason of the default or neglect of the company run- ning the railway, or of a company having run- ning powers over it; and- therefore the pre- scription of six months referred to in said sec- tions IS not available in an action like the present JfortA Shore By. Co. v. McWillie, ifii., 511. 10. Leased lines —' Damage to lands— Gon- ™ of porks—Lialility of lessee— Evidence.] Rr n™/° the Case against the Grand Trunk J^J. V- for depriving plaintiff of access from ns property to the street by building an em- oanKment Defendants claimed the work was flone by the P. & C.Lake Ry. Co. who were Me parties, if any, liable: The Grand Trunk I»u 2' /? acquired the use ol the P. & C. rm.r.SI'j^"'-^ '^"^ and its president and offi- twS^^ ™-°^' °^ *-^^ latter company's stock ; "e construction Was paid for by Grand Trunk J^- Ijo,, the engineer in charge of the work got his instructions from and .the roadmaster and foreman were in the employ of the Grand Irunk Ky. Co. Held, affirming the juugment appealed from, that the evidence established the .liability of the defendants. Grand Trunk Hy. Go. V. Fitzgerald, .xix., 359. 71. Construction .of railway — Authority to use streets — Nuisance — Damages — 16 Vict. c. 100 J SO Vict. c. 2, s. i (D.) — Kight of action ] —By 16 \ict. c. 100, the North Shore Ry. Co. was authorized to construct a railway to con- nect Quebec and Montreal, with the restric- tion that the railway was not to be brought within the limits of the city without the per- mission expressed by a by-law. — In July, 1872 the city council, by resolution, had given the company liberty to choose one of the streets to the north of St. Francis street in exchange for St. Joseph street, which had been at one time chosen for that purpose. In 1874 the city Council were informed by the company that the line of railway had been located in Prince Edward street, and the company asked the council to take the necessary steps to legalize the line, but the corporation did not take any further action in the matter. In 1875, the company being unable to carry, on its enterprise, the railway was transferred to the Province of Quebec, and the transfer rati- fied by 39 Vict. c. 2 (D.), the name of the railway being changed. The Legislature au- thorized the construction of the road to deep water in the port of Quebec ; declared that the railway should be a public work and should be made in such places and in such manlier as the Lieutenant-Governor in-Council should determine and appoint as best adapted to the general interest of the province. After the passing of this Act the Provincial Govern- ment caused the road to be completed, and it crossed part of the City of Quebec from its western boundary by passing through Prince Edward street along its entire length. — The road was completed in 1876. In 1878, L., owner of houses on Prince Edward street, sued the city for damages on account of the con- struction and working of the railway. Held, affirming the judgment appealed from, that he had no right of action against the corporation for damages suffered by the construction and working of the railway in question. If the corporation gave the authorization required by 16 Vict. c. 100, s. 3, there was a complete justification of the acts complained of. The imposing of terms was discretionary with the corporation. But the corporation never acLed on the demand to legalize, and never author- ized, the building of the railway through Prince Edward street. If the corporation could have prevented the Government from constructing the railway in the streets of the city in the face of the provisions of 39 ViCt. c. 2,' L. could also have prevented it. His re- course, if any, was not against the corpora- tion but against the Provincial Government, the owners of the railway. Lefebvre v. Gity of Quebec, Cass. Dig. (2 ed.) 176. 72. Construction of railway — Prescription — Commencement — Continuing damage — 1 orti- ous act— Liability for act of contractor.]— The prescription of a right of action for mjury to property, through the construction of a rail- way runs from the time the wrongful act was committed,: notwithstanding the injury re- ■ mains as a continuing cause of damage trom year to year, when the damage results exclu- sively from that act and could have been tore- seen and Claimed for at the time.— A company 1207 RAILWAYS. 1208 building a railway is not liable for injury to property caused by the wrongful act of their contractor in borrowing earth for embank- ments from a place, and in a manner not au- thorized by the contract. Kerr v. Atlantic and North-West Ry. Co., xxv., 19T. 73. Defective machinery— N egligenceSparks from engine or '' hot-box " — Damages by fire — Evidence — Burden of proof — C. G. art. 1053 — Questions of fact.] — In an action against a railway company for damages for loss of pro- perty by fire alleged to have been occasioned by sparks from a defective engine or hot-box of a passing train, in which the court appealed from held that there was not sufficient proof thac the lire occurred through the fault or negligence of the company and it was not shewn that such finding was Clearly wrong or erroneous, the Supreme Court would not in- terfere with the finding. Judgment appealed from (Q. R. 9 S. C. 319) affirmed. tSenesac V. Ventral Vermont By. Co., xxvi., 641. [Followed in Grand Trunk Ry. Co. v. Rain- ville (29 Can. S. C. E. 201), No. 74, infra. 74. Negligence — Findings of jury — Evidence — Concurrent findings of courts appealed from.'] — In an action against a railway com- pany for damages in consequence of plaintiffs' property being destroyed by fire alleged to be caused by sparks from an engine of the company the jury found, though there was no direct evidence of how the fire occurred, that the company negligently permitted an accumu- lation of grass or rubbish on their road oppo- site plaintiffs' property which, in case of emis- sion of sparks or cinders, would be dangerous ; that the fire originated from or by reason of a spark or cinder from an engine ; and that the fire was communicated by the spark or cinder falling on the company's premises and spreading to plaintiffs' property. A verdict against the company was sustained. Held, af- firming the judgment appealed from (25 Ont. App. R. 242), and following Senesac v. Cen- tral Vermont Ry. Co. (26 Can. S. C. R. 541) ; George Matthews Co. v. Bouchard (28 Can. S. C. R. 580) ; that the jury having found that the accumulation of rubbish along the railway property caused the damages, of which there was some evidence, and the finding having been affirmed by the trial court and Court of Ap- peal, it should not be disturbed by a second appellate court. Grand Trunk Ry. Co. v. Rainville, xxix., 201. See Negligence, 121, and No. 73, ante. 75. Running of trains — Sparks from engine — Fire communicated from company's pre- mises — U Geo. III. c. 78, s. 86 (Imp.) — Questions for jury. 'ir^Action against the com- pany for negligence causing destruction of re- spondent's buildings by fire from one of their locomotives. The freight shed of the company was first ignited by the sparks and the fire extended to respondent's premises. The fol- lowing questions were submitted and answers given by the jury : — " Q. Was the fire occa- sioned by sparks from the locomotive? A. Yes. Q. If so, was it caused by any want of care on the part of the company or its servants, which, under the circumstances, ought to have been exercised V A. Yes. Q. If so, state in what respect you think greater care ought to have been exercised? A. As it was a special train and on Sunday, when employees were not on duty, there should have been an extra hand on duty. Q. Was the smoke stack furnished with as good apparatus for arresting sparks as was consistent with the efficient working of the engine? If you think the apparatus was defective, was it by reason of its not be- ing of the best kind, or because it "was out of order? A. Out of order." — Verdict for plain- tiff for $800 was unanimously sustained by the Queen's Bench Division. Held, affirming the judgment appealed from, Henry, J., dissenting, 1. That the questions were proper questions to put to the jury and that there was sufficient evidence of negligence on the part of the appel- lant's servant to sustain the finding. 2. M a railway company are guilty of default in the discharge of the duty of running their locomo- tives in a proper and reasonable manner, they are responsible for all damage which is the natural consequence of such default, whether such damage is occasioned by fire escaping from the engine coming directly in contact with and consuming the property of third per- sons, or is caused by the burning property of the railway company, ignited by fire escaping from the engine, coming directly in contact therewith. 3. The statute 14 Geo. III. c. 78, s. 86, which is an extension of 6 Anne c. ^1, ss. 6 & 7, is in force in the Pi-ovince of On- tario as part of the law of England introduced by the Constitutional Act, 31 Geo. III. c. 31, but has no application to protect a party from legal liability as a consequence of negligence. Canada Southern Ry. Go. v. Phelps, xiv., 132. 76. Government railway — JfS Vict. c. 8 — ■ Damage from overflow of water — Boundary ditches.'\ — Held, affirming the judgment ap- pealed from (2 Ex. C. R. 396), that under 43 Vict. c. 8, confirming the agreement of sale to the Crown of the Rivifire du Loup branch of the Grand Trunk Railway, the Crown cannot be held liable for damages caused from the accumulation of surface water to land crossed by the railway since 1879, unless it is caused by acts or omissions of the Crown's servants, and as the damages in the present case appear, by the evidence relied on, to have been caused through the non-maintenance of the boundary ditches of claimant's farm, which the Crown is under no obligation to repair or keep open, the appellant's claim of damages must be dis- missed. Morin v. The Queen, xx., 515. 77. Sparks from locomotive engine — Defec- tive construction — Destruction of timber. See No. 103, infra. 78. Negligence in approaching crossing — Ringing bell, dc. — Injury to persons and vehicle — Horse taking fright. See No. 107, infra. 79. Parkdale subways — ■ Misfeasance — iS Vict. c. 45 (Ont.)— 46 Vict. c. 24 (D.)— Lia- bility for injury to property. See TOET, 2. 80. Public work — Construction of trestles — Interference with private property — Injury caused by the works — Damages peculiar to the property in question — Compensation — Emi,- nent domain. See Public Wokk, 4. 81. Location of permanent way-^-Fencing-- Laying out boundaries — Construction of deed — Estoppel by conduct — Words of limitation — Registry laws — Notice of prior title — Riparian EAILWAYS. 1210 riffkts — Possession — AcqtUsitive possession — Tenant iy suff ranee— Emphyteutic lease — Do- m« ^'I'J; tliat the president X;?/ ^^" '^sreed to accept an additional ™d idy on an extension of their line of rail- for ti f ,"" difficulties and signed a receipt Z ^^''^'ance of $6,500 due on account of diLiJifo/"''^"^?- '^^ P««"°° of "gl": was P afed frn™'^'^* ?.®™i°g the judgment ap- Slnh-n, i,,^.''"=''^''«^" ^""^ Sedgewick, J J., Sf^^Vi''^' ^''^ statute and documents 'sued on did not create a liability on the part of the Crown to pay the money voted to the rl^^t h company, enforceable by petition of right , but assuming it did the letter and receipt signed by the president of the com- pany did not discharge the Crown from such obligation to pay the subsidy, and payment by the Crown of the sub-contractors' claim out ot the subsidy money, without the consent ot the company, was a misappropriation of the subsidy. Hereford Ry. Co. v. The Queen XXIV., 1. * ' 133. Railway subsidy — Dominion Lands Act — Reservation in grant.'] — By an equal division of opinion, the Supreme Court affirm- ed the decision of the Exchequer Court (8 Ex. C. R. 83) by which it was held that lands granted as subsidy to railways under 53 Vict, c. 54 (D. ). were subject to the existing regu- lations respecting reservation of baser min- erals in the grants thereof, notwithstanding that there was no reference thereto in the orders-in-council allotting the lands to the rail- way, and that the grant was expressed in the statute to be a free grant subject merely to costs of survey. Calgary d Edmonton Ry. Co V. The King, 29th April, 1903. [Leave to appeal to the Privy Council was granted, July, 1903.] 134. Action — Condictio indebiti — Repeti- tion de I'indu — Fictitious claims — ilitrepre- sentation — Evidence — Onus probandi — Art. s. 194". lOliS, lllfO, C. C. — Railway subsidies — 04 ^ ic-t. c. S8 (Que.) — Insolvent company — Construction of railroad by new company — Paiyment of claims by Crown — Transfer by payee. See Action, 14. 13. Taxes. 135. Assessment and taxes — Tax on rail- u'ay — N. S. Railway Act — Exemption — Mining company — Construction of railway —R. S. X. S. (5 ser.) c. 53.1— By R. S. N. S. (5 ser.) c. 53. s. 99, s.-s. 30, the road, bed, &c., of all railway companies in the province is exempt from local taxation. By s. 1 the first part of the Act, from ss. 5 to 33 inclusive- ly, applies to every railway constructed and in operation or thereafter to be constructed un- der the authority of any Act of the legisla- ture, and by s. 4. part 2, applies to all rail- ways constructed under authority of any snecial Act and to all companies incorporated for their construction and working. By s. 5, s.-s. 15, the expression " the company " in the Act means the company or party authorized by the special Act to construct the railway. Held, reversing the decision appealed from (24 N. S. Rep. 496), Gwynne, J., dissenting, that part one of this Act applies to all rail- ways constructed under provincial statutes and is not exclusive of those mentioned in part two ; that a company incorporated by an Act of the legislature as a mining company with power '• to construct and make such railroads and branch tracks as might be necessary for the transportation of coal from the mines to the place of shipment and all other business necessary and usually performed on rail- roads," and with other powers connected with the working of mines " and operation of rail- ways," and empowered by another Act (49 Vict. c. 45 [N.S.] ) to hold and work the railway '■ for general traffic and the convey- ance of passengers and freight for hire, as 1233 EAILWAYS. 1224 well as for all purposes and operations con- nected with said mines in accordaflce with and subject to the provisions of part second of c. 53, R. S. N. S. 5 ser., entitled ' of rail- ways,' " is a railway company within the meaning of the Act ; and that the reference in 49 Vict. c. 145, s. 1, to part two does not prevent said railway from coming under the operation of the first part of the Act. Inter- national Coal Co. v. County of Cape Breton, xxii., 305. 136. Municipal corporation — Railways — Taxation — By-laws — Construction of statute — Voluntary payment — Action en repetition —20 Vict. c. 57, s. 21 {Can.)— 29 d 30 Vict. c. 57 (Con.)]— The statute 29 Vict. c. 57, (Can.), consolidating " and amending the Acts and ordinances incorporating the City of Que- bec, by s.-s. 4 of s. 21, authorizes the making of by-laws to impose taxes on persons exercis- ing certain callings, " and generally on all trades, manufactories, occupations, business, arts, professions or means of profit, liveli- hood or gain, whether hereinbefore enumer- ated or not, which now or may hereafter be carried on, exercised or in operation in the city ; and all persons by whom the same are or may be carried on, exercised or put in operation therein, either on their own account or as agent for others : and on the premises wherein or whereon the same are or may be carried on, exercised or put in operation." Held, that the general words of the statute quoted are sufiBciently comprehensive to auth- orize the imposition of a business tax upon railway companies ; and further that the power thus conferred might be validly exer- cised by the passing of a by-law to impose the tax in the same general terms as those expressed in the statute. Judgment of the Court of Queen's Bench (Q. R. 8 Q. B. 246) affirmed. Canadian Pacific Ry. Co. v. City of Quebec; Grand Trunk Ry. Co. v. City of Quebec, xxx. 73. 137. Exemption from taxes — Bridges and tracts — Navigable waters — 40 Vict. c. 29, ss. 326, 321 (Que.) — Municipal boundary— 43 & U Vict. c. 62 (Que.). See Assessment and Taxes, 41. 138. Municipal tax — St. John, N. B., city assessment — .52 Vict. c. 27, s. 21 (N.B.) — Alteration of statutory form — Arbitrary rat- ing — Appeal. See Assessment and Taxes, 9. 139. Municipal corporation — By-law — As- sessment — Local improvements — Agreement with owners of property — Construction of subway — Benefit to lands. See JIuNiciPAL Cobpobation, 126. 14. Telegbaph Lines. 140. Telegraph lines — Foreign corporation — Monopoly — Public policy — Restraint of trade. See Comity. 15. Tbaffic Akbanqements. 141. Agreement icith foreign company — • Lease of road for term of years — Transfer of corporate rights.'] — The Canada Southern Ry. Co., by its charter and amendments thereto, has authority to enter into agreement with any other railway company with resi)ect to traffic arrangements or the use and working of the railway or any part thereof, and by the Dominion Railway Act of 1879 it is auth- orized to enter into traffic arrangements and agreements for the management and work- ing of the railway with any other railway company, in Canada or elsewhere, for a per- iod of twenty-one years. Held, reversing the decision appealed from (21 Ont. App. R. :i97i, that authority to enter into an arrangement for- the " use and working " or " management and working " of its road conferred upon the company a larger right than that of making a forwarding agreement or of conferring run- ning powers ; that the company could lawfully lease a portion of its road to a foreign com- pany and transfer to the latter all its rights and privileges in respect to such portion, and the foreign company in such case would be protected from liability for injury to property occurring without negligence in its use of the road so leased, to the same extent as the Can- ada Southern Ry. Co. is itself protected. Michigan Central Rd. Co. v. Wealleans xxiv., 309. 142. Carriage of goods — 'Connecting lines — Contract for through transit — Warehousing — Bailment — Joint tort feasors — Loss after transit. See No. 3, ante. 143. Defective construction of roadbed — Level of crossing — Approaches to creasing — Impairing highway — Liability of companies using railway. See No. 16, ante. 144. Transferring foreign cars — Overhead bridge-^Headway — Injury to brakesman — Liability of Canadian company. See No. 19, ante. 16. Other Matters. 145. Issue of bonds — 39 Vict. c. 57 (Q.), — Condition precedent — Certificate of engin^ eer — Parol evidence — Onus probandi.] — The L. & K. Ry. Co. incorporated in 1869 [32 Vict. c. 54 (Q.)]. to construct a railway a distance of 90 miles, was authorized by that Act to issue bonds for construction, limited by 36 Vict. c. 45 (Q.), to $3,000,000 in amount but without limitation of time, and without restriction as to length of the railway. In 1874, 37 Vict. c. 23 (Q.). declared that de- bentures to the amount of $280,000 had al- ready been issued, and limited the future issuing of bonds to £300,000 stg., to be issued: — 1st. issue £100.000 at once; 2nd. issue £100.000 when 45 miles should have been completed and in running order, as certified by the government inspecting engineer, and 3rd, issue £100.000 as soon as 30 additional miles — all 75 miles — should have been com- pleted, with the same privilege for the three issues. In 1875. 39 Vict. c. 57 amended the condition as to the third issue and enacted " so soon as the rails and fastenings required for the completion of the remaining .45 miles or thereabouts of the company's line shall have been provided, then the remaining 1.000 bonds of £100 each, to be termed the third 1225 EAILWAYS. 1226 issue may be issued by the company." The preamble declared : " Whereas it appears that a total length of 45 miles of the company's line having been, completed, a first and second issue each of £100,000 of the company's de- bentures have been made." — In March, 1881, the railway was sold by the sheriff and brought by the Q. C. Ky. Co., for $195,000. In April, 1881, the City_ of Quebec filed an opposition afin de conserver for $218,099, the amount of 300 debentures of £100 sterling and interest of the second series issued on 25th January, 1875, payable 1st January, 1894, and for payment of which opposants alleged the railway, was hypothecated. The Q. C. Ry. Co., also Opposants in the case, con- tested the opposition of the city, and claimed the issue of the bonds of the second issue held by appellant was illegal. At the trial no certificate was produced but the govern- ment engineer stated that he had reported to the minister that there were only 43% miles completed, and the secretary of the company testified that the total length of railway cer- tified by the government engineer as being completed and in runing order had never ex- ceeded 43% miles. The trial Judge found that there were only 43% miles completed and held the bonds of the second issue invalid. This judgment was aflirmed by the Queen's Bench. Held, reversing the judgment appealed from (Ritchie, O.J., and Strong, J., dissenting), that the effect of 39 Vict. c. 57, is to make the bonds therein mentioned good, valid and binding upon the company, although the con- ditions precedent specified in 37 Vict. c. 23, might not have been fulfilled when they were issued. — Per Pournier and Henry, JJ., that as there was evidence that a certificate or re^ port had been given, oral evidence of the con- tents of the certificate or report was inad- missible and therefore respondents had failed to prove the illegality of the second issue. C% of Quebec v. Queiec Central Ry. Co., X., 563. [The Privy Council allowed leave to appeal in this case, but the appeal was not prose- cuted.] 146. Consolidated Railway Act, 1879, 42 Vict. c. 9 ■ — Special Act — Canadian Pacific Railway, 44 Vict. c. 1 — Powers to huild ^beyond terminus.] — The Canadian Pacific Ry. Co. have power, under their charter, to extend their line from Port Moody, in British Colum- bia, to English Bay. (Henry, J., dissented). Canadian Pacific Ry. Co. v. Major, xiii., 233. 147. Official arbitrators — Intercolonial rail- nay extension — Damages — ^2 Viet. e. 8.] — Petition of right for ^damages by the I. C. Ry. extension destroying appellant's road and impelling it to sell plant, &c.. at a loss. A deinurrer argued before Richards, O.J., was allowed on the ground that the only remedy was by reference to the official arbitrators (2 Ex. C. R. 433). On a refer- ence to the official arbitrators the special terms were that " Whereas, the company "™ed damages by reason of the construction ? +?* ^' ^^"' ^^^ requested a reference JO the official arbitrators under the statutes in that behalf: 1. That the company shall, Zw? ""^ matter is entered upon before the amtrators, furnish to the Government a state- ment ot the various claims classifying sep- ™'^'y each kind of claim. 2. That the Gov- u? I°l ^^™''' liability to the extent by law .S }° ""^^s compensation. 3. That the armtrators shall deal with each separate kind of claim separately, reporting findings as to the facts connected therewith, and compensa- tion (if any) which should be made. 4. That either party shall be at liberty to make this submission a rule of the Exchequer Court pursuant to 42 Vict. c. 8 (D.), and to pro- ceed under the provisions of said Act before that court with respect to the award, or any part thereof. 5. That any judgment, order, rule or decision of the Exchequer Court in the premises may be appealed from to the Su- preme Court pursuant to s. of the Act. The H. C. Ry. Co^ lodged a claim stating the following claims for compensation : — 1. Total loss as a chartered property possessing ex- elusive privileges within the city, with all its plant and real and personal properties, the estimated value of which was at the date of the Government taking possession of the trapk the sum of $260,000. 2. Damage for the dividing of the road into two portions ren- dering each valueless, and thus, in other words, destroying the whole value $260,000. 3. Damages actually done to the crossing for loss in having to sacrifice horses, plant and properties which were sacrificed in conse- quence, and for general depreciation in value of their real property, and for loss of the charter and the privileges and rights guaran- teed under it by the Provincial Legislature, $260,000. 4. Interest at 6% per annum oh the amount to be allowed for damages from the time of breaking up the track (17th May, 1876 ) . — The matter was heard on the sub- mission and on 27th August, 1880, the follow- ing award was made. " 1. We find with re- gard to the first item of the claim, that the company are not entitled to recover for the loss of their railroad and its plant and real and personal properties, because that (railroad was neither totally or partially lost by any actual interference of the Government with the company's property. 2. We find, with re- gard to the second item of the claim, that the company are not entitled to be paid any com- pensation, because the Government have not " divided the railroad into two portions, ren- dering each valueless," or destroyed the value of the railroad. 3. We find, with regard to the third item of the claim, that the com- pany is not entitled to any compensation, because the Government did no actual dam- age to the crossing, and because the company were not obliged to sacrifice horses, plant, or properties, in consequence of any act of the Government, and did not suffer any deprecia- tion in the value of their real estate within the meaning of 31 Vict c. 12, and did not lose their charter and the privileges and rights guaranteed under it by any act of the Gov- ernment. 4. We find, with regard to the fourth item of the claim, that nothing is due to the company for interest. — On appeal Henry, J., gave a judgment for $8,000. (2 Ex. C. O. 449.) The Supreme Court held, Henry, J., dissenting, that an appeal of the H. S. Ry. Co should be dismissed with costs, and an appeal by the Crown should be al- lowed with costs. Halifax City Ry. Co. v. The Queen, Cass. Dig. (2 ed.) 37. 148 Constitutional law — Legislative juris- diction—Portage extension R. R. V. Radway —Reference under 51 Vict. c. 29. s. W— 51 Vict. c. 5 (Man.)— Railway Act, mm (D.) ss. 306 d 307— R. S. C. c. 109, s. 121.] —Under 51 Vict. o. 5 (Man.) the railway commissioner was constructing the I ortage extension of the R. R. V. Railway, from Wra- nipes to Portage-la-Prairie, in Jlanitoba, and 1227 EAILWAYS. 1228 made application to the Railway Committee of the Privy Council of Canada under s. 173 of the Railway Act of 1888 (D.), for approval of the place at which and the mode by which it was proposed to cross the Pem- bina Mountain branch of the Can. Pac. Ry. The following question was submitted : — Is the said statute of Manitoba, in view of the provision of c. 109, R. S. C, particularly s. 121 thereof, and in view of the Railway Act of 1888, particularly ss. 306 & 307, valid and effectual so as to confer^ authority on the railway commissioner in said statute of Mani- toba mentioned, to construct such a railway as the said Portage extension of the R. R. V. Ry. crossing the Can. Pac. Ry., the Railway Committee first approving of the mode and place of crossing, and first giving their dir- ections as to the matters mentioned in ss. 174, 175 & 176 of the said Railway Act?— The Court was unanimously of opinion that the said statute of Manitoba was valid and effectual so as to confer authority on the railway commissioner in the said statute of Manitoba mentioned, to construct such a rail- way as the Portage extension of the R. R. V. Ry. crossing the Can. Pac. Ry., the Rail- way Committee first approving of the mode and place of crossing and first giving their directions as to the matters mentioned in ss. 174, 175, & 176 of the said Railway Act. In re Portage extension of the Red River Valley Railway, Cass. Dig. (2 ed.) 487. 149. Title to land — Tenant for life — Con- veyance to railway loompany iy — Railway Acts—C. 8. C. c. 66, s. 11, s.-s. l—2lf Vict, c. 11, s. i.]— By C. S. C. c. 66, s. 11 (Rail- way Act ) , all corporations and persons what- ever, tenants in tail, or for life, grevis de sub- stitution, guardians, &c., not only for and on behalf of themselves, their heirs and succes- sors, but also for and on behalf of those whom they represent . . . seized, possessed of or interested in any lands, may contract for, sell and convey unto the company (railway company), all or any part thereof; and any contract, &c., so made shall be valid and effectual in law. Held, affirming the decision appealed from (19 Ont. App. R. 265), that a tenant for life is authorized by this Act to convey to a railway company in fee, but the company must pay to the remainderman or into court the proportion of the purchase money representing the remainderman's in- terest. Midland Ry. of Canada v. Yoiina. xxii., 190. 150. Findings of jury — Answers to ques- tions — New trial — 'Negligence — Railway com- pany — Act of iivcorporation — Change of name.] — Where it appeared on the argument before the Supreme Court of Canada, that the jury had not properly answered some of the questions submitted to them at the trial, a new trial was ordered. TNote. — In other re- spects the judgment of the Supreme Court of Nova Scotia (27 N. S. Rep. 498) was affirmed.] Pudsey v. Dominion Atlantic Ry. Co., XXV., 691. 151. Constitutional law — Powers of Cana- dian Parliament — Prohibited 'contract — Con- solidated Railway Act, 1879.'] — For the rea- sons given by the judgment appealed from, (Q. R. 8 Q. B. 555), the Supreme Court of Canada affirmed the judgment appealed from which held, that the " Consolidated Rail- way Act, 1879," s. 19, s.-s. 16 the legislative jurisdiction of the Parliament of Canada, which, having power to legislate on railway matters, could also legislate on all incidents required to carry out the ob- jects it had in view connected with and prim- arily intended to assist in carrying out such principal object ; that the capacity of direc- tors was such an object, essentially connected with the internal economy of a railway com- pany ; that a contract prohibited by statute is void although not specially stated to be so in the statute which merely provides a penalty against an offender, and that, where the pre- sident of a railway company, subject to that Act, entered secretly into partnership with contractors for the construction of the rail- way, no action could be maintained upon the partnership contract by him against his part- ners. Macdonald v. Riordon, xxx., 619. 152. Railway — Highway crossing^Control of streets — Compensation to municipality — Terminus " at or near " point named.] — Authority to a company to build a railway em- powers them to cross every highway between the termini without permission of the munici- pal authorities being necessary and without liability to compensate the municipalities for the portions of the highways taken for the road. A charter authorized construction of a railway from Vaudreuil to a point at or near Ottawa, passing through the Counties of Vaudreuil, Prescott and Russell. Held, that if it were necessary the railway could pass through the County of Carleton, in which the City of Ottawa is situated, though it was not named. Held, also, that in this Act the words "at or near the City of Ottawa," meant " in or near " said city. — Judgment of the Court of Appeal (4 Ont. I/. R. 56), affirming the judgment at the trial (2 Ont. L. R. 386) affirmed. City of Ottawa v. Canada Atlantio Ry. Co.; City of Ottawa v. Montreal d Ot- tawa Ry. Co., sxxiii., 376. 153. Location of permanent way — Fencing — Laying out of boundaries — Construction of deed — Estoppel by condwct — Words of limit a- tion — Registry laws — Notice of prior title — Riparian rights — Possession — Acquisitive pre- scription — 2'enant bii suffrance — .\rts. 569, U72, IW, 1393. 2193. 2196. 22^.3. 2251 C. C. —.4)*. 77 C. P. Q.—lJf d- 15 Vict. c. 51—25 Vict. c. 61, s. 15 — Findings of fact — Assess- ment of damages — Emphyteutic lease — Do- ma ine direct — Domaine utile — Alienation — Right of action — Adding 2)arties.] — A rail- way company purchased land from P-, bounded by a non-navigable river, as " se- lected and laid out " for their permanent way. Stakes were planted to shew the side lines, but the railway fencing was placed, at some of the disputed points, above the water- line, although the company could not have the quantity of land conveyed unless they took possession to the edge of the river. P. re- mained in possession of the strip of land between the fence and the water's edge and of the bed of the stream ad medium filum, and, after the registration of the deed to the company, sold the rest of his property in- cluding water rights, mills and dams con- structed in the stream to the defendant's auteur, describing the property sold as " in- cluding that part of the river which is not Included in the right of way, &c." The plain- tiffs never operated their line of railway but, immediately on its completion, under powers conferred by their charter, and The Railway . -. „ w, TT=.j. K1 inooo to another company and the railway has been ever since operated by other companies under the lease. ^ The plaintiffs' action petitoire, in- cluding a claim for damages, was met by pleas (1) that the lease was an alienation of all plaintiffs' interest in the lands occupied by the railway and left them without any right of action; (2) that the right of way sold never extended beyond the fencing, such being the interpretation placed upon the conveyance by permitting P. to retain possession of the strip of land in question and the river ad medium filum; (3) that by ten years' posses- sion as owner in good faith under translatory title the defendant had acquired ownership by the prescription of ten years and (4) that, by thirty years' adverse possession without title, the defendant and his auteurs had ac- quired a title to the strip of land and riparian rights in question. On appeal the Supreme Court, Held, 1. That the description in the deed to the railway company included, ex jure naturw, the river ad medium filum uquw aB an incident of the grant and that their title could not be defeated by subsequent con- veyance through their vendor and warrantor, notwithstanding that they may not have taken physical possession of all the lands described in the prior conveyance. 2. That the posses- sion of the strip of land and the waters and bed of the river ad medium filum by the ven- dor and his assigns, after the conveyance to the company, was not the possession anhno domini required for the acquisitive prescrip- tion of ten years under art. 2251 C. C., but merely an occupation as tenant by suffrance upon which no such prescription could be based.— 3. That the failure of the vendor to deliver the full quantity of land sold and the company's abstention from troubling him in his possession of the sam6 could not be con- strued as conduct placing a construction upon the deed different from its clear and unam- biguous terms or as limiting the area of the lands conveyed.— 4. That the terms of the de- scription in the subsequent conveyance by P. t(^ the defendant's auteur were a limitation equivalent to an express reservation of that part of the property which had been pre- viously conveyed to the company and pre- venteji the defendant aicquiring title by ten T'* Pfesei'iption, and further that he was caarged with notice of the prior conveyance turough the registration of the deed to the company.— 5. That the acquisitive prescrip- ,,°^ thirty years under art. 2242 C C. could not run in favour of the original vendor WHO had warranted title to the lands con- t^^tl ^^ company because, after his sale to tnem, he could not possess any part of the property which he had failed to deliver animo domini nor in good faith. — The judgment ap- peaiea trom was reversed on the questions of aw as summarized, Davies. J., dubitantr, but IZ ^oinRs, on conflictory testimony in re- m«.; . aamages, made by the trial judge m?Lf°°* "disturbed on the appeal!— On the S ?? ?' ^^/ ^^ *° t^e right of action to re- ™rm„„ .^^ ^^^ f°^ damages caused to the ^Z;^T ^^^; " ^'is Held, affirming the pnS "' ^PP^aled from, that the lease to the companies which held and operated the rail- Sir.^Tv,'"'^*'^ '° ""^ emphyteutic lease as- t ff^' .; \!i^ ?°mame utile and all the plain- ins hn^ ™ ^^^P^'^' «f tlie railway, reserv- ^mw^^^r^i""' ^^^ domaine direct, and, cori- rn^nJ'-^^'' plaintiffs had the right of action althonlir ^.\°wners of the legal estate, aitiough the right of action for the damages, any, sustained would belong to the lessees. Semlle, that, if necessary, the lessees might have been allowed to be added as parties, plaintiffs in the action, in order to recover any damages which might have been sus- tained, if there had been any satisfactory proof that damages had been caused through the fault of the defendant. iJassawippi Val- ley By. Go. V. Heed, xxxiii., 457. 154. Statutory powers to liorrow — Mort- gage of railway — Sale of rights—Ultra vires. See Mortgage, 19. 155. P.). See Statutes, 3. And see Dttties. REVERSION. 1. Mortgage — Leasehold premises — Terms of mortgage — Assignment or sub-lease. See Lease, 5. 2. Mortgage — Leasehold estate — Assign- ment of equity of redemption — Acquisition of reversion hy assignee — Priority — Merger. See Mortgage, 65. 3. Rideau Canal — Eminent domain — Ex- propriation — Lands not used for public pur- poses — Re-vesting Act. See RiDEATj Canal Lands, 1, 2. REVIEW^, COURT OF. See Court of Review. REVIVOR. See Reprise d'Instajntce. REVOCATION OF JUDGMENT. See Opposition — Requete Civile. RIDEAU CANAL LANDS. 1. Pleading — Statute of Limitations — Maintenaniee — Agent of the Crown — Public works — Purchase in conflict with public use — Rideau Oanal Act — Trustee — Compensation — Lands talcen for canal purposes — Arbitration —Estoppel — Res judicata — Laches.] — Under the Rideau Canal Act, 8 Geo. IV. .;. 1, By, employed to superintend the work, set out 110 acres, part of 600 acres theretofore granted to one G. McQ., as necessary for making and completing the canal, but only M acres were actually necessary and used for canal purposes. G. McQ. died intestate, leav- es A. McQ., her husband, and W. McQ., her eldest son and heir-at-law. her surviving. Af- ter her death, on the 31st January, 1832, A. McQ. released to W. McQ. all his interest "/aid lands, and on the 6th February. 1832, vy. McQ. granted to Bv all the lands pre- viously granted to his mother. By died 1st February, 1836.— Under 6 Wm. IV. c. 16. per- sons who acquired title to lands used for the PWDoses of the canal after the commencement 01 me works, but who had purchased before snch commencement, were enabled to claim compensation.— By 7 Vict. c. 11 (Can.), the ™7^".'-«nal and its lands and works were 'ested in the principal officers of H. M. Ord- nance in Great Britain, and s. 29 enacted: Provided always, and be it enacted, that all land taken from private owners at Bytown under the authority of the Rideau Canal Act for the uses of the canal, which have not been used for that purpose, be restored to the party or parties from whom the same was taken. — 9 Vict. c. 42 (Can.), recited that the fore- going proviso had given rise to doubt as to its true construction, and enacted that it should be construed to apply to all the land at Bytown set out and taken from S., under 8 Geo. IV. c. 1, except portions actually used for the canal, and provision was made for payment of compensation to S. for the land retained for canal purposes, and for re-vesting in him and his grantees the portions taken, but not required for such purposes. — By the 19 & 1!0 Vict. c. 45, the Ordnance properties became vested in Her Majesty for the uses of the late Province of Canada, and by the B. N. A. Act, 1867. they vested in Her Majesty for the use of the Dominion of Can- ada. — The suppliants, legal representatives of By, brought a petition of right, to have Her Majesty declared a trustee for them of all said lands not actually used for the purposes of the canal, and praving that such lands might be restored to them, and the rents and profits paid, and as to parts sold the value thereof with rents and profits prior to sale. — The Attorney-General contended that no in- terest in the lands set out by By passed to W. McQ.. but the claim for compensation or damages for taking said lands was personal estate of ,G. McQ., and passed to her personal representative ; that the deeds of the 31st .lanuary, and Cth February, 1832, passed no estate or interest, the title and possession of the lands being in His Majesty ; that the deeds were void under 32 Hy. ^TII. c. 9; that (par. 9) By was incapable, by reason of his posi- tion, of acquiring any beneficial interest in said lands as against His Majesty; that (pars. 10. 11, 12 and 13). By took proceedings under 8 Geo. IV. c. 1, to obtain compensation for the lands in question, but the arbitrators, and a jury, decided that he was not entitled to compensation by reason of enhancement of value of his other land and advantages ac- crued by the building of the canal; that this award and verdict were a bar to suppliant's claim; that the proviso of 9 Vict. c. 42. was confined to S. and did not extend to the lands in question; that pars. 16, 17, 18 and 19) by virtue of 2 Vict. c. 19, and a proclamation m pursuance thereof, all claims for damages whiph might have been brought under 8 Geo. IV. c. 1, by owners of lands taken for the canal, including claims of the said G. McQ., By, or their respective representatives, were, on and after the 1st April, 1841, forever barred ; that the suppliants were barred hy their own laches ; and that they were barred by the Sta- tute of Limitations. — On a special case stated for the opinion of the court. Held, by Rich- ards, C.J. sitting as a judge of the Exchequer Court of Canada : 1. The Statute of Limita- tions was properly pleadable under s. i ot the Petition of Right Act of 1876.— 2. A^ . McQ. took the lands by descent from his mother, if she died before the lands were set out and ascertained for the purposes of the canal. If she died afterwards, he did not as they were vested in the Crown, under 8 Geo. iy._ c. i. SS 1 & H, and her right was converted into a claim for compensation under the 4th sec- tion.— 3. This right of compensation or dam- ages, if asserted under Geo. l^ . c. 1, s. 4. would go to G. McO.'s personal representa- tives but if the land was obtained by sur- render under the 2nd section of the statute, then the heir-at-law of G. McQ. would he 1255 EIDEAU CANAL LANDS. 1256 the person entitled to receive the damages and execute the surrender. — 4. The deeds of the 31st January, and 6th February, 1832, are void as against the Crown so far as they relate to the acres in dispute, except so far as the same may be considered as a surrender to the Crown under the 2nd section of the Rideau Canal Act. — 5. The 9th paragraph of the defence is a sufficient answer in law to the petition. — 6. The defence set up in the 10th, 11th, 12th and 13th paragraphs of the statement would be sufficient in law, suppos- ing the statements therein to be true. — 7. The proviso of 9 Vict. c. 42, s. 29, was con- fined in effect to the lands of S. only. — 8. If the claim is to be made by G. McQ.'s personal representatives under the 4th section of the Rideau Canal Act (and any claim by her could only be under that section) the Act re- ferred to in the 16th, ITth, 18th and 19th paragraphs of the defence apply to this case and would bar all claims to be made under the Rideau Canal Act. — As to the claims made by the heirs of By, they have no claims under any of the statutes. — ^9. If the Ordnance Vest- ing Act vested the 110 acres in question in the heirs of By, the court was not prepared to say that their claim had been barred by laches on the statement set out in the peti- tion. But the statute had not that effect, nor had By or his legal representatives ever had for his or their own use and benefit any title to these 110 acres. Tylee v. The Queen, vii., 651. 2. Expropriation of lands — Eminent do- main — Ordnance lands — Laying out and as- certaining — Rights of the Crown — Reversions under statute — XJser hy Grown — Public ioork ■ — Construction of deed — Title to lands — Es- toppel — Trust — Fiduciary agents — Limitation of actions — Petition of Bight Act — Unlawful conveyance — Trust estate — Maintenance — Vesting in Crown for use of Canada — Appeal failing on equal division — Costs.] — Under 8 Geo. i\'. c. 1, " Rideau Canal Act." Col. By, who was employed to superintend the work of making said canal, set out and ascertained 110 acres or thereabouts part of 600 acres or thereabouts theretofore granted to G. JIcQ. as necessary for making and completing said canal, but only some 20 acres were actually used for canal purposes. G. McQ. died intes- tate, leaving A. McQ., her husband, and W. McQ., her eldest son and heir-at-law, her surviving. After her death, on 31st January, 1832, A. McQ. released to W. JIcQ. all his interest in said lands, and on 6th February, 1832, W. McQ. conveyed the whole of the lands originally granted to G. McQ. to By in fee for £1,200. The appellant, heir-at law of W. McQ., by petition of right sought to re- cover from the Crown 90 acres of the land originally taken by By. but not used for the purposes of the canal, or such portion thereof as still remained in the hands of the Crown, and an indemnity for the value of such por- tions of these 90 acres as had been sold by the Grown. — By 6 Wm. IV. c. 16, persons who acquired title to lands used for purposes of the canal after the commencement of the works, but who had purchased before such commencement, were enabled to claim com- pensation. — By the Ordnance Vesting Act, 7 Vict. c. 2. the Rideau Canal, and the lands and works belonging thereto, were vested in the principal officers of H. M. Ordnance in Great Britain, and by s. 29 it was enacted : " Provided always, and be it enacted that all lands taken from private owners at Bytown under the authority of the Rideau Canal Act for the use of the canal, which have not been used for that purpose, be restored to the party or parties from whom the same were taken." —By 9 Vict. c. 42, an Act of 7th Vict. e. 11, was explained, and it was recited that the foregoing proviso had given rise to doubts as to its true construction, and it was enacted that the proviso should be construed to apply to all the land at Bytown set out and ascer- tained and taken from Nicholas Sparks, under 8 Geo. IV. c. 1, except certain portions actu- ally used for the canal, and provision was made for payment of compensation to Sparks for the land retained for canal purposes, and for re-vesting in him and his grantees the portions of lands taken, but not required for such purposes. — ^By 19 and 20 Vict. c. 45, the Ordnance properties -became vested in Her Majesty for the uses of the late Province of Canada, and by the B. N. A. Act (18671, they became vested ^in Her Majesty for the use of the Dominion of Canada. — The appel- lant, the heir-at-law of William McQueen, by her petition of right sought to recover from the Crown 90 acres of the land originally taken by Colonel By, but not used for the pur- poses of the canal, or such portion thereof as still remained in the hands of the Crown and an indemnity for the value of such portions of these 90 acres as had been sold by the Crown. — The case was heard in the first in- stance by Gwynne, J., in the Court of Exche- quer, who held : 1. Under the statute of 8 Geo. IV., the original owner and his heirs did not become divested of their estate in the land until the expiration of the period given by the Act for the officer in charge to enter into a voluntary agreement with such owner. Nor was there any conversion of realty into personalty effected by the Act until after the expiration of said period. By the deed by W. McQ. of 6th February. 1832, all his estate in the 110 acres as well as in the residue of the (500 acres, passed and be- came extinguished, such deed operating as a contract or agreement made with Col. By as agent of His Majesty within the provisions of the Act, and so vesting the 110 acres ab- solutely in His late Majesty, his heirs and successors. — 2. Such deed was not avoided by the statute, 32 Hy. VIII. c. 9, Col. By being in possession as the servant and on behalf of His Majesty and taking the deed from W. McQ., while out of possession, the statute having been passed to make void all deeds executed to the prejudice of persons in pos- session, under the circumstances stated in the Act. — 3. There was no reversion or re- vesting of any portion of the land taken by reason of its ceasing to be used for canal purposes. When land required for a particu- lar purpose is ascertained and determined by the persons provided by the Legislature for that purpose, and the estate of the former owner of the land has been by like authority divested out of him and vested in the Crown, or in some person or body authorized by the Legislature to hold the expropriated lands for the public purpose, if the estate of Which the former owner is so divested be the fee simple, there is no reversion nor anything in the nature of a reversionary right left in him by virtue of which he can at any sub- sequent time claim upon any principle of the common law to have any portion of the land of which he was so divested to be revested in him by reason of its ceasing to be used for the purpose for which it was expropriated. — i. Assuming that G. McQ. had by operation of the Act become divested of her estate in, the land in her lifetime, and that her right had become converted into one merely of a right 1257 EIDBAU CANAL LANDS. 1258 to compensation which, upon her death, passed as personally, the non-payment of any demand which her personal representative might have had could not be made the basis or support of a demand at the suit of the heir-at-law of W. McQ. to have re-vested in him any por- tion of the lands described in the deed of 6th February, 1832, after the execution of that deed by him, whether effectual or not for passing the estate, which it professed to pass. 5. The proviso in 7 Vict. c. 11, s. 29, as explained by 9th Vict. c. 42, was limited in its application to the lands which were originally the property of Sparks, and not conveyed or surrendered by voluntary grant executed by him, and for which no compensa- tion or consideration had been given to him. — 6. Her Majesty could not be placed in the position of trustee of the lands in question unless by the express provisions of an Act of Parliament to which she would be a con- senting party. (16 Can. S. C. R. 1 ; 1 Ex. G. E. 366) . — On appeal to the Supreme Court it was Held, — Per Ritchie, C.J., : By the deed of 6th February, 1832, the title to the lands passed out of W. McQ. ; but as- suming it did not, he was estopped by his own act and could not have disputed the valid- ity and general effect of his own deed, nor could the suppliant who claims under him. — 2. Per Ritchie, C..T.. Strong and Gwynne, JJ. The suppliant is debarred from recovering by the Statute of Limitations, which the Crown has a right to set up in defence under the 7th section of the Petition of Right Act of 1876. —3. Per Strong, J. Independently of this section, the Crown, having acquired the lands from persons in favour of whom the statute had begun to run before the possession was transferred to the Crown, the body incor- porated under the title of " The Principal OfScers of Ordnance." would be entitled to the benefit of the statute. — 4. Per Strong, J. The Act 9 Vict. c. 42. had not the effect of restricting the operation of the re-vesting clause of 7 Vict. c. 11, to the lands of Nicholas Sparks, and was passed to clear up doubts as to the case of Nicholas Sparks, and not to de- prive other parties originally coming within 7 Vict. c. 11, s. 29, of the benefit of that enactment.— 5. Per Strong, J. A petition of right is an appropriate remedy for the asser- tion by the suppliant of any title to relief under s. 29. Where it is within the power of a party having a claim against the Crown of such a nature as the present to resort to a petition of right, a mandamus will not lie, and a mai|^amus will never under any circum- stances be granted where direct relief is sought against the Crown. — 6. Per Strong. J. : By me express terms of the 3rd section of 8 wo. IV. c. 1. the title to lands taken for the purposes of the canal vested absolutely in the Uown so soon as the same were, pursuant to tae Act, set out and ascertained as necessary F the purposes of the canal, and all that A f^ ^' "^""'^ ^^^^ ^^^'^ entitled to at her Aft ™s the compensation provided by the Act to be ascertained in the manner therein prescribed, and this right to receive and re- S2™ij u money at which this compensation ^nouid be assessed vested, on her death, in aer personal representative as forming part ?L iirt"^'^""^' estate. Therefore, as regards it ™ 9 *™«s nothing passed by the deed of T/*™ary, 1882. And, up to the passing hoon -J ■ J^' ■^^' °o compensation had ever J™?.P3', that the sale was one by sample ; the bricks sold were not specifically asc'ertained, and there was no evi- dence from which it could be inferred that it was the intention of the parties the property in the bricks should pass before delivery. — Ap- peal allowed with costs. Temple v. Close, Cass. Dig. (2 ed.) 765. 1275 SALE. 1276 17. Construction of contract — Agreement io secure advances — Sale of goods — Pledge — Delivery of possession — Arts. J/Si. 1025, 1026, lUai, Hm, IJflJ,, U92, 1994 c. G. C— Bailment to manufacturer.'] — K. B. made an agreement with T. for the purchase of the oat- put of his sawmill during the season of 1896, s. memorandum being executed between them to the effect that T. sold and K. B. purchased all the lumber that he should saw at his mill ■during the season, delivered at Hadlow wharf, at Levis ; that the purchasers should have the right to refuse all lumber rejected by their .culler ; that the lumber delivered, culled and piled on the wharf , should be paid for at prices stated ; that the seller should pay the purchasers $1.50 per hundred deals, Quebec standard, to meet the cost of unloading cars. Classification and piling on the wharf ; that the seller should manufacture the lumber accord- ing to specifications furnished by the pur- chasers ; that the purchasers should make pay- ments in cash once a month for the lumber delivered, less two and a half per cent. ; that the purchasers should advance money upon .the sale of the lumber on condition that the ^seller should, at the option of the purchasers, furnish collateral security on his property, in- cluding the mill and machinery belonging to him, .and obtain a promissory note from his wife for the amount of each cullage, the ad- vances being made on the culler's certificates .shewing receipt of logs not exceeding $25 per hundred logs of fourteen inches standard ; that all logs paid for by the purchasers should be their jiroperty, and should be stamped with their name, and that all advances should bear interest at the rate of 7 per cent. Before the river drive commenced the logs were culled and received on behalf of the purchasers, and stamped with their usual mark, and they paid for them a total sum averaging $32.33 per hundred. Some of the logs also bore the sel- ler's mark, and a small quantity, which was buried in snow and ice, were not stamped, but were received on behalf of the purchasers along with the others. The logs were then allowed to remain in the actual possession of the seller. During the season a writ of exe- cution issued against the seller under which all moveable property in his possession was seized, including a quantity of the logs in .question, lying along the river drive and at the mill, and also a quantity of lumber into which part of the logs in question had been manufactured, at the seller's mill. Held, (Taschereau, J., taking no part in the judg- ment upon the merits), that the contract so made between the parties constituted a sale of the logs, and, as a necessary consequence, of the deals and boards into which part of them had been manufactured. King v. Dnpuis, dit Gilbert, xxviii., 388. 18. Contract — Agreement to supply goods — Property in goods supplied — Execution — ,Schi(re.~\ — By an agreement between 11., of the one part, and W. and wife of the other, the latter were to provide and furnish a store and H. to supply stock and replenish same when necessary ; W. was to devote his whole time to the business ; W. and wife were to make monthly returns of sales and cash bal- ances, quarterly returns and stock, &c., on hand and to remit weekly proceeds of sale with certain deductions. H. had a right at any time to examine the books and have an account of the stock. &c'., the net profits were to be shared between the parties ; the agree ment could be determined at any time by H. or by W. and wife on a month's notice. Held, that the goods supplied by H. under this agree- ment as the stock of the business were not sold to W. and wife, but remained the pro- perty of H. until sold in the ordinary course ; such goods, therefore, were not liable to seizure under execution against H. at the suit of a creditor. Ames-Holden Co. v. Hatfield, xxix., 95. 19. Contract — Sale of lumber — Inspec- tion.'] — A contract for the sale of lumber was made wholly by correspondence, and the let- ter which completed the bargain contained the following provision : " The inspection of this lumber to be made after the same is landed here" (at Windsor, Ont.), "by a competent inspector to be agreed upon between buyer and seller and his inspection to be final." Held, reversing the judgment of the Court of Ap- peal, that it was not essential for the parties to agree upon an inspector before the inspec- tion was begun ; and a party chosen by the buyer .having inspected the lumber and before his work was completed the seller having agreed to accept him as inspector, the contract was satisfied and the inspection final and bind- ing on the parties. Thomson v. Matheson XXX., 357. 20. Delivery — Bill of lading — Condition of prepayment — Principal and agent — 'Vest- ing of ownership. See CoNTKACT, 210. 21. Fish sold in storage — Part delivery — Lien for unpaid price — Consignment against supplies advanced. See Bailment. 22. Goods sold iy agent — Undisclosed prin- cipal — Right of action — Deficient delivery — Option to accept bill of lading or re-weigh — Estoppel — Tender and payment into court. See Action, 128. 23. Delivery of goods sold — " At " shed — " Into " shed or grounds adjacent. See Contract, 216. (c) Evidence. 24. Statute of Frauds — Memorandum in writing — Repudiating contract by.] — A writ- ing containing a statement of all the terms of a contract for the sale of goods requisite to constitute a memo, under the 17th section of the Statute of Frauds, may be used for that purpose though it repudiates the sale. Martin V. Haubner, xxvi., 142. 2."). Contract — Sale of goods by sample — Ob- jections to invoice — Reasonable time — Ac- quiescence — Evidence.] — If a merchant re- ceives an invoice and retains it for a consid- erable time without any objection, there is a presumption against him that the price stated in the invoice was that agreed upon. — Judg- ment of the Court of Queen's Bench, that the evidence was sufiicient to rebut the presump- tion, reversed, Gwynne J., dissenting, and holding that the appeal'depended on mere mat- ters of fact as to which an appellate court should not interfere. Kearney v. Letellier, xxvii., 1. 26. Contract — Evidence to vary written m- I strument — Admission of evidence.] — The Su- 1277 SALE. pi'eme Court of Canada affirmed the judgment appealed from (33 N. S. Kep. 21) which in effect held, under the special circumstances of the case, involving dealings with two companies coiinecLed in business and having almost simi- lar names, that it was not inconsistent with a written agreement with the plaintiff to prove that defendant supposed he was dealing with another party with whom he had made other arrangements in respect to payment for goods purchased. Wilson et al. v. Windsor Foundry Co., xxxi., 381. 27. Parol agreement — Memo, in wriiing — Delivery of goods — Utatule of Frauds. See Evidence, 82. 28. Incomplete contract — Sale of deals — New trial. See Contract, 129. 29. Sale of goods hy agent — Commission — Agent. See Peincipal and Agent, 52. 30. Contract iy correspondence — Accept- ance — Mailing — Delivery of goods sold — Domicile — Indication of place of payment. See Contract, 134. 31. Sale of monument by sample — Evi- dence of contract — Findings on contradictory evidence — Reversal on appeal — Praictice. See Evidence, 65. (d) Fraud. 32. Fraudulent scheme — Inadequate se- curity — Simulated hypothec — Suit for price.'] —Special counts in declaration, alleging that goods were sold to defendants on representa- tion that the latter were the holders for value ot a certam obligation and hypothec in their favour by E. for $3,000, payable by yearly mstalments of $1,000, with interest; that such obligation represented the balance due aelendants from E. on the purchase of real estate sold to E.. on which he had paid $300 at time of purchase, and that E. was a man ot means and had other property. The plain- «9nm ^''?'^ '° defendants to the amount of ilof 1 ' ^'^^ accepted as payment the first two mstalments of said obligation, which were duly assigned to him, the defendant E. being a^tnt /« '"?^ °* assignment, but afterwards Si .,.'¥ tfi°sfer. The declaration then alleged that the representations by defend- trl.r''"/'''^^ ^^'^ fraudulent; that the wm f? "f property to E. and the obligation tnm •f"."'''?'^'y "^"^e to enable defendants mvt f;,-,'^ '''''•'"° """"^^^ • that E. never paid ^ytliing on account for the purchase, or en- es^in^ i"*^^,?''""- ''"t defendants kept po.s- Sv ff! ??"ected the rents of the pro was a „ ^^- '^^''^i "°t a ™an of means, but or b.f,in!"'^'V^'l^ "°' carrying on any trade thn?T '' ^^'."^ "^« defendants knew, and ants ^^ simply a pretenom for defeud- commnn declaration also contained the Se nft^^"'"-. ^"^ plaintiff demanded the that tf. nM-^°1'?' ^"L*"" defendants, and prayed Plaintiff on^F^l'"" ^^ ^^t aside as regards the the a^J^t^?*^ S^t 't be declared that E. was that dpfirlfr,? t"""^ .°* *•»« defendants, and ot $2nnn -1 ''? ^ndemned to pay the sum fe-ee'was-th'n ^h"''ir''K^"'^ costs.-The de- •"ds tnat the allegations were false ; that 12 the transactions with E. were hona fide tl e sale an actual one ; that the in J ,1m ot said obligation were' accepted by pll" in payment of the goods after due iWu il'iintiff^ri'? '^''^ allegations were t Te pl.iutia could not maintain his present ad ^n^nHff T';'"'' ^?"" ^■"^'^ judgment for Plamtiff, tmding that the property was w mu<;h less than .f-.OOO; that E.^ never anything on the land or entered into po^ sion ; and that the deed to and obligMtioii f E. were simulated and frauduJent .ludgment was confirmed by the Court s^Hn/ ^//"m' •'«';'"?'^^ ^^"""^ =^"d Gross i.enUng.—McUl. aflirmmg the judgment apn ed Irom, that the evidence shewed a fmi oMn.-wi™" °° the part of the detendanti obtain the goods of the plaintiff and lo cl him out of the price by inducing him to cept au inadequate security; and that un the circumstauces the plaintiff was entitiec recover tor such price. Henry, J., dissent ~ler laschereau, J. The court should reverse the hiidings on a question of fact the two courts below, except under very usual circumstances, hays v. Oun/on (L T \q\ ,j' ' ^''"y ^'- '■'^'■^rnhull (L. E. 2 yj. i>6) \ Bell Y. Corporation of Quebec ^PP- ,^as. 94); Smith v. St. Lawrence i' G- 308). He agreed, however, \i the courts below on the facts. — Appeal missed ^^■ith costs. Black v. Wallcer G; I>ig. (2 ed.) 768. (e) Remedy of Unpaid Vendor. 33. IHtle to goods — Consignment subj to payment — Breach of condition — P chase for value.] — Plaintiff consigned cri oil to A., a refiner, on express agreement t no property in the oil should pass until made certain payments. A\'ithout making payments A. sold to defendants, without knc ledge of plaintiff, held, aflirming the Co of Appeal for Ontario (29 Gr. 300). that though defendants were purchasers for va from A., believing that he was owner, i plaintiff, under his agreement, having retail the property in the oil, and not having d( anything to estop him from maintaining right of ownership, was entitled to reco' from the purchaser the price of the oil. F ristal v. McDonald, ix., 12. 34. Goods consigned for sale — Bill of li iiig — Assignment — Property in goods Stoppage in trinisitu — Replevin.] — H., of S( ris, P. E. I., carried on the business of lobs packing, sending his goods for sale on co mission to a consignee at Halifax. N. S.. w supplied him with tin plates, &c. They h dealt in this way for several years, when. 1882. H. shipped 180 cases of beef via Pict and Intercolonial Eailway. addressed to hi the bill of lading providing that the got were to be delivered at Pictou. to the freig agent of the Intercolonial Eailway or his i signs, the freight to be payable in Halifi The consignee, being on the verge of insi vency, indorsed the bill of lading to JIcJ to secure accommodation acceptances, drew on the consignee Cor the value of the co sigument. but the draft was not accepted, a he directed the agent of the Intercoloni Eailway not to deliver the goods. The goo had been forwarded from Pictou, and t agent there telegraphed to the agent at Ha fax to hold them. McM. applied to the age 1279 SALE. 1280 at Halifax for the goods, and tendered the freight, but delivery was refused. In a re- plevin suit against the Halifax agent: — Held, affirming the judgment appealed from, Henry, J., dissenting, that the goods were sent to the agent at Pictou to be forwarded, and that he had no other interest in them, or right or duty connected with them, than to forward them to their destination, and could not authorize the agent at. Halifax to retain them. Held, also, that whether or not a legal title to the goods passed to McM., the position of the agent in retaining the goods was simply that of a wrongdoer, and McM. had such an equitable interest in such goods, and right to the posses- sion thereof, as would prevent the agent from withholding them. McDonald v. MoPTierson, xii., 416. 35. Conditional sale of goods — Suspensive condition — Moveables incorporated with free- hold — Immoveables by destination — Hypothe- cary charges — Arts. S75 et seq. C. C] — A sus- pensive condition in an agreement for the sale of moveables, whereby, until the whole of the price shall have been paid, the property in the thing sold is reserved to the vendor, is a valid condition. Banque d'Hochelaga v. Waterous Engine Works Co., xxvii., 406. 36. Materials for railway — ImmoveaMes iy destination — Receiver in possession — Unpaid vendor. See Lien, 3. 37. Sale of machinery — Resolutory condi- tion — ImmoveaMes by destination — Moveables incorporated with the freehold — Severance from realty — Hypothecary creditor — Unpaid vendor. See CoNTEACT, 66. (f) Other Gases. 38. Goods sold and delivered — Credit — Di- rection to juriy — Withdrawal of evidence from jury — Tslew trial.'] — In an action against McK. & M. for goods sold and delivered, plaintiff had sold the goods to defendants and on their credit, and his evidence was corroborated by defendant McK. The goods were charged in plaintiff's books to C. McK. & Co. (defendant McK. being a member of both firms), and cre- dited the same way in C. McK. & Co.'s books, notes of C. McK. & Co. were taken in pay- ment, and it was claimed that the sale of the goods was to C. McK. & Co. — The trial judge called the attention of the jury to the state of the entries in the books of plaintiff and of 0. McK. & Co., and to the taking of the notes, and to all the evidence relied on by the de- fence, and left it entirely to the jury to say as to whom credit was given for the goods. Held, affirming the judgment appealed from (•27 N. B. Rep. 42), Strong and Patterson, JJ., dissenting, that the case was properly left to the jury and a new trial was refused. Miller v. Stephenson, xvi., 722. 39. Trover — Conversion of vessel — Joint owners — Marine insurance — Abandonment — Salvage.} — A sale by one joint owner of pro- perty does not amount, as against his co- owner, to a conversion unless the property is destroyed by such sale or the co-owner is de- prived of all beneficial interest. Roiirke v. Union Ins. Co., xxiii., 344. 40. Mortgaged goods — Sale under powers — Chattel mortgage — Mortgagee in possession — Negligence — Wilful default — "Slaughter sale" ■ — Practice — Assignment for benefit of credi- tors — Revocation of.} — A mortgagee in pos- session who sells the mortgaged goods in a reckless and improvident manner is liable to account not only for what he actually receives but also for what he might have ob- tained for the goods had he acted with a pro- per regard for the interests of the mortgagor. — An assignment for the benefit of creditors is revocable until the creditors either execute or otherwise assent to It. — Under the provi- sions of R. S. O. c. 122, in order to enable the assignee of a chose in action to sue in his own name, the assignment must be in writing, but a written instrument is not required to restore the assignor to his original right of action. — Where creditors refused to accept the benefit of an assignment under R. S. O. c. 124, and the assignor was notified of such refusal and that the assignment had not been regis- tered, an action for damages was properly brought in the name of the assignor against a mortgagee of his stock in trade who sold the goods in an improper manner. Rennie v. Block, xxvi.. 356. 41. Mandate — • Partnership — Agency — Factor-^Pledge — Lien — Notice — Right of ac- tions-Intervention — Arts. 1139. 1740. 111^, 1975 C. CI — A partner entrusted with pos- session of goods of his firm for the purpose of sale may, either as partner in the business or as factor for the firm, pledge them for ad- vances made to him personally and the lien of the pledgee will remain as valid as if the security had been given by the absolute owner of the goods notwithstanding notice that the contract was with an agent only. — Where a consignment of goods has been sold and they remain no longer in specie, the only recourse by a person who claims an interest therein is by an ordinary action for debt and he cannot claim any lien upon the goods themselves nor on the price received for them. Dingwall v. McBean, xxx., 441. 42. Goods sold by agent in his own name — Contra account — Compensation. See Set-off, 1. 43. Droit de rdmire — Insurable interest of vendor. See Insurance, Fibe, 80. 44. Agent of foreign company — Pse of seat ■ — Seizure under attachment — Conversion. See Sheriff, 1. 45. Mortgaged goods — Proviso restricting sale — Stock in trade — Ordinary course of trade — Seizure— Justification. See Chattel Moktgagb, 10. 46. Goods sold in one lot — Lump priced- Contract by agent of independent firms — En- cess of authority — Ratification. See Principal and Agent, 4. 47. Cheese factory supply agreement -— Transfer of personal rights — Arts. 1510, 1517, 151S G. C. — Warranty — Eviction — Restitution — Pr6te-nom. See Action, 184. 1281 SALE. IS 48. Person to whom credit was given — As- signment ill trust — Power of attorney by'trus- jgg — ^itthoritiy of attorney to use principal's name — Evidence. See Debtor and Oeeditok, 46. 49. Sale of timber — Delivery — Time of pay- ment — Prcinolure uction — Vendor and pur- chaser. See Contract, 212. 50. Curator — Purchase of trust estate — Art. im 0. G. See Action, 132. 51. Contract — Shipping receipt — Carriers — Liability limited by special conditions — Negli- gence — Connecting lines of transportation, — Wrongful conversion — Sale of goods for non- payment of freight — Principal and agent — Varying terms of contract. See Carriers, 2. 3. Sale of Land. (o) Description and Boundaries. 52. Vnsurveyed lands — Unknown quantity — Sold by the acre — Contract — '' More or less " — WiU — Executors — Breach of trust — Specific performance.] — Executors were au- thorized by will to sell such portion of the real estate as they in their discretion should think necessary to pay off a mortgage and such debts as the personal estate would not discharge. They offered for sale at auction a lot described as " sixty acres (more or less) section 78. Loch End Farm, Victoria Dis- trict," and giving the boundaries on three sides. The lot was unsurveyed and offered for sale by the acre, an upset price of $35 being fixed. By the conditions of sale a survey was to be made after the sale at the joint expense of vendors and purchaser. — S. purchased the lot for lf3() per acre and on being surveyed it was found to contain 117 acres. The execu- tors refused to convey that quantity, alleging that only some .?2,000 was required to pay the debts of the estate, and refused to execute a deed of the 117 acres tendered to S. In a suit by S. for specific performance of the contract for sale of the whole lot. Held, reversing t' " judgment appealed from and restoring that the judge on the hearing (2 B. C. Rep. 67, , Gwynne, J., dissenting, that S. was entitled to a conveyance of the 117 acres, and that the executors would not be guilty of a breach of trust in conveying that quantity. Sea v. Mc- Lean, xiv.. 632. ict 53. Lots sold by plan — Closing lanes on sale plan — Easement — Estoppel — Acceptance of lease according to altered plan. See Title to Land, 33. 54. Sale of timber limits — Errors and omis- sions — Statement of account — Res judicata — Deed — Evidence. See No. 108, infra. o5. Sale of land — Building restrictions — Construction of covenant — Description — Street boundaries. See Contract, 15. ? m"'® "f ^"''"•d — Description in deed — Ex- tent~2 erminal point — Number of rods. See Deed, 24. S. C. D. — 41 57. Lands sold en bloc—Metes and bou —Uescnptton^-Cadastral plans—Possessio JSotiee of adverse title— Husband and wii Authorization. See Title to Land, 87. i in designation of i See Mistake, 7. 58. Mistake in designation of lands — Pri pal and agent. ( 6 ) Evidence. 59. Land sold by auction — Vendor not closed at sale — Subsequent correspondent Contract — Statute of Frauds. See Vendor and Poechaser, 3. ^ 60. Sale of mortgaged lands — Agreemei Statute of Frauds — Specific performance. See No. 95, infra. 01. Conditions — Notice to purchasers Error in mortgage — Rectification — Estoppt See Vendor and Purchaser, 19. 62. Sale of timber limits — Mortgage — _ take — Registration — Description — Wri, document. See No. 108, infra. 63. Agreement for sale — Fraud — Misre, sentation — Rescission. See Contract, 119. 64. Deed — Delivery — Retention by grai — Presumption — Rebuttal. See Evidence, 178. 65. Sale of leased premises — Parol ag mcnt — Misrepresentation — Statute of Fra\ See No. 110, infra. (c) Executions. 66. Purchase of land — Voluntary paym — Lien — Application of proceeds — In pleader — Lands taken or sold under err tion.i — Where the purchaser of land vol tarily paid to the sheriff the amount of an ecution in his hands in a bond fide belief t it was a charge upon the land. — Held, affi: ing the judgment appealed from (2 Man. R. 257), that a party ha%'ing a lien on s lands could not, under the Interpleader I claim the money so paid to the sheriff against the execution creditor, even whei-e had relinquished his title to the land to ens the owner to carry out the said sale, and i to receive a portion of the purchase monej Semble, that as the lands were neither " ta nor sold under execution," the case was within the Interpleader Act. Federal Bi of Canada v. Canadian Bank of Comme, xiii., 384. 67. Lands sold in execution — Adjudicatio Joint purchasers — Security to sheriff — /( adjudicataire in default — Sale a la f enchire—Art. 688. (i91. t)9A. 760 C. C. P.]- judicial sale, on 10th .July, 1875, appells S. respondent, L., and C. became joint i chasers of land for $2,500.— On 28th Aug 1875 the sheriff returned the writ statmg t he had levied a net sum of $2,352.90, wt 1283 SALE. 1284 had been paid to him by a bond as required by law, and that he held that sum subject to the order of the court. This pretended bond was in reality a " bon " in the following terms : "Good to S. D., sheriff, for $2,299.65, for value received, payable to his order. This bon serves as security in the matter No. 225 B. et al. V. Coti. Three liivers, 2nd August, 1875," and signed by the three purchasers, S., C. and L. — On the return distributions were made and L., the respondent, collocated for $1,876.- 70 and $259.93. — ^The appellant, McG., being a judgment creditor of S., the other appellant, intervened in the case to exercise the rights of his debtor. — On 5th March, 1883, L. served the judgments of distribution on appellant S., and on the representatives or C, deceased ; jiud on 2Uth of same month petitioned for an order to re-sell the property so purchased by himself jointly with the other "adjudicataires" for false bidding, and McG. appeared on the petition. — These proceedings being summary, no written answers were put in, and on 16th June following, the Superior Court ordered the re-sale for false bidding upon the purchas- ers, S. and C. alone ; and this judgment was affirmed by the Queen's Bench, at Quebec, on 7th May, 1884, modifying, however, the judg- ment by ordering the re-sale to be made upon the three " adjudicataires j" Monk and Ram- say, JJ., dissenting. — The question was, whe- ther or not L. could demand re-sale of a pro- perty of which he was a co-purchaser for false bidding, he himself being one of the '" adjudi- cataires " in default, who had retained the purchase money by giving their joint " bon," instead of furnishing the sheriff with the sure- ties required by law. Meld, per Strong, Henry and Taschereau, J J. (Ritchie, C.J., and Four- nier, J., dissenting), reversing the judgment appealed from, that the respondent was not en- titled to demand a re-sale. The bon was not a surety contemplated by art. 688 O. C. P. ;' and the three purchasers having made with the sheriff an agreement not contemplated by law, should be compelled to govern themselves according to that agreement, and the respond- ent's only course was by direct action against his co-debtors to recover from them their share. — Per Taschereau, J. The obligation contracted by S., C. and Li. in becoming joint purchasers at a judicial sale was a joint and several obligation, and it follows that their " bon " bound them jointly and severally also. Under such ap obligation they were responsible only towards each other for one-third of the purchase money, and each for the whole to the sheriff. By the judgments below, appel- lant S. found himself individually compelled to pay the full amount of the price of sale to respondent, to prevent the re-sale of the pro- perty (arts. 694, 760 C. C. P.) ; while, if there was any default, respondent was equally in default with his co-adjudicataires, and there could be no doubt a private agreement had been come to between the three purchasers which respondent sought to repudiate. — Per Ritchie, C.J., dissenting. McG. could be in no better position than his debtor, and to al- low him to get a third of this property as the property of S. without payment by himself or S. of % of the price which he was bound to pay, seems so unreasonable and unjust that it would be necessary to be satisfied beyond all doubt that the law was clear and unquestion- able on the point before sanctioning what ap- pears such manifest injustice. — Per Foumier, J., dissenting. The question whether there be- ing three joint purchasers who have all made default in paying the price of their adjudica- tion, one of them can, as hypothecary credi- tor mentioned in the certifiicate of registration and as a collocated creditor unpaid, proceed to a sale a la folle enchere of the land sold to the three purchasers, is very clearly settled by art. 691 C;. C. P. — The only right appellant had was to exercise the rights of S., his debtor, and if appellant wished to avail himself of those rights, he should fulfil the obligation of his debtor by paying his share of the adjudi- cation. He was seeking to have a third of the land adjudged to S. without paying the third of the price of adjudication which S. was bound to pay. — Appeal allowed with costs. McGreevy v. Leduc, Cass. Dig. (2 ed.) 801. 68. Sale of lands iy sheriff — Folle enchire — lie-sale for false iidding, arts. 690 et sea. G. C. P.— Art. 688 G. G. P—PrivUeges and hypothecs — Sheriff's deed — Registration of — Absolute nullity.l — Part of lands seized by the sheriff had been withdrawn beffore sale, but on proceedings for folle enchire it was ordered that the property described in the prods verbal of seizure should be re-sold, no reference being made to the part withdrawn. On appeal the Court of Queen's Bench re- versed the order on the gr6und that it dir- ected a re-sale of property which had not been sold and further because an apparently regu- lar sheriff's deed of the lands actually sold had been duly registered, and had not been annulled by the order for re-sale, or prior to the proceedings for folle enchire. Held, that the sheriff's deed having been issued im- properly and without authority should be treated as an absolute nullity notwithstanding that it had been registered and appeared upon its face to have been regularly issued, and it was not necessary to have it annulled before taking proceedings for folle enchire. Lambe V. Armstrong, xxvii., 309. 69. Description of subdivided lots — Lands seized in execution — Separate lots put up en bloo — Device to obstruct purchasers — Arts. 638, 714 G. C. P.—Proc^ verbal of seizure. See Shekiff, 2, 3. 70. Seizure of lands super non domino et non posstdente — Registration of deed. See Shekiff, 6. w 71. Sheriff's sale of land — Bond for price — ullity — Fraud— Opposition. See Sheriff, j,0. 72. Title to land — Sheriff's sale — Vacating sale — Refund of price — Exposure to eviction — Actio condictio indebiti — Substitution — Prior incumbrance — Discharge by sheriff's sale — Petition to vacate sheriff's sale. See Substitution, 9. 73. Levy under execution — Gharging lands — Territories Real Property Act — Tort — In- demnity to sheriff. See Shekiff, 13. 74. Interdiction — Marriage laws — Author- ization by interdicted husband — Dower— -Re- gistry laws — Sheriff's sale — Warrant-y — 8uo- cgssion — Renunciation — Donation. See Title to Land, 111. {d) Fraud. 75. Title to land— Vendor and purchaser- Deed of sale — Rescission — False representa- 1285 SALE. 1286 lions— Fraud — Joint UaliUty of parties who received consideration.} — May filed a bill to tet aside a sale of land, described in the deed to him as block No. .55, containing 52 lots ac- rarding to plan registered, alleging conspir- aov and false and fraudulent misrepresenta- tions effected under the following circum- stances— McL. and McA. were interested in a contract for the purchase of 3 blocks ot land containing 52 lots each, and JIcL. with McA's consent and sanction came to ioronto to sell the land. In Toronto G. met JIcL., and agreed to find purchasers, G. to get any money over $100 per lot. G. solicited May to purchase, stating that he had secured the lots for a very short time at $150 per lot, but that right was contingent upon his taking all the lots contained in 8 blocks offered, and representing that one block faced McPhillips street. May said he would purchase, pro- vided G., D. and he were co-partners or joint investors in the 3 blocks. An agreement was signed to that effect, but it was ultimately agreed that May should pay for and take the conveyance to himself of block 33 at $150 per lot. G. filled up a conveyance which had been signed in blank by McL.. of lot 35 from Mc.\. to May, and induced him to accept it without further inquiry by producing and de- livering a guarantee from McL., that he had a power of attorney from McA., and that the plan was registered and title perfect. May paid $5,200 cash and gave a mortgage for $2,500. G. got $2,500 of this money. May subsequently ascertained that the block in question did not front on McPhillips street, and that G. and D. were not joint investors with him, and that statements in the guar- antee were false. May prayed that the sale be set aside, the portion of the purchase money already paid be re-paid to him, and that the mortgage given to secure payment of the remainder be cancelled. Meld revers- ing the Court of Queen's Bench for Manitoba, that the false and fraudulent representations made by G. and McL., entitled May to the re- lief prayed tor against McA., McL. and G. jointly and severally. May v. McArthur, 20 0. L. J. 248; 4 C. L. T. 336; Cass. Dig. (2 ed.) 779. 76. Similated sale of lands — Gonveyamce in fraud of creditors generally — Insolvency. See Fbaudulekt Pbefekenoe, 4. 77. Agreement for sale — Misrepresentation — Rescission — Evidence. See CoHTEACT, 119. 78. Sale of leased premises — Parol agree- ment — Evidence — Misrepresentation. See 110, infra. (e) Mistake. 79. Sale of timber limits — Mortgage — Er- rors and omissions ' in account — Written in- strument — Evidence. See No. 108, infra. ^.Rescission of contract — Common error —Failure of consideration. See No. 88, infra. 81. Agreement for sale — Mutual error — Re- lorvation of minerals — Specific performance. See No. 89, infra. 82. Deitor and creditor — Payment — Ac- cord and satisfaction — Sale of land — Mistake in designation of property — Principal and agent. See Mistake, 7. U) liedemption; Droit de Rimere. 83. Right of redemption — Sale a rimere — Notice — Mise en demeure — Res judicata.] — Held, affirming the judgment appealed from, (M. L. R. 3 Q. B. 124), where the right of redemption stipulated by the seller entitled him to take back the property sold within three months from the day the purchaser should have finished a completed house in course of construction on the property sold, it was the duty of the purchaser to notify the vendor of the completion of the house, and in default of such notice, the right of redemp- tion might be exercised after the expiration of the three months. — There was no chose jugee between the parties by the dismissal of a prior action on the ground that the time to exercise the right of redemption had not arrived, and the conditions stipulated had not been complied with. Leger v. Fournier, xiv., 314. 84. Title to land — Right of redemption — Effect as to third parties — Pledge — Delivery and possession of thing sold.] — Real estate was conveyed to S. as security for money ad- vanced by him to the vendor, the deed of sale containing a provision that the vendor should have the right to a re-conveyance on paying to S. the amount of' the purchase money, with interest and expenses disbursed, within a certain time. S. subsequently ad- vanced the vendor a further sum. and ex- tended the time for redemption. The right of redemption was not exercised by the vendor within the time limited, and S. took possession of the property, which was subsequently seized under an execution issued by V., a judgment creditor of the vendor. S. then filed an oppo- sition claiming 'the property under the deed. Meld, reversing the judgment of the Court of Queen's Bench, that as it was shewn that the parties were acting in good faith, and that they intended the contract to be, as it pur- ported to be, une vente a remere, it was valid as such, not only between themselves but also as respected third persons. Salvas v. I assal, xxvii., 68. [Followed in The Queen v. Montminy (29 Can. S. C. R. 68).] See SciEE Facias, 2. 85. Sale or pledge — Vente a remere — Con- cealment — Registration — Transfer of Crown lands. Sec Scire Facias, 2. (g) Rescission. 86. Title to lands — Donation in form, of sale — Gifts in contemplation of death---Mor- tal illness of donor— Presumption of nullity— Validating circumstances — Dation en pay- ment— Arts. 762,989 C. C.]— During her last illness and a short time before her death, b. granted certain lands to V. by an instrument purporting to be a deed of sale for a price therein stated, but in reality the transaction was intended as a settlement of arrears of salary due by B. to the grantee and the con- 1287 SALE. 1288 sideration acknowledged by the deed was never paid. Held, reversing the decision of the Court of Queen's Bench, that the deed could not be set aside and annulled as void, under the provisions of article 762 of the Civil Code, as the circumstances tended to shew that the transaction was actually for good con- sideration (dation en paiement) , and conse- quently legal and valid. Valade v. Lalonde, xxvii.. 551. 87. Vendor and purchaser — Sale of leased premises — Termination of lease — Damages — Art. 1663 G. G.]— The Court of Queen's Bench for Lower Canada (Q. K. 7 Q. B. 293), reversed the decision of the trial court and held : That the purchaser of real estate to be delivered forthwith could not require the vendor to eject the tenants, the existence of leases being no impediment to immediate de- livery of the premises sold, and every sale being subject to existing leases up to the time of the expiration of the current term, and further, that if the purchaser refused to carry out the agreement for sale on the ground of the existence of such leases, he could not have the sale set aside {reseiliee) , with damages against the vendor. — On appeal the Supreme Court of Canada affirmed the judgment appealed from for the reasons stated in the Court of Queen's Bench and dismissed the appeal with costs. Alley v. Canada Life Assurance Co., 14th June, 1898, xsviii., 608. 88. Contract — Rescission — Innocent misre- presentation — Common error — Sale of land — Failure of consideration.'] — An executed con- tract for the sale of an interest in land will not be rescinded for mere innocent misre- presentation. But where, by error of both parties and without fraud or deceit, there has been a complete failure of consideration a court of equity will rescind the contract and compel the vendor to return the purchase money.- Thus where, on the sale of a mining claim, it turned out that the whole property sold was included in prior .claims whereby the purchaser got nothing for his money the contract was rescinded though the vendor acted in good faith and the transaction was free from fraud. Cole v. Pope, xxix., 291. 89. Sale of land — Agreement for sale — Mu- tual mistake — Reservation of minerals — Specifiic performance.} — The E. & N. Railway Company executed an agreement to sell cer- tain lands to H., who entered into possession, made improvements, and paid the purchase money, whereupon a deed was delivered to him, which he refused to accept, as it reserved the minerals on the land while the agreement was for an unconditional sale. In an action by H. for specific performance of the agree- ment the company contended that in its con- veyances the word " land " was always used as meaning land minus the minerals. Held, reversing the judgment of the Supreme Court of British Columbia (6 B. C. Rep. 228), Tas- chereau, J., dissenting, that the contract for sale being expressed in unambiguous language, and H. having had no notice of any reserva- tions, it could not be rescinded on the ground of mistake and he was entitled to a decree for specific performance. Hobhs v. Esquimau and Xanaimo liy. Co., xxix., 450. [Leave to appeal to the. Privy Council was granted (33 Can. Gaz. 393), but subsequently, on compromise between the parties, the appeal was dismissed for want of prosecution.] 90. Boundary of lands — Misrepresentation — Deceit — Rescission of contract — Evidence — No tice — Inquiry. See Title to' Land, 2. 91. Sale of land — Representation as to boundaries — Description — Executed contract — Deficiency — Fraud — Compensation. See Vendor and Ptjbchaser, 21. 92. Contract for sale of land — Misrepresen- tation — Fraud — Rescission — Evidence. See Contract, 119. 93. Title to land — Sale by auction — Agree- ment as to title — Breach — Rescission of con- tract. See Vendor and Purchaser, 22. 94. Sale of land — Error — Rescission of contract. See Vendor and Purchaser, 24. (h) Specific Performance. 95. Mortgaged lands — Agreement in writ- ing — Statute of Frauds — Matters for future arrangement — Equity of redemption — Specific performance.] — L. signed a document by which he agreed to sell lands to W. for $42,500, and W. signed an agreement to pur- chase the same. The document signed by W. stated that the property was to be purchased " subject to the incumbrances thereon." With this exception the papers were, in substance, the same, and each contained at the end this clause : " terms and deeds. &c., to be arranged by the 1st of May next." — On the day that these papers were signed L., on request of W.'s solicitor, to have the terms of sale put In writing, added to the one signed by him the following : " Terms, $500 cash this day, $500 on delivery of the deed of the Parker property, $800 with interest every three months until the $6,500 are paid, when the deed of the entire property will be executed." — The property mentioned in these documents was, with other property of L., mortgaged for $36,000. W. paid two sums of $500 and de- manded a deed of the Parker property, which was refused. — In an action against L. for specific performance of the above agreement, the defendant set up a verbal agreement that before a deed was given the other property of L. was to be released from the mortgage, and also pleaded the Statute of Frauds. Held, affirming the judgment of the Supreme Court (X. S.), Patterson. J., doubting, that there was no completed agreement in writing to sat- isfy the Statute of Frauds. — Per Ritchie, C.J-, the agreement only provides for payment of $6,500, leaving the greater part of the pur- chase money unprovided for. If W. was to assume the mortgage it was necessary to pro- vide for the release of L.'s other property and for matters in relation to the leasehold property. — Per Strong, J., the agreement was for sale of an equity of redemption only and as questions would arise in future as to re- lease of L.'s other property from the mortgage and his indemnity from personal liability to the mortgagee, which should have formed part of the preliminary agreement, specific per- formance could nbt be decreed. WUliston v. Lawson, xix.. 673. 96. Vendor and purchaser — Principal and agent — Sale of land — Authority to agent — 1289 SALE. 1390 Price of sale.} — M., owner of an undivided three quarter interest in land at Sault Ste. Marie telegraphed to her solicitor at that "lace ' " Sell if possible, writing particulars ; will eive you good commission." C. agreed to mirchase it for $600 and the solicitor tele- graphed M., " Will you sell three-quarter in- terest sixty-seven acre parcel, Korah, for six hundred, half cash, balance year? Wire stating commission." M. replied, " Will accept offer suggested. Am writing particulars; await my letter." The same day she wrote the solicitor, " Telegram received. I will accept $600, $300 cash and $300 with interest at one year. This payment I may say must be a marked cheque at par for $300, minus your commission $15, and balance $300 secured." The property was incumbered to the extent of over $300 and the solicitor de- ducted this amount from the purchase money and sent M. the balance which she refused to accept. He also iook a conveyance to himself from the former owner paying off the mort- gage held by the latter. In an action against M. for specific performance of the contract to sell: Held, afiBrming the judgment of the Court of Appeal, that the only authority the solicitor had from M. was to sell her interest tor $585 net and the attempted sale for a less sum was of no effect. Held, further, that the conveyance to the solicitor by the former owner was for JI.'s benefit alone. Clergue v. Murray, xxxii., 450. [Leave for an appeal to the Privy Council was refused, July, 1903. In the judgment re- fusing leave to appeal, Prince v. Qagnon (8 App. Cas. 103) was referred to.] 97. Offer to sell lands — Conditional accept- ance — Completion of title — Specific perform- ance. See Contract, 126. 98. Agreement for sale Reservation of minerals. See No. 89, ante. (i) Tax Sales. Mutual error 99. Land taw sales— 32 Vict. c. 36, s. 155 (0.) — Arrears of taxes — Nullity.] — Where there was no evidence that land sold for arrears of taxes had been properly assessed, or that taxes duly assessed were in arrear at the time of such sale, the sale of the land is mvalid. Strong and Gwynne. JJ., dissenting. Strong,^ J., holding that section 155 of c. 36 of 32 Vict. (Ont.) applied to cases where any taxes were in arrear at the- date of the sale. ~Per Fournier, Henry, and Gwynne, JJ. Where it appears that no portion of the taxes have been overdue for the period prescribed by the statute under which the sale takes place, the sale is invalid, and the defect is not cured by s. 155 of 32 Vict. c. 36 (Ont.). McKay v. Crysler, iii., 436. 100. Land tax sale — Warrant and. list of »-32,7«!l c. 36 (Ont.)—R. S. O. hi ' "■ -'°'' — Surrendered Indian lands — '^roton grant—Exemptions. See Assessment and Taxes, 37. _J^^-Land tax sales — Irregular proceedings pj!:? '?■" Assessment Act, 1883 — Notice — froductton of statement —Healing clauses. See Assessment and Taxes, 59. 102. Mortgage— Sale of mortgaged land for taxes— Purchase by mortgagor — Action to foreclose — Pleading. See MoBTGAGE, 35. (y) Warranty. 103. Transfer of limber tunitx — Warranty —Eviction— Arts. 1515, 1518 G. C— Damages — Assessment by experts — Case remitted to court below.} — The respondents ceded and transferred " with warranty against all troubles generally whatsoever " to the appel- lants, two limits containing 50 square miles. " Not to interfere with limits granted or to be renewed in view of regulations." The limits were subsequently found to interfere with prior grants made to one H. Held, that the respondents having guaranteed the appel- lants against all troubles whatsoever, and at the time of such warranty the limits .sold having become, through negligence of re- spondent's auteurs, the property of H., the appellants were entitled to reco-s-er the propor- tionate value of the limits from which they had been evicted, and damages to be estimated according to the increased value of, the limits at the time of eviction, and also the cost of all improvements, but, as the evidence ns to pro- portionate value and damages was not satis- factory, it was ordered that the record should be sent back to the court of first instance, and that the amount should be there determined upon a report to be made by experts to that court on the value of the same at the time of eviction. — Per Strong and Gw.vnne, JJ., dis- senting. That the only reasonable construc- tion which could be put upon the words " with warranty against all troubles generally whatsoever " in the deed, must he to limit their application to protecting the assignee of the licenses against all claims to the licenses themselves, as the instruments conveying the limits therein described, and not as a guar- antee that the assignee of the licenses should enjoy the limits therein described, notwith- standing that it should appear that they were interfered with by a prior license. But, assuming a different construction to be cor- rect, there was not sufficient evidence of a breach of the guarantee. Dupuy v. Ducondu, vi., 425. [This decision was reversed by the Privy Council, 9 App. Cas. 150.] 104. Land subject to charge.i — ^^'arranty — Subsequent account stated — Promise to pay. See Wakranty, 1. 105. Title to lajid — Warranty — Special agreement — Knowledge of cause of eviction — Art. 1512 C. C— Damages. See TiTLi; TO Land, 124. (k) Other Cases. 106. Mortgaged lands — Absolute sale^Sale of equity of redemption — Consideration in deed — Illiterate grantor — Equitable relief.} — B. sold to C. land mortgaged to a loan society, the consideration stated in the deed at $1,400, and $104 being paid to B. Afterwards C. paid $1,081 and obtained a discharge of the mortgage. B. sued to recover the differ- ence between the amount paid the society and the balance of the $1,400, and testified that he 1291 SALE. 1292 intended to sell the land for a fixed price ; that" he had been informed by W., father-in-law of C, that there would be about $300 coming to him ; that he had demurred to the acceptance of the sum offered, $104, but was informed by C. and the lawyer's clerk, who drew the deed, that they had figured it out and that was all that would be due him after paying the mortgage; that he was incapable of figuring it himself and accepted it on this representa- tion. C. claimed that the transaction was only a purchase by him of the equity of re- demption, and that B. had accepted $104 in full for the same. Beld, reversing the judg- ment appealed from, Taschereau and Gwynne, JJ., dissenting, that the weight of evidence was in favour of the claim made by B., that the transaction was an absolute sale of the laud for $1,400 ; and independently of that, the deed itself would be sufficient evidence to support such claim in the absence of satisfac- tory proof of fraud or mistake. Burgess v. Conway, xiv., 90. 107. Land speculation — Investment of trust funds — Condition precedent — Prescription — Art. 2262 C. G. — Transfer — Evidence — PrHe- nom.'] — H. agreed to invest trust funds of (J. with M. in a land speculation, mentioning in the letter notifying M. of acceptance of his draft, the understanding H. had as to the share he was to get and adding : " I also assume that the lands are properly conveyed, and the full conditions of the prospectus carried out, and if not, that money will be at once refunded." The lands were never prop- erly conveyed and the conditions of the pros- pectus never carried out. T. J. 0. transferred sous seing prive this claim to plaintiff who brought action for the draft. An objection was made that proof of the transfer had not been made. Held, affirming the judgment ap- pealed from (M. L. E. 6 Q. B. 354), that the action being for the recovery of money entrusted to defendant for a special purpose, the prescription of two years did not apply. That the conditions upon which the money had been advanced were conditions pre- cedent and not having been fulfilled, M. was bound to refund the money. That as the transfer of the claim to plaintiff had been admitted by M., plaintiff, even if considered as a prete-nom, had sufficient in- terest to bring the present action. Moodie v. Jones, xix., 266. 108. Tim'ber limits — Mortgage to vendoi — Subsequent conveyance — Description of lands — Bq/pothecary action — AcTcnowledgment sign- ed in error — Judgment against original pur- chaser — Res judicata — Registration — Varia- tion of agreement Tjy subsequent deed — Parol testimony to contradict deed — Bonus on transfer of timher limits — Statement of ac- 'count — Errors and omissions.'] — Appeal from judgment of the Queen's Bench, reversing the Superior Court, at Quebec, (8th July, 1882), in an hypothecary action by appellant against respondents. The Superior Court declared re- spondents' lands hypothecated in favour of appellant " for the capital, interest and costs mentioned in his declaration, amounting to the sum of $5,250 currency, with interest from 7th July. 1880. at 8 % per annum, and costs of suit, and frais des piices," condemned re- spondents to surrender lands to be judicially sold upon the curator to be named to the surrender, to the end that appellant might be paid out of the proceeds, unless respondents, within 15 days of service of judgment, paid appellant the $5,250 interest and costs. — By memo, of sale, dated 31st July, and deposited with Clapham, N.P., on 10th September, 1872, T). sold to e. " all the limits belonging to the said D., on the Jacques-Oartier River, containing about 170 miles, together with all the square timber, logs and firewood made on the said river, 200 nieces of which are now at St. Sauveur. and also the property pur- chased from O'S., B. & W.. with the islands, now belonging to the said D., for $35,570 to be paid." as set out in the memorandum. It was further provided that a deed of sale should be prepared as soon as possible. — On 21st Nov., 1872, the formal deed from D. to O. was executed, the land conveyed being by it hypothecated in favour of the vendor for balance of price. — The deed mentioned the memo, and that the conveyance was made for and in consideration of . . . $35,087.37, . . . on account and in part payment whereof the said D. acknowledged to have re- ceived at and before execution $4 095, of which $3,995 was employed in payment of wages to labouring men for work done and performed on part of the property sold due the vendor, previous to 31st July last past, and that the price and terms of payment in the memo, of sale had been changed in the present deed of sale made in pursuance thereof." — ^The W. property was not mention- ed in this deed of 21st Nov., and one of the questions arising was, as to whether the deed was intended to vary the agreement of 31st July, 1872, so far as related to this property and the price thereof. — On 4th June, 1878, respondents purchased from C. part of the property he had acquired from D., and on 14th of the same month registered their deed of purchase. — In Feb., 1879, D. sued C. to recover $5,000, balance alleged to be due, on the price specified in his deed. C. pleaded payment, and Stuart, J., dismissed his plea and entered judgment against him for the $5,000, with interest at 8%, from 20th Feb- ruary, 1879, and costs. — Failing payment from D., in July, 1880, began the present action, to which respondents pleaded payment by C. and consequent extinction of the hypothec, and further that their purchase was made in good faith relying upon a receipt from D., which their vendor held. Stuart, J., before whom the case was heard, adhered to his pre- vious decision. — The Queen's Bench (Tas- sier and Baby, JJ., dissenting) reversed the Superior Court, and from that judgment this appeal was taken. — The principal points for decision were : — 1. Had the judgment obtained by D. against C. the effect of res judicata? — 2. On 2nd September. 1876. D. signed a statement of account, acknowledging that the purchase price then due bv C. to him was $1,442.33. Respondents contended that D. could not go behind this representation, their purchase being made subsequently to it; but appellant alleged that he had only signed the statement on condition that he was not to be bound by it, if incorrect, and that in any event it was not proved that it had ever been brought to the notice of respondents. — 3. On 5th December, 1872, C. paid the Com- missioner of Crown Lands,' as the transfer bonus on the limits sold by D.. $1,344. It was necessary to decide whether D.. the ven- dor, or C, the purchaser, was legally bound to pay this bonus, the agreement being silent as regarded it. — 4. As to the property men- tioned in the agreement of 31st July, 1872. as the W. property, the price was fixed by the agreement at $1,850, but it did not then be- long to D. After the agreement on 21st No- vember, 1872, C. paid this amount to the owner, and contended that, although the prop- 1293 SALE. 1294 erty was omitted from the deed of 21st No- vember, 1872, the two documents should be read in connection with each other, and the omis- sion did not relieve D. from the liability to carry out his promise of sale, or to be charged with the price when paid by C— 5. Tlie notary who made the agreement of 31st July, and the deed of 21st November. 1872, testified : " I have no doubt in my own mind that this lot (W.1 was included in the sale. It was not put in this intentionally to avoid a repetition of the deed, and Mr. Hall undertook to make the assignment direct to Mr. Connolly, on getting paid out of that purchase money, which was part of the sale." Appellant con- tended that this evidence could not be received to contradict or vary the terms of a valid instrument. Held. 1. Affirming the judgment of Casault, J., who decided the question on demurrer (7 Q. L. R. 43), and the judgment of the Queen's Bench sustaining Oasault, J., that the judgment against O. was res inter alios acta as regarded the respondents and not binding on them. — 2. That there was no evi- dence in the record to sustain the contention that the acknowledgment of account signed by D. was ever brought to the notice of re- spondents before they purchased, and there- fore appellant might properly shew it had been signed in error. — 3. Reversing the Court of Queen's Bench, that the bonus of $1344 paid to the Commissioner of Crown Lands, was a payment which the purchaser of the limits was legally bound to make, and which, there- fore, could not be charged against D.-— 4. Re- versing the Court of Queen's Bench, that ap- pellant was not properly chargeable with the amount paid for the W. property, an entirely new contract having been substituted by the deed of 21st November. 1872. for the promise of sale of 31st July, 1872.— 5. That the evid- ence of the notary could not be received to contradict the deed. — ^Appeal allowed with costs. Henry, J., dissenting. Duluo v. Kid- ston, Cass. Dig. (2 ed.) 779. 109. Purchase of lands — /Superficial area- — Deficiency — Delivery to agent — Pleading — Arts. 1501, 1502, 0. C. — Temporary excep- tion.'] — To an action for balance of price of lands the company pleaded by temporary exception that out of 3,307 superficial feet sold to them, T. never delivered 710 feet, and that so long as the full quantity purchased was not delivered they were not bound to pay. T. replied that he delivered all the land sold to V., the agent of the company, with Its assent and approbation, together with other land sold to V. at the same time. V. had purchased all the lands owned by T. in that locality but exacted two deeds of sale, one of 3,307 feet for the R. Co., and another of the balance of the property for himself. - By the deed to V. his land was bounded by that previously sold to the company. V. took possession and the company fenced in what tney required. Eeld, affirming the judgments Wpealed from, that T. having delivered to V. the agent of the company, with its assent and approbation, the whole of the land sold to them together with other lands sold to V. at the same time he was entitled to the Dalance of the purchase money. — Per Tascher- eau, J. All appellant could claim was a dimin- ution of price, or cancellation of the sale tmder arts. 1501, 1502 C. C. and therefore their plea was bad. North Shore By. Go. V. Trndel, 24' 0. L. J. 57; Oass. Dig. (2 ed.) „Y-^- Lease — Provision for termination — 00(6 of premises — Pi. ir, TTincliinfl that he would like one of 1333 SPECIFIC PBEFOEMANCE. 1334 her children to come out to him. and in a second letter he said, " I want to get some relation hei-e, for what property I have, in case of sudden death, would be eat up by outsiders, and my relations would get noth- ing." On hearing these letters T.. a son of B.'s sister and a coal miner in England, came to British Columbia and lived with B. for six years. All that time he worked on B.'s farm and received a share of the profits. After that he went to work in a coal mine in Idaho. While , there he received a letter from B. containing the following : " I want you to come at once as 1 am very Ijad. I really do not know if I shall get over it or not and you had better hurry up and come to me at once, for I want you, and I dare say you will guess the reason why. If anything should happen to me you are the person who should be here." On receipt of this letter, T. immediately started for the farm, but B. had died and was buried before he reached it. After his return he received the following telegram which had not reached him before he left for home : " Come at once if you wish to see me alive, property is yours. Answer immediately. (Sgd.) B." Under these cir- cumstances, T. claimed the farm and stock of B. and brought suit for specific perform- ance of an alleged agreement by B. that the same should belong to him at B.'s death. Held, affirming the judgment appealed from, that as there was no agreement in writing for the transfer of the property to T., and the facts shewn were not sufficient to con- stitute a part performance of such agreement, the fourth section of the Statute of Frauds was not complied with, and no performance of the contract could be decreed. Turner v. Prevost, xvii., 283. 2. Contract — Deed of land — Security for loan — Undisclosed trust — Parol evidence — Statute of Frauds.} — Lands of M. were ad- vertised for sale under powers and his wife arranged with the mortgagee to redeem it by making a cash payment and giving another mortgage for the balance. To enable her to pay the cash B. agreed to lend her the neces- sary amount for a year, taking an absolute deed of the property as security and holding it in trust for that time. A contract was drawn up by the mortgagee's solicitor for a purchase by B. of the property at the price agreed upon, which B. signed, and he told the solicitor that he would advise him by tele- phone whether the deed would be taken in his own name or in his daughter's. Next day a telephone message from B.'s house instructed the solicitor to make the deed in the name of B.'s daughter, which was done, the deed was executed by M. and his wife and the arrange- ment with the mortgagee carried out. Subse- quently B.'s daughter claimed that she had purchased absolutely for her own benefit, and an action was brought by M.'s wife against her and B. to have the daughter declared a trustee subject to re-payment of the loan from B. and for specific nerformance of the agree- ment. Plaintiff charged collusion and con- spiracy by defendants to deprive her of the property and, in addition to denying that charge, defendants pleaded the Statute of */Juus. Held, affirming the judgment appeal- ed from (19 Ont. App. R. 602), Strong, J., dis- senting, that the evidence proved that B.'s ™pter was aware of the agreement made with B. and, the deed having been executed in pursuance of such a^greement, she must be held to have taken the property in trust as B. would have done if the deed had been taken in his name, and the Statute of Frauds did not prevent parol evidence being given of the agreement with the plaintiff. Barton v. Mc- Millan, XX., 404. 3. Agreement to provide hy will — Service^ rendered — Remuneration — fjuanium meruit,] — S., a girl of 14, lived with her grandfather^ who promised her that if she would remain with him until he died, or until she was mar- ried, he would provide for her by his will as amply as for his daughters. She lived with him until she was 25 when she married. The grandfather died shortly after, leaving her by his will a much smaller sum than his daughters received, and she brought action against the executors for specific performance of the agreement to provide for her as amply as for the daughters, or, in the alternative, for payment for her services during the 11 years. While living with her grandfather, S. had performed such services as tending cattle, doing field work, managing a reaping machine, and breaking in and driving wild and ungovernable horses. Meld, reversing the Court of Appeal for Ontario, that the alleged agreement to provide for S. by will was not one of which the court could decree speci- fic performance. But that S. was entitled to remuneration for her services and $1,000 was not too much to allow her. McUugan v, Smith, xxi., 203. 4. Contract for exchange of lands — Time for completion — Extension — Waiver — Rescis- sion — Notice — Conduct of party seeking re- lief.] — The exercise of jurisdiction to order specific performance of a contract is a matter of judicial discretion, to be governed, as far as possible, by fixed rules and principles, but more elastic than in the administration of other judicial remedies. In the exercise of the remedy much regard is shewn to the con- duct of the person seeking relief. — H. and R. agreed to exchange land; the agreement, in the form of a letter by H. proposing terms which R. accepted, provided that the matter was to be closed in ten days if possible. R. at the time had no title to the property he' was to transfer, but was- negotiating for it. Nearly four months after date of agreement the matter was still unsettled, and a letter was written by H. to R.'s solicitor notifying, him that unless something was done by the next morning the agreement would be null and void, — Prior to this there had been interviews be- tween the parties and their solicitors m which it was pointed out to R. that there were difficulties in the way of his getting a title to the land he p,roposed to transfer ; that there was no registry of the contract which, formed the title to be conveyed to him, and. that the lands were subject to an annuity. R took no active steps to get the difficulties removed until after the last letter, when te brought action against the . proposed vendor and obtained a decree declaring his title good He then sued H. for specific performance, of thi contract for exchange. Hd^.^l^'^'i'^e the judgment appealed from (19 Ont. App. R 134) and restoring the trial court :udgment dismissing the action, Taschereau, J., dis- senting that R. not having title when the agreement was made. H. could rescind the cfntract without giving reasonable notice of his intention, as he would be bound to do if the title were merely imperfect, that the let ter to the solicitor was sufficient to put an end to the bargain; and that, even if there had been no rescission, the conduct ot K. m relation to the completion of the contract was 1335 SPECIFIC PBEFOEMANCE. 1336 such as to disentitle him to relief by way of specific performance. Meld, also, affirming in this respect the judgment appealed from, that time was originally of the essence of the con- tract, but there was a waiver by H. of a com- pliance with the provision as to time by enter- ing into negotiations as to the title after its expiration. Harris v. Robinson, xxi., 390. 5. Agreement to convey land — Defect of title — Will — Devise of fee with restriction against selling — Special legislation — Com- pliance with provisions of.] — The appeal was from a decision of the Court of Appeal for Ontario, affirming the judgment of the Queen's Bench Division in favour of the plaintiff. Land was devised to Northeote with a provi- sion in the will that he should not sell or mortgage it during his life, but might devise it to his children. Northeote agreed in writing to sell the land to Vigeon, who was not satis- fied as to Northcote's power to give a good title, and thfe latter petitioned under the Vendors and Purchasers Act for a declaration ■of the court thereon. The court held that the will gave Northeote the land in fee with a valid restriction against selling or mortgag- ing. Un re ^ orthcote, 18 O. K. 107.] North- eote then asked Vigeon to wait until he could apply for special legislation to enable him to sell, to which Vigeon agreed, and thenceforth paid interest on the proposed purchase money. Northeote applied for a special Act which was passed gi^■ing him power, notwithstanding the restriction in the will, to sell the land and ■directing that the purchase money should be paid to a trust company. Prior to the pass- ing of this Act Northeote, in order to obtain a loan on the land, had leased it to a third party, and the lease was mortgaged, and Northeote afterwards assigned his reversion of the land. — In an action by Vigeon for specific performance of the contract with her, defendant claimed that the contract was at an end when the judgment on the petition was given, and that if performance were de- creed the amount due on the mortgage should be paid to him and only the balance to the trust company. — The Supreme Court held, affirming the decision of the Court of Appeal, that it was not open to Northeote to attack the decision of the Chancellor on the petition under the Vendors and Purchasers Act; that if it were, and that decision should be over- ruled, Vigeon would be all the more entitled to specific performance ; that the evidence shewed the lease granted by Northeote to have been merely colourable and an attempt to raise money on the land by indirect means ; and that the decree should go for specific performance the whole purchase money to be paid in to a trust company. Northeote v. Vigeon, xxii., 740. 6. Vendor and purchaser — Laches — Waiv- er.] — The purchaser under contract for sale of land is not entitled to a decree for specific performance by the vendor unless he has been prompt in the performance of the obligations devolving upon him and always ready to carry out the contract on his part within a reasonable time even though time was not of its essence ; nor when he has declared his in- ability to perform his share of the contract. — The purchaser waives any objection to the title of the vendor if he takes possession of the property and exercises acts of ownership by making repairs and improvements. Wal- lace V. Hesslein, xxix., 171. 7. Sale of land — Agreement for sale — Mu- tual mistake — Reservation of mineroZsJL^r^^ The E. & N. Ry. Co. executed an agreement to sell certain lands to H., who entered into possession, made improveitfents, and paid the purchase money, whereupon a deed was de- livered to him which he refused to accept as it reserved the minerals on the land while the agreement was for an unconditional sale. In an action by H. for specific performance of the agreement the company contended that in its conveyances the word " land " was always used as meaning land minus the minerals. Held, reversing the judgment of the Supreme Court of British Columbia (6 B. C. Rep. 228), Taschereau, J., dissenting, that the eon- tract for sale being expressed in unambiguous language, and H. ha\ing had no notice of any reservations, it could not be rescinded on the ground of mistake and he was entitled to a decree for specific performance. Hobbs v. Esquimau and Nanaimo Ry. Co.. xxix., 450. [Leave was granted for an appeal to the Privy Council and, subsequently, on a com- promise between the parties, the appeal was dismissed for want of prosecution. (See Can. Gaz. vol. xxxiii., p. 393.)] 8. Contract — Delivery — Measure of dam- ages — Reasonable time — Trade custom. See Contract, 242. 9. Agreement respecting boundary line — Valuable consideration — Construction of deed — Equitable relief — Statute of Frauds. See BoUNDABT, 1. 10. Executed and executory contracts — Consolidation with suit on mortgage — Frame of decree for execution and redemption or foreclosure. See Patent of Invention, 4. 11. Railway aid — Bonus by-law — Prior agreement — performance of conditions — Ac- tion for damages. See Railways, 89. 12. Lease — Renewal — Option of lessor — Se- cond term — Expiration of term. See Landlord and Tenant, 25. 13. Mortgaged lands — Sale of equity — Agreement in writing — Statute of Frauds. See Sale, 95. 14. Action — Release — Neic account — Out- standing liability — Curator — Administra- tion — Release — Parties to suit — Purchase of trust estate. See Account, 4. 15. Purchase of land — Agreement to assign mortgage as part payment — Second mortgage — Negotiable instrument. See Contract, 244. 16. Contract for purchase of land — Agree- ment to pay interest — Delay — Default of ven- dor. See Vendor and Purchaser. 30. 17. Agreement for services — Remuneration — Relationship of parties. See Contract, 152. 18. Vendor and purchaser — Sale of lands- Waiver of objections — Lapse of time — Will, construction of — Executory devise over — De- feasible title — Rescission of contract. See Vendor and Purchaser, 32. 1337 STAEE DECISIS. 19. Vendor and purchaser — Principal and ,„gni — Sale of lands — Authority to agent — ''rice of sale — Resulting trust — Gonxieyance Price of io agent I Principal and Agent, 9. And see Contract. 227-252. SPEEDY TRIALS ACT. Legislative jurisdiction — Regulating crim- inal procedure — Provincial courts — B. N. A. Act 1861, s. 92, s.-s. IJf — References under 5i d 55 Vict. c. 25 (D.) ] — The power given to the provincial governments by the B. N. A. Act, 1867, s. 92, s.-s. 14, to legislate re- garding the constitution, maintenance and or- ganization of provincial courts Includes the power to define the jurisdiction of such courts territorially as well as in other respects and also to define the jurisdiction of the judges who constitute such courts. — C. S. B. C. c. 25, s. 14, enacts that " any County Court Judge appointed under this Act may act as Oounty Court Judge in any other district upon the death, illness, or unavoidable absence of, or at the request of the judge of .that district, and while so acting the said first mentioned judge shall possess all the powers and author- ities of a County Court Judge in the said dis- trict-r provided, however, the said judge so acting out of his district shall immediately thereafter report in writing to the Provincial Secretary the fact of his so doing and the cause thereof," and by 53 Vict. c. 8, s. 9 (B. C), It is enacted that " until a County Court Judge 8f Kootenay is appointed, the judge of the County Court of Yale shall act as and perform the duties of the County Court Judge of Kootenay, and shall, while so acting, whe- ther sitting in the County Court District of Kootenay or not, have, in respect of all ac tions, suits, matters, or proceedings being car- ried on in the County Court of Kootenay, all the powers and authorities that the judge of the County Court of Kootenay, if appoint- ed and acting in the said district, would have possessed in respect of such actions, suits, matters, and proceedings ; and for the purpose of this Act, but not further, or otherwise, the several districts as defined by ss. 5 & 7 of the County Courts Act, over which the County Court of Yale and the County Court of Koot- enay, respectively, have jurisdiction shall be united." — Held, that these statutes were intra •oves of the Legislature of British Columbia under said section of the B.N. A. Act, 1867. ~J^y the Dominion statute, 51 Vict. c. 47, The Speedy Trials Act," jurisdiction is given to any judge of the County Court," to try certain criminal offences. — Held, that the ex- pression, "any judge- of the County Court," '" ™<^'i -^ct means any judge having by force M the provincial law regulating the consti- tution and organization of County Courts, jurisdiction in the particular locality in which "e may hold a " speedy trial." The statute ri ,4""" authorize a County Court Judge to hold a " speedy trial " beyond the limits ?t ms territorial jurisdiction without author- "m?"" '•''6 Provincial Legislature to do so. -- ihe Speedy Trials Act " is not a statute conterring jurisdiction, but is an exercise M the power of Parliament to regulate criminal procedure.— Per Taschereau, J. It 's doubtful if Parliament had power to pass tlose sections of 54 & 55 Vict. e. 25, which 1338 empower the Governor-General-in-Council to reter certain matters to the Supreme Court of T^'^n ,S^ ^^ opinion. Re County Court Judges {B. G.}, xxi., 446. STAMPS. 1. Unstamped note — Larceny — Valuable se- curtty~S2 & 33 Vict. c. 21 (D.). See Criminal Law, 1. 2. Indirect tax — Duties payable to the Crown — Legislative jurisdiction — B N A Act. 1867, ss. 65, 90, 91, 126, 129— h & hi Vtct. c. 9, s. 9 (Que.). See Constitutional Law, 51. 3. Unstamped bUl — " Knowledge " — Double stamping — Pleading — 42 Vict. c. 17, s. lo (D.) . See Bills and Notes, 41. 4. Stamps on petition — Controverted elec- tion — Preliminary objections. See Election Law, 118. And see Bills and Notes, 41-43. STARE DECISIS. 1. Binding effect of judgment — Court equally divided.] — When the Supreme Court of Canada in a case in appeal is equally divided so that the decision appealed against stands unreversed the result of the case in the Supreme Court affects the parties to the litigation only, and the court when a similar case is brought before it is not bound by the result of the previous case. Stanstead Elec- tion Case; Rider v. Snoiv, xx., 12. 2. Contract — Public work — Final certifi- cate of engineer — Previous decision — yeces- sity to follow.] — The Intercolonial Railway Act provided that no contractor for construc- tion of any part of the road should be paid except on the certificate of the engineer, ap- proved by the commissioners, that the work was completed to his satisfaction. Before the suppliant's work in this case was completed the engineer resigned, and another was ap- pointed to investigate and report on the un- settled claims. His report recommended that a certain sum should be paid to the contrac- tors. Held, per Taschereau, Sedgewick and King. JJ.. that as the court in McGreevy v. The Queen (18 Can. S. C. R. 371), had, un- der precisely the same state of facts, held that the contractor could not recover, that de- cision should be followed, and the judgment of the Exchequer Court dismissing the peti- tion of right affirmed. Held, per Gwynne, J., that independently of McGreevy v. The Queen, the contractor could not recover for want of the final certificate. Held, per Strong, C.J., that as in McGreevy v. The Queen, a major- ity of the judges were not in accord on any proposition of law on which the decision de- pended, it was not an authority binding on the court, and on the merits the contractors were entitled to judgment. Ross v. The Queen, xxv.. 564. And see Estoppel — Judgment — Res Judi- cata. 1339 STATUTE OF FEAUDS. 1340 STATUTE OF DISTKIBUTIONS. Construction— 26 Geo. III. c. 11 (ISf.B.) — Statute of Distributions — Statute of Frauds — Revision — Repeal — Restoration of former laic — Intestate estate — Feme ooverte — Hus- band's right to residue — Next , of fein.] — ^26 Geo. III. c. 11, ss. 14 & 17 (N.B.), re-enacted 22 & 23 Car. II. c. 10 (Statute of Distribu- tions) as explained by Car. 2, c. 3, s. 25 (Statute of Frauds), which provided that nothing in the former Act should be con- strued to extend to estates of femes coverts dying intestate, but that their husbands should enjoy their personal estate as theretofore. — When the statutes were revised in 1854 the Act, 26 Geo. III. c. 11, was re-enacted, but s. 17, corresponding to s. 25 of the Statute of Frauds, was omitted. In the administration of the estate of a feme covert her next of kin claimed the personalty on the ground that the husband's rights were swept away by this omission. Held, that the personal prop- erty passed to the husband and not to the next of kin of the wife. — Per Strong, J. The repeal by R. S. N. B. of 26 Geo. III. c. 11, passed in affirmance of the Imperial Acts, operated to restore s. 25 of the Statute of Frauds as part of the common law of New Brunswick. — Fer Gwynne, J. When a colonial legislature re-enacts an Imperial Act it en- .acts it as interpreted by the Imperial courts, and a fortiori by other Imperial Acts. Hence, when the English Statute of Distributions was re-enacted by 26 Geo. III. c. 11 (N.B.), it was not necessa!ry to enact the interpretation section of the Statute of Frauds, and its omission in the Revised Statutes did not afltrt the construction to be put upon the whole Act. Held, per Ritchie, C.J., Fournier, Gwynne and Patterson, J J., that the Married Woman's Property Act (O. S. N. a. c. 72), which ex- empts the separate property of a married wo- man from liability for her husband's debts and prohibits any dealing with it without her con- sent, only suspends the husband's rights in the property during coverture, and on the death of the wife he takes the personal prop- erty as he would if the Act had never been passed. Lamb v. Cleveland, xix., 78. And see Successions. STATUTE OF ELIZABETH. Assignment for benefit of creditors — Prefer- ences — Chattel mortgage — R. 8. N. S. (5 ser.) c. 92, ss. Ji, 5, 10.'\ — An assignment is void under the Statute of Elizabeth as lending to hinder or delay creditors if it gives a first preference to a firm of which the assignee is a member and provides for allowance of inter- est on a claim of said firm until paid, and the assignee is permitted to continue in the same possession and control of business as he pre- viously had. though no one of these provi- sions taken bv itself would have such effect. — A provision that " assignee shall only be liable for such moneys as shall come into his hands as such assignee, unless there be gross negli- gence or fraud on his part " will also void the assignment under the Statute of Eliza- beth. — Authority to the assignee not only to prefer parties to accommodation paper, but also to pay all " costs, charges and expenses to arise in consequence " of such paper, is a badge of fraud. Kirk v. Chisholm, xxvi., 111. And see Assignment — ^Debtoe and Ceeditob — Fraudulent Conveyances — Feaudu- LENT PKErEEENCE PbACTICE AND PbO- CEDUBE. STATUTE OF FRAUDS. 1. Contract — Parol testimony — Undisclosed trust — Security for loan — Deed in name of third party — Specific performance.] — M. agreed by written contract to give to B. as security for a loan, an absolute deed to be held by B. in trust for the time the loan was to run. By B.'s directions the deed was made out in his daughter's name, who claimed that she purchased absolutely for her own benefit. Action was brought against her and B. for specific performance of contract with B. and a declaration that she was a trustee only subject to re-payfflent of the loan. De- fendants denied the collusion and conspiracy charged and pleaded the Statute of Frauds. Held, affirming the judgment appealed from (19 Out. App. R. 602). Strong, J., dissent- ing, that the evidence shewed that the daugh- ter was aware of the agreement with B., and the Statute of Frauds did not prevent parol evidence being given of such agreement. Bur- ton V. McMillan, xx., 404. 2. Memorandum in writing — Repudiating contract by — 29 Gar. II., c. 3.1 — A writing containing a statement of all the terms of a contract for the sale of goods requisite to con- stitute a memo, under the 17th section of the Statute of Frauds, may be used for that pur- pose though it repudiates the sale. Martin v. Haubner, xxvi., 142. 3. Contract — Partnership — Dealing in lands — Parol agreement.] — A partnership inay be formed by parol agreement notwithstanding that its object may be to deal in lands as the Statute of Frauds does not apply to such a case. Archibald v. McNerhanie, xxix., 564. 4. Pleading — Conversion — Defect in plain- tiff's title — Evidence.] — In an action claiming damages for the conversion of goods the plain- tiff must prove an unquestionable title in himself and if it appears that such title is based on a contract the defendant may suc- cessfully urge that such contract is void under the Statute of Frauds, though no such defence is pleaded. — It is only where the action is between the parties to the contract which one of them seeks to enforce against the other that the- defendant must plead the Statute of Frauds if he wishes to avail himself of it. — Judgment appealed from (32 N. S. Rep. 549) affirmed. Kent v. Ellis, xxxi., 110. 5. Agreement for valuable consideration — Conventional boundary line — Equitable relief — Specific performance.] — An agreement to establish a conventional boundary line is not within the Statute of Frauds. Orassett v. Carter, x., 105. See Boundary, 1. 6. Contract affecting land — Specific per- formance — Evidence — Part performance. See Evidence, 155. 7. Lease — Signature of lessor — R. S. 0. {18S7) c. 100, s. a. See Landlord and Tenant, 1. 8. Construction of Statute of Distributions — New Brunswick legislation — Feme covert. See Husband and Wife, 4. 1341 STATUTE OF MOETMAIN. 1342 9. Agreement in tvriting — Sale of mort- gaged land — MquiPy of redemption — Specific performance. See Sale, 95. 10. Sale of interest in land — Agreement to transfer proceeds of sale of mine. See CoNTBACT, 248. 11. Deltor and creditor — Preference — Pres- sure-li. S. B. C. (1891) cc. 88. 81— The Bank Act, s. 80 — Company law — Mortgage by directors — Ratification — B. C. Companies Acts, 1890, 1892. 1894. See Feaudulent Peejtebences, 17. STATUTE OF LIMITATIONS. 1. Acts of possession — Estoppel — Recogni- tion of contingent title — Interruption of pre- scription.'] — The possession of a person re- siding upon an adjoining property but wlio was let into possession of the lands in ques- tion and controlled and used it as owner from 1830 till his death in 1857, is sufficient tor the acquisition of title under the statute. — Recog- nition of adverse interest in land by the per- son in possession purchasing and accepting a conveyance thereof, has the effect of interrupt- ing the running (^ the Statute of Limitations. Gra/y v. Richforw! ii., 431. 2. Partnership dealings — Laches and ac- quiescence — Interest in partnership lands.l — A judgment creditor of J. applied for an order for sale of the latter's interest in cer- tain lands the legal title to which was in K., a brother-in-law and former partner of J. An order was made for a reference to ascertain J.'s interest in the lands and to take an account of the dealings between J. and K. In the master's office K. claimed that in the course of the partnership business he signed notes which J. indorsed and caused to be dis- counted, hut had charged against him, K., a much larger rate of interest thereon than he had paid, and he claimed a larger sum to be due him from .T. for such overcharge. The master held that, as these transactions had talien place nearly twenty years before K. was precluded by the Statute of Limitations and by laches and acquiescence from setting up such claim. His report was overruled by the Divisional Court and Court of Anneal on the ground that the partnership affairs never naving been formally wound up the statute did not apply. Held, reversing the decision of the' Court of Apneal and restoring the mas- ters report, that K.'s claim could not be en- tertained; that there was, if not absolute evi- dence at least a presumption of acquiescence trom the long delay ; and that such presump- tion should not he rebutted by the evidence 01 the two partners -considering their relation- ™p and the apparent concert between them. i ooth v, Kittredge, xxiv., 287. 3. Pleading—Petition of Right Act, 1816. See EiDEAu Canal Lands, 1, 2. 4. Sheriff's sale — Trust — Purchase hy ex- eoutor—Possession — Evidence. See Title to Land, 118. 5. Tenants in common — Remainder — Pos- f lession^Survival of tenant for life. See Title to Land. 57. 6. Possession of locus — Trespass quare clausum fregit — Evidence. See Title to Land, 82. 7. Error in survey — Boundaries — Posses- sion. See Title to Land, 84. 8. Title to land — Adverse possession — De- fective documentary title. See Title to Land, 85. 9. Trustees under will — Disclaimer — Pos- session of land. See Will, 32. And see Limitations of Actions — Pkesckip- TION. STATUTE OF MAINTENANCE. Tille to land — Grown grant — Disseisin of grantee — Tortious possession — Uonveyanee to married woman — Effect of execution of, hy liu-sbund — Stalule uf Muuilenance, 3.i Hy. \'III., c. 9 — tStatule of Limitations.] — In 1828 certain land in Upper Canada was grant- ed by the Crown to King's College. In 1841, while one M. who had entered on the land was in possession. King's College conveyed it to G. In 18i9 G. conveyed to the wife of M., and J\I. signed the conveyance though not a party to it. In an action by the successors in title of JI.'s wife to recover possession of the laud, the deteudants claiming title through M., set up the Statute of Limitations, alleg- ing that JI. had been in possession twenty years when the land was conveyed to his wife, and that the conveyance to G., in 1X41. the grantor not being in possession, was void un- der the Statute of Maintenance, and G. had, therefore, nothing to convey in 1849. Held, that it was not proved that the possession of M. began before the grant from the Crown, but assuming that it did AI. could not avail himself of the estate of maintenance as he would have to establish disseisin of the grant- or, and the Crown could not be disseised ; nor would the statute avail as against the patentee as the original entry nor being tortious the posession would not become adverse without a new entry, iield, further, that if the posses- sion began after the grant, the deed to G. in 1S41 v\'as not absolutely void under the Sta- tute of Maintenance, but only void as against the party in possession^ and M. being in pos- session a conveyance to him would have been good under s. 4 of the statute, and the deed to his wife, a person appointed by him, was equally good. — Further, M. by his assent to the con\eyance to his wife and subsequent acts was estopped from denying the title of his wife's grantor. Webb v. Marsh, xxu., 4d7. STATUTE OF MORTMAIN. 1. Construction of will — Statutes in New Biunsioick—d Leo. LI. (Imp.) c. 3G.]—Per Strong J. The Statute of Mortmain (9 Geo. II c. 36) is not in force in the I'rovince of New Brunswick. — Judgment appealed from (4 Pugs & Bur. 11.'9) affirmed in the result; Fournier and Henry, JJ., dissenting. Ray y. Annual Conference of New Brunswick, vi., one gee Will, 9. 1343 STATUTES. 1344 2. Will — Revocation — Revival — Codicil — In- tention to revive — Reference to date — Removal of executor — Statute of Mortmain^ — Will exe- cuted under mistake — Ontario Wills Act, R. S. 0. (lion) c. 109—9 Geo. //., c. 36 (/mp.)] ■ — Meld, per Gwynne and Sedgewick, JJ., that the Imperial Statute, 9 Geo. II.. c. 36 (the Mortmain Act), is in force in the Province of Ontario, the courts of that province hav- ing so held (Doe d. Anderson v. Todd (2 U. C. Q. B. 82) ; Corporation of Whitby v. Lis- combe (23 Gr. 1), and the legislature having recognized it as in force by excluding its operation from acts authorizing corporations to hold lands. Macdonnell v. Purcellj Gleary V. Purcell, xxili., 101. STATUTES. 1. Operation, Coming into Force, 1-8. 2. Repeals and Re-enactments, 4-15. 3. Legislative Jurisdiction, 16-22. 4. Crown, Acts Ajfectinq the, 23-26. 5. Errors and Omissions in Acts, 27, 28. 6. Criminal Acts. 29-35. 7. Penal Acts, 36-38. 8. Prohibiting Acts, 39-45. 9. Retrospective Effect, 46-52. 10. Application op Statutory Provisions, 53-118. 11. Construction and Interpretation, 114^173. (a) Formal Parts, 114-118. (6) Im,perative and Directory Provi- sions. 119-188. (c) Other Cases, 134-173. 1. Operation, Coming into Force. 1. 38 Vict. c. 11. ss. 26, 80 — Construction of statute' — When it took effect — Functions of Supreme Court of Canada date from proclam- ation.} — The Supreme and Exchequer Courts Act must be construed as if it had been as- sented to on the 11th January, 1876, vphen the judicial functions of the court took effect in virtue of the proclamation issued by order of the Governor-General-in Council under the pro- visions of the eightieth section of the Act, and no court proposed to be appealed from nor any judge thereof, can, under s. 26 of the Act, grant leave to appeal when judgment had been signed, entered or pronounced previous to the eleventh day of January, 1876. Tay- lor V. The Queen, A., 65. 2. Coming into force — Retrospective effect — Judgment simultaneous with assent — Ques- tion of procedure — Existing adjudication — Supreme and Exchequer Courts Amending Act, 1891, 54-55 Vict. c. 25, s. 3 — Appeal from Court of RevieiD.'] — By s. 8 of the Supreme and Exchequer Courts Amending Act of 1891. an appeal may lie to the Supreme Court of Canada from the Superior Court sitting in Review, Province of Quebec, in cases which, by the law of that province, are appealable direct to the Judicial Committee of the Privy Council. — A judgment was delivered by the Su- perior Court sitting in Review at Montreal in favour of D., the respondent, on the same day on which the amending Act came into force. — On an appeal to the Supreme Court of Canada taken by the appellants, Held, that the appel- lants not having shewn that the judgment was delivered subsequently to the passing of the amending Act the court had no jurisdiction. — Quare, Whether an appeal will lie from a judgment pronounced after the passing of the amending Act in an action pending before the change of the law. Hurtubise v. Desmarteau, xix., 562. 8. Revenue — Customs duties — Imported goods — Importation into Canada — Tariff Act — Construction — Retrospective legislation — R. 8. G. c. 82 — 57 d 58 Vict. c. S3 (D.) — 58 & 59 Vict. c. 23 (D.)]— By 57 & 58 Vict. c. 33, s. 4, duties are to be levied upon certain specified goods " when such goods are im- ported into Canada." Meld, reversing the judgment of the Exchequer Court, . Construction of ss. 38 & 49, 38 Tict. c. XI — Criminal laio — New trial.} — Since the passing of 32 & 33 Vict. c. 29, s. 80 repealing so much of c. 77 of. Cons. Stat. (L. C.) as would authorize any court of the Province of Quebec to order or grant a new trial in any criminal case; and of 32 & 33 Vict c 36, re- pealing s. 63 of c. 77 Cons. Stat. (L.C.), the 1351 STATUTES. 1353 Court of Queen's Bench of the Province of Quebec has no power to grant a new trial, and the Supreme Court of Canada, exercising the ordinary appellate powers of the court, under ss. 38 and 49 of 38 Vict. c. 11, should give the judgment which the court whose judg- ment is appealed from ought to have given, viz. : To reverse the judgment which had been given and order the discharge of the prisoner. Laliberti v. The Queen, i., 117. 30. Criminal law — Betting on election — Stakeholder — R. S. C. c. 159, s. 9 — Acces- sory— R. S. C. c. US, s. 7.]— R. S. C. c. 159, s. 9, provides inter alia that " every one who becomes the custodian or depository of any money . . . staked, wagered or pledged upon the result of any political or municipal election ... is guilty of a misdemean- our," and a sub-section says that " nothing in this section shall apply to . . . bets be- tween individuals." Ueld, reversing the de- cision of the Court of Appeal, Taschereau, J., dissenting, that the sub-section is not to b» construed as meaning that the main section does not apply to a depository of money bet between individuals on the result of an elec- tion ; such depository is guilty of a misde- meanour, and the bettors are accessories to the offence and liable as principal offenders. R. S. C. c. 145. Reg. v. Dillon (10 Ont. P. R. 352) overruled. Walsh v. Trehilcock, xxiii., 695. 31. Criminal Code, 1892, ss. 742-750— New trial— 55 & 56 Vict. c. 29, s. 742.1— The word " opinion " as used in the second sub-section of section seven hundred and forty two of " The Criminal Code, 1892," must be con- strued as meaning a " decision " or " judg- ment " of the Court of Appeal in criminal cases. Viau v. The Queen, xxix., 90. 32. Appeal of statute — Re-enactment — 20 & 21 Vict. c. 54, s. 12 (Imp.) — Application of Acts — Criminal prosecution — Embezzle- ment of trust funds — Suspension of civil rem- edy — Stifling prosecution — Partnership. See No. 7, ante. 33. Construction of 60 d 61 Vict. c. 2.4 (D.) — Appeals from Ontario courts — Appeal in criminal case. See No. 79, infra. 34. Perjury Judicial proceeding — De Misleading justice — Juris- on — R. S. Q. arts. 5551, 5561 — Criminal Code, s. 145. See Criminal Law, 24. fa^o tribunal 35. Canada Evidence Act, 1893 — Construc- tion and interpretation — Competency of hus- band and wife as witnesses — " Communica- tions " — Privilege — Reference to Hansard de- bates. See No. 81, infra. 7. Penal Statutes. 36. Construction of statute — Jurisdiction of Superior Court — R. S. C. c. 135. s. 29 (a) — " Quebec Pharmacy Act " — Retroactive leg- islation — Suit for joint penalties — Second of- fences — Unlicensed sale of drugs — 50 Vict. c. 5, s. 7—R. S. Q. arts. 11, 4035, 40391. 404O, 4046, 4052.'\ — The amendment to the " Quebec Pharmacy Act" by 62 Vict. c. 35, s. 2 (Que.) adding art. 4039 (6), Revised Statutes of Quebec, has no retroactive effect upon proceed- ings instituted for penalties under the Act be- fore the amendment came into force. 50 Vict. c. 5, s. 7 (Que) ; art. 11 R. S. Q.— Penalties for several offences under the said Act may be joined in one action and, when the aggregate amount is sufficiently large, the action may be brought in the Superior Court as a court of competent jurisdiction under the statute. Such action may properly be taken in the name of the Pharmaceutical Association of the Province of Quebec. — It is improper in such an action to describe the subsequently charged offences as second offences under the statute, as a second offence cannot arise until there has been a condenmation for a penalty upon a first offence charged. — The sale in the Pro- vince of Quebec, by an unlicensed person, of drugs by retail, whether or not such drugs be poisonous, or partially composed of poison, or absolutely free from poison, is a violation of the prohibition contained in art. 4033, Revised Statutes of Quebec, whether or not the articles sold be enumerated in the " Quebec Pharm- acy Act " as poisonous or as containing an enumerated poison. — Judgment of the Court of Queen's Bench (Q. R. 9 Q. B. 243) revers- ed. Taschereau and Gwynne, JJ., dissenting. L' Association Pharmaceutique de Quebec v. Livernois, xxxi., 43. [Leave to appeal to Privy Council was re- fused, August, 1901.] 37. Statutory prohibition — Penal statute — Wholesale purchase — Guarantee — Vali- dity of contract — Forfeiture — Nova Scotia Liquor License Act — Practice.^ — An agree- ment guaranteeing payment of the price of intoxicating liquors sold contrary to statutory prohibition is of no effect. — The imposition of a penalty for the contravention of a statute avoids a contract entered into against the pro- visions of the statute. Brown v. Moore, xxxii., 93. 38. " The Consolidated Railway Act, 1879 " — Prohibited contract — Railway director — Partnership with contractor — Action pro socio — Nullity. See No. 20, ante. Pbohibiting Acts. 39. By-law — Petition to quash — Appeal —40 Vict. (Que.) c. 29—53 Vict. (Que.) c. 70 — Judgment quashing — Appeal to Supreme Court— R. S. C. c. 135, s. 24 (jr)]— Section 439 of the Town Corporations Act (40 Vict. (Que.) c. 29), not having been excluded from the charter of Ste. Cunggonde (53 Vict. c. 70) is to be read as a part of it and prohibits an appeal to the Court of Queen's Bench from a judgment of the Superior Court on a peti- tion to quash a by-law presented under s. 310 of said charter. — Where the Court of Queen's Bench has quashed such an appeal for want of jurisdiction no appeal lies to the Supreme Court of Canada from its decision. Gitii of Ste. Gunigonde v. Gougeon, xxv., 78. 40. Contract — Partnership — Free miners — Dealing in -mineral claims — Statute of Frauds — British Columbia Mineral Act.] — Sections 50 and 51 of the Mineral Act of 1896 (B. C), which prohibit any person dealing in 1353 STATUTES. 1354 a mineral claim who does not hold a free min- er's certificate, does not prevent a partner in a claim recovering his share of the proceeds of a sale thereof by his co-partner though he held no certificate when he brought his ac- tion, having allowed the one he had up to the time' of sale to lapse. Archibald v. McNer- kmie, xxix., 564. 41. Rivers and streams — Driving logs — Oistruction — Dam — R. S. O. {188T) c. 120, ss. 1 and 5.]— By R. S. O. (1887) c. 120, s. 1, all persons are prohibited from prevent- ing the passage of sawlogs and other timber down a river, creek or stream, by felling trees or placing any other obstruction in or across the same. Held, reversing the judgment ap- pealed from (29 O. R. 206) that placing a dam on a river or stream by which the sup- ply of water therein was diminished so as to interfere with the passage of logs was an ob- struction under this Act. Farquharson v. 7m- ■ lerial Oil Co., xxx., 188. 42. Construction of statute — Jurisdiction of Superior Court — Suit for joint penalties — Second offences — Sale of drugs — " Quebec Pharmacy Act" — Retrospective legislation.'] — The sale by an unlicensed person of drugs by retail in the Province of Quebec, whether such drugs be poisonous or not, or partially com- posed of poison, or absolutely free from poison, is a violation of the prohibition contained in art. 4035 R. S. Q., whether or not the articles sold be enumerated in the " Quebec Pharmacy Act " as poisonous or as containing an en- umerated poison. — Judgment appealed from (Q. R. 9 Q. B. 243) reversed, Taschereau and Gwynne, JJ., dissenting. L' Association Pliarmaceutique de Quebec v. Livernois, xxxi., 43. [The Privy Council refused leave to appeal, August, 1901.] 43. Construction of statute — 20 & 21 Vict. 0. 5i, s. 12 (Imp.) — Criminal prosecution — Embezdement of trust funds — Suspension of civil remedy — Stifling prosecution — Partner- ship. See TEtrSTS, 22. 44. Prohibited contract — Penal statute — Hullity. See No. 20, ante. 4.5. Statutory prohibition — Penal statute —Wholesale purchase — Guarantee — For- feiture — Nova Scotia License Act — Practice. See No. 37, ante. 9. Rethospective Effect. 46. Construction of — Winding-up Act — lontnbutories — Set-off— 45 Vict. c. 23, ss. 10, 10 JD.) — Retrospective legislation.'] — Sec- tions 75 and 76 of the Winding-up Act (45 , / <^- 28 [D.]), in respect to claims acquir- «« by contributories within 30 days of the commencement of winding-up proceedings for use as a set-off, only apply to actions against a contributory when the debt claimed is due triif t person sued in his capacity as con- "iDutory and the said Act is not retrospective ,T,j 1^"^" to a claim purchased in good faith ana tor value prior to the passing of the sta- XI 265 "' "' ■^""''' "'' •P"'"'^ Edward Island, 47. Construction — Legislative declaration — Customs duties — Articles imported in parts — hsubseqiient imposition of duty.] — The sever- al parts of an article were manufactured in the United States and imported into Canada where they were put together. The Crown sought to collect duty on such parts accord- ing to the value of the complete article. There was no duty imposed on parts of an article at the time the information was laid. Held, that the subsequent passage of an Act, 48 & 49 Vict. c. 61, s. 12, re-enacted by 49 Vict. c. 32, s. 11, imposing a duty on such parts was a legislative declaration that it did not previously exist. Grinnell v. The Queen, xvi., 48. Construction — Retrospective effect — Right of action — Negligence of Grown ser- vant — Jflt Vict. c. 25 — R. S. C. c. 38 — 50- 51 Vict. c. 16, s. 18.] — Held, reversing the judgment appealed from (2 Ex. C. R. 328), that even assuming 50 & 51 Vict. c. 16 gives an action against the Crown for an injury to the person received on a public work resulting from negligence of which its ofiicer or servant is guilty (upon which point the court ex- pressed no opinion), the act is not retroactive in effect and gave no right of action for in- juries received prior to its passing. The Queen V. Martin, xx., 240. 49. Retroactive effect — Municipal corpora- tion — Turnpike road company — Erection of toll gates — Consent of corporation.] — A turnpike road company had been in existence for a number of years and had erected toll gates and collected tolls therefor^ when an Act was passed by the Quebec Legislature, 52 Vict. c. 43, forbidding any such company to place a toll or other gate within the limits of a town or village without the consent of the corporation. Section 2 of said Act provided that " this Act shall have no retroactive ef- fect," which section was repealed in the next session by 54 Vict. c. 36. After 52 Vict. ^ c. 43 was passed, the company shifted one of its toll gates to a point beyond the limits of the village, which limits were subsequently ex- tended so as to bring said gate within them. The corporation took proceedings against the company contending that the repeal of s. 2 of 52 Vict. c. 43, made that Act retroactive and that the shifting of the toll gate without the consent of the corporation was a violation of said Act. Held, affirming the decision of the Court of Queen's Bench, that as a statute is never retroactive unless made so in express terms, s. 2 had no effect and its repeal could not make it retroactive; that the shifting of the toll gate was not a violation of the Act, which only applied to the erection of new gates ; and that the extension of the limits of the village could not affect the pre-existmg rights of the company. Village of St. Joachim V. Pointe Claire Turnpike Road Co., xxiv., 486. 50. Construction of statute — Jurisdiction of Superior Court — Suit for joint penalties — Second offences — Sale of drugs — " Que- bec Pharmacy Act " — Retrospective legisla- tion]— A.vt. 4039 (6) added to the "Quebec Pharmacy Act" by 62 Vict. c. 35, s, 2, has no retroactive effect upon proceedings insti- tuted' for penalties under the Act before the amendment came into force. — Judgment ap- pealed from (Q. R. 9 Q. B. 243), reversed, Taschereau and Gwynne, JJ., dissenting. 1355 STATUTES. 1356 Association Pharmaceutique de Quiheo v. Livernois, xxxi., 43. [The Privy Council refused leave to appeal, August, 1901.] 51. Construction of statute Amending Act — Retrospection — Sale of lands — Judg- ments and orders.] — Until 1897 it was the practice in Manitoba for the Court of Queen's Bench to grant orders for the sale of lands on judgments of the County Court under rules 803 et seq., of the Queen's Bench Act, 1895. In that year the Court of Queen's Bench de- cided that this practice was irregular, and in the following session the legislature passed an Act providing that " in the case of a County Court judgment, an application may be made under rule 803 or rule 804^ as the case may be. This amendment shall apply to orders and judgments heretofore made or entered, except in cases where such orders and judgments have been attacked before the passing of this amendment." Held, Sedgewick, J., dissenting, that the words " orders and judgments " in said clause refer only to orders and judg- ments of the Queen's Bench, for sale of lands on County Court judgments and not to orders and judgments of the County Courts. Held, further, reversing the judgment of the King's Bench (13 Man. L. R. 419), Davies, J., dis- senting, that the clause had retroactive opera- tion only to the extent that orders for sale by the Queen's Bench on County Court judg- ments made previously were valid from the date on which the clause came into force but not from the date on which they were made. Held, per Sedgewick, J., that the clause had no retroactive operation at all. Schmidt v. Ritz, xxxi., 602. 52. Commencement of Act — Judgment simultaneous with assent — Effect on appellate jurisdiction. See No. 2, ante. 10. APPUOATION of STATtTTOKY PROVISIONS. * 53. Construction of statute — 54 & 55 Vict, c. 25 — Appeal to Supreme Court.) — Held, per Strong, C.J., and Fournier and Sedgewick, JJ., that the right of appeal given by 54 & 55 Vict. c. 25, does not extend to cases standing for judgment in the Superior Court prior to the passing of the said Act. Couture v. Bouchard (21 Can. S. C. R. 181) followed. Taschereau and Gwynne, JJ., dissenting. — Per Fournier, J. That the statute is not applicable to cases already instituted or pending before the courts, no special words to that effect being used. Williams v. Irvine, xxii., 108. [Followed in Gowen v. Evans; Mitchell v. Trenholme, and Mills v. Limoges (22 Can. S. C. R. 331). See No. 55, infra.] 54. Construction of statute ■ — Married wo- man's property — Separate estate — Contract hy married woman — Separate property exigible —G. S. U. C. c. 73—35 Vict. c. 16 (0.)—B. S. 0. (,1877) cc. 125 and 127—47 Viot. c. 19 (O.)] — A woman married between 1859 and 1872 acquired, in 1879 and 1882, lands in Ontario as her separate property, and in 1887, before the Married Woman's Pro- perty Act of that year (E. S. O. c. 182), came into force, she became liable on cer- tain promissory notes made by her. Held, re- versing the decision of the Court of Appeal, that the liability of her separate property to satisfy a judgment on said promissory notes depended on the construction of the Married Woman's Real Estate Acts of 1877 (R. S. O. cc. 125, 127) , and the Married Woman's Pro- perty Act. 1884 (47 Vict. c. 19), read in the light furnished by certain clauses of C. S. U. O. c. 73 ; and that her capacity to sue and be sued in respect thereof carried with it a corresponding right on the part of her cred- itors to obtain the fruits of a judgment against her by execution on such separate property. Moore v. Jackson, xxii., 210. 55. Appeal to Supreme Court — Pending suits — 54 £ 55 Vict. a. 25, s. 3.] — The sta- tute 54 & 55 Vict. c. 25, s. 3, which provides that " whenever the right to appeal is de- pendent upon the amount in dispute such amount shall be understood to be that de- manded and not that recovered, if they are different," does not apply to cases in which the Superior Court has rendered judgment or- to cases argued and standing for judgment (en delibere) before that court, when the Act came into force. Williams v. Irvine (12 Can. S. C. R. 108) followed. Cowen v, Evans; Mitchell V. Trenholme; Mills v. Limoges, xxii.,. 331. 56. Municipal corporation — Ditches and Watercourses Act, R. S. O. (1887) c. 220— Requisition for drain — Owner of land — ■ Meaning of term owner.] — By s. 6 (a) of the- Ditches and Watercourses Act of Ont. (E. S> O. [1887] c. 220), any owner of land to be benefited thereby may file with the clerk of a municipality a requisition for a drain if he has obtained " the assent in writing thereto of (including himself) a majority of the owners affected or interested." Held, affirming the judgment of the Court of Appeal, that " owner " in this section does not mean the assessed owner ; that the holder of any real or substantial interest is an " owner affected or interested " ; and that a mere tenant at will can neither file the requisition nor be included in the majority required. — Quwre, If the per- son filing the requisition is not an owner within the meaning of that term are the pro- ceedings valid if there is a majority without himY Township of Osgoode v. York, xxiv., 282. 57. Registry Act, R. S. O. c. 114 — Munici- pal by-law, registration of — Notice.] — R. S. O. (1877) c. 114, s. 83, providing that no lien,, charge or interest affecting land shall be valid as against a registered instrument executed by the same party, his heirs or assigns, is not restricted to interests derived under writ- ten instruments susceptible of registration,, but applies to all interests. City of Toronto- V. Jarvis, xxv., 237. 58. Public highway — 46 Vict. (0.) c. 18 — Registered plan — Dedication — User — Con- struction of statute — Retrospective statute — Estoppel.] — The right vested in a municipal corporation by 46 Vict. (O.) c. 18, to convert into a public highway a road laid out by a private person on his property, can only be exercised in respect of private roads, to the use of which the owners of property abutting thereon were entitled. Gooderham v. City of Toronto, xxv., 246. 59. Mortgage — Mining machinery — Regis- tration — Fixtures — Interpretation of terms — Bill of sale — • Personal chattels — R. S. N. S. (5 ser.) c. 92, ss. 1, 4 and 10 (Bills of sale) 1357 STATUTES. 1358 —55 Vict. (2V. S.) c. 1, s. US (The Mines Act).] — The "fixtures " included in the mean- ing of the expression " Personal chattels " by the tenth section of the Nova Scotia " Bills of Sale Act," are only such articles as are not made a permanent portion of the land and may be passed from hand to hand without reference to or in any way affecting the land, and the " delivery " referred to in the same clause means only such delivery as can be made without a trespass or a tortious Act. —An instrument conveying an interest in lands and also fixtures thereon does not need to be registered under the Nova Scotia " Bills of Sale Act" (R. S. N. S. 5 ser. c. 92) , and there is now no distinction in this respect be- tween fixtures covered by a licensee's or ten- ant's mortgage and those covered by a mort- gage made by the owner of the fee. Warner V. Don, xxvi., 388. 60. Marital rights — Married woman — Sepa- rate estate — Interpretation — -iO Vict. c. 7, !. 3, and) amendments — R. 8. G. c. 40 — N. W. Ter. Ord. No. 16 of 1889.} — l^e provisions of Ordinance No. 16 of 1889 (N.-W. T.) are not inconsistent with ss. 36 to 40, inclus- ively of " The North West Territories Act," which exempt from liability for her husband's debts the personal earnings and business pro- fits of a married woman. — The words " her personal property," used in the said Ordinance No. 16 are unconfined by any context, and must be interpreted not as having reference only to " the personal earnings " mentioned in s. 36, but to all the personal property belong- ing to a woman, married subsequently to the Ordmance, as well as to all the personal pro- perty acquired since then by women married before it was enacted. Brittlebank v. Oray- Jones (5 Man. L. R. 33) distinguished. Con- ger V. Kennedy, xxvi., 397. 61. Master and servant — Negligence — Arts. SOW-SUSS G. C.—Givil "Quebec Factories Act " — R. 8. Q. — Responsibility — Accident, cause of — . Conjecture — Evidence — Onus of proof ■ — Statutable duty, breach of — Police regulations.'] — The provisions of the " Quebec Factories Act," (R. S. Q. arts. 3019 to 3053 inclusively), are intended to operate only as police regulations and the statutable duties thereby imposed do not affect the civil respon- sibility of employers towards their employees as provided by the Civil Code. Montreal Rol- Img Mills Co. v. Corcoran, xxvi., 595. 62. Appeal — Jurisdiction — 52 Vict. o. 37, n ^■^•^ — Appointment of presiding officers — ^ounty Court Judges— 55 Vict. c. 18 (Ont.)^ 08 VKt 0. 47 (Ont.) — Appeal from assess- ment—Pmal judgment.] — By 52 Vict. c. 37, s^ 2, amending " The Supreme and Exchequer ijoui'ts Act," an appeal lies in certain cases to the Supreme Court of Canada from courts 01 last resort created under provincial legis- lation to adjudicate concerning the assessment M property for provincial or municipal pur- poses, m cases where the person or persons presiding over such court is or are appointed^ ?7 P^'ovincial or municipal authority." By P^ Ontario Act, 55 Vict. c. 48, as amended oy as Vict. c. 47, an appeal lies from rulings or municipal courts of revision in matters of assessment to the County Court judges of the J^ounty Court district where the property has S ^^?6ssed. On an appeal from the de- usion of the County Court judges under the thif •*" i'^*"*«^ :— 'E^eid, King, J., dissenting, "at It the County Court judges constituted nf ^? v; f last resort " within the meaning ^Ln ^'?^' "■ ^^' ^- 2. the persons presidinl oyer such court were not appointed bv pro- vincial or municipal authority, and the appeal was not authorized by the said Act. Held per Gwynne, J., that as no binding effect is given to the decision of the County Court judges, under the Ontario Act cited, the court appealed from was not a "court of last re- sort within the meaning of 52 Vict, c 37 s. 2. — Quwre, Is the decision of the County Court judges a " final judgment " within the meaning of 52 Vict. c. 37, s. 2? City of To- ronto V. Toronto Ry. Co., xxvii., 640. 63. 51 Vict. c. 12, s. 51 — Civil service — Extra sO'iary — Additional remuneration — Per- manent employees.] — ■ The Civil Service Amendment Act, 1888 (51 Vict. c. 12), by s. 51, provides that "no extra salary or addi- tional remuneration of any kind whatever shall be paid to any deputy-head, officer or employee in the civil service of Canada, or to any other person permanently employed in the public service of Canada." Held, that re- porters employed on the Hansard stafiE of the House of Commons of Canada, are per- sons subject to the operation of the statute quoted. Held, further, that in the section re- ferred to, the words ." no extra salary or ad- ditional remuneration " apply only to pay- ments which, if made, would be extra or ad- ditional to the salary or remuneration payable to an officer for services which, at the time of his acceptance of the appointment, could legi- timately have been intended or expected to be within the scppe of the ordinary duties of his office, although additional to them. The Queen V. Bradley, xxvii., 657. 64. Railways— 51 Vict. c. 29, s. 262 (D.) — Railway crossings — Paclcing railway frogs, wing-rails, &c. — Negligence.] — Tlie proviso of s.-s. 4 of s. 262 of "The Railway Act" (51 Vict. c. 29 (D.)) does not apply to the fill- ings referred to in s.-s. 3, and confers no power upon the Railway Committee of the Privy Council to dispense with the filling in of the spaces behind and in front of railway frogs or crossings and the fixed rails of switches during the winter months. — Judg- ment of the Court of Appeal for Ontario (24 Out. App. R. 188) reversed. Washington v. Grand Trunk Ry. Co., xxviii., 184. [Affirmed by the Privy Council, 24th Febru- ary, 1899. See Can. Gaz. vol. xxx.. p. 543; vol. xxxi., p. 415; vol. xxxii., p. 514; (1898) A. C. 275.] 65. Winding-up Act — Moneys paid out of court — Order made by inadvertence — Jurisdic- tion to compel re-payment — R. 8. G. e. 129, ss 40 41 94 — Locus standi of Receiver-Gen- eral— 55 rf- 56 Vict. c. 28, s. 2Statute, con- struction of.] — The liquidators of an insolvent bank passed their final accounts and paid a balance, remaining in their hands, into court. It appeared that by orders issued either through error or by inadvertence the balance so deposited had been paid out to a person who was not entitled to receive the money, and the Receiver-General for Canada, as trustee of the residue, intervened and applied for an order to have the money re-paid in order to be dis- posed of under the provisions of the Winding- up Act. Held, afiirmiug the decision of the Court of Appeal for Ontario, that the Re- ceiver-General was entitled so to intervene al- though the three years from the date of the deposit mentioned in the Winding-up Act had 1359 STATUTES. 1360 not expired. Held, also, that even if he was not so entitled to Intervene the provincial courts had jurisdiction to compel re-payment into court of the moneys improperly paid out. Hogaboom v. Receiver-Oeneral of Canada; In re Central Bank of Canada, xxviii., 192. 66. Civil service — Superannuation — R. 8. G. c. 8 — Abolition of office — Discretionary power —-Jurisdiction.'] — Employees in the civil ser- vice of Canada, who may be retired or removed from office under the provisions of s. 11 of " The Civil Service Superannuation Act " (R. S. C. c. 18), have no absolute right to any superannuation allowance under that section, such allowance being by the terms of the Act entirely in the discretion of the executive au- thority. Balderson v. The Queen, xxviii., 261. 67. Public works — Railways and canals — R. 8. C. c. 37, s. 23 — Contracts binding on the Crown — Goods sold' and delivered on verbal order of Crown officials — Supplies in excess of tender — Errors and omissions in accounts ren- dered — Findings of fact — Interest — Arts. 1067 d 1077 G. C. — 50 & 51 Vict. c. 16. s. 33.] — The provisions of s. 33 of the " Act respecting the Department of Railways and Canals" (R. S. C. c. 37), which require all contracts affecting that department to be signed by the Minister, the Deputy Min- ister or some person specially authorized, and countersigned by the secretary, have reference only to contracts in writing made by that de- partment ( Gwynne, J., contra ) . — Where goods have been bought by and delivered to officers of the Crown for public works, under orders verbally given by them in the performance of their duties, payment for the same may be recovered from the Crown, there being no sta- tute requiring that all contracts by the Crown should be in writing. (Gwynne and King, JJ., contra). The Queen v. Henderson, xxviii., 425. 68. Married woman — Separate property — Conveyance — Contracts — C. 8. N. B. o. 72.] — Section 1 of C. S. N. B. c. 72, which provides that the property of a married woman shall vest in her as her separate property, free from the control of her husband and not liable for payment of his debts, does not, except in the case specially provided for, enlarge her power for disposing of such property or allow her to enter into contracts which at common law would be void. Moore v. Jackson (22 Can. S. C. R. 210) referred to. Lea v. Wallace (33 N. B. Rep. 492) reversed. Wallace v. Lea, xxviii., 595. 69. Patent of invention — Canadian patent — Expiration of foreign patent — R. 8. C. c. 61, s. 8—55 iG 56 Vict. o. 2J,. s. i.]— The Exche- quer Court of Canada (6 Ex. C. R. 55), de- clared a certain patent to be a good, valid and subsisting patent, and that it had been in- fringed by the defendants, and held that, the expression " any foreign patent " occurring in the concluding clause of s. 8 of " The Patent Act," must be limited to foreign patents in existence when the Canadian patent was granted. — On appeal, the Supreme Court of Canada affirmed the judgment of the Exche- quer Court, and dismissed the appeal with costs. Drcschcl v. Aiicr Incandescent Light Mfg. Co., xxviii., G08. Cf. amendment to Patent Act passed in V.WJ,. 70. Joint stock company — Irregular organ- ization — Subscription for shares — Withdrawal — Surrender — Forfeiture — Dviy of directors — Powers — Cancellation of stocks — Ultra vires — " The Companies Act " — " The Winding-up Act " — Gontributories — Pleading.'] — ^After the issue of an order for the winding-up of a joint stock company, incorporated under " The Companies Act" (E. S. C. c. 119), a share- holder cannot avoid his liability as a contri- butory by setting up defects or illegalities in the organization of the company, as, under the provisions of the Act, such grounds may be taken only upon direct proceedings at the in- stance of the Attorney-General. — The powers given directors of a joint stock company un- der '-The Companies Act" (R. S. 0. c. 119), as to forfeiture of shares for non-payment of calls, are intended to be exercised only when the circumstances of the shareholders render it expedient in the interests of the company, and they cannot be employed for the benefit of the shareholder. Gommon v. McArthur, xxix., 239. 71. Railway — Running of trains — Ap- proaching crossing — Warning — Shunting — Railway Act, 1888, s. 2-56'.] — Section 256 of the Railway Act. 1888, providing that "the bell with which the engine is furnished shall be rang, or the whistle sounded, at the dis- tance of at least eighty rods from every place at which the railway crosses any highway, and be kept ringing or be sounded at short intervals until the engine has crossed such highway " applies to shunting and other tem- porary movements in connection with the run- ing of trains as well as to the general traffic. Canada Atlantic Ry. Co. v. Henderson, xxix., 632. 72. Municipal corporation — Assessment - — Montreal Harbour improvements — Special taxes — Widening streets — Construction of sta- tute— 57 Vict. c. 57 (Que.)— 52 Vict. c. 79, s. 139 ( Que. ) ] — Notwithstanding the refer- ence therein to " existing rolls," the applica- tion of s. 1 of the Act of 57 Vict. c. 57 (Que.) should be restricted to the cost o* the " widen- ing " only of the streets therein named in cases where there were then existing rolls prepared by the commission fixing the limits for that purpose, and these words could not have the effect of extending the nature and character of such works so as to include work manifestly forming part of the harbour improvement scheme and chargeable against a special loan under a by-law based on the provisions of s. 139 of the Montreal City charter, 52 Vict. c. 79. White V. City of Montreal, xxix., 677. 73. Rivers and streams — Floatable waters- Construction of statute — " The Sawlogs Driv- ing Act "—R. S. O. (1887) c. 121— Arbitra- tion — Action upon award — River improve- ments — Detention of logs — Damages.] — When logs being floated down a stream are unrea- sonably detained by reason of others being massed in front of them, the owner is entitled to an arbitration under the Sawlogs Driving Act to determine the amount of his damages for such detention and is not restricted to the remedy provided by s. 3 of that Act, namely, removing the obstruction. Judgment of the Court of Appeal (26 Ont. App. R. 19) re- versed. Cockburn & Sons v. Imperial Lumber Co., XXX., 80. 74. Controverted election — Preliminary ob- jections — Status of petitioner — 61 Vict. c. Vh! 1361 STATUTES. 1363 6S<& 64 Vict. c. 12 (,D.)—59 Vict. o. 9, s. 272 (Que.) — Dominion franchises.] — The princi- pal contention on preliminary objections to a controverted election petition was, that the petitioner had been guilty of corrupt practices before 'and during the election, and that, by the effect of the statutes, 61 Vict. c. 14 and 63 & 64 Vict. c. 12, the Dominion Franchise Act was repealed, and the provisions of the " Que- bec Elections Act " regulating the franchise in the Province of Quebec substituted therefor so as, thereby, to deprive the petitioner of a right to vote under 59 Viet. c. 9, s. 272, and being so deprived of a vote that he had no status as petitioner. In the Election Court, evidence was taken on issues joined and the judge, holding that no corrupt practice upon the right of the petitioner had been proved, dismissed the preliminary objections. On ap- peal to the Supreme Coulrt of Canada, Held, that as corrupt practices had not been proved, the (juestion as to the effect of the statutes did not arise. — Per Gwynne, J. The amend- ment to the Dominion Franchise Act by 61 Vict. c. 14 (D.) and 63 & 64 Vict. c. 12 (D.) has not introduced into that Act the provisions of s. 272 of " The Quebec Elections Act " so as to deprive a person properly on the list of voters for a Dominion election of his right to vote at such election. Beauharnois Election Case; Loy v. Poirier, xxxi., 447. 75. Gonstriiction of statute — Negligence — Personal injuries — Drains and sewers — Lia- bility of municipality — Officers and employees of municipal corporation — 59 Vict. c. 55, s. 26, s.-s. IS (Que.)] — The Act incorporating the Town of St. Louis, Que., gives power to the council to regulate the connection of private drains with sewers, " owners or occupants be- ing bound to make and establish connections at their own cost, under the superintendence of an officer appointed by the corporation." held, affirming the judgment appealed from, that the municipality cannot be made liable for damages caused through the acts of a per- son permitted by the council to make such connections, as he is neither an employee of the corporation nor under its control. Dallas V. Town of St. Loui^, xxxii., 120. 76. Construction of U Vict. c. 102 (N.B.) —Municipal hond — Form. — Statute authoriz- ing.] — An Act of the New Brunswick Legis- lature authorized the County Council of Glou- cester County to appoint Almshouse Commis- sioners for the parish of Bathurst, in said county, who might build or rent premises for an almshouse and workhouse the cost to be assessed on the parish. The municipality was empowered to issue bonds, to be wholly chargeable on said parish, under its cor- porate seal and signed by the warden and secretary-treasurer, the proceeds to be used by the commissioners for the purposes of the Act. G. purchased from the secre- tary-treasurer of the county a bond so signed and sealed and headed as follows : Almshouse Bonds, Parish of Bathurst." It went on to state that •' This certifies that the i'ansh of Bathurst, in the County of Glouces- ter, Province of New Brunswick, is indebted to George S. Grimmer," . . . pursuant to M Act of Assembly (the above mentioned ■«:t), &c. In an action by G. on said bond, aeld, reversing the judgment of the Supreme Wiurt of New Brunswick (85 N. B. Rep. 255), Wat notwithstanding the above declaration mat the parish was the debtor, the County »i txloucester was liable to pay the amount due on the bond. Grimmer v. County of U-loucester, xxxii.,. 305. 77. Construction of 58 Vict. c. 25 (N.B.) — Act securing benefits of life insurance to wives and children — Accident insurance.] — Per Sedgewick, J. The New Brunswick Act (58 Vict. c. 1^5), for securing to wives and children the benefit of life insurance applies to accident insurance as well as to straight life insurance. Cornwall v. Halifax Banking Co., xxxii., 442. 78. Construction of 60 & 61 Vict. c. S4 (D.) — Quashing by-law — Appeal de piano — Appeals ill Ontario cases.] — The appeals to the Supreme Court from judgments of the Court of Appeal for Ontario are exclusively governed by the provisions of 60 & 61 Vict. c. 84 (D.), and no appeal lies as of right unless given by that Act. Town of Aurora v. Village of Markham, xxxii., 457. [See 3 Ont. L. R. 609.] 79. Construction of 60 & 61 Vict. c. 34 (D.) — Appeals from Ontario Courts — Appeal in criminal case.] — The Act of the Dominion Parliament respecting appeals from the Court of Appeal for Ontario to the Supreme Court (60 & 61 Vict. c. 34j, applies only to civil cases. Criminal appeals are regulated by the provisions of the Criminal Code. Bice v. The King, xxxii., 480. 80. Company law — " The Companies Act, IbiJU " (B.C.) and amendment — Construction of statute — Memorandum of association — Con- ditions imposed by statute — Public policy — Preference stock — Election of directors.] — In the memorandum of association of a joint stock company formed under the provisions of the British Columbia " Companies Act, 1890," and its amendment in 1891, there was a clause purporting to give to the holders of a certain block of snares, being a minority of the capital stock issued, the rignt at each election ot the board of directors to elect three of the five di- rectors or trustees for the management of the business of the company, notwithstanding any- thing contained in the Act. Held, that the shares to which such privilege was sought to be attached could not be considered preference shares within the meaning of the statute, and that such agreement was ultra vires of the powers conferred by the statute and null and void, being repugnant to the conditions as to elections of trustees and directors imposed by the Act as matters of public policy. Judg- ment appealed from (9 B. C. Rep. 275) re- versed. Colonist Printing and Publishing Co. et al. V. Dunsmuir et al., xxxii., 679. 81. Canada Evidence Act, 1S93— Construc- tion and interpretation — Competency of hus- band and wife as witnesses — '' Communica- tions " — Privilege — Reference to Hansard de- bates.] — Under the provisions of " The Canada Evidence Act, 1893," the husband or wife of a person charged with an indictable offence is not only a competent witness for or against the person accused, but may also be compelled to testify. Mills, J., dissenting.— Evidence by the wife of the person accused of acts per- formed by her under directions of his counsel, sent to her by the accused to give the direc- tions is not a communication from the hus- band' to his wife in respect of which t^e Can- ada Evidence Act forbids her to testify. Mills, J dissenting.— .Per Girouard, J. (dissenting). The communications between husband and wife contemplated by the Canada Evidence 1363 STATUTES. 1364 Act, 1893, may be de verba, de facto or de corpore. Sexual intercourse is such a com- munication and in the case under appeal neither the evidence by the accused that blood- stains upon his clothing were caused by having such intercourse at a time when his wife was unwell, nor the testimony of his wife in con- tradiction of such statement as to her condi- tion, ought to have been received. — Per Mills, d. (dissenting). Under the provisions of the Canada Evidence Act, 1893, and its amend- ments, the husband or wife of an accused per son is competent as a witness only on behalf of the accused and may not give testimony on the part of the Crown. — Fer Taschereau, C.J. The reports of debates in the House of Com- mons are not appropriate sources of informa- tion to assist in the interpretation of language used in the statute. Uosselin v. The King, xxxiii., 255. 82. 36 Vict. c. 11, s. 22 — Supreme Court of Canada — Construction of statute — New trial.] -^Under s. 22 of the Supreme and Exchequer Courts Act, no appeal lies from the judgment of a court granting a new trial, on the ground that the verdict was against the weight_ of evidence, that being a matter of discretion. Boak V. Merchants' Marine Ins. Co., i., 110. [See R. S. C. c. 135, s. 24 (d). as amended by 54 & 55 Vict. c. 25, s. 2, enacted since date of above decision.] 83. Implied extinction of right of way — Cohourg Harbour works — 10 Geo. IV. c. 11.] — Held, that a public right of way from the end of a street to the waters of Lake Ontario had been extinguished by statute by necessary implication. Corporation of Yarmouth v. Sim- monds (L. R. 10 Ch. D. 518) followed. Stand- ley v. Ferry, iii., 356. See Title to Land, 32. 84. Construction of 45 Vict. c. 23 (D.) — Winding-up Act — Foreign corporation — Con- flict of laws— 28 & 29 Vict. o. 63 (Imp.)]— The Act 45 Vict. c. 23 (D.) does not apply to foreign corporations doing business in Canada. Merchants IBank of Halifax v. Gillespie, x., 312. See Company Law, 18. 85. Construction of Dominion Telegraph Go. Incorporation Act — • 34 Vict. c. 52 (D.) — Fowers — Cutting trees. See Tbespass, 2. 86. Nova Scotia Railway Act — Tax on rail- way — Exemption — Mining company — Con- struction of railway by — R. S. N. S. (o ser.) c. 53. See Railways, 135. 87. 54 £ 55 Vict. c. 25, s. 3 — Application of — Appeal to Supreme Court — Amount in, con- troversy. See Appeal, 52, 53. 88. Railway belt in British Columbia — Sta- tutory conveyance to Dominion — Fre-emption prior to — ■ Federal and provincial rights — Lands Act of 1873 and 18T9 (B.C.)— 47 Vict. c. 6 (D.) See Constitutional Law, 72. 89. Manitoba Constitutional Act — Matters relating to education — Fowers of provincial legislatures — Repeals-Right of appeal to Gov^ ernor-Generalrin-Council — 33 Vict. c. 3, s. 22 s.-s. 2 (D.)—B. N. A. Act, s. 93, s.-s. S. See Constitutional Law, 2. 90. Construction of — Foreshore — Property in — Right of V. F. R. Co. to use — Jus publi- cum — Access to harbour. See FoBESHOBB. 91. R. S. N. S. (5 ser.) c. 84— Registry- Indorsement on lease — Lease for lives — Pro- tection. See Lease, 31. 92. Customs duties — 50 & 51 Vict. c. 39, items 88 and 173 — Exemption from duty — Uteel rails jor use on rauways — Application 10 street rUilways. . See Customs Duties, 3. 93. ■' Bills of Exchange Act, 1890 "—" The Bank Act," R. S. V. c. 120 — Constitutional law — Obligations binding on provincial legis- latures — Government expenditures — Negoti- able instrument — '" Letter of credit " — Powers of executive councillors. See Constitutional Law, 26. 94. Ex post facto — Legislation — Special tax. See Municipal Coeporation. 124. 95. Landlord and tenant — R. S. 0. (1887} c. 143, s. ii8 — Distress — Goods of person hold- ing "■ under " tenant. See Landlobd and Tenant, 9. 96. Repair of streets — Pavements — Assess- ment of owners — Double taxation — 24 Vict. 0. 39 (N.S.)—o3 Vict. c. 60, s. I4 (N.S.) See Municipal Corpobation, 125. 97. Convention of 1818 — Fisheries — Three mile limit — Foreign fishing vessels — "Fishing" —59 Geo. III., e. Ja (Imp.) — R. S. C. cc. 9i & 95. See PiSHBEiES, 4. 98. Lease of mining areas — Rental agree- ment — Payment of rent — Forfeitures. See No. 146, infra. 99. Appeal — Jurisdiction — 54 <& 55 Vict. c. 25, s. 2— Expropriation — Death of arbitrator — 51 Vict. c. 29, ss. 156, 157 — Lapse of time for making award — Art. 12 G. C. See Railways. 30. 100. Appeal — Jurisdiction — Future rights — Alimentary allowance — R. S. C c. 135, s. 29, s.-s. 2; 54 & 55 Vict. c. 25, s. 3; 56 Vict. c. 29, s. 2. See Appeal, 82. 101. 60 & 61 Vict. c. 34, s. 1 (D.)— Appeals from Ontario, to Supreme Court of Canada — Matters in controversy — Interest of second mortgagee — Surplus on mortgage sale. See Appeai. 84. 102. Foreign statutory conditions — Force in the Province of Quebec— R. S. 0. (1897) 0. 203, s. 168. See Insurance, Fire, 38. 1365 STATUTES. 103. Repeal of statute ■ — Re-enactment — 20 £$1 Vict. 0. 54, s. IZ' (Imp.) — Application of acta — Criminal prosecution — Emhegzlement of trust funds — Suspension of civil remedy — Stifling prosecution — Partnership. See No. 7, ante. 104. R. 8. 0. c. 1S5, ss. U (;), 2S and 29— —5^ & 55 Vict. c. 25, s. 3 (D.) — Appeal — Bight of appeal to Privy Council — Court of Review — Construction of statute — Final judg- ment. See Appeal, 197. 105. Municipal assessment — 59 Vict. c. 61 (U.B.) — Domicile. See Domicile, 2. 106. Registration of tax deed — Certificate of title— Priority— B. S. B. C. c. HI. See Registry Laws, 29. 107. 54 & 55 Vict. c. 6, s. 6 (D.)—54 Vict. C.2, s. 6 (Ont.)—54 Vict. c. 4, s. 6 (Que.) — Awards on arbitration respecting accounts of Province of Canada. See Appeal, 14. . 108. Appeals to Supreme Court of Canada in Ontario cases — 60 & 61 Vict. c. Si, s.,1 (a) (D.) See Appeal, 85. 109. Workmen's Compensation Act " — R. S. 0. (189y) c. 160 — Electric car — Person in charge or control — Negligence of motorman — Injury to conductor. See Teamwat, 2. 110. Construction of statute — Sale and management of Crown lands — G-rant made in error — Cancellation — Adverse claim — 32 Vict, e. 11, s. 26 (Que.)—B. 8. Q. 1299. See Ceown, 94. HI. Construction of statute — Amending Act — Retrospective legislation — Sale of lands — Judgments and orders. See No. 51, ante. 112. Effect of statute — Wagering policy — Endowment — Return of premiums paid. See Insubance, Life, 22. 113. Constitutional law — Construction of B. *. A. Acts — Representation of provinces in ttouse of Commons — Aggregate population of fJanada. See No. 123, infra- 11. CONSTEUCTION AND IJSTIEEPBBTATION. (a) Formal Parts. 114. Reference to title — Intention of Legis- lature— 50 Vict. c. 23 (N.8.) — Application ?ifi ™°struing an Act of Parliament the title may be referred to in order to ascertain S X, ^°''°° °^ tlie legislature.— Tlie Act of ine Nova Scotia Legislature, 50 Vict. c. 23, Z» \.'¥ *'"^ to highways and the lands mkr^r' , *•"* ^a™e pass in the Crown for a PUbUc highway, does not apply to the City of "aurnx. Connor v. Nova Scotia Telephone ''"•. Kn., 276. 1366 115. R. S. N. 8. (5 ser.) c. 92, s. h-ChatteZ f„°^'»«fl:^-'A/^d«^»*-C'ompHa«c; loith statu- See Chattel Moetqage, 5. ,J'^^'-<,f-A- ^-Z- ^^ ?f'"-' «■ y- - «'•«« of sale — statutory form — Compliance with. See Chattel Mortgage, 6. 117. Fire insurance — Variation from statu- tory conditions — Ontario Insurance Act. See Instjeance, Fiee, 36. 118. Construction of statute — Railway char- ter — Terminus " at or near " a point named. See Railway, 152. (h) Imperative or Directory Provisions. 119. Permissive words — " May " — By-laio — Resolution — Mnnitoha Municipal Act. 1884, s, WZ.] — In s. Ill of the Manitoba Municipal Act, 1884, which provides that municipal cor- porations may pass by-laws in relation to mat- ters therein enumerated, the word " may " is permissive only and does not prohibit corpora- tions from exercising their jurisdiction other- wise than by by-law. Ritchie, C.J., and Strong, J., dissenting. Bernardin v. North Dufferin, xis., 581. 120. Directory or imperative requirement — ■ Municipal corporation — Collection of taxes — Delivery of roll to collector — 55 Viet. c. 48 (0.)] — By s. 119 of the Ontario Assessment Act (55 Vict. c. 48), provision is made for the preparation every year by the clerk of each municipality of a " collector's roll " containing a statement of all assessments to be made for municipal purposes in the year, and s. 120 provides for a similar roll with respect to taxes payable to the treasurer of tTie province. At the "end of s. 120 is the following : " The clerk shall deliver the roll, certified under his hand, to the collector on or before the first of October." . . . Held, affirming the decision of the Court of Appeal, that the provision as to delivery of the roll to' the collector was im- perative and its non-delivery was a sufficient answer to the suit against the collector for failure to collect the taxes. Held, also, that such delivery was necessary in the case of the roll for municipal taxes provided for in the previous section as well as to that for pro- vincial taxes. Toion of Trenton v. Dyer, xxiv., 474. 121. Assessment and taxes — Ontario Assess- ment Act—R. 8. 0. (1887) c. 193— Arrears of taxes — Distress.] — The provisions of s. 135 of the Ontario Assessment Act (R. S. O. [1887] c. 193), in respect to taxes on the roll being uncoUectable, providing for what the account of the collector in regard to the same shall shew on delivery of the roll to the treasurer, and requiring the collector to furnish the clerk of the municipality with a copy of the account, are imperative. Judgment appealed from (26. Ont. App. R. 459) affirming (30 0. R. 16) affirmed. City of Toronto v. Caston, xxx., 390. 122. Taxation — Customs duties — Foreign luilt ship.] — A taxing Act is not to be con- strued difEerently from any other statute. The King v. Algoma Central By. Co., xxxii., 277. [Affirmed by Privy Council, July, 1903]. 1367 STATUTES. 1368 123. Constitutional law — Construction of B. N. A. Acts — Representation of provinces, &c., in House of Commons — Aggregate population of Canada.'} — In determining the number of representatives to which Ontario, Nova Scotia and New Brunswick are respectively entitled after each decennial census, the words " aggre- gate population of Canada " in s.-s. 4 of s. 51 of the B. N. A. Act, 1867, mean the whole population of Canada including that of pro- vinces which have been admitted subsequently to the passing of that Act. The special terms on which the Province of Prince Edward Is- land was admitted into the Dominion do not except that province from the general opera- tion of the clauses of the B. N. A. Act, 1867, as to representation in the House of Commons as above stated. In re representation of the Provinces of Canada in the House of Commons of Canada, xxxiii., 475 ; In re Representation of Prince Edward Island in the House of Commons, xxxiii., 594. [Leave to appeal to Privy Council by Pro- vince of P. E. Island granted, November, 1903.] 124. Appeal — Pronouncing or entry of judgment — Security — Extension of time — Va- cation— R. 8. C. 0. 1S5, ss. 40, JfZ, 46. See Appeal.. 430, 431. 125. Snow and ice on sidewalks — By-law — 55 Vict. c. 42, s. 531 (Ont.)—57 Vict. c. 50, s. 13 {Ont.) See Negligence, 191. 126. Election petition — Preliminary objec- tions — Piling petition— 54 <& 55 Vict. c. 20, s. 5 (D.)—R. S. C. c. 1, s. 7, s.-s. 27—Interpreta- tion of words and terms — Legal holiday. See E1.ECTION Law, 103. 127. B. C. Mineral Act — Dealing in mineral claims — Free miner's certificate — Partnership — Prohibition under statute. • See No. 40, ante. 128. Liquor laws — Municipal corporation — Discretion of members — Refusal to confirm liquor license certificate — Liability of corpor- ation — R. S. Q., art. 839. See Liquor Laws, 18. 129. Controverted election — Parliamentary elections — Status of petitioner — 61 Vict. c. I4 —63 d 64 Vict. c. 12 (£>.)— 59 Vict. c. 9 s. 272 {Que.) — Dominion franchise — Incorporation by reference. See No. 74, ante. 130. Construction of statute — Municipal Act, 1883, s. 570 (Ont.) — Municipal Amend- ment Act, 1886, s. 22 (Ont.) See Deainage, 9. 131. Construction of B. C. "Mineral Act" — Location of mining claim — Approximate hear- ing — Mis-statement — Minerals in place. See Mines and Minerals, 10. 132. Donatio mortis causa — R. 8. N. 8. [191)0] c. 163, s. 35 — Corroborative evidence. See Gift, 2. ,133. Perjury — Judicial proceeding — De facto tribunal — Misleading justice — Jurisdic- tion — R. S. Q. arts. 5551, 5561 — Criminal Code. s. 145. See Criminal Law. 24. (c) Other Cases. • 134. Prince Edward Island "Land Purchase Act of 1875," s. 45-38 Vict. c. 11, ss. 11, 17 — Court of last resort in P. E. Island.} — The court of last resort in Prince Edward Island is the Supreme Court of Judicature in that province. Kelly v. Sullivan, i., 1. 135. Construction of statute — Title to land — Tenant for life — Conveyance to railway com- pany — Railway Acts — C. 8. G. c. 66. s. 11, s.-s. 1—24 Vict. c. 17, s. i.]— By C. S. C. c. 66, s. 11 (Railway Act), all corporations and per- sons whatever, tenants in tail or for life, greves de substitution, guardians, &c., not only for and on behalf of themselves, their heirs and successors, but also for and on behalf of those whom they represent . . . seized, possessed of or interested in any lands, may contract for, sell and convey unto the com- pany (railway company) all or any part thereof ; and any contract, &c., so made shall be valid and effectual in law. Held, affirm- ing the decision of the Court of Appeal (19 Ont. App. R. 265). that a tenant for life is authorized by this Act to convey to a railway company in fee, but the company must pay to the remainderman or into court, the pro- portion of the purchase money representing the remainderman's interest. Midland Ry. Co. V. Young, xxii., 190. 136. Ontario Municipal Act — ■ Bridges — VPidth of stream— R. 8. O. (1887) c. 184, ss. 532, 534.) — By the Ontario Mutual Act, R. S* O. [1887] c. 184, s. 532, the council of any county has " exclusive jurisdiction over all bridges crossing streams or rivers over one hundred feet in width within the limits of any incorporated village in the county, and connecting any main highway leading through the county," and by s. 534 the county council is obliged to erect and maintain bridges on rivers and streams of said width. On rivers and streams one hundred feet or less in width the bridges are under the jurisdiction of the respective villages through which they flow. Held, reversing the decision of the Court of Appeal (20 Ont. App. R. 1), that the width of a river at the level attained after h*ivy rains and freshets each year should be taken into consideration in determining the liability under the Act; the width at ordinary high- water mark is not the test of such liability. Village of New Hamburg v. County of Water- loo, xxii., 296. 137. Ontario Assessment Act — Unauthor- ized assessment — Validation — R. S. 0. (1887) c. 193, s. 65.]— Section 65 of the On- tario Assessment Act (R. S. O. [1887] c. 193) does not enable the Court of Revision to make valid an assessment which the statute does not authorize. Judgment appealed from (19 Ont. App. R. 675) affirmed. City of London V. Watt, xxii., 300. 138. Construction of statute — Quebec license laws — 55 d 56 Vict. c. 11, s. 26 — City of 8herbrooke — Charter — 55 & 56 Vict. c. 51, s. 55 — Powers of taxation.] — By virtue of the first clause of a by-law passed under 55 & 56 Vict. c. 51, an Act consolidating the charter of the City of Sherbrooke, the appellant was taxed five cents on the dollar on the annual value of the premises in which he carried on his occupa- tion as dealer in spirituous liquors, and in addition thereto under clause three of the 1369 STATUTES. 1370 same by-law, was taxed a special tax of two hundred dollars also for the same occupation. . Section 55 of the Act 55 & 56 Vict. c. 51, enumerates in ^ub-sections from a to ; the kinds of taxes authorized to be imposed, sub- section (6) authorizing the imposition of a business tax on all trades, occupations, &c., based on the annual value of the premises, and sub-section (ff) providing for a tax on persons, among others, of the occupation of the petitioner. At the end of sub-section (g) is the following : " the whole, however, subject to the provisions of the Quebec License Act." The Quebec License Act (art. 927 K. S. Q.) limits the powers of taxation of any muni- cipal council of a city to $200 upon holders of licenses. Held, aflarming the judgment of the court below, that the power granted by 55 & 56 Vict. c. 51, to impose the several taxes was independent and cumulative, and as the special tax did not exceed the sum of $200, the by law was intra vires, the proviso at the end of sub-section (g) not applying to the whole section. Taschereau and Gwynne, JJ., dissenting. Webster v. City of Sherhroohe, xxiv., 268. 139. Railway company — Agreement with foreign company — Lease of road for term of years — Transfer of corporate rights.'\ — The Canada Southern Railway Company, by its charter and amendments thereto, has author- ity to enter into an agreement with any other railway company with respect to the traffic arrangements or the use and working of the railway or any part thereof, and by the Do- minion Railway Act of 1879, it is authorized to enter into traffic arrangements and agree- ments for the management and working of its railway with any other railway company, in Canada or elsewhere, for a period of twenty- one years. Held, reversing the decision of the Court of Appeal (21 Ont. App. R. 297, sub mm. Wealleans v. The Canada Southern By. Co.), that authority to enter into an agreement for the " use and working " or " management and working " of its road con- ferred upon the company a larger right than that of making a forwarding agreement or of conferring running powers ; that the com- pany could lawfully lease a portion of its road to a foreign company and transfer to the lat- ter all its rights and privileges in respect to such portion, and the foreign company in such case would be protected from liability for in- jury to property occurring without negligence m its use of the road so leased, to the same extent as the Canada Southern Railway Com- pany is itself protected. Michigan Central Ry. Co. V. Wealleans, xxiv., 309. , 140. Practice — Equity suit — Construc- tion of statute as to new trial — Persona de- aignata—oS Vict. c. 4, s. 85 {N. B.)]— 53 Vict c. 4, s. 85 (N. B.), relating to proceed- wss in equity, provides that in an equity suit either party may apply for a new trial to tue judge before whom the trial was held." SeU, reversing the decision of fbe Supreme Court of New Brunswick, Taschereau, J., dis- senting, that such application need not be made before the individual before whom the tnal was had, but could be made to a judge exercising the same jurisdiction. Therefore, where the judge in equity who had heard the case resigned his office an application for a Bew trial could be made to his successor. tootner v. Figes (2 Sim. 319) followed. oraishaw v. Baptist Foreign Mission Board, JEW., 351. rr^ ;,?'■*,*'/„'' ?'"''*''■ America Act, ss 112 m, 115 116 118-36 Vict, c^ SO {D.)~A7 Vwt c. 4 {D.) -Provincial subsidies — Half, yearly payments — Deduction of interest {L ^y s 111 of the British North America Act Canada is made liable for the debt of each proymce existing at the union. By s 112 On- tario and Quebec are jointly liable ti Canada tor any excess of the debt of the Province of ^mnnn ^ ?^u*™'' °^ "^« ""'0° over $62,- 500,000 and chargeable with 5 per cent! in- terest thereon. Sections 114 and 115 make a like provision for the debts of Nova Scotia and New Brunswick exceeding eight and seven millions respectively, and by s. 116 if the debts ot those provinces should be less than said amounts they are entitled to receive, by half- yearly payments in advance, interest at the rate of 5 per cent, on the difference. Section 118, after providing for annual payments of hxed sums to the several provinces for sup- port of their governments, and an additional sum per head of the population, enacts that such grants shall be in settlement of all fu- ture demands on Canada and shall be paid half-yearly in advance to each province, but the Government of Canada shall deduct from such grants, as against any province, all sums chargeable as interest on the public debt of that province in excess of the several amounts stipulated in this Act." The debt of the Pro- vince of Canada at the union exceeded the sum mentioned in s. 112, and on appeal from the award of arbitrators appointed to adjust the accounts between the Dominion and the Provinces of Ontario and Quebec : — Held, af- firming said award, that the subsidy of the provinces under s. 118 was payable from the 1st of July, 1867, but interest on the excess of debt should not be deducted until 1st Janu- ary, 1868 ; that unless expressly provided in- terest is never to be paid before it accrues due ; and that there 'is no express provision in the British North America Act that interest shall be deducted in advance on th'e excess of debt under s. 118.— By 36 Vict. c. 30 (D.), passed in 1873, it was declared that the debt of the Province of Canada at the union was then ascertained to be $73,006,088.84, and that the subsidies should thereafter be paid accord- ing to such amount. By 47 Vict. c. 4, in 1884, it was provided that the accounts be- tween the Dominion and the provinces should be calculated as if the last mentioned Acts had directed that such increase should be allowed from the coming into force of the British North America Act, and it also provided that the total amount of the half-yearly payments which would have been made on account of such increase from July 1st, 1867, to Janu- ary 1st, 1873, with interest at 5 per cent, from the day on which it would have been so paid to July 1st, 1884, should be deemed capital owing to the respective provinces bear- ing interest at 5 per cent, and payable after July 1st, 1884. as part of their yearly sub- sidies. Held, affirming the said award, Gwynne, J., dissenting, that the last mentioned Acts did not authorize the Dominion to deduct interest in advance from the subsidies payable to the provinces half-yearly, but leaves such deduction as it was under the British North America Act. Dominion of Canada ''■Pro- vinces of Ontario and Quebec, xxiv., 498. 142.' Construction of statute — Railway Act, 1888 s 246 (3) — Railway company — Carriage of goods — Special contract — Negligence -- Limitation of liability for.]— By s. 246 (3) of the Railway Act, 1888 51 Vict. c. 29 [D.] ) , 1371 STATUTES. 1372 "" every person aggrieved bj- any neglect or .refusal in the premises shall have an action therefor against the company, from which ac- tion the company shall not be relieved by any notice, condition or declaration, if the damage arises from any negligence or omission of the -company or its servants." Held, affirming the decision of the Court of Appeal (21 Ont. App. R. 204), that this provision does not disable a railway company from en- tering into a special contract for the car- riage of goods and limiting its liability as to amount of damages to be recovered for loss or injury to such goods arising from negli- gence.. Vogel V. Grand Trunlc Ry. Go. (11 Can. S. C. E. 612), and Bate v. Canadian Pacific Ry. Co. (15 Ont. App. R. 388) dis- .tinguished. Robertson v. Grand Trunk Ry. Co., xxiv., 611. 143. Construction of statute — 55 Vict. c. S6, ss. 2 and 4 iO.) — Chattel mortgage — Agree- ment not to register — Void mortgage — Pos- session ty creditor.'] — ^By the Act relating to chattel mortgages (R. S. O. (1887) c. 125), ,a mortgage not registered within five days after execution is " void as against creditors," and by 55 Vict. c. 26, s. 2 (O.), that expres- sion is extended to simple contract creditors of the mortgagor or bargainor suing on behalf of themselves and other creditors, and to any assignee for the general benefit of creditors within the meaning of the Act respecting as- signments and preferences" (R. S. O. (1887) «. 124) . By s. 4 of 55 Vict, c. 26, a mortgage so void shall not, by subsequent possession by the mortgagee of the things mortgaged, be made valid as against persons who became •creditors . . . before such taking of pos- session." Held, reversing the decision of the Court of Appeal (22 Ont. App. R. 138), that under this legislation a mortgage so void is void as against all creditors, those becoming such after the mortgagee has taken possession as well as before, and not merely as against those having executions in the sheriff's lands at the time possession is taken, simple contract creditors who have commenced proceedings to set it aside and an assignee appointed before the mortgage was •given ; that the words " suing on behalf of themselves and other creditors," in the amend- ing Act, only indicate the nature of proceed- ings necessary to set the mortgage aside, and that the same will enure to the benefit of the general body of creditors; and that such mort- •gage will not be made valid by subsequent taking of possession. Clarkson v. McMaster, XXV., 96. 144. By-law — Exclusive right granted — Sta- tute confirming — Extension of privileges — 45 Vict. c. 79, s. 5 (g«e.)— a. S. G. c. 65.]— In 1881 a municipal by-law of the City of St. Hyacinthe granted to a company incorporated under a general Act (C. S. C. c. 65), the ex- clusive privilege for twenty-flve years of manu- facturing and selling gas in said city, and in 1882 said company obtained a special Act of Incorporation (45 Vict. c. 79, Que.), s. 5 of which provided that all the powers and privi- leges conferred upon the said company, as organized under the said general Act, either l)y the terms of the Act itself or by resolution, by-law or agreement of the said City of St. Hycainthe, are hereby re-affirmed and' con- firmed to the company as incorporated under -the present Act, including their right to break up, &c., the streets . . . and in addition ;it shall be lawful for the ^company, in substi- tution for gas or in connection therewith, or in addition thereto, to manufacture, use and sell electric, galvanic or other artificial'light, and to manufacture, store and sell heat and motive power derived either from gas or other- wise . . . with the same privileges, and subject to the same liabilities, as are applic- able to the manufacture, use and disposal of illuminating gas under the provisions of this Act." Held, affirming the decision of the Court of Queen's Bench, that the above sec- tion did not give the company the exclusive right for twenty-five years to manufacture and sell electric light; that the right to make and sell electric light with the same privilege as was applicable to gas did not confer such monopoly, but gave a new privilege as to elec- tricity entirely unconnected with the former purposes of the company and that the word " privilege " there used could be referred to the right to break up streets and should not, therefore, be construed to mean the exclusive privilege claimed. Held, also, that it was a private Act notwithstanding it contained a clause declaring it to be a public Act, and the city was not a party to nor in any way as- sented to it ; and that in construing it the court would treat it as a contract between the promoters and the Legislature and apply the maxim veria fortius accipiunter contra pro- ferentem especially where exorbitant powers are conferred. Compagnie pour VEclairage de St. Hyacinthe v. Compagnie HydrauUques de St. Hyacinthe, xxv., 168. 145. Appeal from Court of Review — Ap- peal to P^rivy Council — AppealaMe amount —54 & 55 Vict. c. 25 {D.) s. 3, s.-ss. 3 and 4— C. S. L.-C. c. 77, s. 25— Arts. 1115, HIS C. G. P.—R. S. Q. art. 2311.]— In appeals to the Supreme Court of Canada from the Court of Review (which, by 54 & 55 Vict. c. 25, s. 3, s.-s. 3, must be appealable to the Judicial Committee of the Privy Council), the amount by which the right of appeal is to be deter- mined is that demanded, and not that recov- ered if they are different. Dufresne v. Guevre- mont (26 Can. S. C. R. 216) followed. Citizens Light d Power Co. v. Parent, xxvii., 316. 146. Lease of mining areas — Rental agree- ment — -Payment of rent — Forfeitures — R. S. N. 8. (5 ser.) c. 7—52 Vict. c. 23 {N. S.)]— By R. S. N. S. (5 ser.) c. 7, the lessees of mining areas in Nova Scotia were obliged to perform a certain amount of work thereon each year on pain of forfeiture of the lease, which, however, could only be effected through certain formalities. By an- amendment in 1889 (52 Vict. c. 23), the lessee is permitted to pay in advance an annual rental in lieu of work, and by sub-section (c) the owner of any leased area may, by duplicate agreement in writing with the Commissioner of Mines, avail himself of the provisions of such annual payment and " such advance payments shall be construed to commence from the nearest re- curring anniversary of the date of the lease." By s. 7 all leases are to contain the provisions of the Act, respecting the payment of rental and its refund in certain cases, and by s. 8, " said s. 7 was to come into force in two months after the passing of the Act. Before the Act of 1889 was passed a lease was is- sued to E. dated June 10th, 1889, for twenty- one years from May 21st, 1889. On June 1st, 1891, a rental agreement under the amend- ing Act was executed, under which B. paid the 1373 STATUTES. 1374 rent for his mining areas for three years, the last payment being in May, 1893. On May 22nd, 1894, the commissioner declared the lease forfeited for non-payment of rent for the fol- lowing year, and issued a prospecting license to T. for the same areas. B. tendered the year's rent on June 9th, 1894, and an action was afterwards taken by the Attorney-Gener- al, on relation of E., to set aside said license as having been illegally and improvidently granted. Beld, affirming the judgment of the Supreme Court of Nova Scotia, that in such action, the phrase "nearest recurring annivers- ary of the date of the lease " in sub-section (c) of s. 1, Act of 1889, is equivalent to "next or next ensuing anniversary," and the lease being dated on June 10th no rent for 1894 was due on May 22nd of that year, at which date the lease was declared forfeited, and B.'s tender on June 9th was in time. At- torney-General V. Sheraton (28 N. S. Rep. 492) approved and followed. Beld, further, that though the amending Act provided for forfeiture without prior formalities of the lease in case of non-payment of rent, such provi- sion did not apply to leases existing when the Act was passed in cases where the holders executed the agreement to pay rent thereunder in lieu of work. Th.e forfeiture of B.'s lease was, therefore, void for want of the formali- ties prescribed by the original Act. Temple T. Attorney-General of Nova Scotia, xxvii., 355. 147. Master and servant — Hiring of per- sonal services — Municipal corporation — Appointment of officers — Summary dismissal — Liiellous resolution — Difference in text of UngUsh and French versions of statute — 52 Viot. c. iy, s. 79 (O.) — ■■ A discretion " — " At pleasure."] — The charter of the City of Mon- treal, 1889 (52 Vict. c. 79), s. 79, gives power to the city council to appoint and remove such officers as it may deem necessary to carry into execution the powers vested in it by the charter, the French version of the Act stating that such power may be exercised " a sa itscrition," while the Bnglish version has the words " at its pleasure." Held, that notwith- standing the apparent difference between the two versions of the statute, it must be inter- preted as one and the same enactment and the city council was thereby given full and unlimited power in cases where the engagement uas been made indefinitely as to duration, to remove officers summarily and without previ- ous notice, upon payment only of the amount of salary accrued to such officer up to the date of such dismissal. Judgment appealed from (Q. R. 6 Q. B. 177) affirmed. Davis v. City of Montreal, xxvii., 539. 148. Construction of contract — 12 Vict. *• ISS, 8. 20 — Contract, notice to cancel — Oas supply shut off for nonpayment of gas bill on other premises — Mandamus.] — The Act to amend the Act incorporating the New City tos Company of Montreal, and to extend its sowers (12 Vict. c. 182), provides: "That if ™y Person or persons, company or companies, or body corporate supplied with gas by the company, shall neglect to pay any rate, rent I or charge due to the said New City Gas Com- pany, at any of the times fixed for the pay- ment thereof, it shall be lawful for the com- pany or any person acting under their auth- ority, on giving twenty-four hours previous aonce, to stop the gas from entering the pre- mises; service pipes, or lamps of any such per- son, company or body, by cutting off the ser- vice pipe or pipes, or by such other means as awTnf °^ '^" ^'.' «'■ ^°29 of the Revised Statutes of Quebec money bv-laws for loans by town corporations require the approval of the majority both in number and in value of the municipal electors who are proprietors of real estate within the muni- cipality, as ascertained from the municipal rolls. Town of Chicoatimi v. Price, xxix., 135. 151. Compliance with provisions of " The Timber Slide Companies Act "—Forfeiture of company's charter — Non-completion of worlc] —By R. S. O. [1887] c. 160, s. 54, it was provided that if a timber slide company did not complete its works within two years from the date of incorporation it snould forfeit all its corporate and other powers " unless fur- ther time is granted by the county or counties, district or districts, in or adjoining which the work is situate, or by the Commissioner of Public Works." Semble, The non-completion 1375 STATUTES. 1376 of the work within two years would not, ipso facto, forfeit the charter, but only afford grounds for proceeding by the Attorney-Gen- eral to have a forfeiture declared. Hardy Lum- ber Go. V. Pickerel River Improvement Co., xxix., 211. 152. Merchant shipping — Distressed sea- man — Recovery of expenses — " Owner for time ieing " — Proof of ownership and pay- ment.'] — Section 213 of the Merchants' Ship- ping Act, 1854, makes the expenses of a sea- man left in a foreign port and being relieved from distress under the Act a charge upon the ship and empowers the Board of Trade, in Her Majesty's name, to sue for and recover the same from the master of the ship or " owner thereof for the time being." Held, affirming the judgment of the Supreme Court of New Brunswick, that the latter words mean the owner at the time of action brought. — Notwithstanding the provision in the Im- perial Interpretation Act of 1899 that the re- peal of an Act shall not effect any suit, pro- ceeding or remedy under the repealed Act._ in proceedings under the Merchants' Shipping Act of 1854, proof of ownership of a ship may be made according to the mode provided in the Merchants' Shipping Act, 1894, by which the former Act is repealed. The Queen v. 8. S. "Troop " Co., xxix., 662. 153. Ditches and Watercourses Act, 189^ (Ont.) — Owner of land — Declaration of ownership — Award — Defects — Validating award^St Vict. c. 55—58 Vict. c. 54 (Ont.)'] ■ — A lessee of land with an option to purchase the fee is not an owner who can initiate pro- ceedings for construction of a ditch under The Ditches and Watercourses Act, 1894, of On- tario. To'ibnship of Osgoode v. York (24 Can. S. C. R. 282) followed. — If the initiating party is not really an owner the filing of a declaration of oWneic'ship under the Act will not confer jurisdiction. — Section 24 of the Act which provides that an award thereunder, after expiration of the time for appealing to the judge, or after it is affirmed on appeal, shall be binding notwithstanding any defects in form or substance either in the award or any of the proceedings does not validate an award or proceedings where the party initiating the latter is not an owner. Township of Mc- Killop V. Township of Logan, xxix., 702. 154. Constitutional law — B. N. A. Act, 1867, s. Ill — Debts of Province of Canada — Deferred liahilities — Toll bridge ofChambly — 8 Vict. 0. 90 (Can.) — Reversion to Grown — Indemnity — Arbitration and aiDard — Condi- tion precedent — Petition of right — Remedial process — Vendor's lien.] — A toll bridge with its necessary buildings and approaches was built and maintained by Y., at Chambly, in the Province of Quebec, in 1845, under a franchise granted to him by an Act (8 Vict. c. 90) of the late Province of Canada, in 1845, on the condition therein expressed that on the expiration of the term of fifty years the works should vest in the Crown as a free bridge for public use and that Y., or his representatives should then be compensated therefor by the Crown, provision being also made for ascer- taining the value of the works by arbitration and award. Held, affirming the judgment ap- pealed from (6 Ex. C. R. 103), that the claim of the applicants for the value of the works at the time they vested in the Crown on the expiration of the fifty years' franchise was a liability of the late Province of Canada com- ing within the operation of s. Ill of the B. N. A. Act, 1867, and thereby imposed on the Dominion ; and that there was no lien or right of retention charged upon the property, and that the fact that the liability was not pre- sently payable at the date of the passing of the B. N. A. Act, 1867, was immaterial. The Attorney-General of Canada v. The Attorney- General of Ontario ([1897] A. C. 199; 25 Can. S. C. R. 434) followed. The Queen v. Yule, XXX., 24. [The Privy Council refused leave to appeal (34 Can. Gaz. 272).] 155. Government railway — Injury to em- ployee — Lord Campbell's Act — Art. 1056 C. C. — Exoneration from liability — R. S. G. c. S8, s. 50.] — Art. 1056 C. C. embodies the action previously given by a statute of the Province of Canada, in effect re-enacting Lord Campbell's Act. Robinson v. Canadian Pacific Ry. Co. ([1892] A. C. 481) dis- tinguished. — In s. 50 of the Govern- ment Railway Act (R S. C. c. 38), pro- viding that " Her Majesty shall not be re- lieved from liability by any notice, condition or declaration in the event of any damage arising from any negligence, omission or de- fault of any officer, employee or servant of the minister," the words " notice, condition or de- claration " do not include a contract or agree- ment by which an employee has renounced his right to claim damages from the Crown for in- jury from negligence of his fellow-servants. Grand Trunk Ry. Co. v. Vogel (11 Can. S. C. R. 612) disapproved. The Queen v. Grenier, XXX., 42. See foot-note to col. 967, ante. 156. Municipal corporation — Railways — Taxation — By-laws — Voluntary payment — Action en repetition — 29 Vict. c. 57. s. 21 (Can.)— 29 & 30 Vict. c. 57 (Can.)] — The statute, 29 Vict. c. 57 (Can.), consolidating and amending the Acts and Ordinances incor- porating the City of Quebec, by s.-s. 4 of s. 21, authorizes the making of by-laws to impose taxes on persons exercising certain callings, " and generally on all trades, manufactories, occupations, business, arts, professions or means of profit, livelihood or gain, whether hereinbefore enumerated or not, which now or may hereafter be carried on, exercised or in operation in the city ; and all persons by whom the same are or may be carried on, exercised or put in operation therein, either on their own account or as agents for others ; and on the premises wherein or whereon the same are or may be carried on, exercised or put in ope- ration." Held, that the general words of the statute quoted are sufficiently comprehensive to authorize the imposition of a business tax upon railway companies ; and further, that the power thus conferred might be validly ex- ercised by the passing of a by-law to impose the tax in the same general terms as those expressed in the statute. Judgment appealed from (Q. R. 8 Q. B. 246) affirmed. Canadian Pacific Ry. Go. v. City of Quebec; Grand Trunk Ry. Go. v. City of Quebec, xxx., 73. 157. Appeal — Divisional Court judgment — » Appeal direct — R. S. G. c. 135, s. 26. s.-s. S— Appeal from grder in chambers.] — Held, per Strong, C.J., and Gwynne, J. (Taschereau and Sedgewick, JJ., coniro), that under s. 26, s.-s. 3 of the Supreme and Exchequer Courts Act, leave to appeal direct from a judgment of a divisional court of the High Court of Justice 1377 STOWAGE. for Ontario may be granted in cases where there is no riglit of appeal to the Court of Appeal. Farguharson v. Imperial Oil Go XXX., 188. " 158. Construction of " Winding-up Act " Contriiutories — Set-off — Application of ss 75 and 76. See No. 46, ante. 159. Construction — Supreme and Exchequer Courts Act, s. 51 — Conviction for murder Appropriate remedy — Jurisdiction. See Habeas Coepus, 2. 160. Construction of ss. 91, s.-s 2i- 92 s s 5; 109 and 117, B. N. A. Act, 1867— Indian lands — Treaty No. 3. See Indian Lands. 161. Re-enactments — Repeal — Construction of $6 Geo. III. c. 11 (N.B.) —Revision in 185A — Interpretation of re-enacted statutes. See Statute of Distbibutions. 162. Controverted Elections Act — R. S. C. c. 9, s. SO — Judicial discretion. See Election Law, 15. 140. 163. Insurance, life — Conditions and war- ranties — Indorsements on policy — Inaccureat statements — Misrepresentations — Latent dis- ease—Material facts — Cancellation of policy — Return of premium — 55 Vict. c. 39 s 33 (Ont.) See INSTJKANCE, Life, 27. 164. Vis major — 16 Vict. cc. 25 and 77 — Mortgage of substituted lands — Estoppel — Judtaial authorization. See Title to Land, 35. 165. Criminal Code, 1892, ss. 7^2-750— New trial— 55 <& 56 Vict. c. 29, s. 742. See No. 31, ante. 166. Appeal — Jurisdiction — Special leave — ii. S. C. c. 135, ss. 40, 42— Form of applica- tion and order — Cross-appeal to Privy Council —Inscription pending such appeal — Stay of proceedings — Costs. See Appeal, 90, 131. 167. fi. S. N. S. (o ser.) o. 112— Statute of Limitations — Possession — Tenants in common. See Limitations of Actions. 26. 168. Construction of statute — Jurisdiction Of Superior Court — Suit for joint penalties — Second offences — Sale of drugs — " Quelec fHarmacy Act " — Retrospective legislation. See No. 42, ante. 16Q. Construction of Exchequer Court Act ™t.f 5J Vict. c. 16, s. 16 (D.)—"PuUic p S TT "^"er or servant of the Crown " — *!• «. G. c. 41, ss. 10, 69. See MiLiTAET Law, Militia, 2. J^^'^- Construction of B. C. " Mineral Act " rini S- ^- "■ -^^^ — Location of mining nan ~ ^^'■**'^''"*« °f tvorlc— Evidence to im- See Mines and Minerals, 11. S. c. D. — 44 1378 minpr;?f°"'*r°''°" °^«*«<»3, affirmed). Oland v. .l/cXei7, xxxii., 23. 8. Railways — Location of permanent uaii — Fencing — Laying out of ioundaries — Coiistnic- tion of deed — Estoppel iy conduct— Words of limitation — Registry laws — 'Xotice of prior title — Riparian rights — Possession — Acquisi- tive prescription — Tenant hy suffrance — Arts. 569. 11,12. l-'if<7. l.-,9.1. 219.1 2196. 22'i2. 22.51 C. G.—Art. 77 C. P. Q.—U £ 15 Vict. c. 51— 25 Vict. e. 61, s. 15 — Findings of fact — Asse-is- ment of damages — Emphiitcutic lease — Do- _ maine direct — Domaine utile — Alienation — Right of action — .Idding parties.] — .i railway company purchased land from P., bounded by a non-navigable river, as " selected and laid out " for their permanent way. Stakes were planted to shew the side lines, but the railway fencing was placed inside the stakes above the water-line, although the company could not have the quantity of land conveyed unless they took possession of the edge of the river. P. remained in possession of the strip of land be- tween the fence and the water's edge and of the bed of the stream ad medium filuni, and, after the registration of the deed to «e com- pany, sold the rest of his property including water rights, mills, and dams constructed m the stream to the defendant's aiiteur. describ- ing the property sold as " including that part of the river which is not included in the right of way &c." The plaintiffs never operated their line of railway but, immediately on its 1399 TITLE TO LAND. 1400 completion, under powers conferred by their charter, and the Railway Act, 14 & 15 Vict, c. 51, leased it for 999 years to another com- pany and the railway has been ever since ope- rated by other companies under the lease. The plaintiffs' action pUitoire, including a claim for damages, was met by pleas: (1) That the lease was an alienation of all plaintiffs' inter- est in the lands occupied by the railway and left them without any right of action; (2) that the right of way sold never extended be- yond the fencing, such being the interpretation placed upon the conveyance by permitting P. to retain possession of the strip of land In question and the river ad medium filum; (3) that by ten years' possession as owner in good faith under translatory title the defendant had acquired ownership by the prescription of ten years, and (4) that, by thirty years' adverse possession without title, the defendant and his auteurs had acquired a title to the strip of land and riparian rights in question. On ap- peal the Supreme Court, Held, 1. That the de- scription in the deed to the railway company included, ex jure naiurce, the river ad medium filum aquw as an incident of the grant and that their title could not be defeated by subse- quent conveyance through their vendor and warrantor, notwithstanding that they may not have taken physical possession of all the lands described in the prior conveyance. 2. That the possession of the strip of land and the waters and bed of the river ad medium filum by the vendor and his assigns, after the conveyance to the company, was not the possession animo domini required for the acquisitive prescription of ten years under art. 2251 0. C, but merely an occupation as tenant by suffrance upon which no such prescription could be based. 3. That the failure of the vendor to deliver the full quantity of land sold and the company's abstention from troubling him in his posses- sion of the same could not be construed as conduct placing a construction upon the deed different from its clear and unambiguous terms or as limiting the area of the lands conveyed. 4. That the terms of the description in the subsequent conveyance by P. to the defend- ant's auteur were a limitation equivalent to an express reservation of that part of the pro- perty which had been previously conveyed to the company and prevented the defendant ac- quiring title by ten years' prescription, and further that he was charged with notice of the prior conveyance through the registration of the deed to the company. 5. That the acqui- sitive prescription of thirty years under art. 2242 C. C, could not run in favour of the original vendor who had warranted title to the lands conveyed to the conjpany because, after Tiis sale to them, he could not possess anv part of the property which he had failed to deliver animo domini nor in good faith. — The judg- ment appealed from was reversed on the ques- tions of law as summarized, Davies, J., duii- tante, but the findings, on conflictory testimony an respect of damages, made by the trial judge were not disturbed on the appeal. — On the -question raised as to the right of action to recover the lands and for damages caused to the permanent way, it was Held, affirming the judgment appealed from, that the lease to the companies which held and operated the railway,*amounted to an emphyteutic lease as- signing the domaine utile and all the plain- tiffs' rights in respect of the railway, reserv- ing, however, the domaine direct, and, conse- quently, the plaintiffs had the right of action au pititoire as owners of the legal estate, al- though the right of action for the damages, if any, sustained would belong to the lessees. — Semile that, if necessary, the lessees might have been allowed to be added as parties, plaintiffs in the action, in order to recover any damages which might have been sustained, if there had been any satisfactory proof that damages had been caused through the fault of the defendant. Massawippi Valley By. Co. v. Beed, xxxiii., 457. 9. Escrow — Estoppel — Covenant that grant- or was seized in fee. See Deed, 20. 10. Mortgage — Parol agreement to sell — Ex- propriation — Compensation — Married woman —B. S. N. S. U ser.) c. 36, s. 40. See Administration, 1. 11. Deed — Bail d rente — Onerous title — Evidence to vary deedr^Substitution — Bente fonciire — Sale — Donation — Prohibition to alienate — 18 Vict. c. 250— Domaine de la seig- iieurie de la Biviire-du-Loup — Arts. 970, 12SJf G. C. See Deed. 4. 12. Promise of sale — Besolutory condition — Besciliation — Mise en demeure. See Contract, 4 13. Plan of survey — Description in deed — Conventional boundary — Mistake — Specific performance — Statute of Frauds — Licensed use. See BouNDART, 1. 14. Error in mortgage — Omission in descrip- tion — Bectification — Estoppel. • See Vendor and Ptjrghasee, 19. 15. Security for loan — Deed absolute in form — Purchase for value without notice — Begistration. See Mortgage, 34. 16. Husband and wife — Fraudulent convey- ance — Becovery of land. See Ejectment, 1. 17. Fraudulent conveyance — Control of in- solvent estate — Possession — Sale by assignee. See No. 133. infra. 1^. Misdescription ■ — Non-existent subdivi- sion — Crown grant avoided. tSce Grown, 91. 19. Mortgage of trust estate — Equity run- ning with estate — Equitable recourse — Goru- struction of deed — Description of lands — Falsa demoHStraiio — M'alt'r lots — Accretion to lands -^After acquired title — Contribution to re- deem — Discharge of mortgage — Parol evidence to explain deed — Estoppel by deed. See Deed, 26. 20. Bight of redemption — Third parties — Delivery and possession of thing sold. See Pledge, 8. 21. Ambiguous description — Possession — Presumptions in favour of occupant. See Deed. 27. 140] TITLE TO LAND. 1402 22. Life estate — Substitution ■ — ■ Privileges and hypothecs — Mortgage by institute — Pre- ferred claims — Prior iucum'brance — Registry laws — Sheriff's sale — Chose jugie — Estoppel — drosses riparations. See No. 35, infra. 23. Railways — Expropriation of land — Title to land— Tenants in common — Propriiiaires par indivis — Construction of agreement — Mis- description — Plans and looks of reference — Satisfaction of condition as to indemnity — Re- gistry laws — Estoppel — R. S. Q. arts. 5163. 51Slt—Art. 1590 C. C. See Railways, 32. 24. Description of lands — Metes and bounds — Sale en Hoc — Possession beyond boundaries — Prescription-^Gotistruction of deed — Notice — Sale to married woman — Propre de commu- na'ati— Cadastral plans and descriptions. See No. 87, infra. 25. Construction of contract — Sale of min- ing claim, — Breach of agreement — Re-convey- ance — Enhanced value. See Mines and Minerals, 21. 26. Authorization to married woman — Dower — Interdiction of husband — Renuncia- tion of succession — Donation by interdict. See No. Ill, infra. 2. Evidence of Title. 27. Crown lands — Letters patent — Parlior- menlary title — Equitable defence — 38 Vict. o. a (Man.)—S5 Vict. o. 23 (D.jJ— In 1875 L. applied for a homestead entry for land pre- empted by i\, and paid $10 fee at the Uomin- ioQ Lands Office, but was subsequently in- formed that his application could not be recog- nized, and the $10 refunded. F. subsequently paid for the land by bounty warrant under 35 Vict. c. 23, s. 23. L. entered upon the land and made improvements. In 1878, after claims by F. and L. had been considered the land was granted by the Crown to F., who brought ejectment against L. to recover possession. F., as proof of his title, put in the letters patent, and L. was allowed, against the objec- tion of counsel, to set up an equitable defence and go into evidence attacking the grant as having been issued in error, and by improvi- dence and fraud. A verdict for the defendant was maintained by the Court of Queen's Bench for Manitoba. Held, reversing the judg- ment appealed from (Man. Rep. Temp. Wood, m3), that L., not being in possession under the statute, had no parliamentary title to the possession of the land, nor any title whatever that could prevail against the title of F. under the grant. — Per Gwynne, . ■ iH?''^'' *'^^ practice prevailing in England "> 1870, in force in Manitoba under 38 Vict. ^. 12, at the time of suit, an equitable de- lence could not be set up in an action of eject- ment. Farmer v. Livingstone, v., 221. [See note (o) at p. 254, Man. Rep. Temp. Wood,] 28. Lost grant — 'statute of Frauds — Parol evidence — Trust — Costs on equal division of court.] — Bill for account of the rents and pur- chase money received by defendant upon the lease mi sale of lot 18 containing 100 acres ot land, m which the plaintiff's father (now dead) and the defendant his brother were ]9intly interested. Deceased had for years as- sisted defendant in improving and cultivating this lot, on which they lived. Defendant had spoken of his brother having a deed of 50 acres of the place on which he lived. Defend- ant who had the fee of the whole lot. had m 1850, made a deed to his brother of some land which plaintiff insisted was 50 acres of this lot, but this deed had been lost. Defend- ant admitted having given his brother a deed ot the adjoining lot 17 to enable him to vote It contained 120 acres and defendant's only interest m it was, that the person from whom he purchased lot 18, had cleared a few acres on it, and the Inspector of Clergy Reserves reported that he claimed the lot, but he was never recognized as a purchaser, and never made any payment on account of the land. I'he. deed to deceased had never been register- ed. In 1856, defendant made a lease of lots 17 and 18 to F. through deceased, and in 1875 sold lot 18 to F. with the concurrence of de- ceased. Defendant swore that deceased had never made any claim to the rent, and denied the whole case attempted to be made by the plaintiff, but his evidence was not consistent or corroborated. Held, affirming the judgment appealed from (4 Ont. App. R. 63), per Ritchie, C.J., and Fournier and Henry, JJ. That the evidence sufficiently established a deed by defendant to his brother of one-half of lot 18 for valuable consideration, that the understanding between the brothers was that when the land should be sold, a sale should be effected for their joint benefit, and that the land was sold to F., by defendant, with the knowledge and concurrence of his brother and for the benefit of both. Therefore the defend- ant should account to his brothers' representa- tives for his brother's share, as money had and received. — Per Strong, Taschereau and Gwynne, JJ. Although the evidence suffici- ently established a deed for valuable consider- ation by defendant to his brother of one-half of lot 18, there was not sufficient evidence of either trust or contract as regards the pay- ment of any portion of the purchase money received by the defendant, on the sale made by him, to entitle the plaintiff to any relief. — The court being equally divided, the appeal was dismissed without costs. Gurry v. Gurry, Cass. Dig. (2 ed.) 778. 29. Action en declaration d'hypotheque — Translatory title — Prescription — Good faith— Arts. 2251, 2202, 2253 C. C— Judicial admission — Art. 12!i5 G. C.—Art. 320 C. G. P.] — The respondents having lent a sum of money to one Liboiron, subsequently, on the 9th May, 1876, took a transfer of his property by the deed en dation de paiement, in which the registered title deed of Liboiron to the same was referred to and by which it also ap- peared that the appellants had a bailleurs de fonds claim on the property in question. Libo- iron remained in possession and sub-let part of the premises, collected the rents and con- tinued to pay interest to the appellants for some years on the bailleurs de fonds claim. In 1887 the appellants took out an action en declaration d hypotheque for the balance due on their bailleurs de fonds claim. The re- spondents pleaded that they had acquired in good faith the property by a translatory title, and had become freed of the hypothec by ten years' possession. Art. 22.51 C. C. Held, re- versing the judgments of the courts below, that the oral and documentary evidence in the case as to the actual knowledge on the re- spondents' part of the existence of this regis- 1403 TITLE TO LAND. 1404 tered hypothec or hailleurs de fonds claim was sufficient to rebut the presumption of good faith when they purchased the property in 1870, and therefore they could not invoke the prescription of ten years. Fournier. J., dis- sented. — in their declaration the appellants al- leged that the respondents had been in pos- session of the property since 9th May, 1876, and after the enqueie they moved the court to amend the declaration by substituting for the 9th May, 1876, the words " 1st December, 1886." The motion was refused by the Su- perior Court, which held that the admission amounted to a judicial avowal from which they could not recede, and the Court of •Queen's Bench affirmed this decision. — On ap- peal to the Supreme Court it was Held, re- versing the judgment of the court below, Fournier, J., dissenting, that the motion should have been allowed by the Superior Court so as to make the allegation of posses- sion conform with the facts as disclosed by the evidence. Art. 1245 C. C. Baker v. 8o- ciete de Construction MetropoUtaine, xxii., 364. 30. Tenants in common — Will — Remain- der — Adverse possession — Decease of re- mainderman — Estate of inheritance — Owner in fee — Statute of Limitations. See No. 57, infra. 31. Form of deed — Signature liy cross — Registry taws — furchaser of litigious rights — Commencement of proof in tcriting — Warrant- or impeacliing title. See No. 5, ante. 3. INCUMBBANCES. $,2. Accretion — Riparian lands — Right of access — Implied extinction by statute — Vohourrj harbour works — 22 Vict. c. 72 — 10 Oeo. I]', c. 11.] — Under authority of 10 Geo. IV. c. 11, the Cobourg Harbour Company, in 1820 constructed a wharf, southerly from the road allowance between lots 16 and 17 of the Township of Hamilton, which forms Division street in the Town of Cobourg. By mud and earth raised by dredging and gradual accre- tions, prevented from washing away by crib- work, the original wharf was widened to the full width of Division street, and the com- pany built a store house and a fence dividing It Irom the laud at the water's edge which appellant had gained by accretion since the original wharf was made. The appellant filed a bill complaining that access to this alluvial land was obstructed by the store house and fence, and asked a decree for their removal. The judgment appealed from reversed the de- cree and dismissed the bill with costs. Held, affirming the Court of Appeal for Ontario, (2 Out. App. K. 195), that land gained by alluvial deposits from natural or artificial causes, or from causes in part natural and in part artificial, so long as the accre- tion was gradual and imperceptible, ac- crues to the owner of the adjacent land ; that the store house and fence complained of were not built on the street, but on an artificial structure constructed under statutory auth- ority for harbour purposes, and therefore, "ap- pellant was not entitled to indemnity for ob- struction of access to his alluvial land through the premises of the respondents ; that the pub- lic right of way from the end of Division street to the water's edge, was extinguished by statute by necessary implication. Corpora- tion of Yarmouth v. Simmons (10 Ch. D. 18) followed. Standly v. Ferry, iii., 356. 33. Easement — Right of way — Lanes shewn on sale plan — Subsequent acceptance of conveyance according to altered plan — Estop- pel.] — The City of Toronto offered land for sale, according to a plan shewing one block of 5 lots, each about 200 feet in depth, running from east to west, bounded north and south by a lane, and east by a lane running along the whole depth of the block and connecting the other two lanes. South of this block was a similar block of smaller lots, running north and south. The lane at the east of the first lot was a continua- tion, after crossing the long lane between the blocks, of lot 10 in the second block. The ad- vertisement of sale stated that " lanes run in rear of the several lots." M. purchased the first block, and C. lot 10 in the second. Be- fore registry of the plan, M. applied to the city council to have the lane at the east of the block closed up and included in his lease, which was granted. C. then objected to taking a lease of his lot with the lane closed, but afterwards accepted a lease which described the land as leased according to the plan 'ex- hibited at the sale and plan 352 (which shewed the lane closed) . He brought an ac- tion against the city and M. to have the lane re-opened. Held, affirming the judgment ap- pealed from (11 Ont. App. R. 416). that C. having accepted a lease after the lane was closed, in which reference was made to plan 352, he was bound by its terms and had no claim to a right of way over land thereby shewn to be included in the lease to M. — Per Gwynne, J. Under the contract evidenced by the advertisement and public sale C. acquired no right to the use of the lane afterwards closed. Carey v. City of Toronto, xiv., 172. 34. Seignorial tenure — Deed of concession — Construction of deed — Words of limitation — Covenant by grantee — Charges running iciih the title — Servitude — Condition si voluero — Prescriptive title — Edits d ordonnances (L. C.) — Municipal regulations — 23 Vict. (Can.) c. 85.] — In 1768 the Seigneur of Berthier granted an island called "I'Isle du Milieu," lying adjacent to the " Common of Berthier," to JI. his heirs and assigns {ses hoirs et ayants cause) in consideration of cer- tain fixed annual payments and subject to the following stipulation : " en outre a condition qu'il fera a ses frais, s'il le juge nicessaire, une cloture bonne et valable, k I'gpreuve des animaux de la commune, sans aucun recours ni garantie k cet 6gard de la part du sieur seigneur, lesquelles conditions ont ete ac- ceptfies du dit sieur preneur, pour suretg de quoi il a hy^rothfiqug tous ses biens presents et 8. venir et sp^cialement la dite isle qui y demeure affectfie par privil§ge, une obligation ne d6rogeaht a I'autre." Held, reversing the decision of the Court of Queen's Bench, Strong, C.J., dissenting, that the clause quot- ed did not impose, merely a personal obligation on the grantee but created a real change or servitude upon I'Isle du Milieu for the benefit of the " Common of Berthier." — That the servitude consisted in suffering inroads from the cattle of the common wherever and when- ever the grantee did not exclude them from his island by the construction of a good and sufficient fence. — This servitude results not only from the terms of the seignorial grant, but also from the circumstances and conduct of the 1405 TITLE TO LAND. 1406 parties from a time immemorial. — That tlie two lots of land, although not contiguous, were sufficiently close together to permit the creation of a servitude by one in favour of the other. — That the stipulation as contained in the ori- ginal grant of 1768 was not merely facultative. Xhat the servitude in question is also suf- ficiently established by the laws in force in Canada at the time of the grant in 17G8, re- specting fencing and the maintenance of fences in front of habitations or settlements. La Commune de Berthier v. Denis, xxvii., 147. 35. Entail — Life estate — Substitution — Pri- vileges and hypothecs — Construction of statute m yict. c. 25 and 77 — Mortgage by institute — Preferred claim — Prior incumhrancer — Re- gistry laws — Practice — Sheriff's sale — Chose haee — Parties — Vis major — Estoppel — Arts. S& Slfi, 'J50, 951, 953, 956, 958, 959, 2060. im G: C.—Art. 107-711 0. G. P.— Art. 781 €. P. Q. — Sheriff's deed — Grosses reparations.'] —Upon being judicially authorized, the insti- tute in possession of a parcel of land in the City of Montreal, grev6 de substitution, and a curator appointed to the substitution, mort- gaged the land, under the provisions of the Act for the relief of sufferers by the Montreal fire of 3852, 16 Vict. c. 25, to obtain a loan which was expended in re-constructing buildings on the property. Default was made in payment ■of the mortgage moneys and the mortgagor ■obtained judgment against the institute and caused the land to be sold in execution by the ■sheriff in a suit to which the curator had not been made a party. Held, that as the mort- gage had been judicially authorized and was given special preference by the statute superior to any rights or interests that might arise un- ■der the substitution, the sale by the sheriff, in execution of the judgment so recovered, dis- ■charged the land from the substitution not yet open and effectually passed the title to the purchaser for the whole estate, including that ■of the substitute as well as that of the greve ie substitution, notwithstanding the omission to make the curator a party to the action or proceedings in execution against the lands. — An institute, greve de substitution, may valid- ly affect and bind the interest of the substitute in real estate subject to n, fiduciary substitu- tion in a case where the bulk of the property has been destroyed by vis major in order to make necessary and extensive repairs {grosses riparations) , upon obtaining judicial author- ization, and in such a case the substitution is ■charged with the cost of the grosses reparations, the judicial authorization operates as res judi- C8<(i and the substitute called to the substitu- tion is estopped from contestation of the neces- sty and extent of the repairs. — The sheriff •seized and sold lands under execution against a defendant described in the writ of execution, process of seizure and in the deed to the pur- chaser as "greve de suhstilirlion." Held, that the term used was merely descriptive of the ■defendant and did not limit the estate sold or conveyed under the execution. Judgment of tbe Court of Queen's Bench for Lower Can- ada affirmed, Taschereau and Iving, J.J., dis- senting, Held, further, per Taschereau, J.. tbat art, 2172 of the Civil Code of Lower Can- ada, as interpreted by the st^ntute 39 Vict. c. *, applies to hypothecs and charges only, and does not require renewal of registration for iHe preservation of rights in and titles to real ■estate. Vadeboncoeur v. The Giiu of Montreal, XXIX., 9. 36. I'itle to land — Substitution — Acceptance fy institute — Parent and child — Rights of children not yet born — Arts 930 2/0/ 9tcil !!Z^r^- '"f'- ?'' ^- ^'•i-A'sulstitution created by a donation niter vivos in favour of the children of the institute, even before they are_ born, is irrevocable after acceptance by their parent, and the law of the Province of Wuebec on the subject, as declared by the Civil Code, IS the same as the old law of that pro- «™''?,-'°, «^l^tence before the promulgation of the Civil Code of Lower Canada.— Where an institute has accepted a donation creating a substitution in favour of his children his ac- ceptance as institute constitutes valid accept- ance of the substitution on behalf of his child- ren. Meloche v. Simpson, xxix., 375. [Leave to appeal to the Privy Council re- fused.] 37. Construction of deed — Partition — Gharge upon lands.] — A deed for the partition of land held in common contained a convey- ance of a portion thereof to M. W., for cer- tain considerations therein recited of which one was the condition that she should procure from her minor children, upon their coming of age, the necessary quitclaim deeds for the re- lease of their interest in another portion of the land in question apportioned and conveyed to her co-parceners, and the amount of certain payments of money then made for the purpose of effectuating the partition, was by the deed of partition declared to remain a lien on that portion of the iand thereby conveyed to M. W. until such quitclaims should have been obtain- ed and delivered to her said co-parceners. Held, that the said recital was sufficient to charge that portion of the said land so con- veyed to M. W. with the amount of the said payments of money as a security for the due execution and delivery of the quitclaims in conformity with the condition stipulated in the deed of partition. Green v. Ward xxix., 572. 38. Right of way — Easement — User.] — A right of way granted as an easement incidental to specified property cannot be used by the grantee for the same purpose in respect to any other property. Judgment appealed from (2(3 Out. App. E. 95) affirmed. Purdom v. Rob- inson, XXX., (i-i. 39. Easement — Sale of land — Unity of pos- session — Severance — Continuous user.] — When two properties belonging to the same owner are sold at the same time, and each purchaser has notice of the sale to the other, the right to any continuous easement passes with the sale as an absolute legal right. But the easement must have been enjoyed by the former' owner at the time of the sale. There- fore, one purchaser could not claim the right to use a dam on his land in such a way as to cause the water to flow back on the other pro- perty, where such right, if it had ever been enjoyed by the former owner, had been aban- doned years before the sale. Judgment ap- pealed from (32 X. S. Rep 340) affirmed. Hart V. McMullcn, xxx., 21.j. 40. Appeal — .Jurisdiction — Srrritude — Action iconfessoire — Ejccciiiion of judgment therein — Locali::a1ion of right of u-uy — Oppo- sition to writ of possession — Hatter in contro- versy — Future rights.]— An opposition to a writ of possession issued in execution of a judgment allowing a right of way over the opposant's land does not raise a question ot title to land nor bind future rights, and in such a case the Supreme Court of Canada has 1407 TITLE TO LAND. 1408 no jurisdiction to entertain an appeal. O'Dell V. Gregory (24 Can. S, C. R. 661) followed; Ghdmlerland v. Fortier (23 Can. S. C. R. 371) and MoGoey v. Leamy (27 Can. S. C. R. 193) distinguished. — If the jurisdiction of the court is doubtful the appeal must be quashed. Langevin v. Les Gommissaires d'Ecole de St. Marc (18 Can. S. C. R. 599) followed. Gully V. Ferdais, xxx., 330. 41. Trespass — Overhanging roof — Bight of view — Evidence — Boundary line — W aimer — Servitude.'] — In 1844 the defendants construct- ed a toll-house close to or on the boundary of their land with windows overlooking an ad- joining vacant lot, and a roof projecting over it by about three feet. This was done with the knowledge and consent of persons who were then proprietors, and was not objected to by them or by any subsequent owner till after the purchase of the lot by the plaintiff in 1895, when he complained that the overhanging roof interfered with the gable of a house he was building upon it. He cut the roof to permit of the construction of the gable and defend- ants paid the costs of the necessary alteration. In 1900 the plaintiff instituted the present ac- tion against defendants to have the remaining projection of the roof demolished and the win- dows closed up. There was no evidence that there ever had been a division line established between the properties and the actual width of the land purchased and taken possession of by the plaintiff in 1895 was left in uncer- tainty. Held, aflBrming the judgment appealed from. Strong, C.J., dissenting, that the plain- tiff had not satisfied the onus that was upon him of proving title to the strip of land in dispute, and consequently that his action could not be maintained. Held, further, per Girou- ard, J., following Delorme v. Ousson (28 Can. S. C. R. 66), that, as the plaintiff and his auteurs had waived objection to the manner in which the toll-house had been constructed and permitted the roof and windows to remain there, the demolition could not be required at least so long as the building continued to ex- ist in the condition in which it had been so constructed. Parent v. The Quebec North Shore Turnpike Road Trustees, xxxi., 556. 42. Devise of real property — Condition of ■will — Restraint on alienation.] — A devisee of real estate under a will was restrained from selling or incumbering the property for a period of twenty-five years after the death of the testator. Held, reversing the judgment ap- pealed from, that as the restraint, if general, would have been void the limitation as to time did not make it valid. Blackburn v. McGal- lum, xxxiii., 65. 43. Easement — Trespass — Notice — Party wall — Registration — Visible incumbrance. See Deed, 41, and Notice, 3. 44. Tn Estoppel. — Boundaries See User, 2. Easement — 45. Improvements in watercourse — Flooding lands — Servitude — Possession — Prescription. See Riparian Rights, 2. 46. Substituted roadway — Right to original road allowance — Adjoining lands — Public uses. See Highways, 33. 47. Sale of substituted lands — Restoration ■ — Damages — Revendication — Prescription — Art. 2268 G. G.—Bad faith — Evidence. See Substitution, 4. 48. Action en declaration d'hypothSque — Translatory title — Prescription — Good faith — Judicial admission. See No. 29, ante. 49. Public highway — Private roads — Regis- tered plan — Dedication — User — Gonstruction of statute — Retrospective statute — Estoppel-— 46 Vict. (O.) c. 18. See Municipal Corporation, 169. 50. Sheriff's sale — Deed — Action to vacate — Petition — Exposure to eviction — Actio con- dictio indebiti — Refund of price paid^Substir tution not yet open — Prior incumbrance — Arts. 706. 710, 71A, 715 G. G. P.— Arts. 1511, 1535, 1586, 1591, 2060 C. G. See Substitution, 7. 51. Vacating sheriff's sale — Substitution non ouverte — Discharge of incumbrance. See No. 67, infra. 52. Estoppel — Acgu,iescement — Floatable waters — Water power — River improvements — Joint user — Servitude — Arts. 400, 549, 550, 551 and 1213 G. G. See Servitude, 7. 53. Water lots — Trespass — Harvesting ice. See Rivers and Streams, 5. 54. Interdiction — Marriage laws — Author- ization — Dower — Registry laws — Sheriff's deed — Warranty — Succession — Renunciation — Donation by interdict. See No. Ill, infra. 4. Inheritance, Succession and Devise. 55. Will — Devise void for remoteness — Rule as to inheritance — Intestacy — Estate tail — Descent to heir-at-law.] — A devise to a first great grandson, still unborn, is void for re- moteness. — ^A devise of this kind, shewing no intention to give another an estate or interest independent of or unconnected with the devise to the great grandson, makes no valid disposi- tion to disinherit the heir-at-law. (Strong, J., dissented ) . — Per Ritchie, J. Where a rule of law, independent of and paramount to the tes- tator's intentions, defeats the devise, the pro- per -course is to let the property go as the law directs in cases of intestacy. Ferguson v. Fer- guson, ii., 497. See 7 Ont. App. R. 452, and also Will, 26. 56. Will — Devise — Mortgage — Foreclosure — Suit to sell real estate for debts — Decree — Gonveyance by purchaser ■ — ■ Assignment of mortgage^— Statute confirming title---5 Geo. II. c. 7 {Imp.)—R. S. N.8. (4 ser.) c. 86, s. 4^-] — A. M. died in 1838 and by his will left real estate to his wife, M. M., for her life, and after her death to their children. At his death there were two small mortgages on the real estate to one T. which were subsequently fore- closed, but no sale was made under the decree on foreclosure. In 1841 the mortgages and interest of the mortgagee in the foreclosure suit were assigned to one U. who, in 1849, 1409 TITLE TO LAND. 1410 assigned and released the same to M. JI. In 1841 M. M., administrator with will annexed of A. M., filed a bill under 5 Geo. II. c. 7 (Imp.), for the sale of this real estate to pay debts of the estate, she having previously ap- plied to the Governor-in-Couucil. under a pro- vincial statute, for leave to sell, which was refused. A decree was made and the lands sold, M. M. becoming purchaser. She after- wards conveyed the lands to the Commissioners of the Lunatic Asylum, and the title passed, by various Acts of the Legislature, to the de- fendants. M. K., devisee under the will of A. M., brought ejectment for recovery of the lands, and contended that the sale under the decree was void, inasmuch as the only way in which land of a deceased person can be sold in Nova Scotia is by petition to the Governor- in-Council. The validity of the mortgages and of the proceeding in the foreclosure sale were also attacked. The action was tried before a judge without a jury and a verdict was found for defendants, which the Supreme Court re- fused to disturb. Held, aflBrming the judg- ment appealed from (6 Russ. & Geld. 92), that even if the sale under the decree in the chancery suit was invalid, the title to the land would be outstanding in the mortgagee, T., or those claiming under her, the assignment of the mortgages being merely a release of the debts and not passing the real estate, and the plaintiff, therefore, could not recover in an ac- tion of ejectment. — SemMe, that such sale was not invalid but passed a good title, the statute 5 Geo. II. c. 7, being in force in the Province. Henry,, J., duiitante. — Held, also, that the statute R. S. N. S. (4 ser.) c. 36, s. 47, vested the land in defendants if they had not a title to the same before. Henry, J., duiitante. Kearney v. Greehnan, xiv. 33. [The Privy Council refused leave to appeal from this judgment.] 57. Tenants in common — Will — Remainder — Adverse possession — Decease of remainder- man — Estate of inheritance — Owner in fee — Statute of Limitations.] — On appeal from a judgment of Rose, J., aflBrmed by the Divi- sional Court the judgment of the Court of Appeal for Ontario recited in effect, that ac- tion was for a declaration that plaintiff had an estate in fee simple in remainder in lands subject to an estate in defendant H. for the life of defendant R. Defendants denied any title whatever in plaintiff, and relied on ac- tual possession and title by Statute of Limi- tations.— That on 4th June, 1844, W. R. con- veyed the whole of lot 55 . . . Spadina avenue, Toronto, to J. H. and S. H. in fee simple, as tenants in common, and the convey- ance was duly registered. — On 14th August, 1846, J. H., by his will, devised to his wife, Anne, for life or widowhood, all his real estate "consisting of the N. % of lot 55." The will then proceeded : " The above named property left to my wife at the end of her natural life or when she become married again, I then will and bequeath to my brother S. H. during his natural life, and then at the expiration of that time it is to go to my heir. I also will and bequeath to my heir one sterling shilling. I hereby appoint my brother Simon sole exe- cutor."— J. H. and S. H. were step-brothers without any blood relationship between them. — J.^ H. died in 1847 leaving his wife Anne surviving him, and there is no evidence who was his heir-at-law. It was agreed by coun- sel on the argument that no one has ever come forward to claim the property as heir. — On , the death of J. H. his widow A. H. went into s. c. D. — 45. possession until her death in June, 1856. — On the 12th Jlay, 1854, S. H. made his will as follows : " I give all my property real and personal to my wife Eliza to be enioyed by her during her natural life, and after her death I give to my adopted son G. W. and his heirs one-half of the lot that' I own on Spadina avenue together with the house erected on the said half-lot in which I now reside ; and the other half of the said lot with the house erect- ed on the last mentioned half lot I give, devise and bequeath to W. and P. H. the sons of R. H. and their heirs after the death of my said wife. In this last mentioned half-lot I have an estate in remainder expectant upon the death of Anne H. who has a life estate in the same." He died in January, 1885, leaving him surviving not only his own wife Eliza, but also the widow of J. H. — Anne H. died in June, 1856, and upon her death Eliza H. took possession, and some time afterwards married again a man named A. R. — ^On 8th November, 1867, R. and his wife leased the land for 15 years to P., reciting that S. H. had been seized thereof in his lifetime, and by his will had devised the same to his wife for her natural life, and on 15th December, 1870, this lease was assigned to C. — A. R., the husband, hav- ing died, his widow on 1st September, 1873, mane another lease of the whole lot 55 to the same C. for the term of her natural life. In the lease the laud is described as more par- ticularly described in the deed from W. R. to S. H. of 3rd June. 1844. and recited that the lessor's former husband, S. H., had by will devised the land to her for her life. This lease was surrendered, and on 16th October, 1882, Mrs. R. made a new lease of the whole lot for the term of her natural life to JI. JI.. describing the land in the same manner and with the same recitals as the lease of Sep- tember, 1873, to C-— In 1882 and 1884 respec- tively plaintiff acquired by purchase the es- tates in remainder of W. and P. H., named in the will of S. H. as devisees in fee after the death of Mrs. H., and in 1888 he was negotiating with Mrs. R., for a conveyance of her life estate, and a quit claim deed to plain- tiff was prepared and approved of by Mrs. R.'s solicitors, but was not executed. — On 22nd September, 1888, Mrs. R. by deed, ex- pressed to be for $5,000, conveyed the whole lot 55 in fee to her co-defendant H., reciting that about February, 1855, she entered into adverse possession thereof a-nd has ever since demeaned herself as owner thereof, and con- tinued and is now in undisputed possession and occupation of the same, whereby her title thereto has become absolute and indefeasible. — Action was brought on 22nd October, to de- termine the rights of the parties. — The parties signed admissions of the facts to the effect stated above, with this qualification. The first admission is: "That J. H. was in his lifetime the owner in fee of N. % of lot 55, plan D 10, on W. side Spadina avenue, To- ronto which is the land mentioned in plain- tiff's 'statement of claim." The deed of the whole lot to both J. H. and S. H. as tenants in common in fee was not produced or refer- red to. This admission without anything fur- ther might well be taken to mean that J. H. was the sole owner of this land in his life- time and at the time of his death, and ac- cordingly the case was argued before the trial judge upon that footing, and upon this sup- ^ position that when S. H. made his will he had no title or interest in the land but what he derived under the will of J. H., viz., a life 1411 TITLE TO LAND. 1412 estate expectant on a prior life estate in Anne H., and that having predeceased her he had nothing to devise, and that nothing did or could pass to any one by his will. Under these circumstances the question was whether, although nothing could pass by her husband's will, Mrs. R. (or H.) having entered and occupied as tenant for life under the will, was not estopped as against the plkintifE from de- nying that her husband had title, and whether she could set up the Statutes of Limitations against the plaintiff's estate in remainder. — Rose, J., held that defendants were estopped, and gave judgment for the plaintifE, from which defendants appealed to the Divisional Court. — " While the case was before the Divisional Court the conveyance of 1844, was, at the sug- gestion of the court, produced in evidence, and that court expressing no dissent from the grounds on which Rose, J., had disposed of the case, held that it was manifest from the deed that Mrs. R.'s possession was under the will of her husband and that she could not be allowed to set up the Statutes of Limitations against the plaintifE claiming under the same will. — On the next appeal the argument of appellant was that S. H. having no title but a life estate, expectant on a prior life estate in Anne H., and having predeceased her, had no interest whatever which he could dispose of by his will, and that when Mrs. J. H. died S. H.'s widow could get nothing, not even pos- session by virtue of her husband's will, that she could take possession like any stranger, and if she did no one could turn her out but J. H.'s heir at-law, that just as she could get nothing under the will so neither could W. and P. H., or the plaintiff claiming under them, and unless he could shew some title from J. H.'s heir-at-law, he must fail. d?he Court of Appeal thought the first question was whether upon the evidence, as it then was, S. H. had not a title when he made his will and when he died, quite independently of J. H.'s will. — That the admissions of title to J. H. in his lifetime, read in the light of the deed of 1844, under which his title was acquired, shews that while it was the fact that J. H. had title there was also title to S. H., and that the latter had an estate in the land at the time of his death which passed by his will to his widow (now Mrs. R.), for life with remainder in fee to W. and P. H., who con- veyed to plaintiff; that the judgment might well be supported on the ground on which it was rested by the trial judge, on the supposi- tion that S. H. had no title when he made his will or when he died, but only a life estate. On that supposition this case is not distin- guishable from Board v. Board (L. R. 9 Q. B. 48), and was not affected by Re Stringer's Trusts (6 Chy. D. 1), because it is distin- guishable for the reasons explained by the Chancellor in Smith v. Smith (5 Ont. R. 695), Clarke v. Adie (2 App. Gas. 435). — The judgment in favour of plaintiff was affirmed. Held, as to the first ground taken by the Court of Appeal, that the evidence did not support it, for by the case in which the ac- tion was launched and by the admissions of counsel, as well as by the direct statement of S. H.'s will, J. H. owned the N. % of the lot. As to the second ground, that S. H. when he died having no estate or interest in the pro perty which could pass by his will or any possession, his widow entered as a stranger, and adversely to the heirs of J. H. ; that the statements in the leases, which were state- ments made to strangers, could not prevent the statute from running in. her favour against the heirs of S. H., much less to give title to parties who would have taken in remainder under S. H.'s will, if S. H. had owned in fee, or had had such possessioi; as would have raised a presumption of ownership in fee ; and therefore there was no case calling for any interference of the court to make a declara- tion as to the title of the lot in favour of the plaintiff as against the defendants. — Per Pat- terson, J. The judgment of the Court of Ap- peal proceeds upon grounds which would be of force if S. H. had died seized as did the tes- tator in Broad v. Broad (L. R. 9 Q. B. 48), or had had possession so as to give operation to the principle of Asher v. Whitlock (L. R. I y. B. 1), or had title of any kind as in Faine v. Jones (L. R. 18 Eq. 320) .-—Appeal allowed with costs. Hayes v. Coleman, cf. Cass. Dig. (2 ed.) 833. 58. Will — Devise for life — Remainder to devisee's children — Estate tail.'\ — Land was devised to D. for life "and to her children, if any, at her death," if no children to tes- tator's son and daughter. D. had no children when the will was made. Held, that the de- vise to D. was not of an estate in tail, but on her death her children took the fee. Grant V. Fuller, xxxiii., 34. .f9- Devise of real property — Condition of wiU — Restraint on alienation.} — A devisee of real estate under a will was restrained from selhng or incumbering the property for a period of twenty-five years after the death of the testator. Held, reversing the judgment appealed from, that as the restraint, if general, would have been void the limitation as to time did not make it valid. Blackburn v. McCal- lum, xxxiii., 65. 60. Contingent estate in fee — Eaiecutory devise over — • Title T>y possession — Inter- ruption of Statute of Limitations — Accept- ance of conveyance of limited estate. See Will, 57. 61. Agreement io convey — Defect in title — Devise in fee with restriction against sale — Special legislation — Specific performance — Vendor and purchaser. See Specific Performance, 5. 62. Vendor and purchaser — Sale of lands — Waiver of oijections — Lapse of time — Will, construction of ■ — Executory devise over — DefeasiMe title — • Rescission of contract. See Will, 61. 63. Estates taU — Executory devise over — II Dying without issue " — " Lawful heirs " — " Heirs of the tody " — Estate in remainder expectant — Statutory title — Title hy will — Conveyance hy tenant in tail. See Will, 19. 64. Authorization to married woman — Dower — ■ Interdiction of hustand — Renun- ciation of succession — Donation ly interdict. See No. 111., infra. 5. Judicial Titles. 65. Ejectment gage iy testator ■ ■ Action by devisee — Mort- ■ Foreclosure — Decree for • 1413 TITLE TO LAND. 1414 sale — Payment of deits — Conveyance ty pur- ohaser — Assignment of mortgage — Statute confirming title.'] — A. M. died in 1888, and by his will left real estate to his wife, M. M., for life, and after her death to their children. At the time of his death there were two small mortgages on the real estate which were sub- sequently foreclosed, but no sale was made under the decree. — In 1841 the mortgages and the interest of the mortgagee in the foreclosure suit were assigned to U., who, in 1849, as- signed and re-leased the same to M. M. — In 1841 M. M., administrator with will annexed of A. M., filed a bill in chancery (under 5 Geo, II., c. 7 [Imp.] ) for the purpose of hav- ing this real estate sold to pay the debts of the estate, she having previously applied to the Govemor-in-Council, under a statute of the province, for leave to sell the same, which was refused. A decree was made and the lands sold, M. M. becoming purchaser. She afterwards conveyed to the Commissioners of the Lunatic Asylum, and the title passed, by various Acts of the Legislature of Nova Sco- tia, to the present defendants. M. K., devisee under the will of A. M., brought an action of ejectment to recover the lands, and in the course of the trial contended that the sale under the decree in the chancery suit was void, inasmuch as the only way in which land of a deceased person can be sold in Nova Scotia is by petition to the Governor-in- Council. The validity of the mortgages and of the proceedings in the foreclosure suit were also attacked. The action was tried before a ■judge without a jury, and a verdict was found for the defendants, which verdict the Supreme Court of Nova Scotia refused to disturb. (« Kuss. & Geld. 92). — Held, affirming the judgment appealed from, that even if the sale under the decree in the chancery suit was in- valid, the title to the land would be out- standing in the mortgagee or those claiming under her, the assignment of the mortgages being merely a release of the debts and not passing the real estate, and the plaintiff, there- fore, could not recover in an action of eject- ment. — SemUe, that such sale was not invalid, but passed a good title, the statute 5 Geo. 11., c. 7 ( Imp. ) being in force in the province ; Henry, J., duUtante. — Held, also, that the statute K. S. N. S. (4 ser.) c. 36, s. 47, vested the lands in the defendants, if they had not a title before. Henry, J. duUtante. Kearney v. Greelman, xiv., 33. [The Privy Council refused leave to appeal m this case.] 66. Entail — Life estate — Fid-uciary sub- stitution — Privileges and hypothecs — Mort- gage by institute — Preferred claim — Prior mcumlrancer — Vis major — 16 Vict. o. 25— Registry laws — Practice — Sheriff's sale — f^Hose jugee — Parties — Estoppel — Sheriff's deed — Deed poll — Improvements on sub- stituted property — Grosses reparations — A.rt.W2 0. G.—29 Vict. c. 26 (Com.)]— The institute, grevi de substitution, in possession ?i land and curator to the substitution, upon JMicial authority, mortgaged the land under we provisions of the Act for the relief of sutterers by the great Montreal fire of 1852 y" yct. c. 25), for a loan which was ex- i^^ . in re-constructing buildings upon the M k" *^° default in payment the mort- l^^ "Dtained judgment against the institute, J"", (caused the lands to be sold in execution "y the sheriff in a suit to which the curator had not been made a party. Held, that, as tne mortgage had been judicially authorized and was given special preference by the sta- tute superior to any rights or interests that migbt arise under the substitution, the sale by the sheriff in execution of the judgment so recovered discharged the lands from the substitution not yet open and ef- fectually passed the title to the purchaser for the whole estate, including that of the substitute as well as that of the grev4 de substitution, notwithstanding the omission to make the curator a party to the action or proceedings in execution against the said lands. —An institute, grevS de substitution, may val- idly affect and bind the interest of the substi- tute m real estate subject to a fiduciary sub- stitution in a case where the bulk of the pro- perty has been destroyed by vis major in order to make necessary and extensive repairs {grosses reparations), upon obtaining judicial authorization, and in such case the substitu- tion is charged with the cost of the grosses reparations, the judicial authorization operates as res judicata, and the substitute called to the substitution is estopped from contestation of the necessity and expense of the repairs. — The sheriff seized and sold lands under a writ of execution against a defendant described therein and in the process of seizure and also in the deed by him to the purchaser, as greve de substitution. Held, that the term used was merely descriptive of the defendant and did not limit the estate seized, sold or conveyed under the execution. Held further, per Taschereau, J., that art. 2172 of the Civil Code of Lower Canada, as interpreted by the statute, 29 Vict. c. 26 (Can.), applies to hy- pothecs and charges only, and does not require renewal of registration for the preservation of rights in and titles to real estate. — Judgment of the Court of Queen's Bench affirmed, Taschereau and King, JJ., dissenting. Ghef dit Vadeboncaeur v. Gity of Montreal, xxix., 9. [Followed in Desehamps v. Bury (29 Can. S. C. R. 274), No. 67, infra.} 67. Sheriff's sale — Vacating sale — Arts. 106, 110, 1U, 115 C. G. P.— Refund of price paid — Exposure to eviction — Arts. 1511, 1535, 1586, 1591, 2060 — Actio condicto indebiti — Substitution non ouverte — Prior incum- brance — Discharge — Procedure.} — The pro- visions of art. 714 C. C. P. do not apply to sheriff's' sales which have been perfected by payment of the price of adjudication and the execution of a deed, nor does that article give a right to have such a sale vacated and the amount so paid refunded- — A sheriff's sale in execution of a judgment against the owner of lands, greve de substitution, based upon an obligation in a mortgage having priority over the deed creating a substitution, discharges the lands from the unopened substitution with- out the necessity of making the curator to the substitution a party to the proceedings. Chef dit Vadeboncaur v. City of Montreal (29 Can. S. C. K. 9) followed. Desehamps v. Bury, xxix., 274. [See Q. R. 11 S., C. 397 and 12 S. C. 155, judgments of courts below affirmed by this decision.] 68. Sale in execution — ■ Prods verbal of seizure — Insufficient description — Nullity.] — Under art. 638 C. C. P. it is necessary, in addition to the official number on the cadastral plan to mention in addition, in a prods verbal of seizure, the names of the streets on which 1415 TITLE TO LAND. 1416 subdivided lots have their frontage. Montreal Loan and Mortgage Go. v. Fauteuw, iii., 411. See Sheriff. 2 and 3. 69. Hatification of title — Grown pleading prescription — Translatory title — Estoppel. See No. 76, infra. 70. DeM of executor — Judgment against estate — ■ Purchase by executor at sheriff's sale — Trust — Possession T)y devisee — Statute of Limitations — Evidence. See No. 118, infra. 71. Sheriff's deed — Nullity — Mala fides — Prescription — Equivocal possession. See Evidence, 239. 72. Certificate of title — Registration of tax deed — Priority. See No. 110, infra. 73. Sale of land — Warranty — Gonstruction of deed — Sheriff's deed — Sale of rights in land — Eviction under prior title. See No. 126, infra. 74. Interdiction — Marriage laws — Author- ization — Dower — Registry laws — Sheriff's deed— Warranty — Succession — Renunciation — Donation by interdict. See No. Ill, infra. 5. Possession. (o) Limitations and Prescription. 75. Estoppel — Married woman — Possession — Marchande publique — Opposition to seizure — Prescription — Renunciation of community — Arts. 1379, 2191 G. G.—Art. 6SZ G. G. P.]— In 1856 McC, marchande publique, acquired lands by deed, in the quality of a wife sepa- rated as to property from her' husband. After his death in 1886, she renounced communaute de biens by acte de renunciation, which recited that said lands belonged to the community which subsisted between her and her late hus- band but remained in possession thereof. Upon seizure of the lands as belonging to the vacant estate of the deceased, she opposed the sale on the ground that the seizure was made super non domino et non possidente, and set up title and possession. Held, that by her declaration in the acte de rniunciation the opposant had de- stroyed any title or possession she may have had to the lands and was estopped from con- testing the seizure, and that she could not afterwards claim the lands under the former deeds or by prescriptive title by long posses- sion. McGorkill v. Knight, iii., 238. See 1 Legal News, 42. 76. Limitation of actions — 9 Vict. c. 37 — Grown pleading prescription — Good faith — Translatory title — Ratification of title — Im- penscs et amelioratioHs — Titre preo'aire — In- scriiition CI, faux— Arts. 2211, 2251, 2206 G. G. —Arts. 116, 1,73 G. G. P.— iJsioppeJ.]— Sup- pliant claimed, as transferee of heirs of W., jr., lands granted by the Crown in January, 1800, to W., sr., and the rents, issues and pro- fits. Pleas were filed : 1. Peremptory excep- tion, setting up title deeds and possession in Her Majesty ; 2.' Prescription by 30, 20 and 10 years ; 3. Exception that the transfer s tn neti- tioner were made without valid consideration, and he was purchaser of droita litigeux; 4. General issue ; 5, supplementary plea claiming value of improvements. Answers, that the deeds of sale relied upon conveyed no right of property in the land ; 2. Inscription en faux against a judgment of ratification of title to a part of the lands; 3. Denying the allegations of plea of prescription, and particularly the bona fides; 4. To the supplementary plea, bad faith on the part of the ditenteurs, also gen- eral answers. Proof was made at enquete be- fore a commissioner. In the Exchequer Court J. T. Taschereau, J., dismissed the petition with costs (4 Can. S. O. R. 7J. On appeal to the Supreme Court of Canada : — Held, Fournier and Henry, JJ., dissenting. 1. That before and also under the Civil Code, art. 2211, the Crown had, in the Province of Que- bec, the right to invoke prescription against a subject, waich could be interrupted by legal proceedings. 2. That the Crown having ac- quired in good faith under translatory titles, had by ten years' peaceable, open and uninter- rupted possession, acquired an unimpeachable title to the lands in question. 3. That art. 473 C. C. P. does not render the judgment at- tacked an absolute nullity merely for want of being paraphed by the judge, especially as it was duly entered of record and registered in the register of the court. 4. That the peti- tioner was bound to have produced the minute, or draft of judgment attacked, but having only produced a certified copy of the judgment, the Inscription en faux against the judgment falls to the ground. 5. That even if the title of one of the auteurs was titre pricavre, the heirs by their own acts had ceded and abandoned all their rights and pretensions to the land in dis- pute, and that the petitioner who held under them was bound by their acts. Held, also, that the impenses claimed by the incidental demand of the Crown should have been pay- able by the petitioner, even if he had succeeded in his action. Held, per Taschereau and Gwynne, JJ. That a deed under 9 Vict. c. 37, s. 17, before a notary (though not under the seal of the coromissioners) from a person in possession, and subsequently ratified by the Superior Court, was a valid deed, that all rignts of property were purged, artd that if any of the auteurs of the petitioner failed to urge their rights to the monies deposited by reason of the customary dower, the ratifica- tion of the title was none the less valid. Ghevrier v. The Queen, iv., 1. 77. Documentary title — Statutory title — Trespass — Plea of liberum tenementum — Pos- session.] — In an action of trespass quare clau- sum fregit for trying the title to land, the de- fendants pleaded not guilty ; and that at the time of the alleged trespass the land was the freehold of two of the defendants, and they justified breaking and entering the close in their own right, and the other defendants as their servants, and by their command. The case was tried without a jury and a verdict rendered for plaintiff with $30 damages. The judgment was set aside by the Common Pleas, and verdict entered for defendants under E. S. p. (1877) c. 50, s. 287. The Court of Appeal for Ontario reversed this judgment and re- stored, the verdict as originally found. On appeal to the Supreme Court : — Held, that the defendants on whom the onus lay of proving their plea of liberum tenementum, had not proved a valid documentary title, or possession for twenty years of that actual, continuous and visible character necessary to give them a litlejjnderJheStatute of Limitations; there- 1417 TITLE TO LAND. 1418 fore plaintifE was entitled to his verdict. Henry, J., dissenting. McGonaghy v. Den- mark, iv., 609. 78. Tenant at will — Caretaker — TSem ten- ancy — Statute of Limitations ■ — Possession — Findings of fact.] — The plaintiff's father al- lowed him to occupy 100 acres of a block con- sisting of 400 acres, and he was to look after the whole, to pay taxes, to take timber for his own use, but not to give any timber to any one else, or allow any one else to take it. He settled in 1849 upon the south half of lot No. 1 and, having got a deed for the same in November, 1864, he sold it and, in December following, moved to the north half where he remained ever since. The fathei- died in 1877, devising the north half of the north half (the land in dispute) to the defendant, and the south half of the north half to the plaintiff. The defendant, claiming the north 50 acres by the will, entered upon it, and plaintiff brought trespass, claiming title by possession. The trial judge found that the plaintiff entered into possession and so continued merely as caretaker and agent, and he entered a verdict for the defendant. There was evidence that within the last seven years, before the trial, the defendant as agent for the father was sent to move plaintiff off the land, because he had allowed timber to be taken, and that plaintiff undertook to cut no more, to pay the taxes and to give up possession whenever re- quired to do so by his father. Held, reversing the Court of Appeal for Ontario (4 Ont. App. R. 563 ) , that the evidence established the cre- ation of a new tenancy at will within ten years. — Per Gwynne, J. That there was also abundant evidence from which the judge at the trial might fairly conclude, as he did, that the relationship of servant, agent or caretaker, in virtue of which the respondent first ac- quired the possession, continued throughout, and that an appellate court ought to have re- versed on questions of fact. Ryan v. Ryan, v., 387. [Followed in Heward v. O'Donohoe. 19 Can. S. C. R. 341. See No. 80, infra.] 79. Statute of Limitations — Possession of tenant — Life estate — Remainder — Joint ten- ants — Survivorship.] — In 1837 lands were con- veyed in trust for E. A. for her life, with re- mainder as. follows: Lot No. 2 to G. A., and lot No. 1 to A. A., to the use of them, their heirs and assigns, as joint tenants and not as tenants in common. The tenant for life, en- tered into possession of lot No. 2, and in 1862 put her son (husband of defendant) into pos- session without exacting rent ; he died a few mouths after, and the widow continued in pos- session, and was in possession in 1875, when the tenant for life died. In 1878, A. A. ob- tained a deed of the legal estate in the two lots from the executors of the surviving trustee (G. A. having died a number of years before) and brought an action for recovery of lot No. ;■ — Held, affirming the judgment appealed from (7 Ont. App. R. 592; 2 C. L. T. 544), that as there was no time prior to the death of the tenant for lite when either the trustees or those entitled in remainder could have in- terfered with the possession of the lot, the £5tatute of Limitations did not begin to run against the remainder-man until the death of the tenant for life in 1875, and he was there- lore entitled to recover. — Held, also, that for 1? P'^'^POses of the action it was immaterial Whether the plaintiff was entitled to the whole 'ot by survivorship on the termination of the joint tenancy by the death of his brother or only to his portion of the lot as one of 'his brother's heirs. Adamson v. Adamson, xii., 563. 80. Caretaker in occupation — Severance of title — Fencing — Possession — Prescription.] — In an action against O. to recover posses- sion of land it was shewn that he had been in possession over 20 years ; that he was ori- ginally in as a caretaker for one of the own- ers ; that afterwards the property was sev- ered by judicial decree and such owner was ordered to convey certain portions to the others ; that after the severance 0. performed acts shewing that he was still acting for the owners ; and that he also exercised acts of ownership by enclosing the land with a fence and in othei' ways. Held, reversing the judg- ment appealed from (18 Ont. App. R. 529), that the severance of the property did not alter the relation between the owners and O. ; that no act was done by O. at any time declaring that he would not continue to act as caretak- er ; and that his possession, therefore, con- tinued to be that of caretaker and he had acquired no title by possession. Ryan v. Ryan (5 Can. S. C. R. 387) followed. Rew- ard V. O'Donohoe, xix., 341. See No. 78, ante. 81. Possession — Statute of Limitations — 38 Vict. c. 16 (0.)— Non-claim.]— C. R., at the time of his death (1864) was owner in fee and died intestate leaving him surviving his widow M. R., but no issue. After his death the widow remained in possession and occupation, by herself, or her tenants, of the whole premises up to her death (6th October, 1881). By lease on 3rd May, 1881, she de- mised the premises to O. for 5 years from 1st April, 1881. At the time of her death O. was in possession as tenant under this lease. — The plaintiff had for some years resided with M. R. on the premises, and continued to re- side there some time after M. R.'s death, but subsequently left O. as tenant in possession. One of the defendants, pretending to be an heir at-Iaw of the late C. R., shortly after the death of M. R., procured O. to accept from him a lease of the premises for one year, and to attorn to him as landlord.— On 24th Oc- tober, 1882, plaintiff took action against O., then in possession, claiming title as residuary devisee under the last will of M. R.. who had acquired title by length of possession subse- quent to the death of her husband. The de- fendant Ross obtained an order to defend as landlord, and he was made a party defend- ant in the action. In his defence he claimed title as one of the heirs-at-law of O. R. and alleged an agreement by M. K. with the lieirs-at-law by which she had been permitted to occupy the land by way of as- signment of dower for life, that she had oc- cupied as caretaker and by vn-tue of such agreement, and that her occupation was not adverse to his title, or that of the other heirs- at-law.— At the trial the judge entered a verdict for defendant. The full court set aside the verdict and directed judgment to be en- tered for the plaintiff. Ross appealed, and the Court of Appeal for Ontario afRrmed the judgment of the court below. Held, affirming the judgment appealed from, that there was no evidence of an agreement between the heirs- at-law of C. R. and his widow that she should occupy the land during her life m lieu of dower and nothing to shew that the heirs could not have brought an action and recover- ed the land at any time between the death ot 1419 TITLE TO LAND. 1420 C. R. and 1st July, 1877, when their right and title were extinguished or ceased by A^irtue of the statute 38 Vict. c. 16 (Ont.). Oliver y. Johnston, Cass. Dig. (2 ed.) 651. See 3 0. R. 26. 82. Trespass — Statute of Limitations — Evidence — Possession — Description of lands.'\ — Action by F. for trespass for breaking and entering plaintiff's close, described as land and land covered with water in Dartmouth, being and forming the bed, bank and waters of the stream leading from Dartmouth First Lake and falling into the waters of Halifax Har- bour, and breaking down fences and walls of plaintifiE there standing. The case was tried in 1873 before a jury, who were unable to agree and were discharged by the judge with- out rendering a verdict. No further proceed- ings were taken in the cause until November, 1878, when plaintiff, assignee in insolvency of F., having intervened, it was ordered, by con- sent of parties, that a verdict should be en- tered for plaintiff upon the evidence taken by the judge, and the cause remitted to the full court in banco, which should have power to draw inferences of fact as a jury might and to enter judgment for either party, and, in case of verdict for the plaintiff, power to fix damages. Plaintiff claimed the locus in quo, under deed from the I. & R. Navigation Co., executed by the president and secretary to F. on 1st April, 1870. Defendant claimed under deed from the executors of S., as land to which S. acquired title by possession, as far back as 1832, and continuing up to the time of his death in 1870. — The Supreme Court (N. S.) entered judgment for the defendant with costs. Held, afiSrming the judgment appealed from, that plaintiff failed to shew beyond a reasonable doubt that the locus in quo was within the boundary of the canal property and included in the deed to F.. and the court below was justified in coming to an opposite conclusion ; and further, that if the property was so included and the company ever had a title to the locus, there was evi- dence of such an exclusive and continuous possession that any such right or title was barred by the Statute of Limitations. Creigh- ton V. Kuhn. Cass Dig. (2 ed.) 845. 83. Crown grant — Disseisin of grantee — Tortious possession — Conveyance to married woman — Effect of execution of, ty husband — Statute of Maintenance, 32 Hy. VIII., o. 9 ■ — Statute of Limitations.] — In. 1828 certain laud in Upper Canada was granted by the Crown to King's College. In 1841. while one, M., who had entered on the land was in pos- session, King's College conveyed it to G.. In 1849 G. conveyed to the wife of M., and M. signed the conveyance though not a party to it. In an action by the successors in title of M.'s wife to recover possession of the land, the defendants, claiming title through M., set up the Statute of Limitations, alleging that M. had been in possession twenty years when the land was conveyed to his wife, and that the conveyance to G., in 1841, the grantor not being in possession, was void under the Sta- tute of Maintenance, and G. had, therefore, nothing to convey in 1849. Held, that it was not proved that the possession of M. began before the grant from the Crown, but assum- ing that it did M. could not avail himself of the Statute of Maintenance as he would have to establish disseisin of the grantor, and the Crown could not be disseised ; nor would the statute avail as against the patentee as the original entry not being tortious the posses- sion would not become adverse without a new entry. Held, further, that if the possession began after the grant the deed to G. in 1841 was not absolutely void under the Statute of Maintenance, but only void as against the party in possession, and M. being in posses- sion a conveyance to him would have been good under s. 4 of the statute, and the deed to his wife, a person appointed by him, was equally good. Further, M. by his assent to the conveyance to his wife and subsequent acts was estopped from denying the title of his wife's grantor. Judgment appealed from (19 Ont. App. R. 564) affirmed. Well v. Marsh, xxii., 437. 84. Old survey — Error — Boundaries — Possession — Statute of Limitations.'] — ^Ap- peals were taken from decisions of the Court of Appeal for Ontario affirming the judgment at the trial in favour of the respondent in each case. They had, respectively, brought actions against the appellant for trespass to land which were defended on the ground of want of title in the plaintiffs and title by possession in the defendant. At the trial evi- dence was given by plaintiff of a survey of the lands, and defendant's land adjoining, made in 1809, by a provincial land surveyor, in which, as he reported to the Crown Land De- partment, he had made a mistake owing to a bend in the circumference of his compass and which he corrected by moving the posts he had planted as the line was traced. The de- fendant claimed that the line as first run was the true line. As to possession the evidence was that defendant had cut timber on the land in dispute for many years, and also tap- ped maple trees for sugar, but had not fenced the land until some six or seven years prior to the action. The trial judge found that plaintiffs had respectively proved title, to their land and that the acts of ownership shewn by defendant were mere acts of trespass commit- ted either wilfully or in ignorance as to boun- daries and not such as would enable his pos- session to ripen into a title. — The Supreme Court affirmed the decision of the Court of Appeal in both cases and dismissed the ap- peals. Horton v. Casey; Horton v. Humphries, xxii., 739. 85. Disseisin — Adverse possession — Paper title — Joint possession — Statute of Limita- tions.] — ^A deed executed in 1856 purported to convey land partly in Lunenburg and partly in Queen's County, N. S., of which the grant- or had been in possession up to 1850, when C. entered upon the portion in Lunenburg County, which he occupied until his death in 1888. The grantee under the deed never en- tered upon any part of the land, and in 1866 he conveyed the whole to a son of C, then about 24 years old, who resided with G, from the time he took possession. Both deeds were registered in Queen's County. The son short- ly after married ^d went to live on the Queen's County portion. He died in 1872, and his widow, after living with C. for a time, married P. and went back to Queen's County. P. worked on the Lunenburg land with C. for a few years, whe^n a dispute arose and he left. C. afterwards, by an intermediate deed, conveyed the land in Lunenburg County to his wife. On one occasion P. sent a cow upon the land in Lunenburg County, which was driven off, and no other act of ownership on that portion of the land was attempted un- til 1890, after C. had died, when P. entered upon the land and cut and carried away hay. In an action of trespass by 0,'s widow for 1431 ifTLB TO LAND. 1422 such entry the title to the land was not traced back beyond the deed executed in 1856. Held, affirming the decision of the Supreme Court of Nova Scotia (25 N. S. Kep. 1), that C.'s son not having a clear document- ary title his possession of the land was limited to such ijart as was proved to be in his actual possession and in that of those claiming through him; that neither he nor his successors in title ever had actual posses- sion of the land in Lunenburg County; that the possession of C was never interfered with by the deeds executed ; and having continued in possession for more than twenty years, C. had a title to the land in Lunenburg County by prescription. Parks v. Oahoon, xxiii.. 92. 86. Partition of land — Tenants in common — Statute of Limitations — Possession.]— ^-Un- der the Nova Scotia Statute of Limitations (K. S. N. S. [5 ser.] c. 112) a possession of land in order to ripen into a title and oust the real owner, must be uninterrupted during the whole statutory period. If abandoned at any time during such period the law will attribute the interruption to the person having title. — Possession by a series of persons during the necessary period will bar the title though some of such persons in possession were not in privity with their predecessors. — Where one or two tenants in common had possession of the land as against his co-tenant, the bringing of an action of ejectment in their joint names and entry of judgment therein gave a fresh right of entrj) to both and interrupted the prescription accruing in favour of the tenant in possession. Judgment appealed from (32 N. S. Rep. 1) affirmed. Handley v. Archibald, XXX., 130. 87. Description of lands — Metes and bounds — Sale en bloc — Possession beyond boundaries — Prescription — Construction of deed — 'No- tice — ■ Sale to married woman — Propre de communauti — Cadastral plan and description —Arts. 1503, 2168, 2174, ^185, 2210, 2227, aj2, 2251, 225Jt C. C.]— In June, 1868, by deed of gift, P. granted to his son, F., an em- placement, described by metes and bounds and stated to have 30 feet frontage, " tel que le tout est actuellement . . . et que I'acquer- eur dit bien connattre " declaring, in the deed, that the donation had actually been made in 1860, although no deed had been executed, and that since then F. had been in possession as owner and erected buildings. Under this donation the donee and his vendees claimed 36 feet frontage as having been actually oc- cupied by him and them since F. took posses- sion as owner in 1860, and also that plaintiff bad acquired a prescriptive title by 10 years' possession with title, at the time of the present action in 1897, which was taken to recover possession of the disputed six feet then in occupation of defendant, whom plamtiff alleged to be a trespasser. Held, that the deed in 1868 operated as an interruption M prescription and limited the title to 30 feet Kontage as therein described. — Plaintiff's wife purchased from F. in 1885 by deed describing tie emplacement in a manner similar to the Mscnption in the donation, but also making '™snee to its number on the cadastral plan ™.™e parish which described it as of greater nf 100E ^^^^- t^^t tlie description in the deed M 1885 left the true limits of the emplace- ment subject to determination according to tne title held by the plaintiff's auteur which panted only 30 feet frontage ; that by the registered title plaintiff was charged with either actual or implied notice of this fact and that, consequently, he had not, in good faith, possessed more than 30 feet frontage under this deed and could not invoke an acquisitive prescription of title to the disputed 6 feet by 10 years' possession thereunder, and further, that no augmentation of the lands originally granted could take place in consequence of the cadastral description of the emplacement. — ^'he words " Tel que le tout est actuellement et que I'acqugreur dit bien connaltre " used in the deed of gift, cannot be interpreted in con- tradiction of the special description that pre- cedes them and can only be construed as ex- tending " dans les limites ci-dessus dficrites." — A prescriptive title to lands beyond the boundaries limited by the description in the deed of conveyance can only be acquired by 30 years' possession. — Quare, Is a deed of sale of lands in Quebec to a married woman without the authorization of her husband, sufficient to support a petitory action? Would such a deed be null for defect of form and insuffici- ent, under art. 2254 C. C. to serve as the ground for a prescription of ownership under translatory title, by ' 10 years' possession? Chalifour v. Parent, xxxi., 224. 88. Possessory title — Statute of Lmita- tions.] — In 1892, M. obtained a grant of land from the Crown and in 1823 permitted his eldest son to enter into possession. The lat- ter built and lived on the land and cultivated a large portion of it for more than ten years, when he removed to a place a few miles dis- tant, after which he pastured cattle on it and put up fences from time to time. His father died before he left the land. In 1870 he deed- ed the land to his four sons, who sold it in 1873 and by different conveyances the title passed to P. in 1884. In 1896, the descend- ants of the younger children of M. gave a deed of this land to B., who proceeded to cut tim- ber from it. In an action for trespass by P., Held affirming the judgment appealed from, that the jury on the trial were justified in finding that the eldest son of M. had the sole and exclusive possession of the land for twenty years before 1870, which had ripened into a title. If not, the deed to his sons, in 1870, gave them exclusive possession and, if they had not a perfect title then, they had twenty years after, in 1890. Benthj v. Peppard, xxxiii., 444. 89. Acquisition by prescription — Possession —Trespass on wild lands— Isolated acts— sta- tute of Limitations.]— Isolnted acts of tres- pass committed on wild lands from year to year will not give the trespasser a title iinder the Statute of Limitations. Sherren v. Pear- son, xiv., 581. See Pbesceiption. 15. 90. Right of way — Easement — Common use — Prescription. See Usee, 1. 91. Ordnance lands — Reversion of lands not in use for canal purposes— Limitation of actions— User by the Grown— Purchase m con^ flict with public use. See RiDEATi Canal Lands, 2. 92. Watercourses — Flooding lands — Ser- vitude— Possession— Prescription. See Ripakian Rights, 2. 1433 TITLE TO LAN! 1434 93. Escheat — Fraud — Champerty — Lit- igious rights — Limitation of action. See No. 131, infra. 94. Debt of executor — Judgment against estate — Purchase ty executor at sheriff's sale — Trust — Possession by devisee — Statute of Limitations — Evidence. See No. 118, infra. 95. Tenants in common — Will — Remain-' der — ■ Adverse possession — Decease of re- mainderman — Estate of inheritance — Owner in fee — Statute of Limitations. See No. 57, ante. 96. Action en declaration d'hypothSque — Translatory title — Prescription — Good faith — Judicial admission. See No. 29, ante. 97. Location of railway — Fencing — Laying out boundaries — Construction of deed — No- tice — Possession — Prescriptive title — Ten- ant by suffrance. See No. 8, ante. (b) Evidence of Possession. 98. Dominion Lands Act, 35 Vict. o. 23, s. 33, s.-s. 7, S — Homestead patent — Equitable or statutory title — Demurrer — 39 Vict. o. 23, s. 89.'] — The plaintiff, in his bill of complaint, alleged in the 6th paragraph as follows : — " Prior to the 1st of May, 1875, the plaintifE made application to homestead the lands, and procured proper affidavits, according to the statute, whereby he proved to the satisfaction of the Dominion Lands Agent in that behalf (and the plaintiff charges the same to be true) , that the defendant had never settled on or im- proved the lands assumed to be homesteaded by him, or the lands in question, but had been absent therefrom continuously since his pre- tended homesteading and pre-emption entries, and thereupon the claim of the defendant un- der the said entries became and was forfeited, and any pretended rights thereunder ceased, and the plaintiff about the 8th May, 1875, and with the assent and by direction of the Do- minion Lands Agent, signed an application for a homestead right to the lands, according to Form A, in 35 Vict. c. 23, s. 33, and made afBdavit according to i'orm B. in s. 33, s.-s. 7 of the Act and paid to the agent the home- stead fee of $10, accepted as the homestead fee, and thereupon plaintiff was informed that he had done all that was necessary or re- quired under the statute and regulations of the department, and that the statute said : Upon making this affidavit and filing it, and ou payment of an office fee of $10, he should be permitted to enter the lands specified in the application; and thereupon and in pursu- ance thereof, and in good faith, the plaintifE did forthwith enter upon said land and take actual posse.ssion, and has ever since remained in actual occupation thereof, and erected a house and buildings thereon, cleared a portion and fenced and cultivated the same, and made valuable improvements. Demurrer for want of equity. Held, reversing the judgment ap- pealed from (JIan. L. K. Temp. Wood. 233), Taschereau and Gwynne, JJ., dissenting, and allowing the demurrer, that the plaintiff had no locxis standi to attack the validity of the patent issued by the Crown to the defendant. as he had not alleged a sufficient interest or right to the lands therein mentioned, within the meaning of s. 69 or of s.-ss. 7 & 8 of s. 33 of 35 Vict. c. 23, there being no allegation that an entry of a homestead right in the lands in question had been made, and that plaintiff had been authorized to take posses- sion of the land by the agent, or by some one having authority to do so on behalf of the Crown, or a sufficient allegation that the Crown was ignorant of the facts of plaintiff's possession and improvements. — Per Strong, J., that when the Crown had issued the letters patent in view of all the facts, the grant is conclusive, and a party cannot set up equities behind the patent. Farmer v. Livingstone, viii., 140. 99. Lessor and lessee — Estoppel — In- junction — Bill for account — Possession fraudulently obtained — Evidence' — Proof of title — Tax sale — Chancery jurisdiction in ejectment— B. S. 0. (i877) c. 40, s. 87—33 Vict. c. 23 (On*.)] — N., as assignee of H., who bought a lot of land from the pur- chaser at a sale for taxes, filed a bill against W. & O., who were in possession, for posses- sion of the land and an account for value of trees, &c., cut down and removed. W. by his answer adopted O.'s possession, claimed under Crown grant, and impeached the validity of the sale for taxes. O. alleged possession un- der W. It was proved that H. leased to T. for four years, that O. by fraudulent repre- sentations induced T. to leave the place and thereby obtained possession for the benefit of W. The Court of Chancery (29 Gr. 338) held that defendants were obliged to yield up possession before asserting title in themselves. The Court of Appeal for Ontario declared that the decree should be without prejudice to any proceeding W. might be advised to take to establish his title within two months. Held, per Ritchie, C.J., and Strong, Fournier and Henry, JJ., affirming the judgment appealed from, that defendants having gone into pos- session under T., were estopped in this suit from disputing their -landlord's title, and that plaintiff was entitled to an injunction to re- strain waste and an account for waste already committed. — Per Strong, J. The Chancellor's decree would have constituted no bar to a subsequent action at law or suit in equity by W. to impeach the tax sale, and should not have been varied by the Court of Appeal. — Per Gwynne. J. The case should have been disposed of upon the Issue as to the validity of title upon which the plaintiff had by his bill rested his case, and as defendants failed to prove that the taxes had been paid before the sale, the statute. 33 Vict. c. 23 (Ont.) removed all defects, if any there were, which would have .enabled the true owner, at the time of the sale, to have avoided it, and Pur- suant to the provisions of R. S. O. (1877) c. 40, s. 87, plaintiff was entitled to recover possession of the land and have execution therefor, but not to an order for injunction or account, the statute authorizing title to lands to be tried in chancery not justifying a judg- ment of a more extensive character than would have been pronounced in a court of common law if the action had been brought there. White V. Nelles. xi., 587. 100. Trespass — Marsh lands — Possession — Evidence — Accretion — Justification as commissioner of sewers — R. S. N. 8. [i ser.) 0. .'lO — " New work " — Sanction of proprietors — Findings of fact.'] — The land upon which trespass is alleged to have been committed is 1425 TITLE TO LAND. 1436 a salt mai'sh lying outside of a dyked marsh, between the dykes and the Rivei- Avon. It had been formed within 40 years, by an ac- cumulation of mud from time to time, in front of plaintiff's land. It had been staked off for many years on the north-east, designating the division line between that part of it claimed and used for cutting grass by plaintiff, on one side, and his neighbour C. on the other. It is bounded on the N. W. by the running dyke ; on the N. B. by the stakes mentioned ; and on all the other portions of it by the Avon River, and Windmill Creek. After the mud sufficiently accumulated grass began to grow, which was cut for years by the plain- tiff's brother, who died before the suit, having made his will, by which he devised to plain- tiif all landed- property of which he died pos- sessed. The stakes were there since about 1855 or 1856, one of them being a solid, per- manent one, and the others, if carried away, being replaced, from time to time, by new ones, taking the solid stake as a guide. Plain- tiff and his brother on one side of these stakes, and 0. on the other, cut the grass year after year, or allowed others to do so, although the land does not appear to have yielded grass worth cutting till about 13 years before (one witness said 17). Since that time plaintiff, either for his brother or for himself, cut and took away the grass growing there, or per- mitted others to do so. Defendant, as com- missioner of sewers, undertook to cut a ditch through the property to carry away water from a dyke, alleging that the means form- erly used were inadequate for that purpose, and claiming that the work came within the first part of E. S. N. S. (4 ser.) c. 40, s. 4, authorizing a commissioner to build or repair dykes; that it was not new work within the meaning of the last part of that section, and did not require the consent of two-thirds in interest, of the proprietors of the land. In answer to a question submitted the jury found that the work was new work. — A rule nisi for a new trial was discharged, Weatherbe and Smith, JJ., dissenting. — Held, that there was evidence establishing a continuous ex- clusive possession by plaintiff, for many years, quite sufficient to enable him to maintain ait action of trespass against a wrongdoer who interfered with that possession. — The question of " new work " was purely a question of fact for the jury, and they having found in the affirmative, their finding should not be re- versed. The intention of the Legislature would appear to be to empower the commissioners of sewers to act in making ordinary repairs, or in any sudden emergency, without consulta- tion with or the consent of the proprietors, but that these proprietors should not be taxed for X the construction of any new work not im- mediately essential to the preservation or in- terests of common property, without their con- sent to such work being first obtained. — As the defendant entered upon plaintiff's property to perform this work, without the sanction of the proprietors first obtained, he could not justify the trespass under his commission. — Appeal dismissed with costs, and the judg- ment appealed from (5 R. & G. 388) affirmed, Henry, J., dissenting. Davison v. Burnham, Cass. Dig, (2 ed.) 846. 101, Boundaries — Road allowance — Evi- dence.] — The action was for possession of land, the parties being at issue as to the boun- daries between their adjoining properties. The decision depended upon the existence or non- existence of a road allowance between the lots, ana the trial judge held that proof of certain monuments having been placed on the lots by early surveyors was incompatible with its existence. His decision was reversed by the Court of Appeal for Ontario (21 Ont. App. R. 110). — The Supreme Court of Canada held that the evidence was sufficient to shew that there was a road allowance ; that the decision of the trial judge was rightly overruled, and dismissed the appeal with costs. Caldwell v. Kenny, xxiv., 699. 102. Boundaries — Evidence — Prescription.'] — The rector and wardens of St. Paul's Church, London, Ont.. brought the action for possession of land fenced in by defendants, who pleaded title to part and a right of way over the remainder. The Court of Appeal (21 Ont. App. R. 323) reversed the decision of the_ Chancery Division and gave judgment for plaintiffs who, however, claimed a greater width of land than the judgment allowed and filed a cross-appeal to defendant's appeal from such judgment. — The Supreme Court of Can- ada affirmed the judgment appealed from, and appeal and cross-appeal were dismissed with costs for the reasons of Maclennan, J., In the Court of Appeal. Ferguson v. Innes. xxiv., 703. 103. Possession — Groxvn patent — Prior grant — Prescription.] — The action was for possession of land, plaintiffs claiming title by possession and defendants through a grant from the Crown in 1892, and a conveyance from the owner of adjoining land. It was shewn that the Crown had granted this land before the beginning of the present century, and the courts below held that the Crown had nothing to grant in 1892, having by the prior grant parted with its title and never resumed it, and there was nothing to shew that the owner of the adjoining land had any title to the locus. — The Supreme Court of Canada af- firmed the judgment appealed from (27 N. S. Rep. 74), which had affirmed the trial court judgment, dismissing the plaintiff's action. Ghisholm v. Robinson, xxiv., 704. : — Cutting timber — Confusion Possession — Replevin. See Action, 130. 105. Control of insolvent estate — Fraudu- lent conveyance — Possession — Sale iy assignee. See No. 133, infra. 106. Encroachment on boundary — Good faith — Common error — Right of accession — Demolition of works — Indemnity, See No. 136, infra. 107. Form of deed — Signature by cross — Registry laws — Purchaser of litigious rights — Commencement of proof in writing — Warrant- or impeaching title. See No. 5, ante. 108. Exercising acts of ownership — Vendor and purchaser—Specific performance— Laches — Waiver. See Vendor and Pubohasee, 33. 109. Location of railway — Boundary— Ri- parian rights— Fencing— Location of perman- ent way— Conduct of parties — Estoppel by i — Construction of deed. See No. 8, ante. 104. '1 of chattels — . 1427 TITLE TO LAND. 1438 7. Registration. 110. Registry law — Registration of tax deed — Certificate of title — Priority over earlier cer- tificate — K. a. B. C. c. 111.'] — Section 13 of the B. C. Land Registry Act (R. S. B. C. c. Ill) provides that a person claiming ownership in a fee of land may apply for registration there- of, and the registrar, on being satisfied after examination of the title deeds, that a primd facie case is established shall register the title in the " Register of Absolute Fees." Section 19, which authorizes the registrar to issue a certificate of title to the person so registering, contains the provision : "Every certificate of title shall be received as prima facie evidence in all courts of justice in the province, of the particulars therein set forth." And by s. 23 " the registered owner of an absolute fee shall be deemed to be the primd facie owner of the land described or referred to in the register for such an estate of freehold as he may pos- sess." . . . Held, affirming the judgment appealed from (7 B. C. Rep. 12, sub nom. Kirk V. Kirkland), that a certificate of title issued on registration of a deed from the as- sessor of taxes issued to a purchaser at a tax sale does not of itself oust the prior registered owner of the land described in the register, but the holder must prove that all the statu- tory provisions to authorize a sale for taxes had been complied with. Johnson v. Kirk, XXX., 344. 111. Interdiction — Marriage laws — Author- ization iy interdicted husband — Dower — Re- gistry laws — Sheriffs-sale — Warranty — Suc- cession — Renunciation — Donation by interdict —Arts, im, 2116 C. G.—U & 45 Vict. c. 16 —46 Vict. 0. 25-47 Vict. c. 15 (Qwe.)]— The registration of a notice to charge lands with customary dower must, on pain of nullity, be accompanied by a certificate of the marriage in respect of which the dower is claimed and must also contain a description sufficient to identify the lands sought to be affected. — ^A sale by the Sheriff under execution against a debtor in possession of an immoveable under apparent title discharges the property from customary dower which has not been effec- tively preserved by registration validly made under the provisions of art. 2116 of the Civil Code. — Per Taschereau, J. Neither the ven- dor nor his heirs, who have not renounced the succession, nor his universal donees, who have accepted the donation, can on any ground whatever, attack a title for which such vendor has given warranty. — Semble, that voluntary interdiction, even prior to the promulgation of the Civil Code of Lower Canada, was an abso- lute nullity and that the authorization to a married woman to bar her dower is not invali- dated by the fact that her husband had been so interdicted at the time of such authoriza- tion. Rousseau v. Burland, xxxii., 541. 112. Estate tail — Mortgage in fee — Statu- tory discharge — Conveyance of legal estate of mortgagee — Bar of entail — R. 8. 0. (1877) c. Ill, ss. 9, 67.] — The execution and re- gistration, in accordance with the R. S. O. (1877) c. Ill, s. 67, of a discharge of a mortgage in fee simple made by a tenant in tail re-conveys the land to the mortgagor barred of the entail. Judgment of the Court of Appeal for Ontario (6 Ont. App. R. 312) reversed, Henry, J., dissenting. Lawlor v. Latolor, x., 194, 113. Equitable title — Registered deed — Con- structive notice — Actual notice — Parol agree- ment. See JIOKTGAGE, 84. 114. Trespass — Damages — Easement — Equitable interest — Municipal by-law — Notice —Registration^-R. S. O. (1877) c. 114. See Municipal Cokporation, 89. 115. Real Property Act — Registration — Un- registered transfers — Equitable rights — Soles under execution — R. S. C. c. 51; 51 Vict. (D.) c. 20. See Registkt Laws, 81. 116. Life estate — Substitution — Privileges and hypothecs — Mortgage by institute — Pre- ferred claims — Prior incumbrance — Registry laws — Sheriff's sale — Chose jugee — Estoppel- Grosses reparations. See No. 35, ante. 8. Trusts. 117. Purchase of land — Joint negotiations — Deed to one only — ■ Evidence — Resulting trust.]- — M. & S. jointly negotiated for the purchase of land, and a deed was given to S. alone, a portion of the purchase money being secured by the joint notes of M. & S. In an action by S. to have it declared that M. had no interest in the property ; ffeid reversing the judgment appealed from (13 Ont. App. R. 561), and affirming the judgment of the trial judge, Henry, J., dissenting, that the evidence greatly preponderated in favour of the con- tention of Mi that the purchase was a joint one by himself and S. Held, also, that S. be- ' ing liable for an ascertained portion of the purchase money there was a resulting trust in his favour for his interest in the land. Mc- Kerch^r v. Sanderson, xv., 296. 118. Judgment against estate for debt of executor — Sheriff's sale — Purchase by executor — -Trust — Possession by devisee — Statute of Limitations — Evidence.] — Judgment was re- covered against executors of an estate on a note made by D. M., one of the executors, and indorsed by testator for his accommodation. In 1849 land devised by testator to A. M., another son, was sold under execution issued on said judgment and purchased by D. M, who. in 1853. conveyed it to another brother, W. M. In 1865 it was sold under execution issued on a judgment against W. M., and again purchased by D. M. In 1888 A. M., the de.- vlsee of the land under the will, took forcible possession thereof and D. M. brought an action against him for possession. Held, affirming the judgment appealed from (17 Ont. App. R. 192), Strong, J., dissenting, that the sale in 1849 being for his own debt D. M. did not acquire title to the land for his own benefit thereby, but became a trustee for A. M., the devisee, and this trust continued when he pur- chased it the second time in 1865. Held, also, that if D. M. was in a position to claim the benefit of the Statute of Limitations the evi- dence did not establish the possession neces- sary to give him a title thereunder. McDon- ald V. McDonald, xxi., 201. 119. Conveyance to trustee — Legal estate — Cloud on title — Agreement for sale by holders of equity — Party entitled to price.} — R. de- vised all his estate to his widow and, in event 1429 TITLE TO LAND. 1430 of her death without having disposed thereof, to his surviving children. The estate having become involved, an absolute deed of all the real estate was executed to one of testator's children by the widow and other children, the grantee undertaking to pay off the liabilities and improve the estate, and on being re-paid, to re-convey to all the heirs in equal propor- tions. The grantee managed the estate for several years, but was obliged to surrender it to trustees for benefit of creditors, when it was owing her $18,000. — ^A portion of the estate was sold for taxes, and the purchaser at the tax sale obtained quit claim deeds from the heirs to perfect his title, and also to ob- tain title to 100 acres of timber land belong- ing to the estate which was not included in the assignment for benefit of creditors. Simi- lar quit claim deeds had previously been given for portions of the lands, and the monej's paid for the same distributed in equal proportions among the surviving children and grandchild- ren. Before payment by the tax sale pur- chaser, the deed by the widow and children (which had been misfaid for several years, the grantee under it having died) was dis- covered, and the children of the grantee claimed the whole of the money. Action was brought by the other heirs for their respective shares and they obtained a judg- ment, the trial judge holding that an agree- ment was proved between the parties that the money should be equally divided. This decision was affirmed by the Divisional Court, but reversed on appeal. Held, affirming the decision of the Court of Appeal, Gwynne, J., dissenting, that the purchaser at the tax sale paid the money in order to obtain a perfect title, and as the defendants were the only persons who could give such title, the legal estate being in them, the plaintiffs could not claim any part of the money, no agreement with the defendants to apportion it being proved, and any agreement made by the plain- tiffs with the purchasers not being binding on the defendants. Draper v. Radenhurst. xxi., 714. 120. By estate — Contract iy trustee — Lmds set out for canal purposes — Compensa- tion for lands taken — Statutes respecting Bi- dem Canal lands — Statute of Limitations. See RiDEAu Canal Lands, 1. 121. Charitalle trust — • Grant of school lands — Discretion of trustees — ■ Gy-prts doc- trine. See Trusts. 3. 122. Ordnance lands — Limitation of ac- tions — Reversion — User by Grown — Public policy. See RiDBAtr Canal Lands, 2. 123. Lost grant — Joint interests — Statute of Frauds — Parol evidence — Rents, issues and profits. See No. 28, ante. • And see Trusts. 9. Warranty. 124. Sale of land — Warrant — Special agree- ment — Knowledge of cause of eviction — Dam- ma.— Art. 1512 G. 0.]— A warranty of title Mcompanying a sale of lands does not consti- tute the special agreement mentioned in art. 1512 of the Civil Code of Lower Canada in respect to liability to damages for eviction. Allen V. Price, xxx., 536. 125. Legal warranty — Description— Plan of subdivision — Change in street line — Accession: —Arts. 1506, 1508. 1520 C. C. — Arts. 1, 86, 181, 168 G. P. Q. — Troubles de droit— Evic- tion — Issues on appeal — Parties.] — A vendor of land, described according to an existing plan of subdivision, with customary legal war- ranty, is not obliged to defend the purchaser against troubles resulting from the exercise subsequently, by municipal authorities, of powers in respect to the alteration of the street line. — ■ A party called into a petitory action, to take up the fait et cause of the defendant therein, as warrantor of the title, may take up the defence for the purpose of appealing from judgments maintaining both the principal ac- tion, and the action in warranty, although he may have refused to do so in the court of first instance, but, should the appellate court decide that the action in warranty was unfounded, it is ipso facto ousted of jurisdiction to enter- tain or decide upon the merits of the principal action. Judgment appealed from (Q. R. 10 Q. B. 245), affirmed. Monarque v. Banque J acques-G artier, xxxi., 474. 126. Sale of land — -Warranty — Construction of deed — Sheriff's deed — Sale of rights in lands — Eviction by claimant under prior title.'] — By deed of conveyance the vendor declared that he had sold with warranty all rights of property and other rights which he had ac- quired by virtue of a deed of sale from the sheriff in the lands therein mentioned and of which he was actually in possession, and that the immoveable belonged to him as having been acquired at the sheriff's sale. Held, reversing the judgment appealed from, the Chief Justice and Taschereau, J., dissenting, that the war- ranty covenanted by the vendor had reference merely to the rights he may have acquired in the lands under the sheriff's deed and did not oblige him to protect the purchaser against eviction by a person in possession claiming under prior title to a portion of the lands. Ducondu V. Dupuy (9 App. Cas. 150) fol- lowed. Drouin v. Morissette, xxxi., 563. 127. Form of deed — Signature by ci-oss — - Registry laws — Purchaser of litigious rights — - Commencement of proof in writing — War- rantor impeaching title.] — The grantees of the warrantors of a title cannot avail them- selves of technical objections thereto m a suit with the person to whom the warranty was given. Powell v. Watters, xxviii., 133. See No. 5, ante. 10. Other Cases. 128. Injunction — 41 Vict. c. H {Que.) — Sale of Grown lands — Current timber license.] —Under 41 Vict. c. 14 (Que.), the company, in November, 1881, as proprietors m possession of lands, obtained an ex parte injunction, re- straining appellant from prosecuting lumber- ing operations begun in virtue of a license from the Government, dated 3rd May. 1881, which was a renewal of a former license. By order-in-council, dated 7th April, 1881, the Commissioner of Crown Lands was authorized to sell the lands in question to the company, and the company deposited $12,000 on account of the intended purchase. On 9th May the 1431 TITLE TO LAND. 1433 x;ompany gave a contract for the clearing of a portion of the land, and on 19th July, the commissioner executed a grant in favour of the company, subject " to the current licenses to cut timber on the lots." The Superior ■Court dissolved the injunction. The Queen's Bench reversed the Superior Court judgment and the injunction was made absolute. The Supreme Court reversed the judgment of the Court of Queen's Bench and Held, (Henry ■and Gwynne, JJ., dissenting) , that the com- pany had not acquired title to the lands in question prior to the 19tL July, 1881 ; that by the grant of that date their rights were subordinated to all current licenses, and ap- pellants having established their 'jright to possess the lands for the purposes of their lumbering operations under the license from the Crown, the injunction had been properly •dissolved by the Superior Court.' Mali v. Dominion of Canada Land and Colonization Co., viii., 631. 129. Riparian rights — Registration of plan •of suhdivision — Subsequent grant — Descrip- tion according to plan — Evidence — Grant iy -specific name — Boundaries.'] — The defendant was proprietor of a piece of land on the side of a river, the boundary on the river side be- ing high water-mark: Held, that the lateral or riparian contact of the land with the water would suffice to entitle the appellant to object to any unauthorized inference with the flow ■of the river in its natural state. — -In 1859 the owners of a portion of the land had a plan of subdivision thereof prepared and re- gistered, and in 1871 conveyed a parcel de- scribed as block " F." Held, that it must be presumed they intended to convey the same parcel of laud shewn on said plan as block " b\" with the same natural boundaries as those therein indicated ; and that the evi- •dence of professional draughtsmen was pro- perly admitted to shew what, according to the general practice and usage of draughts- men in preparing plans, certain shadings and marks on said plans were intended to indicate. — When a close or parcel of land is granted by a specific name, and it can be shewn what are the boundaries of such close or parcel, the governing part of the description IS the specific name, and the whole parcel will pass, even though to the general description there is superadded a particular description by metes and bounds, or by a plan which does not shew the whole contents of the land as in- cluded in the designation by which it is known. Attrill V. Pratt, x., 425. 130. Crown lands — Setting aside letters patent — Error and improvidence — Superior title — • Evidence — Res judicata — Estoppel against the Crown.] — Letters patent issued to V. of lands claimed by him under The Manitoba Act (So Vict. c. 3, as amended by 35 Vict. c. 52) , and an information was filed under K. S. C. c. 54, s. 57, at the instance of a relator claiming part of said lands, to set aside letters patent as issued in error or im- providently. Held, reversing the judgment appealed from (5 Man. L. R. 173, 1. That a judgment avoiding letters patent upon such an information could only be justified and sup- ported upon the same grounds being estab- lished in evidence as would be necessary if the proceedings were by scire facias. 2. The term *' improvidence," as distinguished from error, applies to cases where the grant has been to the prejudice of the commonwealth or the gen- eral injury of the public, or where the rights of any individual in the thing granted are in- juriously affected by the letters patent ; and F.'s title having been recognized by the Gov- ernment as good and valid under the Manitoba Act and the lands granted to him in recogni- tion of that right, the letters patent could not be set aside as having been issued improvi- dently except upon the ground that some other person had a superior title also valid under the Act. 3. Letters patent cannot be judicially pronounced to have been issued in error or im- providently when lands have been granted up- on which a trespasser, having no colour of right in law, has entered and was in possession without the knowledge of the Government offi- cials upon whom rests the duty of executing and issuing the letters patent, and of investi- gating and passing judgment upon the claims therefor ; or when such trespasser, or any per- son claiming under him, has not made any ap- plication for letters patent ; or when such an application has been made and refused without any express determination of the officials re- fusing the application, or any record- having been made of the application having been made or rejected. — Per Patterson, J. In the con- struction of the statute effect must be given to the term improvidence as meaning some- thing distinct from fraud or error ; letters patent may, therefore, be held to have been issued improvidently if issued in ignorance of a substantial claim by persons other than the patentee to the land which, if it had been known, would have been investigated and passed upon before the patent issued; and it is not the duty of the court to form a definite opinion as to the relative strength of opposing claims. — Semile per Gwynne, J. There is no sound reason why the Government of the Do- minion should not be bound by the judgment of a court of justice in a suit to which the At- torney-General, as representing the Govern- ment, was a party defendant, equally as an in- dividual would be, if the relief prayed by the information is sought in the same interest and upon the same grounds as were adjudicated upon by the judgment in the former suit. Fonseca v. Atty.-Gen. of Canada xvii., 612. 131. Escheat — ■ Failure of heirs — Tierce- opposition to judgment — Interest of opposant — ■ Intervention — Sale of litigious rights — Fraud — Champerty — Arts. 989, 990. 1485, 1583, 2187. 2216, 2243, 2265 C. O.—Arts. 154, 510 C. C. P. — Judgment — Limitation of ac- tion.] — Appellant filed a tierce-opposition to a judgment obtained by the Attorney-General of Quebec in 1884, in a suit commenced by in- formation in 1790 against the succession of one M. P. to have the judgment set aside on the ground that it declared escheated to the Crown a part of the Seigniory of Grondines, of which appellant had been in possession for many years, and which judg- ment, it was alleged, had been obtained il- legally and by fraud and collusion. M., an advocate who had purchased all the rights of the Crown in the succession, intervened and asked for the dismissal of the tierce-opposition. The Attorney-General and the curator to the succession of M. P., the only parties to the judgment sought to be set aside, in answer to the tierce-opposition merely appeared and de- clared " ils s'en rapportent d justice." The Superior Court dismissed M.'s intervention and maintained the tierce-opposition. On ap- peal by the Crown and M. jointly, this judg- ment was reversed, and the tierce-opposition dismissed. Held, reversing the judgment ap- pealed from, 1. That M. had no locus standi to intervene, the sale to him of the Crown's right being void (a) because it was a sale of 1433 TITLE TO LAND. litigious rights to an- advocate prohibited by arts. 1485 and 1588 C. O., and therefore null under arts. 14 and 990 CO.; ( 6 ) because it was tainted with champerty; (c) because M. admitted he had no interest in the case. 2. That appellant, being in possession of the pro- perty declared escheated to the Crown in a proceeding to which he was not a party, had a sufficient interest under the circumstances in the case to file a tierce-opposition, and that the judgment of 1884 should be set aside because inter alia, (a) it was obtained by fraud and collusion ; ( 5 ) the action being prescribed in 1884 appellant, under art. 2187, C. C, had the right to avail himself of this prescription. — ^Fournier, J., dissented on the ground that as the appellant had not alleged or shewn a right superior to that of the Crown to serve as a basis for prescription his tieroe-opposition should be dismissed. Price v. Mercier, xviii., 303. 132. Grown property — B. N. A. Act, 1867— Foreshore of harbour — Grant from Provincial Government — Conveyance iy grantee — Dower — Pleading — Estoppel — Act confirming title.]— After the B. N. A. Act, 1867, came into force the Government of Nova Scotia granted to S. part of the foreshore of the harbour of Sydney, C. B. S. conveyed this lot through the C. B. Coal Co. to defendant. S. having died, his widow brought action for dower, to which the company pleaded that the grant to S. was void, the property being vest- ed in the Dominion Government. Held, af- firming the judgment appealed from (23 N. S. Eep. 214), Strong and Gwynne, JJ., dissent- ing, that the company having obtained title to the property from S. they were estopped from saying that his title was defective. — - Per Strong and Gwynne, JJ., dissenting. The con- veyance by S. to the C. B. Coal Co. was an innocent conveyance by which S. himself would not have been estopped and, as estoppel must be mutual, his grantees would not. There were no recitals in the deed that would estop them and estoppel could not be created by the cove- nants. — ^After the conveyance to defendant an Act was passed by the Legislature of Nova Scotia ratifying and confirming the title of defendant to all property of the C. B. Coal Co. Held, that if the legislature could by statute attect the title to this property which was vested in the Dominion Government it had not done so by this Act in which the Crown is not expressly named. Moreover the statute should have been pleaded by defendant. Sydney and Louisiurg Goal and Ry. Go. v. Sword, xxi., 152. 133. Control of insolvent estate — Insohient ^t, 1875, ss. 68-75 — Fraudulent conveyance — Possession — Sale hy assignee.] — The plaintiff claimed title under P., a grantee of S., the assignee in insolvency of P. D., who formerly owned the land, and who some years before his insolvency had conveyed the land to his brother L. D. Under the advice of the inspec- tors of the estate S. refused to take proceed- ings to set aside the conveyance to L. D. as irandulent, and two of the creditors, under the provisions of s. 68 of the Insolvent Act, iiaving obtained leave from a judge instituted a suit in the name of S., and procured a de- cree declaring the conveyance fraudulent, and, as against S., void. The decree did not direct a sale of the land, as was prayed. The land Was, however, advertised for sale, the period ot _advertisement being shortened by the judge, and was sold to F. Under instructions from the general body of creditors S. at first re- 1434- fused to convey to F,, but subsequently con- veyed upon an order being obtained from the. judge directmg him to do so.— In an action of ejectment it was held by the Court of Appeal tor Ontario, aflirming the decision of the Com- mon Pleas Division (9 O. R. 89), that the sale was not one subject to the control of the- general body of creditors, and therefore the restrictions of s. 75 of the Insolvent Act were- inapplicable and the sale was valid. Further that the defendant failed to establish his claim of title by possession. — ^The Supreme Court ot Canada affirmed the judgment appealed trom. Herbert v. Donovan, Cass. Dig (2 ed V 653. 6 V cu ; 134. Municipal corporation — Ownership of roads and streets — Bights of private property owners — Ownership ad medium filum viw — a\T- mV'^- ^^ ^^^■'> "• 45— SO Vict. c. 22 (N. "•)J--l-hat the ownership of lands adjoining a highway extends ad medium filum viw is a presumption of law only which may be re- butted, but the presumption will arise though the lands are described in a conveyance as bounded by or on the highway. Gwynne, J., contra. Judgment appealed from (23 N'. S. Rep. 509) reversed. O'Connor v. Nova Scotia Telephone Co., xxii., 276. 135. Action en bornage — Surveyor's report — Judgment on — Acquiescence in judgment — Chose jugee.] — In an action en bornage be- tween M. and B. a surveyor was appointed by the Superior Court to settle the line of divi- sion between the lands of the respective par- ties, and his report, indicating the position of the boundary line, was homologated, and the. court directed that boundaries should be placed at certain points on said line. M. appealed from that judgment to the Court of Review claiming that the report gave B. more land than he claimed, and that the line should fol- low the direction of a fence between the pro- perties that had existed for over thirty years. The Court of Review gave effect to this con- tention and ordered the boundaries to be placed according to it, in which judgment both parties acquiesced and another surveyor was appointed to execute it. He reported that he had placed the boundaries as directed by the Court of Review, but that his measure- ments shewed that the line indicated was not the line of the old fence, and his report was. rejected by the Superior Court. The Court of Review, however, held that the report of the- first surveyor having been homologated by the court, was final as to the location of the fence, and that the judgment had been properly exe- cuted. The Court of Queen's Bench reversed the judgment, set aside the last report and ordered the surveyor to place the boundaries in the true line of the old fence. Held, re- versing the decision of the Court of Queen's Bench, that the judgment of the Court of Review in which the parties acquiesced was cliose jugie between them, not only that the- division line between the properties must be located on the line of the old fence, but also that such line was one starting at the point indicated in the plan and report of the first surveyor. The Court of Review was right, therefore, in holding that the surveyor execut- ing the judgment could do nothing else thaja start his line at the said point. Mercier v. Barrette, xxv., 94. 136. Appeal — Jurisdiction — Petitory ac- tign — Encroachment — Constructions under mistake of title — Good faith — Common error — Demolition of worHs — Bight of accession — 1435 TITLE TO LAND. 1436 Indemnity — Res judicata — Arts. 4^2. 4^3, 4^9 et seq., 10^7, 1241 0. 0.] — An action to re- vendicate a strip of land upon which an en- croachment was admitted to have taken place by the erection of a building extending be- yond the boundary line and for the demoli- tion and removal of the walls and the eviction of the defendant involves questions relating to a title to land, independently of the con- troversy as to bare ownership, and is appeal- able to the Supreme Court of Canada under the provisions of the Supreme and Exchequer Courts Act. — Where, as the result of a mutual error respecting the division line, a proprietor had in good faith and with the kiaowledge and consent of the owner of the adjoining lot, erected valuable buildings upon his own pro- perty and it afterwards appeared that his walls encroached slightly upon his neighbour's land, he cannot be compelled to demolish the walls which extend beyond the true boundary or be evicted from the strip of land they oc- cupy, but should be allowed to retain it upon payment of reasonable indemnity. — In an ac- tion for revendication under the circumstances above mentioned, the judgment previously rendered in an action en homage between the same parties cannot be set up as res judicata against the defendant's claim to be allowed to retain the ground encroached up- on by paying reasonable indemnity, as the objects and causes of the two actions were different. — An owner of land need not have the division line between his property and contiguous lots of land established by regular homage before commencing to build thereon when there is an existing line of separation which has been recognized as the boundary. Judgment appealed from (Q. E. 6 Q. B. 202), reversed. Delorme v. Gusson, xxviii., 66. 137. Acts of owner in possession — Waivei — Objections to title.\ — ^A purchaser who takes possession of the property and exercises own- ership by making repairs and improvements will be held to have waived any objections to the title.— Objections to title cannot be raised where the purchaser has made a tender of a blank deed of mortgage for execution for the purpose of carrying out the purchase. Judg- ment appealed from, (29 N. S. Rep. 424) affirmed. Wallace v. Hesslein, xxix., 171. 138. Lease — ■ Transfer of lease — Alien- ation for rent — Emphyteusis — Bail a rente — Bail a longues ann4es — Droit moMlier — Cu- mulative demand — Incompatible pleadings — Action pititoire—Arts. 56T, 572. 1593 C. C. — Arts. 176, 177 (6), 1064, 1066 G. P. Q.— Pos- sessory action — Reintegrande — Denonciation de nouvel ceuvre.'i — ^An instrument by which lands were leased for sixteen years at an an- nual rental, subject to renewal for a further term of twelve years, provided for the con- struction of certain buildings and improve- ments by the lessee upon the leased premises, and hypothecated these contemplated amelio- rations to secure payment of rent and per- formance of the obligations of the lessee. The leased premises were transferred by the lessee by deed of sale, and on disturbance an action, with both petitory and possessory conclusions, was brought by the transferee against an al- leged trespasser, who pleaded title and pos- session in himself without taking objection, to the cumulative form of the action by the transferee. Held, affirming the judgment appealed from, that under the circumstances the action should be treated as petitory only; that the contract under the '"strn- ment described was neither emphyteusis nor a bail d: rente (lease in perpetuity), but merely an ordinary contract of lease which did not convey a title to the land nor real rights sufficient to confer upon the transferee the right of instituting a petitory action in his own name. Held, also, that the transfer by the deed of sale of such leased premises would not support the petitory action, as the lessee could not convey proprietary rights which he did not himself possess. Price v. LeBlond, XXX., 539. 139. Mining claim — Registered description — Error — Certificate of improvements — Ad- verse action— R. S. B. G. o. 135, s. 2S.]— If the description of a mining claim as recorded is so erroneous as to mislead parties locating other claims in the vicinity, the error is not cured by a certificate of work done by the first locator on land not included in such de- scription and covered by the subsequent claims. Colpen v. Callahan, xxx., 555. The Supreme Court affirmed the judgment appealed from which had reversed the trial court judgment (6 B. C. Kep. 523). 140. Grown lands — Timber licenses — Sales by local agent — Location ticket — Suspensive condition ■ — ■ Title to lands — Art. 1085 C. G.—Arts. 1269 et seq. and 1309 et seq. R. S. Q.'] — During the term of a license to cut tim- ber on ungranted lands of the Province of Quebec, the local Crown Lands Agent made a sale of a part of the lands covered by the license, and issued location tickets or licenses of occupation therefor under the provisions of arts. 1269 et seq. of the Revised Statutes of Quebec, respecting the sale of Crown lands. Subsequently the timber license was renewed, but, at the time the renewal license was is- sued, there had not been any express ap- proval by the Commissioner of Crown Lands of the sales so made by the local agent as provided by art. 1269 R. S. Q. Held, affirm- ing the judgment appealed from, Taschereau and Davies, JJ., dissenting, that the approval required by art. 1269 R. S. Q. was not a sus- pensive condition, the fulfilment of which would have retroactive effect from the date when the sales by the local agent were made, and that, at the time of the issue of the re- newal license, the lands in question were still ungranted lands of the Crown for which the timber license had been validly issued. Le- blano V. RobitaUle, xxxi., 582. 141. Indian lands — Treaties with Indians — Surrender of Indian rights — Mines and miner- als-'— Grown grant ■ — ■ Constitutional law — 43 Vict. c. 28 (D.) ]— The Indian treaty of 1873 provided that certain reserves surrendered were to be administered by the Dominion of Canada for the benefit of the Indians. In 1886, part of one of these reserves was sur- rendered to the Queen under the Indian Act of 1880 in trust for sale on such terms as the Dominion might deem conducive to the benefit of the Indians and, from this surrendered portion of the reserve, the lands in ques- tion were granted by the Dominion to the plaintiff company, including the precious met- als therein. 'Defendants asserted title under grant from the Ontario Government in 1899. At the treaty of 1873 the commissioners re- presented to the Indians that they would be entitled to the benefit of any minerals that might be discovered on the reserves then sur- rendered. The judgment appealed from (82 O. R. 301) affirmed the Chancellor's judgment 1437 TITLE TO LAND. 1438 (31 0. E. 386), which held that, after the surrender in 1886. the title to the land and minerals could only be obtained from the Gov- ernment of Ontario ; that with the royal mines and minerals, the Indians had no concern ; that the Dominion could make no valid stipu- lation with them affecting the rights of On- tario and further, semble, that a province is not to be held bound by alleged acts of ac- quiescence of officials not brought home to nor authorized by the provincial executive and manifested by order-in-council or other auth- entic testimony. This . decision was affirmed by the Supreme Court of Canada, Gwynne, J., dissenting. Ontario Mining Go. v. Seybold, xxxii., 1. Affirmed on appeal by the Privy Council, ([903] A. C. 73). 142. Vendor and purchaser — Principal and agent — Sale of land — Authority to agent — Prioe of sale.'] — M., owner of an undivided three-quarter interest in land at Sault Ste. Marie, telegraphed to her solicitor at that place, " Sell if possible, writing particulars ; will give you good commission." C. agreed to purchase it for $600 and the solicitor tele- graphed M., " Will you sell three-quarter in- terest sixty-seven acre parcel, Korah for six hundred, half cash, balance year? Wire stat- ing commission." M. replied, " Will accept offer suggested. Am writing particulars ; await my letter." The same day she wrote the so- licitor, " Telegram received. I will accept $600, $300 cash and $300 with interest at one year. This payment I may say must be a marked cheque at par for $300, minus your commission $15, and balance $300 secured." The property was incumbered to the extent of over $300 and the solicitor deducted this amount from the purchase money and sent M. the balance which she refused to accept. He also took a conveyance to himself from the former owner paying off the mortgage held by the latter. In an action against M. for spe- cific performance of the contract to sell ; Held, affirming the judgment of the Court of Appeal, that the only authority the solicitor had from M. was to sell her interest for $585 net and the attempted sale for a less sum was of no effect. Held, further, that the conveyance, to the solicitor by the former owner was for M.'s benefit alone. Glergue v. Murray, xxxii., 450. The Privy Council refused leave for an appeal from this decision and, in doing so, referred specially to the case of Prince v. Qagnon, (8 App. Cas. 103). 143. Beds of puhlie harbours — Grant of foreshore— 25 Viet. e. 19 (P. E. I.)—B. N. A. Act, 1867, s. i08.1— Under s. 108, B. N. A. Act,. 1867, the soil and bed of the fore- shore in the harbour of Summerside, P. E. I., belongs to the Crown, as representing the Dominion of Canada, as it is comprised in and forms part of a public harbour and, therefore, a grant of foreshore lands between Mgh and low water mark therein made by the Province of Prince Edward Island is void and inoperative. Holman v. Oreen, vi., 707. . [Note. — Followed in Re Provincial Fisher- «e» (26 Can. S. C. R. 444.)] 144. Halifax Marlour — Vnauthorizod grant —J'resjjBss.]— Action of tort by E. against 'J- for. having pulled up piles in the harbour Ji Halifax below low water mark, driven in S,°8 used as supports to an extension of ,f;-s wharf, built on land obtained by a Uown grant to E. in August, 1861. W. pleaded that " he was possessed of a wharf and premises in said harbour, in virtue of Vi'hich possession he and his predecessors in title had enjoyed for twenty years and up- wards before the action, and had now, the right of having free and uninterrupted access from and to Halifax Harbour, to and from said wharf, with steamers, &c., and because piles, placed by plaintiffs in said waters, in- terfered with his rights, he removed the same." There was evidence that the erections E. was making for the extension of his wharf obstructed access by vessels to W.'s wharf. A verdict against W. was upheld by the full court. Meld, reversing the judgment appealed from (4 R. & G. 276) , that, as the Crown could not, without legislative sanction, grant to E. the right to place in said har- bour below low water mark any obstruction or impediment so as to prevent the free and full enjoyment of the right of navigation, and as W. had shewn special injury, he was justi- fied in removing the piles, which was the tres- pass complained of. Wood v. Esson, ix., 239. 145. Railway belt — Reserve in British Columbia — Provincial grant — 47 Viet. c. H, s. 2 (B. 0.)] — By s. 11 of the order-in-council admitting the Province of British Columbia into confederation, British Columbia agreed to convey to the Dominion Government, in trust, to be appropriated in such manner as the Dominion Government might deem ad- visable 'in furtherance of the construction of the Canadian Pacific Railway, an extent of public lands along the line of railway. After certain negotiations between the Gov- ernments of Canada and British Columbia, and in order to settle all disputes, an agree- ment was entered into, and on 19th Decem- ber, 1883, the legislature of British Colum- bia passed the statute 47 Vict. c. 14, by which : — " From and after the passing of this Act there shall be, and there is hereby, granted to the Dominion Government for the purpose of constructing and to aid in the construction of the portion of the Canadian Pacific Railway on the main land of British Columbia, in trust, to be appro- priated as the Dominion Government may deem advisable, the public lands along the line of railway before mentioned, wherever it may be finally located, to a width of twenty miles on each side of the said line, as provided in the order-in-council, s. 11, ad- mitting the Province of British Columbia into confederation." On 20th November, 1883, by public notice the Government of British Columbia reserved a belt of land of 20 miles in width along a line by way of Bow River Pass. In November, 1884, F., to comply with the provincial statutes, filed a survey of land within said belt which was finally accepted on 13th January, 1885, and letters patent under the great seal of the province issued to F. The Attorney-General of Canada by information of intrusion sought to recover possession of the land, and the Exchequer Court dismissed the in- formation with costs. Held, reversing the judgment of the Exchequer Court, Henry, J., dissenting, that at the date of the grant the Province of British Columbia had ceased to have any interest in the land covered by said grant, and that the title to the same was in the Crown for the use and benefit of Canada. The Queen' V. Farwell. xiv., 392. See No. 147, infra. 146. Tenant for life — Conveyance to raU- way company by — Railway Acts — C. 8. C. 1439 TOLLS. 1440 66, s. 11, s.-g. v.—H Viot. 0. 17, s.- 1 (O.)]— By C. S. C. c. 66, s. 11 (Railway Act), all corporations and persons -whatever, ten- ants in tail or for life, grevis de sulstitution, guardians, &c., not only for and on behalf of themselves, their heirs arid successors, but also for and on behalf of those vs'hom they represent . . . seized, possessed of or in- terested in any lands, may contract for, sell and convey unto the company (railway com- pany), all or any part thereof; and any contract, &c., so made shall be valid and effectual in law. Held, affirming the decision appealed from (19 Ont. App. R. 265), that a tenant for life is authorized by this Act to convey to a railway company in fee, but the company must pay to the remainderman or into court the proportion of the purchase money representing the remainderman's in- terest. Midland Ry. of Canada v. Young, xxii., 190. 147. Railway 'belt in British Columbia — Vnsurveyed lands ■ — Pre-emption — Federal and provincial rights.1 — On 10th September, 1883, D. et al. obtained a certificate of pre- emption under the British Columbia Land Act, 1875, and Land Amendment Act, 1879, of 640 acres of unsurveyed lands within the 20 mile belt south of the Canadian Paci- fic Railway, reserved 29th November, 1883, under agreement between the Governments of the Dominion and of the Province of Bri- tish Columbia, and which was ratified by 47 Viet. c. 14 (B.C.). On 29th August, 1885, this certificate was cancelled, and on the same day a like certificate was issued to respond- ents, and on the 31st .Tuly, 1889, letters patent under the great seal of British Colum- bia were issued to respondents. By the agree- ment ratified by 47 Vict. c. 6 (D.). it was also agreed that three and a half million ad- ditional acres in Peace River District should be convej'ed -to the Dominion Government in satisfaction of the right of the Dominion under the terms of union to have made good to it, from public lands contiguous to the railway belt, the quantity of land that might at the date of the conveyance be held under pre-emption right or by Crown grant. On an information by the Attorney-General for Canada to recover possession of the 640 acres : Held, affirming the Exchequer Court (3 Ex. C. R. 293) that the land in question was exempt from the statutory conveyance to the Dominion Government, and that upon the premption right granted to D. et al. being subsequently abandoned or cancelled, the land became the property of the Crown in right of the province, and not in right of the Dom- inion. The Queen v. Demers, xxii., 482. See No. 145, ante. 148. Riparian proprietors — Right of fishing — Fishery licenses — 31 Vict. c. 60 (D.) See Fisheries, 2. 149. Jilatter in controversy — Church rates ■ — Hypothec — Future rights. Sec Appbai, 21. 150. Church lands — Interest of vestry — Rector and wardens — Rectory lands — 29 ???'^^ ^<=' °f Ontario, R.^S. O. U»»0 c. 159, as amended by 53 Vict c 42 relating to tolls and repair of roads, apply to a company incorporated by special Acts, and, on the report of an engineer as provided by the General Act that the road of such company IS out of repair, it may be restrained from collecting tolls until such repairs have been made.— Judgment appealed from reversed ; or- der on motion for interim injunction (19 Ont App. R. 234) overruled, and order for interim injunction (21 O. R. 607) approved. Attorney- (reneral v. Vaughan Road Co., xxi., 631. 4. Company — Forfeiture of charter— Estop- pel— Oomphance with statute — Action— Res judicata.] — In an action against a river im- provement company for re-payment of tolls al- leged to have been unlawfully collected, it was alleged that the dams, slides, &c., for which tolls were claimed were not placed on the pro- perties mentioned in the letters patent for the company ; that the company did not comply with the statutory requirements that the works should be completed within two years from the date of incorporation, whereby the corporate powers were forfeited ; that false returns were made to the Commissioner of Crown Lands, upon which the schedule of tolls was fixed ; that the company by its works and improve- ments obstructed navigable waters, contrary to the provisions of the Timber Slide Com- panies Act, and could not exact tolls in re- spect of such works. By a consent judgment in a former action between the same parties, it had been agreed that a valuator should be appointed by the Commissioner of Crown Lands whose report was to be accepted in place of that provided for by the Timber Slide Companies Act, and to be acted upon by the commissioner in fixing the schedule of tolls. Held, affirming the judgment of the Court of Appeal for Ontario, that the above grounds of impeachment were covered by the consent judgment, and were res judicata. Held, fur- ther, that plaintiffs having treated the company as a corporation, using the works and paying the tolls fixed by the commissioner, and having In the present action sued the company as a corporation, were precluded from impugning its legal existence by claiming that its corpo- rate powers were forfeited. — By R. S. O. (1887) c. 160, s. 54, it was provided that if a company such as this did not complete its works within two years from the date of in- corporation it should forfeit all its " corporate and other powers " unless further time is granted by the county or counties, district or districts, in or adjoining which the work is situate, or by the Commissioner of Public Works. — Semhle, The non-completion of the works within two years would not ipso facto, forfeit the charter but only afford grounds for proceedings by the Attorney-General to have a forfeiture declared. — Another gi-ound of ob- jection to the imposition of tolls was that the commissioner, in acting on the report of the valuator appointed under the consent judg- ment, erroneously based the schedule of tolls upon the report as to expenditure instead of as to actual value, and the statement of claim asked that the schedule be set aside and a new scale of tolls fixed. Held, that under the sta- tute the schedule could only be altered or varied by the commissioner, and the court could not interfere, especially as no applica- tion for relief had been made to the commis- sioner. Hardy Lumber Go. v. Pickerel River Improvement Co., xxix., 211. 1443 TOLLS. 1444 5. Constitutional law — Administration of Yukon — Franchise over Dominion lands — Tolla.\ — The Executive Government of the Yukon Territory may lavpfully authorize the construction of a toll tramway or waggon road over Dominion lands in the territory, and private persons using such road cannot refuse to pay the tolls exacted under such authority. O'Brien v. Allen, xxx., 340. 6. License — Construction — Disturhanoe — Long user — Establishment of limitsJ\ — ^The Crown granted a license to the Town of Belle- ville (in 1858), to ferry "between the Town of Belleville and Ameliasburg." Held, a suf- ficient grant of a right of ferriage to and from the two places named. — Under this license the Town of Belleville leased to the plaintiff granting the franchise " to ferry to and from the Town of Belleville to Ameliasburg," a township having a water frontage of about ten or twelve miles, directly opposite to Belleville, such lease providing for only one landing place on each side, and a ferry was established with- in the limits of Belleville on the one side, to a point across the Bay of Quintg, in Amelias- burg, within an extension of the east and west limits of Belleville. The defendants estab- lished another ferry across another part of the Bay of Quintg, between Ameliasburg and a place in the Township of Sidney, which adjoins Belleville, the termini being on the one side two miles from the western limits of Belleville, and on the Ameliasburg shore about two miles west from the landing place of the plaintiff's ferry. Held, reversing the judgment appealed from (7 Ont. App. R. 341), that the establishment and use of the plaintiff's ferry within the limits aforesaid for many years had fixed the termini of the ferry, and that the defendants' ferry was no infringement of the plaintiffs' right. Anderson v. Jellett, ix., 1. 7. Ferry license — Interference — Tortious hreach of contract — Bridges within ferry limits — It. 8. G. c. 97.] — On appeal the Su- preme Court affirmed the judgment of the Ex- chequer Court of Canada (6 Ex. C. B. 414), which held that the granting of leases and other privileges by the Crown of land for the purpose of building and utilizing railway bridges and the extension of railway tracks to connect with railways across the Ottawa River, did not constitute a breach of the con- tract on the part of the Crown arising out of the grant of a ferry license, including within its limits the localities in question, between the City of Ottawa and the City of Hull, and that the construction of the bridges with ap- proaches and track extensions did not consti- tute an interference with the ferry rights of the suppliant which would entitle him to re- cover damages against the Crown. Brigham V. The Queen, xxx.. 620. 8. Road company — Lease of tolls — Obstruc- tion of highway.'] — A toll-house extended to the edge of a highway, and in front of it was a short board walk. The gate was attached to a post on the opposite side of the road, and was fastened at night by a chain, which was usually carried across the board walk and held by a large stone against the house. The board walk was generally used by foot pas- sengers, and 0. walking on it at night tripped over the chain and fell, sustaining injuries. — The toll collector was made a defendant but did not enter a defence. It was shewn that he had made an agreement with the company to pay a fixed sum for the privilege of collect- ing tolls for the year, and was not to account for the receipts. The company claimed that he was lessee of the tolls, and that they were not responsible for his acts. The jury found, however, that in using the chain to fasten the gate as he did. he was only following the prac- tice that had existed for some years previous- ly, and doing as he had been directed by the company. The statute under which the com- pany was incorporated contains no express authority for leasing the tolls, but uses the term " renter " in one section, and in another speaks of a " lease or contract " for collecting the tolls. — The company claimed, also, that C. had no right to use the board walk in walk- ing along the highway, and that the fact of her being there was contributory negligence on her part which relieved them from liability for the accident. Held, affirming the judg- ment appealed from (18 Ont. App. B. 286), Gwynne, J., dissenting, that C. had a right to use the board walk as part of the public highway, and was, moreover, invited by the company to use it, and there was, therefore, no contributory negligence; that whether the toll collector was servant of the company or lessee of the tolls, the company, under the finding of the jury, was liable for his acts. Kingston i& Bath Boad Co. v. Campbell, xx., 605. See Negligence, 186. 9. Constitutional law — Municipal corpora- tion — Powers of Legislature — License — Mono- poly — Highways and ferries — Navigable streams — By-laws and resolutions — Intermuni- cipal ferry — Tolls — Disturbance of license — North-West Territories Act, R. 8. C. c. 50, ss. 13 and 2U—B. N. A. Act {1861) c. 92, ss. 8, 10, le^Bev. Ord. N. W. Ter. (1888) c. 28 —Ord. N. W. T. No. 7 of 1891-92, s. 4— Com- panies, club associations and partnerships.] — The authority given to the Legislative Assem- bly of the North-West Territories, by R. S. C. c. 50, and orders-in-council thereunder, to legislate as to " municipal institutions " and " matters of a local and private nature " (and perhaps as to license for revenue), within the Territories, includes the right to legislate as to ferries. — The Town of Edmonton, by its charter, and by " The Perries Ordinance " (Rev. Ord. N. W. T. [1888] c. 28). can grant the exclusive right to maintain a ferry across a navigable river which is not within the territorial limits of the municipality ; and as under the charter the powers vested in the Lieutenant-Governor-in-Council by the Ferries Ordinance are transferred to the municipality, such right may be conferred by license and a by-law is not necessary. — ^A " club " or part- nership styled " The Edmonton Ferry Com- pany " was formed for the purpose of build- ing, establishing and operating a ferry within the limits assigned in the license by the muni- cipality granting exclusive rights to ferry across the river in question, the conditions be- ing that any person could become a member of the club by signing a list of membership and taking at least one share of $5 therein, which share entitled the holder to 100 tickets that were to be received in payment of ferry ser- vice according to a prescribed tariff, and when expended could be renewed by further sub- scriptions for shares ad infinitum. The club supplied their ferrymen with a list of member- ship, and established and operated their ferry, without any license, within a short distance of one of the licensed ferries, thereby, as was claimed,, disturbing the licensee in his ex- clusive rights. — Held, that the establishment 1445 TOKT. 1446 of the club ferry and the use thereof by mem- bers and others under their club regulations was an infringement of the rights under the license, . and that the licensee could recover damages by reason of such infringement. Dinner v. Humlerstone, xxvi., 252. 10. Toll-iridge — S Viot. a. 90 (Oan.)—In- iemniiy — Liability of Province of Canada — Remedial process.'^ — A toll bridge with its ne- cessary buildings and approaches was built and maintained by Y., at Ohambly, in the Province of Quebec, in 1845, under a fran- chise granted to him by an Act (8 Vict. c. 90) of the late Province of Canada, in 1845, on the condition therein expressed that on the. expiration of the term of fifty years the works should vest in the Crown as a free bridge for public use and that Y., or his representatives, should then be compensated therefor by the ' Crown, provision being also made for ascer- taining the value of the works by arbitration and award. Held, affirming the judgment ap- pealed from (6 Ex. C. R. 103). that the claim of the applicants for the value of the works at the time they vested in the Crown on the expiration of the fifty years' franchise was a liability of the late Province of Canada coming within the operation of s 111 of the B. N. A. Act, 1867, and thereby imposed on the Dominion ; and that there was no lien or right of retention charged upon the property, and that the fact that the liability was not pre- sently payable at the date of the passing jof the B. N. A. Act, 1867, was immaterial. The AUorney-Oeneral of Canada v. The Attorney- General of Ontario ([1897] A. C. 199; 23 Can. S. 0. E. 434) followed. The Queen v. Yule, XXX., 24. [The Privy Council refused leave to appeal (34 Can. Gaz. 272).] TORT, 1. Agreement — Continuous possession of railway — Breach in assertion of supposed rights — Joint misfeasor--Judgment — Reduc- tion of damages — Pleading — 37 Yict. c. 16 (D.) — Petition of rtght.] — By agreement be- tween the W. & A. Ry. Co. and the Govern- ment, the Windsor Branch Railway, with run- ning powers over the Intercolonial Railway, was leased to the suppliants for 21 years from 1st January, 1872. They went into possession and operated it thereunder up to the 1st Au- gust. 1877, on which date the Superintendent of Government railways; as authorized by the Government under an Act, 37 Vict. c. 16 (D.) , ejected suppliants and prevented them using Said Windsor Branch or passing over the trunk line. Four or five weeks afterwards the Government gave over possession of said Windsor Branch to the W. C. Ry. Co., which took and retained possession thereof. — In a suit (see R. B. D. 383; 2 Russ. & Geld. 280), by the W. & A. Ry. Co. against the W. C. Ry. Co. for recovery of possession, the Judi- cial Committee of the Privy Council held (7 APP. Cas. 178), that 37 Vict. e. 16 did not ex- unguish the right and Interest which the W. f A. Ey. Co. had in the Windsor Branch un- to the agreement. — On petition of right filed oy suppliants, claiming damages by the breach of the said agreement, the Exchequer Court of Unada (Gwynne, J.), held that the taking M the road by an officer of the (TJrown under the assumed authority of an Act of Parliament was a tortious act for which petition of right niT^l^- °" ^PP??' "> ^^^ Supreme Court; fht'fy.^^'r"^ ^"k^ Gwynne, JJ„ dissenting that the Crown by the answer of the Atto?- ?5 ^°t'"^i ^'^ "■°^ ^' "P '"'y tortious act for which the Crown claimed not to be liable but alleged that it had a right to put an end to the contract and did so, and that the action tue Crown and its ofBeers being lawful and not tortious, they were justified. But, as the agreement was still a continuous, valid and binding agreement to which they had no right to put an end, this defence failed. Therefore the Crown, by its officers, having acted on a misconception of or misinformation as to the rights of the Crown, and wrongfully, because contrary to the express and implied stipula- tions of their agreement, but not tortiously in law, evicted the suppliants, and so, though un- conscious of the wrong, by such breach be- conie possessed of the suppliant's property the petition of right would lie for the restitution ot such property and for damages. — Prior to the filing of the petition of right, the suppliants sued the W. C. Ey. Co. for the recovery of the possession of the Windsor Branch, and also by way of damages for moneys received by the W. O. Ey. Co. for freight or passengers on said railway since their possession, and obtained judgment but were not paid. This judgment was not pleaded by the Crown, but was proved on the hearing by the record in the Supreme Court of Canada, to which an appeal liad been taken, and which had aflnrmed the judg- ment of the Supreme Court of Nova Scotia. Held, per Eitchie, C.J., and Taschereau, J., that the suppliants could not recover against the Crown, as damages for breach of contract, what they claimed and had judgment for as damages for a tort committed by the W. C. Ry. Co., and in this case there was no neces- sity to plead the judgment.— Per Pournier and Henry, JJ., that the suppliants were entitled to damages for the time they were, by the ac- tion of the Government, deprived of possession and use of the road to the date of the filing of their petition of right. Windsor and An- napolis By. Co. V. The Queen, x., 335. On appeal to the Privy Council the judg- ment was reversed in so far as it adjudged that the suppliants were entitled to damages for loss of profits from the time they were deprived of the use and possession of the Windsor Branch by the action of the Govern- ment, up to the filing of the petition of right (55 li. J. P. C. 41), otherwise the decision was affirmed. 2. Railways — Subway — 46 Yict. c. 45 (Ont.) — 46 Vict. c. 24 (D.) — Principal and agent — Injury to property — Misfeasance — Municipal institution.'] — The Act, 46 Vict. c. 45 (Ont), authorized the City of Toronto and the Village of Parkdale, jointly or separately, and the railway companies whose lines ran into Toronto, to agree as to the construction of subways ; provision was made for the issue of debentures for the cost of the work, without submitting the by-law to the ratepayers ; also for compensation to owners of property in- juriously affected by such work, on arbitration under the Municipal Act, if not mutually agreed upon. The Village of Parkdale and the companies agreed to construct a subway at their joint expense, under the direction of the municipality and its engineer and, on their application, an order-in-council was passed, under 46 Vict. c. 24 (D.), authorizing the work to be done in accordance with such agreement. The municipality contracted 1447 TOET. 144S with 6. for the work and a by-law to raise the Village of Parkdale's share of the cost was submitted and approved by the rate- payers. In an action by an owner of pro- perty injuriously affected the plaintiff recover- ed and the judgment (7 O. K. 27ti) was af- firmed by the Divisional Court (8 O. R. 59), but reversed by the Court of Appeal for On tario (12 Ont. App. R. 393). On appeal to the Supreme Court, Held, reversing the judg- ment appealed from (Taschereau, J., dissent- ing) , that the work was not done by the muni- cipality under the special Act, nor merely as' agent of the railway companies, and it was therefore liable as a wrongdoer. — Per Gwynne, J. That the work should be considered as having been done under the special Act, and that plaintiff was entitled to compensation thereunder. — Per Taschereau, J., dissenting, that the work was done by the municipality as the agent of the railway companies and it was therefore not liable. West v. Village of J'urkdale, xii., 250. [Affirmed by the Privy Council, 12 App. Jeither a solicitor nor a sheriff is a tort feasor as against a transferee, whose transfer is unregistered, by registering in the discharge of their respective duties, an execution of a judgment against lands of a judgment debtor. Taylor v. Kobertson, xxxi., 615. 6. Action against the Crown — Fraud or mis- conduct hy public servants. See CONTKACT, 90. 7. Delit — Moral wrong — Assessment of damages — Consolation for bereavement — Mis- direction — New trial — Art. 1056 C. C. See Damages, 2. 8. Access to navigable stream- — Obstruction — Expropriation for railway — Damages. See Expropriation of Lands, 21. 9. Joint tort feasors — Obstructing naviga- tion — Eoidence — Assessment of damages. See Damages, 61. 10. Lawful use of land — Damage to adjoin- ing property — Right of action. See Nonsuit. 1. 11. Commencement of prescription of action — Continuing damages — Liability of employer for act of contractor. See Master and Sekvant, 3. 12. Bodily injuries — Prescription — Reserva^ tion in judgment — Future damages — Arts. 2188, 2262, 2267 C. G. See Action, 47. 13. Ferry license — Interference — Tortious breach of contract — Bridges within ferry limits— R. 8. C. c. 97. See Ferries, 2. 1449 TKADE CUSTOM. 1450 li. Contract — Shipping receipt — Carriers — Liability limited-hy special conditions — Negli- gence — Connecting lines of transportation — Wrongful conversion — Sale of goods for non- payment of freight — Principal and agent — Varying terms of contract. See Carriers, 2. . 15. Negligence — Driving timber — Servi- tude — Watercourses — Floatable streams — Riparian right — Statutory obligations of lumbermen using streams in Quebec — Sudden freshets — Vis major — Joint liability. Sec Rivers and Streams, 7. TRADE AND COMMERCE. 1. Legislative iurisdiction — Restraint of trade — Prohibitory clauses of License Act — Sale of liquors. See Constitutional Law, 67. 2. Restraint of trade — Foreign telegraph company — Monopoly — Public policy. See Comity. 3. ilarket by-law — Business tax — Prohibi- tory license fee — Legislative jurisdiction. See Constitutional Law, 54. 4. Partial prohibition — By-law of muni- cipal council — Power to license, regulate and govern — Ontario Municipal Act, R. S. 0. (im) 0. 184. See Municipal Corporation. 48. 5. Constitutional law — Powers of Provin- cial Legislatures — Direct taxation — Manufac- turing and trading licenses — Distribution of iaxes — Uniformity of taxation — Quebec sta- tutes 55 & 56 Vict. 0. 10 and 56 Vict. c. 15 — British North America Act, 1867. See Constitutional Law, 56. TRADE COMBINATION. Contract — Unlawful consideration — Re- petition de I'indu — Account — Public policy — Monopoly — Trade combination — Malum prohibitum — Malum in se — Interest on ad- vances—Foreign laws — Arts. 989, 1000. 1067, 1077, 2188 G. C— Matters judicially noticed'.] — In an action to recover advances with in- • terest under an agreement in respect to the ma,uufacture of binder twine at the Central Prison at Toronto, the defence was the gen- eral issue, breach of contract and an incident- al demand of damages for the breach. The judgment appealed from maintained the ac- tion and dismissed the incidental demand, giving the plaintiffs interest according to the terms of the contract. Held, per Sedgewick, King and Girouard, JJ., that the evidence disclosed a conspiracy and that, although un- oer the provisions of the Civil Code the moneys so advanced could be recovered back, yet no interest before action could be allowed tflereon, as the law merely requires that the parties should be replaced in the position they respectively occupied before the illegal trans- actions took place. Rolland v. Gaisse d'Fcoti- omie de Quebec (24 S. C. R. 405) discussed, and L Association St. Jean-Baptiste de Mon- treal V. Brault (30 S. C. R. 598) referred to. fela, also, that laws of public order must be judicially noticed by the court ex propria motu, and that, in the absence of any proof to the contrary, the foreign law must be pre- sumed to be similar to that of the forum hav- ing jurisdiction in an action ex contractu. — Per Taschereau, J. (dissenting). 1. A new point should never be entertained on appeal, if evidence could have been brought to affect It, had objection been taken at the trial. 2. In the present case the concurrent findings of both courts below amply supported by evidence ought not to be disturbed, and as the company itself prevented the performance of the condition of the agreement in question requiring the assent of the Government to the transfer of the binder twine manufacturing contract, its non-performance cannot be ad- mitted as a defence to the action upon the ex- ecuted contract.— Gwynne, .7.. also dissented on the ground that the judgment appealed] from proceeded upon wholly inadmissible evi- dence and that, therefore, the action should have been dismissed and further, that the evi- dence which was received and acted on, though inadmissible for the purposes for which it was intended, shewed that the action was based upon a contract between the plaintiffs and defendant for the commission of an indictable offence : that neither party could recover either by action or by counterclaim upon such a contract and. therefore, that the incidental de- mand, as well as the action, should be dis- missed. Consumers' Cordage Co. v. Connollij, xxxi., 244. • [On appeal to the Privy Council this de- cision was reversed, the order set aside and a new trial ordered upon terms or, alternatively, that the judgment of the Court of Review should be restored. See Can. Gaz., vol. xli., p. 440.] TRADE CUSTOM. 1. Shipping — Bill of lading — Ship's agent — ■ Mandate — Custom of port -^ — Delivery — Car- riers.'\ — A trade custom, in order to be binding upon the public generally, must be shewn to be known to all persons whose interests re- quired them to have knowledge of its existence, and, in any case, the terms of a bill of lading, inconsistent with and repugnant to the cus- tom of a port, must prevail against such cus- tom. Judgment appealed from reversed, the Chief Justice dissenting. Parsons v. Hart, XXX., 473. 2. Sale of goods — Terms of delivery — Rea- sonable time — Contract made abroad — Inspec- tion — Mercantile usage — Measure of dam- ages.'] — Evidence of mercantile usages will not be allowed to add to or affect the construction of a contract for sale of goods unless such custom is general. Evidence of usage in Can- ada will not affect the construction of a con- tract for sale of goods in New York by par- ties domiciled there, unless the latter are shewn to have been cognizant of it, and can be presumed to have made their contract with reference to it. Judgment appealed from (20 Ont. App. R. 673) affirmed. Trent Valley Woollen Mfg. Co. v. Oelriehs, xxiii., 682. See Contract, 211. And see Custom of Trade — Evidence. 1451 TRADE MAEK. 1453 TRADE MARK. 1. Similar device — Infringement — Injunc- tion.] — ■ B. manufactured and sold cakes of soap, having stamped thereon a registered trade mark : A horse's head, above which were the words " The Imperial ;" the words " Trade Mark," one on each side thereof ; and under- neath it the words " Laundry Bar." "J. Bar- salou & Co., Montreal," was stamped on the reverse side. D. manufactured cakes of soap similar in shape and general appearance, having stamped thereon an imperfect unicorn's head, being a horse's head, with a stroke on the fore- head to represent a horn ; the words " Very Best " were stamped, one on each side of the head, and the words " A. Bonin, 145 St. Do- minique St." and " Laundry " over and under the head. At the trial it was shewn that the plaintiff's soap was known, asked for and pur- chased by a great number of illiterate persons as the " horse's head soap." Held, Henry, J., dissenting, reversing the judgment appealed from and restoring that of the Superior Court, that there was such an imitation of B.'s trade mark as to mislead the public, and that they were therefore entitled to damages, and to an injunction to restrain L). from using the de- vice adopted by them. Judgment appealed from (1 Dor. Q. B. 218) reversed. Barsalou V. Darling, ix., 677. 2. Right to use one's own name — Ooods de- signated ty one's own name sold to deceive puhlic.'\ — G. carried on business in partner- ship with Beatty, a valuable asset being a series of copy-books, designed by B., ^old un- der the name of "Beatty's Headline Copy- books." B. retired from the firm, receiving $20,000 for his share of the business, and G. subsequently registered as a trade mark the word " Beatty " in connection with the copy- books. After dissolution B., under agreement with the Canada Publishing Co.. prepared a series of copy-bo^ks which were sold under the name of "Beatty's New and Improved Headline Copy-Books," Suit was brought by G. against the company and B. for infringement of his trade mark and to restrain them from selling said books, claiming exclusive right of sale under purchase at the dissolution of the part- nership. Held, affirming the judgment appeal- ed from (11 Ont. App. R. 402), Henry and Taschereau, JJ., dissenting, that appellants had no right to sell " Beatty's New and Im- proved Headline Copy-Books," with the name " Beatty " on the cover in such a position, or with such prominence of colour or form, as might deceive purchasers into the belief that they were purchasing Gage's books. Canada Publishing Co. y. Gage, xi., 306. 3. Infringement — Registration — Exclusive right of user — Property in descriptive, words — Rectification of registry — 42 Vict. c. 22.] — It is only a mark or symbol in which property can be acquired, and which will designate the article on which it is placed as the manufac- ture of the person claiming an exclusive right to its use, that can properly be registered as a trade mark under the 'Trade Mark and Design Act, 1879. — A person accused of infringing a registered trade mark may shew that it was in common use before such registration and, therefore, could not properly be registered, notwithstanding the provision in s. 8 of the Act that the person registering shall have the exclusive right to use the same to designate articles manufactured by him. (Taschereau, J., dissenting.) — Where the statute prescribes no means of rectification of a trade mark im- properly registered, the courts may afford re- lief by way of defence to an action for in- fringement. — Per Gwynne, J. Property caur not be acquired in marks, &c., known to a. particular trade as designating quality merely and not, in themselves, indicating that the goods to which they are affixed are the manu- facture of a particular person. Nor can pro- perty be acquired in an ordinary English word expressive of quality merely though it might be in a foreign word or word of a dead language. Judgment appealed from (14 Ont. App. R. 444) affirmed. Partlo v. Todd. xvii.. 196. i. Infringement — Similarity of name — Device — Resemblance unlikely to deceive — Jl2 Vict. c. 22. s. Jf — Use prior to registration.} — Appellant manufactured a stove-polish put up in small oblong cubical blocks, encased in wrappers of red paper, on which was printed a vignette of an orb rising above a body of water, and across the picture were the words "The Rising Sun Stove Polish." This com- prised the appellant's trade mark, and was registered in the United States patent office, about 8th July, 1870. Ever smce then ap- pellant used in the United States and in parts of Canada the trade mark in the form describ- ed, and on 20th December, 1879, registered it in Canada. — ^About 22nd October, 1876, .de- fendant registered a trade mark for stove pol- ish, called by him " The Sunbeam Stove Pol- ish," without any cut or device resembling sun- beams or rays. — About 1877, he put an indi- cation of sunbeams upon his labels and upon boxes containing packages of his stove polish. — This placing of the device of sunbeams up- on the packages was the subject matter of complaint. The action was to recover dam- ages from defendant, and for an injunction re- straining him from placing the device of sun- beams upon his stove polish. — The defence amounted to a denial that he took any por- tion of appellant's trade mark as a device.— It was not pretended by the appellant that the packages in which the stove polish was put by the defendant, resembled those in which the appellant's stove polish was put up, but it was urged that the appellant's stove polish was known throughout Canada and the Unit- ed States as " The Rising Sun Stove Polish ;" that persons hearing of " Rising Sun Stove Polish," and inquiring therefor, could be de- ceived into taking " The Sunbeam Stove Pol- ish " in lieu thereof, owing to the imitation of part of the device forming a portion of the appellant's trade mark, and that the de- vice upon the boxes containing the defendant's packages of stove polish was even a greater infringement of the appellant's trade mark , than was the device upon the packages ,t]iem- selves. — The Superior Court dismissed the ac- tion on the ground that plaintiff failed to shew any infringement since the date of regis- tration of his trade mark, the 20th December, 1879, and that for any infringement prior_ to that date he was prevented from recovering by 42 Vict. c. 22, s. 4. The Court of Queen's Bench concurred in dismissing the action, but upon the merits. Held, affirming the Court of Queen's Bench (28 L. O. Jur. 236; 5 Legal News, 99), that the trade mark used by the defendant did not resemble that of the plaintiff, nor a substantial part of it, and was not calculated to lead a purchaser to believe that the goods on which it was placed were manufactured by plaintiff, in other words, to deceive ordinary purchasers by enabling de- fendant to pass his goods as those of the plain- 1453 TRAMWAY. 1454 tiff. Morse v. Martin, 12th January, 1885, Cass. Dig. (2 ed.) 839. 5. Jurisdiction of court to restrain infringe- ment — Effect of order— Device — Shape of laiel — Prior use — Rectification of register.] — In the certificate of registration the plain- tiffs' trade mark was described as consisting of " the representation of an anchor, with the letters ' J. D. K. & Z.' or the words ' John DeKuyper & Son, Rotterdam, &c.,' as per the annexed drawings and application." In the application the trade mark was claimed to consist of a device or representation of an anchor inclined from right to left in combina- tion with the letters " J. D. K. & Z." or the words " John DeKuyper, &c., Rotterdam," which, it was stated, might be branded or stamped upon barrels, kegs, cases, boxes, cap- sules, casks, labels and other packages contain- ing geneva sold by plaintiffs. It was also stat- ed in the application that on bottles was to be affixed a printed label, a copy or facsimile of which was attached to the application, but there was no express cla,jm of the label itself as a trade mark. This label was white and in the shape of a heart, with an orna- mental border of the same shape, and on the label was printed the device or representation of the anchor with the letters "J. D. K & Z.," and the words " John DeKuyper & Son, Rot- terdam," and also the words " Genuine Hol- lands Geneva," which it was admitted were common to the trade. The defendants' trade mark was, in the certificate of registration, described as consisting of an eagle having at the feet " V. D. W. & Co.," above the. eagle being written the words " Finest Hollands Geneva;" on each side are the two faces of a medal, underneath on a scroll the name of the firm " Van Dulken Weiland & Co.," and the word " Schiedam," and lastly at the bot- tom the two faces of a third medal, the whole on a label in the shape of a heart (le tout sur une etiquette en forme de coeur) . The colour of the label was white. Held, afiirming the judgment of the Exchequer Court, that the label did not form an essential feature of the -plaintifE's trade mark as registered, but that in view of the plaintiffs' prior use of the white heart-shaped label in Canada, the de- fendants had no exclusive right to the use of the said label, and that the entry of regis- tration of their trade mark should be so recti- fied as to make it clear that the heart shaped label formed no part of such trade mark. Taschereau and Gwynne, JJ., dissenting on the ground that the white heart-shaped label with the scroll and its constituents was the trade mark which was protected by registra- tion, and that the defendants' trade mark was an infringement of such trade mark. Judg- ment appealed from (4 Ex. C. R. 71) affirmed. DeKuyper y. Yan Dulken,; Van Dulken v. De- Kuyper, xxiv., 114. 6. Trade mark — Infringement — Vse of ■corporate name — • Fraud and deceit — ■ Evi^ dence.] — The plaintiffs, incorporated in the United States of America, have done business there and in Canada manufacturing and deal- ing in India rubber boots and shoes under the name of "The Boston Rubber Shoe Com- pany," having a trade line of their manufac- tures marked with the impression of their cor- pwate name, used as a trade mark, known a? Bostons," which had acquired a favourable reputation. This trade mark was registered in Canada in 1897. The defendants were in- corporated in Canada in 1896, by the name of The Boston Rubber Company of Montreal," and manufactured and dealt in similar goods to those manufactured and sold by the plain- tiffs, on one grade of which was impressed the defendants' corporate name, these goods bemg referred to in their price lists, cata- logues and advertisements as "Bostons," and the company's name frequently mentioned therem as the " Boston Rubber Company " without the addition " Montreal." In an ac- tion to restrain defendants from the use of such mark or any similar mark on the goods in question, as an infringement on the plain- tiffs' registered trade mark. Held, reversing the judgment appealed from (7 Ex. C. R. 187), that under the circumstances, defend- ants' use of their corporate name in the man- ner described was a fraudulent infringement of plaintiffs' registered trade mark calculated to deceive the public and so to obtain sales of their own goods as if they were plaintiffs' manufactures, and, consequently, that the plaintiffs were entitled to an injunction re- straining the defendant from using their cor- porate name as a mark on their goods manu- factured in Canada. Boston Rubber Shoe Go. V. Boston Rubber Shoe Co. of Montreal, xxxii., 315. TRADE UNION. Cause of action — Combination in restraint of trade — Strikes — Social pressure.] — Workmen who in carrying out the regulations of a trade union forbidding them to work at a trade in company with non-union workmen, without threats, violence, intimidation or other illegal means, take such measures as result in preventing a non-union workman from ob- taining employment at his trade in establish- ments where union workman are engaged, do not hereby incur liability to an action for damages. — Judgment of the Court of Queen's Bench (Q. R. 6 Q. B. 65) , affirmed. Perrault V. Gauthier et al., xxviii , 241. TRAMWAY. 1. Negligence — Electric car — Excessive speedr^-Prompt action — Contributory negli- gence.] — ^A cab driver was endeavouring to drive his cab across the track of an electric railway when it was struck by a car and dam- aged. In an action against the tramway com- pany for damages it appeared that the accident occurred on part of a down grade several hun- dred feet long, and that the motorman after seeing the cab tried to stop the car with the brakes, and that proving ineffectual reversed the power, being then about a car length from the cab. The jury found that the car was run- ning at too high a rate of speed, and that there was also negligence in the failure to reverse the current in time to avert the accident; that the driver was negligent in not looking out more sharply for the car; and that notwith- standing such negligence on the part of the driver the accident could have been averted by the exercise of reasonable care. Seld, affirm- ing the judgment of the Supreme Court of Nova Scotia (32 N. S. Rep. 117), Gwynne. J., dissenting, that the last finding neutralized the effect of that of contributory negligence ; that as the ear was on a down grade and going at an excessive rate of speed it was incumbent on the servants of the company to exercise a very high degree of skill and care in order to 1455 TRAMWAY. 1456 control it if clanger was threatened to any one on the highway ; and that from the evi- dence given it was impossible to say that everything was done that reasonably should have been done to prevent damage from the excessive speed at which the car was being run. Halifan} Electric Tramway Go. v. Inglis, XXX., 256. Cf. No. 4, infrai 2. Negligence — Electric railway — Motor- man — Workmen's Compensation Act — Injury to conductor.^ — The motorman of an electric car may be a "person who has charge or con- trol " within the meaning of s. 3 of the Work- men's Compensation Act (R. S. O. [1897] c. 160) and if he negligently allows an open car to come in contact with a passing vehicle whereby the conductor, who is standing on the side in discharge of his duty, is struck and injured, the electric company is liable in damage for such injury. — Judgment appealed from (27 Ont. App. R. 151) affirmed. To- ronto Ry. Co. V. Snell, xxxi., 241. 3. Nuisance — Operation of electric rail- way — Power house machinery — Vibrations, smoke and noise — Injury to adjoining pro- perty.~\ — Notwithstanding the privileges con- ferred by its Act of incorporation upon an electric street railway company for the con- struction and operation of an electric tramway upon the public thoroughfares of a city, the company is responsible in damages to the owners of property adjoining its power house for any structural injuries caused by the vi- brations produced by its machinery and the diminution of rental and value thereby oc- casioned. Drysdale v. Dugas (26 Can. S. C. R. 20) followed. Gareau v. Montreal Street By. Co., xxxi., 463. [Cf. Montreal Street By. Co. v. Oareau (Q. R. 10 Q. B. 417), to which reference is made in the report of above case.] 4. Operation of street railway — Speed of tram car — Street crossings — Injuries to person — Negligence — Findings of jury — Contributory negligence.] — In an action to recover damages on account of personal injuries caused by a street car the jury found the defend- ants' negligence was the cause of the acci- dent and also that plaintiff had been negli- gent in not looking out for the car. Held, reversing the judgment of the Court of Appeal (2 Ont. L. R. 43) that as the charge to the jury had properly explained the law as to contributory negligence the latter finding must be considered to mean that the accident would not have occurred but for the plaintiff's own negligence and he could not recover. Lon- don Street Ry. Co. v. Brown, xxxi., 642. Cf. No. 1, ante. 5. Railways — Construction of statute — Tramway for transportation of materials — Expropriation — 51 Vict. c. 29, s. llJf (D.) — 2 Edw. VII. c. 29 (D.)]— The place where materials are found referred to in the one hundred and fourteenth section of " The Rail- way Act " means the spot where the stone, gravel, earth, sand or water required for the construction or maintenance of railways are naturally situated, and not any other place to which they may have been subsequently trans- ported. — Per Taschereau and Girouard, JJ. The provisions of the one hundred and four- teenth section of " The Railway Act " confer upon railway companies a servitude consisting merely in the right of passage and do not confer any right to expropriate lands required for laying the tracks of a tramway for the transportation of materials to be used for the purposes of construction. Quebec Bridge Co. V. Roy, xxxii., 572. 6. Municipal corporation — Tramway — Operation of railway — Use of streets — Regulations — Crossings — Powers — By-law or resolution — 6S Vict. c. 176 (N. S.) — B. S. N. S. (1900) c. 71. ss. 263, 264— Construction of statute.'] — By the Nova Scotia statute. 63 Vict. c. 176, the tramway company was grant- ed powers as to the use and crossing of cer- tain streets in the town, subject to such regu- lations as the town council might from time to time see fit to make to secure the safety of persons and property. Held, reversing the judgment appealed from, Davies, J., dissent- ing, that such regulations could only be made by by-law and that the by-law making such regulations would be subject to the provisions of s. 264 of " The Towns Incorporation Act." (R. S. N. S. [1900] c. 71.) Liverpool d Hilton Ry. Co. V. Town of Liverpool, xxxiii., 180. 7. Street railway company — Agreement with municipality — Ex majori cautela — Per- manent pavements — Construction of contract.] — The Toronto St. Ry. Co. was incorporated in 1861, and its franchise was to last 30 years, at the expiration of which period the city could assume the ownership of the railway and property of the company on payment of the value thereof, to be determined by arbitra- tion. The company was to keep the roadway between the rails, and for 18 inches outside each rail paved and macadamized and in good repair, using the same material as that on the remainder of the street, but if a permanent pavement should be adopted by the corpora- tion the company was not bound to construct a like pavement between the rails, &c., but was only to pay the cost price of the same, not to exceed a specified sum per yard. The city laid upon certain streets traversed by the company's railway permanent pavements of cedar blocks, and issued debentures for the whole cost of such works. A by-law was then passed, charging the company with its portion of such cost in the manner and for the period that adjacent owners were assessed, under the Municipal Act for local improve- ments. The company paid the several rates assessed up to the year 1886, but refused to pay for subsequent years, on the ground that the cedar block pavenjent had proved to be by no means permanent, but defective and wholly insuflBcient for streets upon which the railway Was operated. An action having been brought by the city for these rates, it was held that the company was only liable to pay for per- manent roadways, and a reference was ordered to determine, among other things, whether or not the pavements laid by the city were per- manent. This reference was not proceeded with, but an agreement was entered into by which all matters in dispute to the end of the year 1888 were settled, and thereafter the company was to pay a specific sum annually per mile in lieu of all claims on account of debentures maturing after that date, and " in lieu of the company's liability for construc- tion, renewal, maintenance, and repair in re- spect of all the portions of streets occupied by the company's track so long as the fran- chise of the company to use the said streets now extends." The agreement provided that it was not to affect the rights of either party in respect to the arbitration to be had if the 1457 TEANSACTION. 1458 city took over the railway, nor any matters not specifically dealt with therein, and it was not to have any operation " beyond the period over which the aforesaid franchise now ex- tends." This agreement was ratified by an Act of the Legislature passed in 1890, which also provided for the holding of the said arbi- tration, which having been entered upon, the city claimed to be paid the rates imposed upon the company for construction of permanent pavements for which debentures had been is- sued payable after the termination of the franchise. The arbitrators having refused to allow this claim, an action was brought by the city to recover the said amount. — Held, affirming the decision of the Court of Appeal, that the claim of the city could not be al- lowed ; that the said agreement discharged the company from all liability in respect to con- struction, renewal, maintenance, and repair of the said streets ; and that the clause providing that the agreement should not affect the rights of the parties in respect to the arbitration, &c., must be considered to have been inserted ex majori oautela and could not do away with the express contract to relieve the company from liability. — Held, further, that by an Act passed in 1877, and a by-law made in pursu- ance thereof, the company was only assessable as for local improvements, which, by the Muni- cipal Act, constitute a lien upon the property assessed, but not a personal liability upon the owners or occupiers after they have ceased to be such ; therefore after the termination of the franchise the company would not be liable for these rates. City of Toronto v. Toronto Street By. Go-, xxiii., 198. 8. Defective appliances — Absence of buf- fers on tram cars.] — The plaintiff was a motorman in the employ of the company and sued under the Workman's Compensation Act to recover damages for injuries sustained while coupling a street car and trailer. The main negligence charged was the absence of buffers to protect the employees from injury in the coupling of cars. PJaintifif had recovered a verdict at the trial which was sustained on appeal. Held, affirming the judgment ap- pealed from (22 Out. App. K. 78), that there was negligence on the part of the com- pany in not having proper appliances to pre- vent injury, and that a new trial had been properly refused. Toronto By. Co. v. Bond, xxiv., 715. 9. By-law — Agreement — Municipal owner- ship — i Expropriation — Notice — Refusal to name arbitrator. See Municipal Corpokation, 116. 10. Improper construction — Bad order of tract— Elevated rails — Negligence. See Appeal, 220. 11. Accident to workman on the line of mlway — Contributory negligence — Looking Out for the cars — New trial — Consent order. See Negligence. 42. 12. Customs duties — Exemptions from duty Steel rails for use on railways. See Customs Duties, 3. ,13. Negligence — ■ Findings of jury —^ New tnal — Contributory negligence — Evidence. See Negligence, 48. ^,}'^:. Negligence — Damages — Evidence — MtsdtrecPion — tiU Vict. c. 2J,, s. 510 (N.B.) See New Trial, 80. 15. Operation of tramway — Contributory negligence — Pleadings — Issues — Evidence — Verdict — New trial — Objections taken or* appeal. See New Trial, 82. TRANSACTION. 1. Arts. 1918, 1920 G. C— Demolition of dam — Report of expert — Motion to hear fur- ther evidence — C. S. L. G. c. 51.] — In an ac- tion by a riparian proprietor against L. to compel him to demolish a dam he had erected on the River Mille Isles, and to pay damages for injury caused by said dam, judgment or- dered demolition of the dam and payment of damages. While in appeal an agreement for settlement was arrived at between the parties by which the dam should be demolished by a certain day, failing which the judgment for demolition should be carried out. The- property was subsequently sold to defendant who bought with full knowledge of this agree- ment, and agreed to be bound by it and the judgment as if he had been a party tjiereto. Defendant, however, did not completely de- molish the dam, but used a portion at one- end and the foundation of it throughout for a new dam. Plaintiff then brought the present action for the demolition of this second dam and for damages. The Superior Court, after hearing a number of witnesses, appointed as expert an engineer and gave ef- fect to his report that the dam caused no in- jury to plaintiff's property, refusing a motion by plaintifl: for leave to examine the expert and other witnesses to shew the incorrectness of the report, and dismissed the action with costs on the ground that defendant had only exercised the rights given him by C. S. L. C> c. 51, and plaintiff had suffered no damage. Held, per Fournier, Gwynne and Patterson JJ., reversing the judgment appealed from (17 Rev. de Leg. 27), that C. S. L. C. c. 51, had no application, the rights of the parties being regulated by the agreement for settle- ment arising out of the first action, which was a " transaction " within the meaning of arts. 1918, 1920 C. C. — Per Fournier and Gwynne, JJ. On the whole evidence plaintiff was en- titled to judgment and the appeal should be allowed. — Per Ritchie, C.J., and Taschereau, J. The appeal should be dismissed, but in any event all plaintiff could ask was to have the case remitted to the court of first instance to take further evidence, which was the principal ground of his appeal to the Court of Queen's Bench as stated in his factum.— Patterson, J., while of opinion the law and evidence would have warranted a judgment for the plaintiff, concurred in the view that under the circum- stances all the plaintiff could ask was to have the case remitted. Hardy v. FiliatraiiU, xvu., 292. 2. Compromise to prevent litigation — Nul- lified instruments — Estoppel --Evidence — Admission — C. C. arts. 311, mS-12J,5 and 1918 et seg.]— Where a deed entered into by the parties to a lawsuit in order to effect a compromise of family disputes and prevent liti- gation failed to attain its end, and was an- nulled and set aside by order of the court as being in contravention of art. dll or tne «^ivij 1459 TEESPASS. 1460 •Code of Lower Canada, no allegation contain- ed in the deed so annulled can subsist even as an admission. Duroeher v. Durocher, xxvii., 563. 3. Payment under threat of criminal pro- secution — Error as to fact — Duress — Rati- fieation. See Mistake, 3. TREATIES. 1. Construction of — Convention of 1818 — Fisheries — Statute, construction of — 59 Geo. III., 0. S8 {Imp.)—R. 8. C. cc. 94 d 95— Three mile limit — Foreign fishing vessels — " Fishing."^ — Where fish has been enclosed In a seine more than three marine miles from the coast of Nova Scotia, and the seine pursed up and secured to a foreign vessel, and the vessel was afterwards seized with the seine still so attached within the three mile limit, her crew being then engaged in the act of baling the fish out of the seine: — Held, (the Chief Jus- tice and Gwynne J., dissenting), affirming the decision of the court below (5 Ex. C. R. 164) , that the vessel when so seized was " fishing " in violation of the convention of 1818 between parte Lewin, xi., 484. 2. Condition in policy — Short prescription —Pleading — Appeal.l^ — The plaintiff cannot on appeal rely upon a waiver of a condition in a policy of insurance shortening the time limited for action on claims arising there- under unless it has been specially pleaded. Judgment appealed from (M. L. R. 3 Q. B. 293) afiBrmed. Allen v. Merchants' Marine Ins. Co., XV., 488. See No. 4, infra. 3. Title to land — Objections to title.'] — ^A purchaser who takes possession of the prop- erty and exercises acts of ownership by mak- ing repairs and improvements, will be held to have waived any objections to the title. — Objections to title cannot be raised where the purchaser has made a tender of a blank deed of mortgage for execution for the pur- pose of carrying out the purchase. Judgment appealed from (29 N. S. Rep. 424) affirmed. Wallace v. Hesslein, xxix., 171. 4. Life insurance — Benefit association — Payment of assessments — Forfeiture — Waiver —^Pleading.] — ^A member of a benefit asso- ciation died while suspended from membership for non-payment of assessments. In an action by his widow for the amount of his benefit certificate it was claimed that the forfeiture was waived. Held, reversing the judgment of the Court of Appeal, that the waiver not hav- ing been pleaded it could not be relied on as an answer to the plea of non-payment. Allen v. Merchants Marine Insurance Com- pany. (15 Can. S. 0. R. 488) followed. Knights of Maccabees v. Hilliher, xxix., 397. See No. 2, ante. 5. Fire insurance — Conditions of policy — Time limit for delivering proofs — Condition precedent — Authority of agent.] — Compliance with conditions precedent to liability cannot be waived unless such waiver be clearly ex- pressed in writing signed as required by con- ditions in the policy. Judgment appealed from (31 N. S. Rep. 848) reversed. Atlas Assur. Co. V. Brownell, xxix., 537. s. o. D.— 48 6. Municipal corporation — Waterworks — Rescission of contract — Notice — Mise en de- meure — Long user — Waiver — Art. 1087 C. C] — A contract for the construction and main- tenance of a system of waterworks required them to be completed in a manner satisfac- tory to the corporation and allowed the con- tractors thirty days after notice to put the works in satisfactory working order. On the expiration of the time for the completion of the works the corporation served a protest upon the contractors complaining in general terms of the insufficiency and unsatisfactory construction of the works without specifying particular defects, but made use of the works complained of for about nine years when, without further notice, action was Drought for the rescission of the contract and forfeit- ure of the works under conditions in the contract. Held, that after the long delay, when the contractors could not be replaced in the original position, the Complaint must be deemed to have been waived by acceptance and use of the waterworks and it would, under the circumstances, be inequitable to rescind the contract. Town of Richmond v. Lafon- taine, xxx., 155. 7. Revocation of judgment — Cross-demand ■ — Art. 1164 C. P. Q. — Pleading — Declinatory exception.] — ^A cross-demand filed with a peti- tion for revision of judgment is not a waiver of a declinatory exception previously pleaded therein, nor an acceptance of the jurisdiction of the court. — In order to take advantage of waiver of a preliminary exception to the competence of the tribunal over the cause of action on account of subsequent incompat- ible pleadings, the plaintiff must invoke the alleged waiver of the objection in his answers. - — Judgment appealed from, affirming Q. R. 16 S. C. 22, reversed. Magann v. Auger, xxxi., 186. 8. Mortgaged premises — Assignment by les- see — Payment of rent to mortgagee — Forfeit- ure — Payment of accelerated rent.] — The as- signee of a lessee held possession of the leased premises for three months and the lessors accepted rent from him for that time and from sub-lessees for the month following. Held, reversing the judgment appealed from (1 Ont. L. R. 172), that as the lessors had claimed six months' accelerated rent under the forfeiture clause in the lease and testified at the trial that they had elected to forfeit; as the assignee had a statutory right to re- main in possession for the three months and collect the rents ; as the evidence shewed that the receipt by the lessors of the three months' rent was in pursuance of a compromise with the assignee in respect to the acceleration ; and as the month's rent from the sub-tenants was only for compensation by the latter for being permitted to use and occupy the premises and for their accommodation ; the lessors could not be said to have waived their right to claim a forfeiture of the lease. — • Mortgagees of the leased premises having notified the sub-tenants to pay rent to them the assignee paid them a sum in satisfaction of their claim with the assent of the lessors against whose demand it was charged. Held. that this also was no waiver of the lessors right to claim a forfeiture. Soper v. Little- john, xxxi., 572. 9. Fire insurance — Condition of policy — Proof of loss — Waiver — Acts of officials.] — An insurance company cannot be presumed to have waived a condition precedent to action 1507 WAIVEE. 1508 on a policy on account o£ unauthorized acts of its officers. — Judgment appealed from rer versed, Girouard, J., dissenting. Hyde v. Lefaivre, xxxii., 474. 10. Part execution of judgment — Reference to experts — Loss of right to appeal — Res judi- cata. See Appeal, 162. 11. Winding-up insolvent bank — Priority of Crown 'Claims — Acceptance of dividends — No- tice—Estoppel — 45 Vict. c. 23 (D.). See Crown, 73. 12. Policy of insurance — Conditions — Proofs of loss — Waiver in writing — Wrongful with- holding of policy — Estoppel. See Insurance, Fire, 82. 13. Promotion of joint stock company — Subscription for shares — Misrepresentation — Concealment — Bona fides — Action ex delicto — Damages — Waiver, See Company Law, 11. 14. Foreclosure and sale — Purchase by trustee — Fraud — Possession — Statute of Lim- itations — Redemption. See Limitations of Actions, 24. 15. Policy of insurance — Condition — Writ- ten notice — Adjustment — Estoppel — Powers of inspector or agent. See Insurance, Fire, 20. 16. Policy of insurance — Error in describ- ing risk — Reference of claim to arbitration — Contract — Representation by insured. See Insurance, Fire, 93. 17. Seizure of land, tion to annul. Alias writ — Opposi- See Practice and Procedure, 131, 132. 18. Application in chambers — Form of ap- oeal bond — Objections — Practice — Failure to move for dismissal of appeal. See Appeal, 2. 19. Dissolution of partnership — Expulsion of member — Breach of terms — Misconduct — Notice. See Partnership, 23. 20. Public works contract — Condition pre- cedent — Extras — Reference by Crown — Waiver of legal rights — Costs withheld. See Arbitrations, 20. 21. Acceptance of fees by Grown Lands Commissioners — Registration of transfer of 'ights — Cancellation. See Crown, 87. 22. Accident policy — Condition precedent — Immediate notice — Claim contested on other /rounds. See Insurance, Accident, 2. 23. Contract for exchange of lands — Con- luct of person seeking relief — Time of the sseiicc of contract — Extension — Notice — 'iescission. See Specific Performance, 4. 24. Creditor's lien — Materials supplied to contractor — Settlement by note — Suspension of lien. See Lien, 6. 25. Application for insurance — Conceal- ment — Material facts — Receipt of premium and issue of policy after knowledge by in- surer. See Insurance. Marine, 48. 26. Irregular appearance — Disavowal of at- torney — Long delay — Estoppel. See Requete Civile, 1. 27. Life insurance — Condition in policy — Payment of premium by note — Renetoal of note — Demand of payment after dishonour. See Insurance, Life, 29. 28. Insurance against fire — Mutual Insur- ance Company — Contract — Termination of — • Notice — Statutory conditions — R. 8. 0. (1887) c. 167— Estoppel. See Insurance, Fire, 45. 29. Debtor and creditor — Composition and discharge — Acquiescence in — New arrange- ment of terms of settlement — Waiver of time clause — Principal and agent — Deed of dis- charge — Notice of withdrawal from agreement — Fraudulent preferences. See Debtor and Creditor, 6. 30. Fire insurance — Conditions of policy — Breach — Recoonition of existing risk after breach — Agent's authority. See Insurance, Fire, 26. 31. Vendor and purchaser — Specific per- formance — Laches. Vendor and Purchaser, 33. 32. Fire insurance — Construction of con- tract — " Until " — Condition precedent — Waiver — Estoppel — Authority of agent. See Insurance. Fire, 42. 33. Insurance policy — Allegation and proof of performance of condition precedent to ac- tion — Ontario Judicature Act. See Practice and Procedure, 8. 34. Forfeiture of right to appeal — Condi- tion precedent — Ouster of jurisdiction — 06- jection raised by court. See Appeal, 432. 35. Error — Misrepresentation — Consider- ation of contract — Delaying action — Lmches — Ratification — Estoppel. See Vendor and Purchas^er, 26. 36. Condition of policy of fire insurance — Breach — Further insurance — Interest of in- sured — Mortgagor as owner — Pleading — Prac- tice — Estoppel. See Insurance, Fire, 29. 37. Arbitration — Condition precedent — New grounds on appeal — Assessment of dam- ages — Interference by appellate court. See Rivers and Streams, 6. 38. Proof of accidental death — Waiver of condition in policy — Finding of jury — Ver- dict. See Insurance, Accident, 7. 1509 WAEEHOIJSEMElSr. 1510 WALLS. See Party Wall. WAREHOUSEMEN. 1. Warehouse^eceipt — Banking Act — In- dorsement as security — 3Jf Vict. o. 5 {D.) — Bight of property.] — At the request of the Consolidated Bank, to whom the C. 0. Co. owed a large sum of money, M. consented to act as warehouseman to the company for the purpose of storing certain car wheels and pig •iron, so that they could obtain warehouse- receip.ts upon which to raise money. The company granted M. a lease for a year of the premises, upon which the wheels and iron were situate, in consideration of $5. The Consolidated Bank then gave him a writ- ten guarantee that the goods should be forth- coming when required, and he issued a ware- house-receipt to the company for the property, which they > endorsed to the Standard Bank and obtained an advance thereon, which was paid to the Consolidated Bank. It appeared that M. was a warehouseman carrying on business in another part of the city ; that hfe acquired the lease for the purpose of giv- ing warehouse-receipts to enable the company to obtain an advance from the Consolidated Bank: and that he had not seen the prop- erty himself, but had sent his foreman to examine it before giving the receipt. An attachment in insolvency issued against the company, and K. as assignee took possession of the goods covered by this receipt, claim- ing them as part of the assets of the estate. M. then sued K. in trespass and trover for the taking. Held, per Strong, Taschereau and Gwynne, JJ., affirming the Court of Appeal tor Ontario (3 Ont. App. R. 35) , that M. never had any actual nossession, control, or pvop- erty in, the goods so as to make the receipt given, under the circumstances, a valid ware- house-receint within the meaning of the clauses in that behalf in the Act 34 Vict. c. 5 (D.) relating to banks and banking. — Per Ritchie, C.J., and Fournier and Henry, JJ., contra, that M. giioad these goods was a warehouseman within the meaning of ■}i Vict. c. 5 ( D. ) . so as to make his receipt indorsed effectual to pass the property to the Standard Bank for the security of the loan made to the company in the usual course of its banking business, ililloy v. Kerr, viii., 474. 2. ^Yhelrfingcr — Indorsement of warehouse- receipt — Banks and banking — Ouner acling as warehouseman — G'onstitutional km: — 3Ji 1 ict. c: J (0.) — .1 urisdiction of Parliament of Canada.] — The appellants discounted for a trading firm on the understanding that a quantity of coal purchased by the fii'm should be consigned to them, and that they would transfer to the firm the bills of" lading, and should receive from one of the members of the firm his receipt as a wharfinger and ware- houseman for the coal as having been de- posited by them, which was done, and the following receipt was given : " Keceived in store in Big Coal House warehouse at To- Mnto, from Merchants Bank of Canada (at Toronto), 1458 cons stove coal, and ,261 tons chestnut coal, per schooners ' Dundee,' , Jessie Drummond,' 'Gold Hunter,' and Annie Mulvey,' to be delivered to the order °f the said Merchants Bank to be indorsed hereon. This is to be regarded as a receipt "nder the provisions of statute 34 Viet. c. 5— value $7,000. The said coal in sheds fac- ing Esplanade is separate from and will be kept separate and distinguishable from other coal." The firm became insolvent and the as- signee sought to hold the coal as the goods of the insolvents, and filed a bill impeaching the validity of the receipt. The Chancellor found that the receipt given was valid within the Act 34 Vict. c. 5 (D.) relating to banks and banking, that it was given by a warehouse- man, and that the bank was entitled to hold all the coal in store of the description named in the receipt. This judgment was reversed by the Court of Appeal for Ontario. Held, reversing the judgment appealed from (8 Ont. App. R. 15), Ritchie, C.J., and Strong, J., dissenting, that it is not necessary to the va- lidity of the claim of a bank under a ware- house-receipt, given by an owner who is a warehouseman and wharfinger and has the goods in his possession, that the receipt should reach the hands of the bank by indorsement, and that the receipt given was a receipt with- in the meaning of 34 Vict. c. 5 {T).)—Held, per Ritchie, C.J., and Strong, J. (dissenting). That the finding of the Chancellor as to the fact of the partner who, signed the receipt be- ing a person authorized by the statute to give the receipt in question should not have been reversed, as there was evidence that he was a wharfinger and warehouseman, — Per Four- nier, Henry and Taschereau, JJ. That ss. 46, 47 and 48 of 34 Vict. c. 5 (D.) are intra vires of the Dominion Parliament. Merchants Bank of Canada v. Smith, viii., 512. 2a. Bill of lading — Conditions — Connect- ing lines — Carriage beyond terminus — Con- tract for whole transit — Loss after transit — Warehousemen — Bailment — Notice in writing — ■ Statutory liability — Joint tort feasors — Partial loss — Release — Estoppel — R. 8. C. c. 109 — Pleading — Res judicata.] — Where a railway company undertakes to carry goods to a point beyond the terminus of its own line its contract is for carriage of the goods over the whole transit, and tne other com- panies over whose lines they must pass are merely agents of the contracting company for such carriage, and in no privity of contract with the shipper. Bristol & Exeter Ry. Co. V. Collins (7 H, L. Cas. 194) followed. — Such a contract being one which a railway company might refuse to enter into, s. 104 of the Railway Act (R. S. C. c, 109) does not prevent it from restricting its liability for negligence as carriers or otherwise in respect to the goods to be carried after they had left its own line. The decision in Yogel v. G. T. R. Co. (11 Can. S, C, R. 612) does not gov- ern such a contract. — One of the conditions in a contract to carry goods to P., a p.lace beyond the terminus of the company's line, provided that the company " shouia not be responsible for any loss, misdelivery, dam- age or detention that might happen to goods sent by them, if such loss, misdelivery, damage or detention occurred after said goods arrived at the stations or places on their line nearest to the points or places which they were consigned to, or beyond their said lim- its." Held, that this condition would not re- lieve the company from liability for loss or damage occurring during transit, even if such loss occurred beyond the limits of the com- pany's own line. Held, per Strong and Tas- chereau, JJ., that the loss having occurred after transit was over, and the goods delivered at P., and the liability of the company as car- riers having ceased, this condition reduced the 1511 WAREANT. 1513 contract to one of mere bailment as soon as the goods were delivered, and also exempted the company from liability as warehousemen, and the goods were from time to time in cus- tody of the company on whose line P. was situate, as bailees for the shipper. Fournier and Gwynne, JJ., dissenting. — ^Another condi- tion provided that no claim for damage, loss, or detention of goods should be allowed un- less notice in writing, with particulars, was given to the station agent at or nearest to the place of delivery within 36 hours after delivery of the goods in respect to which the claim was made. Seld, per Strong. J., that a plea setting up non-compliance with this condition having been demurred to, and plain- tiff not having appealed against a judgment overruling the demurrer, the question as to the sufficiency in law of the defence was res judicata. Held, also, per Strong, J., (Gwynne, J., contra) that part of the con- signment having been lost, such notice must be given in respect to the same within 36 hours after delivery of those which arrive safely. — Quwre, In the present state of the law is a release to, or satisfaction from, one of several joint tort feasors, a bar to an ac- tion against the others? — Judgment appealed from (15 Out. App. R. 14) reversed. Grand Trnnh Ry. Co. v. McMUlan, xvi., 543. [Leave to appeal to the Privy Council was refused on the ground that the case did not affect considerable value and was not of very substantial character, and the judgment did not determine a question of great public in- terest nor of legal importance. Gagnon v. Prince (8 App. Gas. 103) approved, 17th May, 1889. See Cass. Dig. (2 ed.) 741; Wheeler, P. C. Law, 982.] 3. Placing wet grain in elevator — Negli- gence — Damages — Responsibility.'] — On ap- peal the Supreme Court affirmed the judgment of the Court of Appeal for Ontario (26 Out. App. R. 389) . — ^The negligence charged was that the owners of the elevator had taken in grjin from a ship while rain was falling and the vessel's hatches unprotected. It was held by the judgment appealed from that defend- ant's liability did not begin till the grain was delivered ; that they were not obliged to pro- tect the grain while unloading, and, as a gen- eral assessment of damages had been made on this and other grounds of negligence, a new trial was ordered. Dunn v. Prescott Elevator Co., XXX., 620. 4. Railways — Carriers — Special instruc- tions — Acceptance iy consignee — Negligence — Amendment.] — F. Bros., dealers in scrap iron at Toronto, for some time prior to and after 1897 had sold iron to a rolling mills com- pany at Sunnyside in Toronto West. The G. T. R. Co. had no station at Sunnyside, the nearest being at Swansea, a mile further west, but the rolling mills company had a siding capable of holding three or four cars. In 1897 F. Bros, instructed the G. T. R. Co. to deliver all cars addressed to their order at Swansea or Sunnyside to the rolling mills company, and in October, 1899, they had a contract to sell certain quantities of different kinds of iron to the company and shipped to them at various times up to 2nd January, 1900, five cars, one addressed to the company and the others to themselves at Sunnyside. On 10th January the company notified F. Bros, that previous shipments had contained iron not suitable for their business and not of the kind contracted for, and refused to ac- cept more until a new arrangement was made, and about the middle of January they re- fused to accept part of the five cars and the remainder before the end of January. On 4th February the cars were placed on a sid- ing to be out of the way, and were there frozen in. On 9th February F. Bros, were notified that the cars were there subject to their orders, and two days later F., one of the firm, went to Swansea and met the com- pany's manager. They could not get at the cars where they were, and F. arranged with the station agent to have them placed on the company's siding and he would have what the company would accept taken to the mills by teams. The cars could not be moved until the end of April when the price of the iron had fallen and F. Bros, would not accept them, but after considerable correspondence and ne- gotiation they took them away in the follow- ing October and brought an action against the G. T. R. Co. founded on the failure to deliver the cars. It appeared that in previous ship- ments the cars were usually forwarded to the rolling mills on receipt of an order therefor from the company, but sometimes they were sent without instructions, and on 3rd Febru- ary the station agent had written to F. Bros-, that the cars were at Swansea and would be sent down to "the rolling mills. Held, affirm- ing the judgment of the Court of Appeal, that the rolling mills company were consignees of all the cars and that they had the right to reject them at Swansea if not according to contract. Having exercised such right the railway company were not liable as carriers, the transitus having come to an end at Swan- sea by refusal of the company to receive them.— -The Court of Appeal, while relieving the railway company from liability as car- riers, held them liable as warehousemen and ordered a reference to ascertain the damages on that head. Held, reversing such decision, Mills, J., dissenting, that the action was not brought against the railway company as ware- housemen, and as they could only be liable as such for gross negligence and the question of negligence had never been raised nor tried the action must be dismissed in toto, with reservation of the right of F. Bros, to bring another action should they see fit. The Grand Trunk Ry. Co. v. Frankel, xxxiii., 115. And see Bailment. AV ARRANT. 1. Criminal Code, s. 575 — Persona designata ■ — Officers de facto and de jure — " Chief con- stable " — Confiscation of gaming ir^truments, moneys, dc. — Ministerial offloer.] — A warrant issued under s. 575 of the Criminal Code to seize gaming instruments would be good if is- sued on the report of a person who filled de facto the office of " deputy high constable," though he was not such de jure. /O'Neil v. Attorney-General of Canada, xxvi., 122. 2. Illegal assessment — Several ^ates includ- ed in one warrant — Cause of nullity.] — Where the warrant for the collection of a single sum for rates of several years, included the amount of an assessment which did not appear to be against either the owner or the occupier of the property : Held, affirming the judgment appealed from, that the inclusion of such assessment would vitiate the warrant. Flanagan v. Elliott, xii., 435. See Assessment and Taxes, 20. 1513 WAEEANTY. 1514 3. Form in statute — Canada Temperance Act — Search warrant ^ Magistrate's jurisdic- tion — Constahle — Justification of ministerial officer — Judgment inter partes.'^ — A judg- ment on certiorari quashing a warrant does not estop a constable from justifying under it in proceedings to replevy goods seized under such warrant where he was not a party to the proceedings to set the warrant aside anu such judgment was a judgment inter partes only. Taschereau, J., dissented. Sleeth v. Burlhert, xxv., 620. See Canada Temperance Act, 6. WARRANTY. 1. Sale of land — ■ Accourit stated — Charges ond incumbrances — Promise to pay without reserve, iy subsequent deed — Knowledge of assessments — Agreement as to interest.} — On 28th June, 1877, the company entered into an agreement, by which, without any reserve, they acltnowledged to owe, and promised to pay cer- tain sums of money to L., transferee of one of the vendors, who, in 1875, sold lands to the company and by the same deed L. agreed to assist the company in obtaining a loan of $350,000, and to relinquish priority of her hypothec for her share on the property, to extend to six years the period for the payment of the balance due her, waiving also any right to interest until the company had an available surplus after paying interest and insurance in connection with the new loan. Subsequently, on 15th June, 1880, L. transferred to C. the balance alleged to be due her under the deed of the 28th June, 1877. and he sued for this balance with interest from 1st July, 1877. The company pleaded that under the deed of 28th June, 1877, interest could be demanded only from the 1st July, 1881, the date when for the first time there was an available sur- plus; and also that both principal and inter- est were compensated by $1,901.70 paid the city for assessments imposed for the cost of public improvements prior to the sale of the property to the company in 1875. The assess- ment rolls originally made for these improve- ments were set aside by two judgments in 1876 and 1879. Held, affirming the judgment appealed from (4 Dor. Q. B. 280) that ' under the circumstances the respondent could not be said to be the garant of the purchasers of the property, and there- fore he was entitled to the payment of the balance alleged to be due under the deed of the 28th' June, 1877, notwithstanding any claim the appellants might have against their vendors under the general warranty stipulated in the deed of purchase of 1875. Held, also, ttat by the terms of the deed of 28th July, 1877, interest could be recovered only from 1st June, 1881. Windsor Hotel Co. v. Cross, xii., 624. „ See M. L. R. 2 Q. B. 8 and M. L. R. 1 S. C. 187. 2. Action in warranty — Proceedings taken ty warrantee before judgment on principal de- mand.] — It is only as regards the principal action that the action in warranty is an inci- dental demand. Between the warrantee and the warrantor it is a principal action, and may be brought after judgment on the, princi- pal action, and the defendant in warranty has no mterast to object to the manner in which w IS called in where no question of jurisdic- tion arises and he suffers no prejudice there- py.— But if a warrantee elect to take proceed- ings against his warrantors before he has him- self been condemned he does so at his own risk, and if an unfounded action has been taken against the warrantee and the war- rantee does not get the costs of the action in warranty included in the judgment of dis- uiissal of the action against the principal plaintiff, he must bear the -consequences. Archlald v. DeLislej Baker v. DeLisle; Mowat V. DeLisle, xxv., 1. 3. Proceedings en garantie — Assessment of damages — Questions of fact.] — The Supreme Court will not interfere with the amount of damages assessed by a judgment appealed from if there is evidence to support it. — In cases of delit or quasir-delit a warrantee may before condemnation take proceedings en garantie, and the warrantor cannot object to being called into the principal action as a defendant en garantie. Archbald v. DeLisle, etc. (25 Can. S. C. R. 1) followed. Montreal Gas Co. V. St. Laurent; City of St. Henri v. St. Laurent, xxvi., 176. 4. Suretyship — Recourse of sureties inter se — Ratable contribution — Action of warranty — Banking — Discharge of co-surety — Reserve of recourse — Trust funds in possession of a surety— Arts. 1156, 1959 C. C'.]— Where one of two sureties has moneys in his hands to be applied towards payment of the creditor, he may be compelled by his co-surety to pay such moneys to the creditor or to the co-surety himself, if the creditor has already been paid by him. — ^When a creditor has released one of several sureties with a reservation of his re- course against the others and a stipulation against warranty as to claims they might have against the surety so released by reason of the exercise of such recourse reserved, the creditor has not thereby rendered himself liable in* an action of warranty by the other sureties. Macdonald v. Whitfield; Whitfield V. The Merchants Bank of Canada, xxvii., 94. 5. Title to lands — Impeachment by war- rantor.] — The grantee of the warrantors of a title cannot be permitted to plead a technical objection thereto in a suit with the person to whom the warranty was given. Powell v. Waiters, xxviii., 133. 6. Sale of land — Special agreement — Know- ledge of cause of eviction — Damages — Art. 1512 G. C] — A warranty of title accompany- ing a sale of lands does not constitute the spe- cial agreement mentioned in art. 1512 of the Civil Code of Lower Canada in respect to lia- bility to damages for eviction. Allan v. Price, XXX., 536. 7. Title to lands — Legal warranty — De- scription — Plan of subdivision — Change in street line — Accession — Arts. 1506, 1508. 1520 C\ a.— Arts. 186, 18T, 18S C. P. Q.— Trou- bles de droit — Eviction — Issues on appeal — Parties.] — A vendor of land, described accord- ing to an existing plan of subdivision, with customary legal warranty, is not obliged to defend the purchaser against troubles result- ing from the exercise subsequently by muni- cipal authorities of powers in respect to the alteration of the street line.— A party called into a petitory action to take up the fait et cause of tbe defendant therein, as warrantor of the title, may take up the defence for the purpose of appealing from judgments maiu- 1515 WATEECOUESES. 1516 tainiDg both the principal action and the ac- tion in warranty although he may have re- fused to do so in the court of first instance, but, should the appellate court decide that the action in warranty was unfounded, it is ipso facto ousted of jurisdiction to entertain or decide upon the merits of the principal ac- tion. Judgment appealed from (Q. R. 10 Q. B. 245) athrmed. Moiiarque v. Banque Jacques-Gartier, xxxi., 474. 8. Title to land — Warranty — Construction of deed — Sheriff's deed — Sale of rights in lands — Eviction by claimant under prior title.Ji — By the deed of conveyance the vendor declared that he had sold with warranty all rights of property and other rights which he had acquired by virtue of a deed of sale from the sheriff in the lands therein mentioned and of which he was actually in possession, and that the immoveable belonged to him as having been acquired at the sheriff's sale. Held, re- versing the judgment appealed from, the Chief Justice and Taschereau, J., dissenting, that the warranty covenanted by the vendor had reference merely to the rights he may have acquired in the lands under the sheriff's deed and did not oblige him to protect the pur- chaser against eviction by the person so in possession and claiming the same under prior title to the disputed portion of the lands. Ducondu V. Dupuy (9 App. Cas. 150) fol- lowed. Drouin v. Morisette, xxxi., 563. Sec Sale, 103, and note in pede. 9. Interdiction — Marriage laws — Dower — Registry laws — Sheriff's sale — Succession ■ — Renunciation — Donation.] — Per 'Taschereau, J. Neither the vendor nor his heirs, who have not renounced the succession, nor his uni- versal donees, who have accepted the dona- tion, can on any ground whatever, attack a title for which such vendor has given warranty. Rousseau v. Burland. xxxii., 541. 4 Cf. No. 5, ante, and No. 10, infra. 10. Possession animo domini — Vendor in possession — Acquiring adverse title by pre- scription.] — A warrantor of title to lands cannot hold adverse possession of the lands conveyed such as is required to make title by acquisitive prescription, ilassawippi Val- ley Ry. Go. V. Reed, xxxiii., 457. Cf. Nos. 5 and 9, ante. 11. Special tax — Ex post facto legislation — Warranty.] — Assessment rolls were made by the City of Montreal under 27 & 28 Vict, c. 60 and 29 & 30 Vict. c. 56, apportioning the cost of certain local improvements on lands benefited thereby. One of the rolls was set aside as null and the other was lost. The cor- poration obtained power from the Legislature by two special Acts to make new rolls, but in the meantime the property in question had been sold and conveyed by a deed with war- ranty containing a declaration that all taxes, both special and general, had been paid. New rolls were subsequently made assessing the lands for the same improvements and the pur- chaser paid the taxes and brought action against the vendor to recover the amounts so paid. Held, affirming the judgment appealed from (20 R. L. 452), Gwynne, J., dissenting, that as two taxes could not both exist for the same purpose at the same time and. the rolls made after the sale were therefoi^ the only rolls in force, no taxes for local improvements had been legally imposed till after the vendor had become owner of the lands, and that the warranty and declaration by the vendor did not oblige her to reimburse the purchaser for the payment of the special taxes apportioned against the lands subsequently to the sale. Banque Ville Marie v. Morrison, xxv., 289. 12. Sale of timber limits — Eviction — Dam- ages—Arts. 1515, 1518 C. G. See Sale, 103, and also No. 8, ante. 13. Safety of ship — " At and from " a port — Concealment. See Insurance, Marine, 36. 14. Sale of personal rights — Eviction — Restitution — Prete nom — Arts. 1510, loll, 1518 G. C. See Action, 134. 15. Application for insurance — Representa- tions — Facts material to the risk — Pleading. See Insurance, Fire, 78. 16. Sale of deals — Quality — Breach of contract — Place of delivery — Acceptance. See Contract, 16. 17. Conditional warranty — Del credere con- signment — 'Notice — Possession of goods — Art, 1959 G. C. See Suretyship, 10. 18. Deed of land — Riparian rights — Building dams — Penning back icaters — Warranty — Improvement of watercourses — Art. 5535 R. S. Q. — Arbitration — Condition precedent — Assessment of damages. See Rivers and Streams, 6. And see Insurance, Fire, 75-100 — Insur- ance, Life. 24-27 — And Insurance. Ma- bine. 48-58. -WASTE. Careless administration — Questionable transaction — Removal of executrix. See Executors and Administrators, 6. WATERCOURSES. 1. B. C. Land Ordinance, 1865-^Grant of loater — Exclusive use of stream — Unoccupied water — Proof of notice of application for grant — Riparian proprietors.] — ^The B. C. Land Ordinance, 1865, contains the following provisions :— 44. " Every person lawfully oc- cupying and bond fide cultivating lands may divert any unoccupied water from the natural channel of any stream, lake, or river adjacent to or passing through such land, for agri- cultural and other purposes, upon obtaining the written authority of the stipendiary magistrate of the district for the purpose, and recording the same with him, after due notice, as hereinafter mentioned, specifying the name of the applicant, the quantity sought to he- diverted, the place of diversion, the object thereof, and all such other particulars as such magistrate may require."— 45. " Previous to such authority being given, the applicant shall post up in a conspicuous place on e^ch per- son's land through which it is proposed that 1517 WATEECOUESES. the water should pass, and on the district court house, notices in writing, stating his intention to enter such land, and through and over the same to take and carry such water, specifying all particulars relating thereto, in- cluding direction, quantity, purpose and term." — In an action by a grantee of water under this ordinance for interference with the use of the same. Held, affirming the judgment appealed from, that the ordinance was not passed for the benefit of riparian owners only, but any cultivator of land could obtain a grant of water thereunder. Held, further, that the water of a stream, &c., may be unoccupied under the ordinance even though there may be a riparian proprietor upon a part of it. Held, also, Ritchie, C.J., and Strong, J., dis- senting, that the provisions of s. 45 are merely directory, but if imperative a grantee of water under the ordinance who has used the water granted to him for several years would not be required, in an action for damages caused by interference with such usei', to prove that he gave the notices required by that section as it would be presumed that the same were given before recording the grant. — Held, per Eitchie, C.J., and Strong, J., that the water records in evidence were imperfect and the grant to plaintiff was not proved thereby ; that having failed to prove authority from the magistrate to direct the water his riparian rights either at common law or under the ordinance were not established and the action failed. Martley v. Carson, xx., 634. [An appeal to the Privy Council was dis- missed without consideration of the merits, the appellant having parted with his interest in the property.] 2. Municipal corporation — Assessment — Extra cost of works — Drainage — R. 8. 0. (1877) c. nJf—Jf6 Vict. c. 18 (Ont.)— By- law — Repairs — Misapplication of funds — 'Negligence — Damages — I ntermunicipal works.] — Where a sum amply sufficient to complete drainage works as designed and au- thorized by the by-law for the complete con- struction of the drain has been paid to the municipality which undertook the works, to be applied towards their construction, and was applied in a manner and for a purpose not authorized by their by-law, such municipality cannot afterwards by another by-law levy or cause to be levied from the contributors of the funds so paid any further sum to replace the amount so misapplied or wasted. Town- ship of Sombra v. Township of Chatham, xxviii., 1. 3. Adjoining proprietors of land — Different levels — Injury iy surface water — Watercourse — Easement.] — O. and S. were adjoining pro- prietors of land in the Village of Frankford, Ont., that of O. being situate on a higher level than the other. In 1875 improvements were made to a drain discharging upon the premises of S., and a culvert was made connecting with it. In 1887 S. erected a building on his laud and cut off the wall of the culvert which projected over the line of the street, which resulted in the flow of water through it being stopped and backed up on the land of O., who brought an action against S. for the damage caused thereby. Held, that S. having a right to ciit off the part of the culvert which pro- jected over his land was not liable to O. for the damage so caused, the remedy of the lat- tw, if he had any, being against the muni- cipality for not properly maintaining the 1518 drain.— Judgment appealed from (24 Ont. App. R. 526 J affirmed. Ostrom v. tiills xxvin., 485. 4. Adjoining lands — Threatened damages to one — Right of owner to guard against without reference to neighbour — Sic utere tuo ut alien- urn non laidas.] — Where the owner of land is threatened with damage by water used for ir- rigation purposes coming from a higher level he has a right to protect himself against such injury by all lawful means without regard to any damage that may result to land of his neighbour from the measures he adopts. — Judgment appealed from (6 B. C. Rep. 186) reversed. McBryan v. Canadian Pacific Rii. Co., xxix., 3.59. 5. Rivers and .streams — Floatable tcaters — Construction of statute — " The Sawlogs Driv- ing Acf'—R. S. O. (1887) c. 121— Arbitra- tion — Action upon award — River improve- ments—Detention of logs — Damages.] — When logs being floated down a stream are unreas- onably detained by reason of others being massed in front of them the owner is entitled to an arbitration under the Sawlogs Driving Act to determine the amount of his damages for such detention, and is not restricted to the remedy provided by s.. 3 of that Act, namely, removing the obstruction. Judgment of the Court of Appeal (20 Ont. Ajjp. R. 19) re- versed. Cockburn £ Hons v. Imperial Lumber Co., XXX., 80. 6. Rivers and streams — Driving logs — 06- struction—Dam—R. 8. 0. (1887) c. 120, ss. 1 and .;.]— By-R. S. O. (1887) e. 120, s. 1, all persons are prohibited from preventing the passage of sawlogs and other timber down a river, creek or stream by felling trees or plac- ing any other obstruction in or across the same. Held, reversing the judgment of the Queen'is Bench Division (29 O. R. 206), that placing a dam on a river or stream by which the supply of water therein was diminished so as to interfere with the passage of logs was an obstruction under this Act. Farquharson v. Imperial Oil Co., xxx., 188. 7. Appeal — Jurisdiction — Injunction — Ditches and watercourses — Title to land.] — Proceedings to restrain the ovfner of land from constructing a ditch "thereon under the Ditches and Watercourses Act to prevent in- jury to adjoining property, do not involve any question of title to land nor any interest there- in within the meaning of 60 & 61 Vict. c. 34, s. 1, s.-s, (a) relating to appeals to the Su- ]jreme Court of Canada in Ontario cases. The fact that the adjoining land was to be taxed for benefit by construction of the ditch would not authorize an appeal under s.-s. (d) as relating to the taking of a duty or fee, nor as affecting future rights, ^yaters v. Manigault, XXX., 304. 8. Railways — Construction of deed — Loca- tion of permanent icay — Lai/ing out bound- aries — Fencing — Riparian rights-^y otice of prior title — Registry laws — Possession — Ac- quisitive prescription.] — In the conveyance of lands for the permanent way, the deed de- scribed lands sold to the railway company as bounded by an unnavigable stream, as " select- ed and laid out " for the railway. Stakes were planted to shew the side lines, but the railway fences were placed inside the stakes above the water's edge, and the vendor was allowed to remain in possession of the strip 1519 WATBES, CANADIAN. 1520 of land between the fence and the middle of the bed of the stream. The deed was duly registered and, subsequently, the vendor sold the rest of his property including water rights, mills and dams constructed in the stream to defendant's auteur, described as " including that part of the river which is not included in the right of way, &c." Held, 1. That the de- scription in the deed included, ex jure naturw, the river ad medium filum aquas, and that the company's title thereto could not be defeated by the subsequent conveyance, notwithstand- ing that they had not taken physical posses- sion of all the lands described in the prior conveyance to them. 2. That the failure of the vendor to deliver the full quantity of land sold by him to the company and their absten- tion from troubling him and his grantees in possession of the same could not be construed as conduct placing a construction upon the deed different from its clear and unambiguous terms or as limiting the area of the property conveyed so as to exclude the strip outside the fences or the bed of the stream as medium filum. 3. That such possession by the vendor and his assigns was not possession which could ripen into a title by acquisitive prescrip- tion of the property in question. Massawippi Valley Ry. Co. v. Reed, xxxiii., 457. 9. Access —^ Oistruction — • Damages — Action.'] — A riparian owner can recover dam- ages from a railway company for injury and diminution of value to his property by reason of obstruction of access between it and a navigable river and where the company has not complied with the provisions of 43 & 44 Vict. c. 43, s. 7, s.-ss. 3-5 .(Que.), the owner has a remedy by action. The judg- ment appealed from (4 Dor. Q. B. 258; 12 Q. L. R. 205) was reversed. Pion v. North Hhore Ry. Co., xiv., 677. [This judgment was afSrmed on further ap- peal (14 App. Cas. 612) by the Privy Coun- cil.] 10. Pollution of stream — Tannery — Long user — Injunction.] — W. acquired a lot ad- joining a small stream and finding the water polluted from noxious substances thrown into the stream brought an action in damages against C, the owner of a tannery situated fifteen arpents higher up the stream, and asked for an injunction. 0. and his predeces- sors had from time immemorial carried on tanning there, using the water for tanning purposes to the knowledge of all the inhabit- ants without complaint on their part ; it was the principal industry of the village ; the stream was partly used as a drain by the other proprietors of lands adjoining the stream and manure and filth were thrown in, but every precaution was taken by C. to pre- vent any solid matter falling into the creek. W. had acquired the property long after C. had been using the stream for tannery pur- poses, and there was no evidence that the property had depreciated in value by the use C. made of the stream. Held, affirming the judgment appealed from (M. L. R. 4 Q. B. 197), that W., under the circumstances prov- ed in this case, was not entitled to an in- junction to restrain C. from using the stream as he did. Weir v. Claude, xvi., 575. 11. Dams and improvements — Flooding lands — C. before the case was brought on to trial, the respondent, M. B., presented a petition for continuance of the suit on her behalf as one of the legatees of her mother under a will dated the 17th November, 1869. This petition - was contested by A. B., who based his contes- tation on a will dated the 17th January, 1885 1523 WILL. 1534 (the same date as that of the transfer at- tacked by the original action), whereby the late Mrs. B. bequeathed the residue of all of her property, &c., to her two sons. — Upon the merits of the contestation as to the validity of the will of the 17th January, 1885. Held, affirming the judgment appealed from, that art. 831 C. C., which enacts that the testator must be of sound mind, does not declare null only the will of an insane person, but also'the will of all those whose weakness of mind does not allow them to comprehend the effect and consequences of the act which they perform. Held, further, that upon the facts and evi- dence in the case, the will of the 17th Janu- ary, 1885, was obtained by A. at a time when Mrs. B. was suffering from a senile dementia and weakness of mind, and was under the un- due influence of A. B.. and should be set aside. — The judgment appealed from (Q. R. 1 Q. B. -iril) was affirmed. Baptist v. Baptist, xxiii., 37. 3. Execution of will — Testamentary capa- city.] — ^A testator was suffering from a disease which had the effect of inducing drowsiness or stupor during the time he gave the instruc- tions for drafting, and when he executed his will, but as the evidence shewed that he thor- oughly understood and appreciated the instruc- tions he was giving to the draftsman as to the form his will should take and the instrument itself when subsequently read over to him, it was held to be a valid will. — Judgment ap- pealed from (28 N. S. Rep. 226) affirmed. McLaughlin v. McLellan, xxvi., 646. 4. Capacity of testator — Undue influence.] — A codicil to a will executed shortly before the testator's death, increasing the provision made by a former codicil for a niece of his wife who had lived with him for nearly thirty years, a considerable portion of which she was his housekeeper, was attacked as having been executed on account of undue influence by the niece. Held, reversing the judgment of the Supreme Court of Nova Scotia, Taschereau and Sedgewick, JJ., dissenting, that as the testator was shewn to be capable of executing a will at the time he made the codicil, con- sidering the relations between him and his niece even if it had been proved that she urged him to make better provision for her than he had previously done, such would not have amounted to undue influence. Held, also, fol- lowing Perera v. Perera ([1901] A. C. 534), that even, if there was ground for saying that the testator was not at the time of execution capable of making a will if he were when he gave the instructions the codicil would still have been valid. Kauliach v. Archbold, xxxi., 387, 5. Execution of will — Capacity of testator — Insane delusion.] — P. in 1890 executed a will providing generously for his wife and making his son residuary legatee. In 1897 he revoked his will and executed another by which the provision for his wife was reduced, but still leaving sufficient for her support, and the son was given half the residue, testator's daughter the other half. His wife was ap- pointed executrix and guardian of the child- ren. Prior to the execution of the last will F. had frequently accused his wife and son of an abominable crime, for which there was no foundation, had banished tjie son from his house and treated his wife with violence. After its execution he was for a time placed in a lunatic asylum. On proceedings to set aside this will for want of testamentary ca- pacity in F ; Held, reversing the judgment ap- pealed from (33 N. S. Rep. 26), Sedgewick, J., dissenting, that the provision made by the will for testator's wife and son, and the ap- pointment of the former as executrix and guardian, were inconsistent with the belief that when it was executed testator was in- fluenced by the insane delusion that they were guilty of the crime he had imputed to them and the will was therefore valid. Hkinner v. Farquharson, xxxii., 58. 6. Testamentary capacity — Evidence — Ac- tion to annul — Parties — ills en cause.] — An action for annulment of a will, the execution of which was procured when, as alleged, the testator was not capable of making it, was dis- missed, because all necessary parties had not been summoned. The Court of Queen's Bench (Q. R. 3 Q. B. 552), reversing this decision, held that the execution of the will had been procured by undue influence, and annulled it. — The Supreme Court affirmed the decision appealed from as to parties, holding that the Superior Court should itself have summoned the parties deemed necessary. It also affirmed the judgment as to the will on the ground that the onus was on the party procuring the execution to prove capacity, and that he had not only failed to do so, but the evidence was overwhelming against him. Currie v. Currie^ 6th May, 1895, xxiv., 712. 2. Construction of Will. 7. Construction of will — Division of estate — Tenants in common — Joint tenants — Sur- vivorship — Costs.] — By will A. directed, " Until the expiration of four years from the time of my decease, and until the division of my estate as hereinafter directed, my execu- tors shall every year place to the credit of each of my children the sum of $1,600, and if any of my children shall have died leaving issue, then a like sum to and among the issue of the child so dying, such sum to be paid by half-yearly instalments to such of my children as shall be of age or be married, but if any advances shall have been made to any of them and interest shall be due thereon, such interest to be deducted from the said sum. As regards the division, appropriation, and ultimate disposition of my estate it is my will that, subject to the payment of my just debts and legacies, bequests and annui- ties, I have heretofore given or may hereafter give, and to the expenses of management of my estate, all the rest, residue and remainder of my estate, and the' interest, increase and accumulation thereof, be distributed, settled, paid and disposed of, to and among my child- ren who may be alive at the time of the divi- sion and appropriation into shares of my estate hereinafter directed, and the issue then living of such of my children as may be then dead at the time and in the manner following, that is to say : That immediately on the ex- piration of four years from my death, my exe- cutors after making such provision as may be- necessary for the payment of any debts and legacies that may be outstanding and unpaid, and of outstanding annuities, and of the ex- pense of management of my estate, shall di- vide all my remaining estate into as many just and equal shares as the number of my then surviving children and of my children who shall before them have died, leaving lawful 1535 WILL. 1586- issue then surviving, shall amount unto, and shall apportion and set off one such share to each of my said then surviving children, and one such share to the lawful issue of each of my then deceased children, whose lawful issue shall be then surviving, all the issue of each deceased child standing in the place of such deceased child. And it is my will, and I direct, that from henceforth a separate account shall be kept by my trustees of each share, and of the interest and profit thereof, and the pay- ments made to or on account of or for the maintenance and education of each of my said children or issue, shall be charged against the share apportioned to such child or children, or wherein such issue shall be interested, so that all accumulations and profits that may arise shall enure to the increase of each sev- eral share on which such accumulation or profit shall accrue — it being my intention that after such division shall take place, the main- tenance, education and support of each of my children while under the age of twenty-one years shall be drawn from the separate in- come of such child, and the maintenance and education of the children of any of my child- ren who may have before them died, leaving issue, shall be drawn from the share or shares set apart for the issue of such deceased child or children. And that my children, and such issue of deceased children being of age, that is to say, of the age of 21 years, or when re- spectively they shall attain the age of 21 years, shall be severally entitled to receive for their own use the whole of the Interests and profits of the share and proportion of my es- tate to which they may be respectively en- titled." On 26th May, 1864. M., 'testator's daughter, married P., the appellant. Testator die_d 24th December, 1870. On 25th August, 1872, M. died, leaving three children, and on 14th September, 1877, the eldest son died, and the father, the appellant, claimed that his son's share vested in him. Held, reversing the judgment of the Supreme Court of Nova Scotia, that the intention of the tes- tator was that his estate should be divided and that the will shews that there should be no survivorship, that therefore the children of testator's daughter M. took as tenants in com- iron, and consequently on the death of the eldest son the whole right, title and interest in his share, vested in his father. Judgment appealed from (1 Russ. & Geld. 177) reversed. Fisher v. Anderson, iv., 406. 8. Beneficiaries — Insufficient income — Pow- ers of executors — Sale of corpus — Payment of annuities.] — A testator devised to his widow an annuity of $10,000 for her life, to be in lieu of her dower, and chargeable on his gen- eral estate. He then devised to the executors and trustees real and personal property de- scribed in five schedules, upon these trusts, that is to say: — Upon trust during the life of his wife, to collect and receive the rents, issues and profits thereof which should be, and be taken to form a portion of his " gen- eral estate :" and then from and out of the general estate, during the life of the wife, the executors were to pay to each of his five daughters yearly $1,600 by equal quarterly payments, free from the debts, contracts and engagements of their respective husbands. Next, resuming the statement of the trusts of the scheduled property specifically given, that from and after the death of his wife, the trustees were to collect and receive the rents, issues, dividends and pro- fits mentioned in the schedules, and to pay to his daughter M. M. A., the rents, &c., ap-- portioned to her in schedule A. ; to his daugh- ter B. of those mentioiied in schedule B. ; to his daughter M. of those mentioned in schedule C. ; to his daughter A. of those mentioned in schedule D. ; and to his daughter L. of those mentioned in schedule E. ; each of the said daughters being charged with the insurance, ground rents, rates and taxes, repairs and other expenses with or incidental to the man- agement and upholding of the property appor- tioned to her, and the same being from time to time deducted from such quarterly pay- ments. Directions as to insurance and ad- ministration were then given and the disposi- tion of the share of each daughter in case of her death. In thg residuary clause there were the following words : " The rest, residue.- and remainder of my said estate, both real and personal, and whatsoevei: aiid wheresoever situ- ate!, I give, devise and bequeath the same to my said executors and trustees, upon the trusts and for the intents and purposes fol- lowing. He then gave out of the residue a legacy of $4,000 to a brother, and the' ultimate residue he directed to be equally divided among his children upon the samt- trusts with regard to his daughters, as be- fore declared, with respect to the estate in' the schedules mentioned. The rents and pro- fits of the whole estate proved insufficient, after paying the annuity of $10,000 to tbe widow, and the rent and taxes of his house' in London, to pay in full the $1,600 a year to each of the daughters during the life of their mother, and the question raised on this appeal, was whether the executors and trustees had power to sell or mortgage any part of the corpus, or apply the funds of the corpus of the property, to make up the deficiency. Held. reversing, in part, the judgment appealed from (4 Pugs. & Bur. 284), that the annui- ties given to the daughters, and the arrears of their annuities, were chargeable on the" corpus of the real and personal estate subject to the right of the widow to have a sufiBcient sum set apart to provide for her annuity. Almon V. Lewin, v., 514. 9. Construction — Residuary personal es- tate— Mortmain.]— A-moag other bequests the testator declared :— " I bequeath to the Worn- out Preachers' and Widows' Fund m connec- tion with the Wesleyan Conference here the sum of £1,250, to be paid out of the moneys due me by Robert Chestnut, of I'redericton. I bequeath to the Bible Society £150. I be- queath to the Wesleyan Missionary Society in connection with the Conference the sum ot £1 500 " The last clause of the will was, " Should there be any surplus or deficiency, a pro rata addition or deduction, as may be, to be made to the following bequests, namely, the Worn-out Preachers' and Widows' Fund, Wesleyan Missionary Society, Bible Society. The surplus personal estate was claimed, un- der the will, by these charitable institutions, and by the heirs-at-law and next of km, as residuary estate, undisposed of under the will. Held affirming the Supreme Court of New Brunswick, Fournier and Henry, JJ., dissent- ing that the " surplus " had reference to the testator's personal estate out of which the annuities and legacies were payable; and therefore a pro rata addition should be made to the three above-named bequests.— -Per Strong J. The Statute of Mortmain, 9 (^eo. II c 36, is not in force in New Brunswick. Ray V Annual Conference of New Brunswick, a-c, vi., 308. 1527 WILL. 1528 10. Construction of will — Legacy — Condi- tion.] — A testator, by the third clause of his will, bequeathed the residue of his estate to liis wife, four sons and two daughters, on condition that they should all unite in paying to the executors before 1st January, 1877, 51,600, and a similar sum before 25th Janu- ary, 1882, to pay the shares of two other sons Alexander and Duncan. By the 4th clause, he gave $1,600, without condition, to each of liis sons, Alexander and Duncan. By the 5th clause, he devised to his sons, Douglas and Robert, two lots ; and after giving several lega- ::ies to his daughters, he proceeded : "And fur- ther, that Alexander and Duncan work on the farm until the legacies become due." Alexan- der left the farm in 1871 and entered into mer- cantile pursuits. Held, reversing the judgment appealed from (6 Ont. App. R. 595), Ritchie, C.J., and Henry, J., dissenting, that the con- struction of the paragraph bequeathing $1,600 to Alexander must be based on a consideration of the whole will, and that the intention was that Alexander's right to receive his legacy* was conditional on his working on the farm and assisting in earning it. Oliver v. David- son, xi., 166. 11. Construction — Intention of testator — Trust — Absolute devise — Subsequent re- striction — Repugnancy.'] — A testator directed his real estate to be sold and the proceeds, after payment of debts and certain legacies, to be divided into twelve equal parts, " five of which I give and devise to my beloved daughter C. M., four of which I give and de- vise to A. E. P. (daughter), and three of nhich, subject to the conditions and provisions liereinafter set forth, I reserve for my son, C. W. M. But in no case shall any creditor of either of my children, or any husband of either of my children, daughters, have any claim or demand upon the said executrices, &c., but their respective shares shall be kept and the interest, rents, and profits thereof shall be paid and allowed to them annually . . . during their respective lives." In an action by the daughters to have their shares paid over to them untrammelled by any trust. Held, affirming the judgment appealed from (20 N. S. Rep. 71). that it was clearly the intention 3f the testator that the daughters should only receive the income from the shares during their lives. Foot V. Foot, xv., 699. 12. Construction — Usufruct — Remainder — Substitution — ■ Rights purged — Convey- :ince by usufructuary — Sheriff's sale — Estop- ped— Art. Ill C. C. P.]— A will provided:— ' Fifthly. I give, devise and bequeath unto H. M, . . . my present wife, the usufruct, Lise, and enjoyment during all her natural life- time of the rest and residue of my property, moveable or immoveable, . . . which I may have any right, interest or share at the time of my death, without any exception or reserve. — To have and to hold, use and enjoy the said usufruct, use, and enjoyment of the said property unto my said wife, as and for tier own property, from and after my decease and during all her natural lifetime." — " Sixthly. I give, devise and bequeath in full property unto my son, J., issue of my marriage with the said H. BI., the whole of the pro- perty of whatever nature or kind, moveable, real, or personal, of which the usufruct, use, and enjoyment during her natural lifetime is tiereinbefore left to my said wife, . . . but subject to the said usufruct, use and en- joyment of his mother, . . during all her natural lifetime as aforesaid, and without any account to be rendered of the same or of any part thereof to any person or persons whomsoever. Should, however, my said son . . . die before his said mother . . . then and in that case I give, devise and be- queath the said property so hereby bequeathed to him to the said H. M. in full property to be disposed of by last will and testament or otherwise as she may think fit, and without any account to be rendered of the same or of any part thereof to any person or persons whom- soever. — To have and to hold the said hereby bequeathed and given property to the said J., his heirs and assigns, should he survive his said mother, as and for his and their own property forever, and in the event of his pre- deceasing his said mother unto the said H. M., her heirs and assigns, as and for her and their property- forever." Held, affirming the judg- ment appealed from (Q. R. 1 Q. B. 197), that the will did not create a substitution, but a simple bequest of usufruct to his wife and of ownership to his son upon survival. Held, also, that a sheriff's sale of property forming part of the estate under an execution issued against a person who was in possession under a title from the wife, such sale having taken place after testator's son became of age, was valid and purged all real rights which the son might have had under the will. Patton v. Morim, (16 L. C. B. 267) followed. McGregor V. Canada Investment & Agency Co., xxi., 499. 13. Construction ■ — Devise to children and their issue — Distribution — Per stirpes or per capita — • Trust — Statute of Limitations ■ — Possession.] — Under provisions of a will : — " When my beloved wife shall have departed this life and my daughters shall have married or departed this life, I direct and require my trustees and executors to convert the whole of my estate into money . . . and to di- vide the same equally among those of my said sons and daughters who may then be living, and the children of those of my said sons and daughters who may have departed this life previous thereto:" — Held, reversing the Court of Appeal for Ontario, Ritchie, C.J., dissenting, that the distribution of the estate should be per capita and not per stirpes. — A son of the testator, one of the executors and trustees named in the will was a minor when his father died, and after coming of age he never applied for probate though he knew of the will and did not disclaim. With the con- sent of the acting trustees he went into pos- session of a farm belonging to the estate and remained in possession over 20 years, and until the period of distribution under the clause above set out arrived, and then claimed title under the Statute of Limitations. Held, af- firming judgment appealed from (18 Ont. App. R. 25), that as he held under an express trust by the terms of the will, the rights of the other devisees could not be barred by the statute. Houghton v. Bell, xxiii., 498. 14. Devise of life estate — Remainder to is- sue in fee simple — Intention of testator — Rule in Shelley's case.] — A testator by the third clause of his will devised land as fol- lows : " To my son J., for the term of his na- tural life, and from and after the decease to the lawful issue of my said son J., to hold in fee simple." In default of such issue the land was to go to a daughter for life with a like remainder in favour of issue, failing which, to brothers and sisters and their heirs. 1539 WILL. 1530. Another clause of the will was as follows : " It is my intention that upon the decease of either of my children without issue, if any other child be then dead the issue of such latter child (if any) shall at once take the fee simple of the devise mentioned in the sec- ond and third clauses of this my will." Held, affirming the decision of the Court of Appeal (21 Ont. App. R. 519), that if the limi- tation in the third clause, instead of being to the issue to hold in fee simple had been to the heirs general of the issue, the son J., under the rule in Shelley's Case, would have taken an estate tail ; that the word " issue " though primd facie a word of limitation equivalent to " heirs of the body," is a more flexible expression than the latter and more easily diverted by a context or superadded limitations from its primd facie meaning ; that it will be interpreted to mean " children " when such limitations or context requires it j that " to hold in fee simple " is an expression of known legal import admit- ting of no secondary or alternative meaning, and must prevail over the word " issue," which is one of fluctuating meaning ; and that effect must be given to the manifest intention of the testator that the issue should take a fee. King V. Evans, xxiv., 356. 15. Executory devise over — Contingencies-^ " Dying without issue " — " Revert " — Dower — Annuity ■ — Election hy widow — Devolution of Estates Act. 49 Vict. (0.) c. 22 — Condi- tions in restraint of marriage — Practice — Added parties — Orders ^6 & JfS Ontario Judi- cature Act—B. 8. 0. {1888) c. 109, s. 30.']— A testator divided his real estate among his three sons, the portion of A. C. the eldest son being charged with the payment of $1,000 to each of his brothers and its proportion of the widow's dower. The will also provided that " should any of my three sons die without lawful "issue and leave a widow, she shall have the sum of fifty dollars per annum out of his estate so long as she remains unmarried, and the balance of the estate shall revert to his brothers with the said fifty dollars on her marriage." A. C. died after the testator, leaving a widow, but no issue. Held, revers- ing the judgment of the Court of Appeal, that the gift over in the last mentioned clause was intended by the testator to take effect on the death of the devisee without issue at any time and not during the lifetime of the testator only ; but it was no ground for departing from this primd facie meaning of the terms of the gift that very burdensome conditions were im- posed'upon the devisee ; and that no such con- ditions would be imposed on the devise to A. C. by this construction,, as the two sums of $1,000 each charged in favour of his brothers were charged upon the whole fee, and if paid by him his personal representatives on his ■ death could enforce re-payment to his estate. Meld, also, that the widow of A. C. was en- titled to the dower out of the lands devised to him, notwithstanding the defeasible character of his estate : that she was also entitled to the annuity of $50 per annum given her by the will, it not being inconsistent with her right to dower, and she was therefore not put to her election ; that the limitation of the an- nuity to widowhood was not invalid as being in undue restraint of marriage ; and that she could not claim a distributive share of the devised lauds under the Devolution of Estates Act, which applies only to the descent of in- heritable lauds. — The mortgagee of the rever- sionary interest of one of his brothers, in the lands devised to A. C, was improperly added,, in the Master's office, as a party to an admin- istra/tion action and could take objection at any time to the proceeding either by way of appeal from the report or on further dii-ec- tions ; she was not limited to the time men- tioned m order 48 of the Supreme Court of Judicature, which refers only to a motion to discharge or vary the decree. Cowan v. Allen xxvi., 292. [Followed in Fraser v. Fraser (26 Can. S. 0. R. 316). See No. 16, infra.] 16. Devise to two sons- — Devise over of one's share — Condition — Context — Codicil.^ — A testator devised property " equally " "to his two sons, J. S. and T. G., with a provision that "in the event of the death of my said son T. G.. unmarried or without leaving is* sue," his interest should go to J. S. By a codicil a third son was given an equal interest with his brothers in the property on a condi- tion which was not complied with and the devise to him became of no effect. Held, re- versing the decision of the Supreme Court of Nova Scotia, that the codicil did not affect the construction to be put on the devise in the will ; that J. S. and T. G. took as tenants in common in equal moieties, the estate of J. S. being absolute, and that of T. G. subject to an executory devise over in case of death at any time and not merely during the lifetime of the testator. Cowan v. Allen (26 Can. S. C. R. 292) followed. Held, also, that the word " equal " indicated the respective shares which the two devisees were to take in the area of the property devised and not the char- acter of the estates given in those shares. Fraser v. Fraser, xxvi., 316. See No. 15, ante. 17. Death without issue — Executory devise ovei Conditional fee — Life estate — Estate tail.] — ^A testator died in 1856 having previ- ously made his last will, divided into numbered paragraphs, by which he devised his property amongst certain of his children. By the third clause he devised lands to his son F. on at- taining the age of 21 years — " giving the exe- cutors power to lift the rent, and to rent, said executors paying F. all former rents due after my decease up to his attaining the age of 21 years," and by a subsequent clause he pro- vided that " at the death of any one of my sons or daughters having no issue, their pro- perty to be divided equally among the sur- vivors." F. attained the age of 21 years and died in 1893, unmarried and without issue. Held, that neither the form nor the language used in the will would authorize a depai'ture from the general rule as to construction ac- cording to the ordinary grammatical meaning of the words used by the testator, and that, as there would be no absurdity, repugnance or inconsistency in such a construction of the will in question, the subsequent clause limiting the estates bequeathed by an executory devise over must be interpreted as referring to the property devised to the testator's sons and daughters by all the preceding clauses of the will. Held, further, that the gift over should be construed as having reference to failure of issue at the death of the first devisee who thus took an estate in fee subject to the executory, devise over. Crawford v. Broddy, xxvi., 345. 18. Donation — Substitution — Partition, per stirpes or per capita — Usufruct — Alimentary allowance — Accretion between legatees.] — The late Joseph Rochon made his will in 1852 by 1531 WILL. 1532 •hich he devised to his two sisters the usu- ■uct of all his estate and the property there- 1 to their children, naming Pierre Dupras, is uncle, as his testamentary executor, and irecting that his estate should be realized nd the proceeds invested according to the Eecutor's judgment, adding to these directions lie words "enfin placer la masse liquide de ma accession k intergt ou autrement, de la ma- ifire qu'il croira le plus avantageaux, pour n fournir les revenus &. mes dites' sceurs et onserver le fonds pour leurs enfants," and roviding that these legacies should be con- idered as an alimentary allowance and should e non-transferable and exempt from seizure. >y a codicil in 1890 he appointed a nephew s his testamentary executor in, the place of ae uncle, who had died, and declared : — " II 3ra de plus I'administrateur de mes dits biens isqu'au d6c6s de mes deux soeurs usu- ruitfires, nommees dans mon dit testament, et asqu'au partage dfifinitif de mes biens entre les heritiers proprigtaires, et il aura les pou- oirs qu'avait le dit Pierre Dupras dans mon it testament." held, Gwynne, J., dissenting, tat the testamentary dispositions thus made id not create a substitution, but constituted lerely a devise of the usufruct by the testa- jr to his two sisters and of the estate (sub- let to the usufruct), to their children, which 3olc effect at the death of the testator. Held, Iso, that the charge of preserving the estate conserver le fonds " — imposed upon the tes- imentary executor could not be construed as nposing the same obligation upon the sisters 'ho were excluded from the administration, r as having, by that term, given them the roperty subject to the charge that they should and it over to the children at their decease, r as being a modification of the preceding lause of the will by which the property was evised to the children directly, subject to the sufruct. Held, further, that the property lius devised was subject to partition between tie children per capita and not per stirpes. udgment appealed from (Q R. 5 Q. B. 277) ffirmed. Robin v. Duguay, xxvii., 347. 19. Construction of statute — Abolition of states tail — Executory devise over — Dying nthout issue — " Lawful heirs " — " Heirs of he body" — Estate in remainder expectant — tatutory title — Title by will — Conveyance by ■;nant in *ai(.]— The R. S. N. S., 1851 (1 3r.) c. 112, provided: "All estates tail are bolished, and every estate which would itherlo have been adjudged a fee tail shall ereafter be adjudged a fee simple ; and, if no alid remainder be limited thereon, shall be a ;e simple absolute, and may be conveyed or evised by the tenant in tail, or otherwise liall descend to bis heirs as a fee simple." In lie revision of 1858 (K. S. N. S. 2 ser. c. 12), the terms are identical. In 18t>4 (R. . N. S. 3 ser. c. Ill), the provision was banged to the following : " All estates tail on 'hich no valid remainder is limited are abo- shpd. and every such estate shall hereafter be djudged to be a fee simple absolute, and may e conveyed or devised by the tenant in tail, r otherwise shall descend to his heirs as a fee tmple." This latter statute was repealed in SG5 (28 Vict. c. 2), when it was provided as dIIows : '• All estates tail are abolished and very estate which hitherto would have been djudged a fee tail shall hereafter be ad- udged a fee simple and may be conveyed or evised or descend as such." Z., who died in 8.')!), by his will made in 1857, devised lands in Jova Scotia to his son and, in default of law- ful heirs, with a devise over to other relatives, in the course of descent from the first donee. On the death of Z., the son took possession of the property as devisee under the will, and held it until 1891, when he sold the lands in question in this suit to the appellant. Held, per Taschereau, Sedgewick and King, JJ., that notwithstanding the reference to " valid remainder " in the statute of 1851 all estates tail were thereby abolished, and further, that subsequent to that statute there could be no valid remainder expectant on an estate, as there could not be a valid estate tail to sup- port such remainder. Held, further, per Tas- chereau, Sedgewick and King, JJ., that in the devise over to persons in the course of descent from the first devisee, in default of lawful issue, the words " lawful heirs," in the limitation over, are to be read as if they were " heirs of the body ;" and that the estate of the first devisee was thus restricted to an estate tail and was consequently, by the ope- ration of the statute of 1851, converted into an estate in fee simple and could be conveyed by the first devisee. Held, per Gwynne and Girouard, JJ., that estates tail having a re- mainder limited thereon where not abolished by the statutes of 1851 or 1804, but continued to exist until all estates tail were abolished by I lie statute of 1805 ; that the first devisee, in the case in question, took an estate tail in the lands devised and having held them as devisee in tail up to the time of the passing of the Act of 1»05, the estate in his possession was then, by the operation of that statute, con- verted into an estate in fee simple which could be lawfully conveyed to him. Ernst v. Zwicker, xxvii., 594. 20. Codicil — Testamentary succession — "Heir" — Universal legatee — Arts. 5i)6, 597, HJl, tseif, mo G. C.—U Geo. 111., c. 83, s. II) (Imp.) — Jfl Ueo. III., c. k (i.C.)]^R. A. who died in Montreal in 1896 had, by his will made there in 1890, bequeathed to M. A. and her heirs, one-fourth of his residuary estate. M. iV. died in 1805 leaving a will appointing five of her children her universal legatees. R. A. subsequently took communication of the will of the deceased M. A. and made a codicil to his own will in the terms following: '■ With respect to the share of the residue of my property which I bequeathed by my will to my sister, the late M. A. . . . my will and desire is that her said share of said resi- due shall go to her heirs." Held, Gwynne and Girouard, JJ., dissenting, that under the provisions of the Civil Code of Lower Canada, the words " her heirs " in the codicil mifet be construed as meaning the persons to whom the succession of SI. A. devolved as universal legatees under her will. Allan v. Evans, xxx.,' 416. 21. Provisions by will — Deferred distribu- tion — Premature action.^ — Action by benefi- ciaries under will against the executors for an account and share of testator's estate, claim- ing that it was not necessary to postpone the distribution simply to permit the executors to fulfil a trust of little importance in compari- son with the bulk of the estate and which could be otherwise provided for. The Su- preme Court afiirmed the judgment of the Court of King's Bench, affirming the judg- ment of the trial court, which dismissed the action on the ground that the will excused the executors from an account and distribution until the minor children, for the 1533 WILL. 1534 education and care of whom provision was made in the will, attained the age of- majority. Gilmour v. Cory, 22nd May, 1902. 22. Construction of will — Survivorship — Intestacy.] — H. by his will provided for dis- posal of his property in case his wife survived him but not in case of her death happening first. The will also contained this provision : " In case both my wife and myself should, by acci- dent or otherwise, be deprived of life at the same time I i-equest the following disposition to be made of my property "... H. died six- teen days after his wife but made no change in his will. Held, affirming the judgment ap- pealed from (4 Ont. L. R. 666 ; 2 Out. L. R. 169), that H. and his wife were not deprived of life at the same time and he therefore died intestate. Maclean v. Henning, xxxiii., 305. 23. Construction of will — Opening of sub- stitution — Legacy to substitutes — Legatees taking per stirpes or per capita.] — By his will, which created a substitution, the testator bequeathed the usufruct of all his property to his widow, during her lifetime and, after her death, to his surviving children and, by the sixth clause, provided as follows : " Quant 3, la proprigte de njes dits biens meubles et immeubles ggngralement quelconques que je delaisserai au jour de mpn decSs, je la donne et ISgue aux enfants legitimes de mes enfants, flui seront mes petits-enf ants ; pour, par, mes dits petits-enfants, jouir, faire et disposer de mes dits biens en pleine propriety et par egales parts et portions entre eux, it, compter du jour que la dite jouissance et usufruit donnes k mes enfants cesseront, les instituant mes 16ga- taires universels en propri6te. — Held, revers- ing the judgment appealed from, that all the grandchildren participated in the legacy and that the property representing the fifth of the revenue given to each of the testator's child- ren, on the opening of the substitution created by the will, for such portion of his estate, should be divided among all the grandchildren then living in equal shares, the grandchildren taking per capita and not per stirpes. Remilr- lard V. Chabot, xxxiii., 328. 24. Providing for continuing executors — Trust — Account — Administration of minor's P'operty — Appointment of tutor by will — Di- rections of testator — Minor discharging tutor — Res judicata — Acquiesence — Executor — Pro-tutor — Jurisdiction — Property in Quebec Mi Ontario — Negligence — Duty to administer en ion pire de famille — Interest — Art. 290 et •seg. C. C. — Contrainte.] — C, deceased mother of the appellant, was sole executrix of the will of her deceased husband whereby appel- lant and a sister (since deceased) were consti- tuted sole residuary legatees. By her will, made at her domicile in Montreal, C. be- queathed all her property to her two children, and appointed the defendant and F. M. her executors, authorizing them to continue the execution of the will of her late husband, which had been made in Ontario where part of the lands affected were situate. She also appointed them tutors to her children, to take care of them until their marriage or attaining tlie age of majority. Both acted accordingly together till F. M. left the country in 1856, after which defendant continued to do so alone. On coming of age in 1868, the plaintiff. as sole surviving legatee under both wills, gave "e defendant a full discharge of his adminis- tration although he did not produce vouchers and render an account under oath. In an ac- tion en reddition de compte' and for $41,278, balance due on the administration (as ordered by a judgment in a preceding action to set aside the discharge and certain deeds, &c., for traud), it was held by the Court of Queen's Bench (2 Dor. Q. B. 33 ; 25 L. 0. Jur. 196) reversing the judgment of the Superior Court District of Montreal, that C. had no power by her will to appoint administrators to continue the administration of her deceased husband's estate ; that though defendant ha'd not been duly appointed tutor he had acted as such and could be held to account; that the discharge was null and void as it had been given without a regular account; that defendant could not charge interest on sums advanced by him for education and maintenance of the minors, but only upon interest bearing debts paid by him in excess of his receipts, and finally adjusted the balance due by defendant on the debats de compte at $590.07. — The Supreme (jourt re- versed the judgment appealed from and held, that the quality of defendant was not only res judicata by the judgment condemning the defendant to render an account, but it had not been appealed from and had been acquiesced in by defendant ; that the courts below were correct in holding that the action bad properly been brought in Quebec ; that, while agreeing with the Court of Queen's Bench as to the law respecting the liability of executors, the court was of opinion there was not sufiicient evidence that F. JI had acted otherwise than as agent of de- fendant, who was therefore properly liable for all the rents of the Belleville property after the death of C. ; that the administration of defendant, although begun before the pro- mulgation of the Civil Code, should have been regulated by the principles contained in the Code Cart. 290 et seq.) which, with a few ex- ceptions introducing new law, are only a re- sume of the old law on the obligations of a tutor. He should therefore have administered en bon pire de famille, whereas his own evi- dence was sufficient to prove negligence on his part. He had allowed the tenants of the Belle- ville property to make only such repairs as they thought right, and moreover to deduct the cost from the rents, although the leases bound them to keep the property in repair. That the defendant should be charged interest on the price of the Belleville property ($6,250), and also on that part of the price of the sale of the half of the Drummond street property unaccounted for (.$4,640), from the time of sale (art. 1,534, C. C), not being entitled to the six months allowed by the Code for in- vesting the moneys of a minor, because he had claimed to appropriate and had used the money as his own; that the charge made for board of C. and " Ijouisa." allowed hv the Queen's Bench, should be deducted, as C. and her daughters were living with the defendant as his relatives, and there was no evidence that defendant had at any time any intention of making them pav board; that the amount of the judgment obtained against C. should be disallowed together with the Interest thereon ; and that certain other items (particularly spe- cified) should be disallowed. — The result was that the judgment of the Queen's Bench was varied by condemning defendant to pay to plaintiffs $12,121.49, but the court did not order a contrainte par corps, because it haa been admitted that sufficient property belong- ing to defendant to secure plamtifc had been seized and because the court not being ob- liged to pronounce "la contrainte par corps _ against tutors in every case, did not think it necessary to do so in the present one.— Per 1535 WILL. 1536 Strong, J. The Belleville property having been devised by the plaintiff's father to her mother for life, with remainder to the plain- tiff* and her sister in fee, a trust was created, and upon the death of C. there was no trustee to execute this trust, and defendant, and F. M., having entered into the estate of the minors and taken the profits were accountable in equity as constructive trustees, and their liability in this respect being entirely a per- sonal one might be enforced in a jurisdiction other than that in which the lands were situ- ated, and the mere nendency of a suit in the Ontario Court of Chancery, in which no de- cree had ■ been made, did not constitute any ground of defence. The defendant ought not to -be allowed to claim the amount of the judg- ment against C, because it was a failure of duty on his part not to see she was protected by accepting her mother's succession under benefit of inventory, and he cannot be allowed to take advantage of his own default, by mak- ing the plaintiff responsible for her mother's debt to an amount far beyond the value of the succession. Besides, the evidence of a debt was very unsatisfactory, and it was the com- mon practice (so much so that this court might take judicial notice of it) to take judg- ments in this form in Ontario for the sole pur- pose of enabling the lands to be sold under execution against the executor or administra- tor (Gardiner v. Gardiner. 2 TJ. C. O. S. 520), and not with any view of binding the execu- tor to an admission of personal assets, and such a judgment was no evidence as regarded the real representatives of the heir or devisee, but as to them was res inter alios, and before lands could be made liable to the satisfaction of the judgment creditor he was bound to prove his original debt as strictly as if no judgment against the executor had ever been obtained, and this the defendant had entirely failed to do. Coleman v. Miller, Cass. Dig. (2ed.) 301. 25. Powers of executors — Advancing lega- tees' shares — Promissory notes.'] — M., who was a merchant, by his will gave special direc- tions 'for the winding up of his business and the division of his estate among a number of his children as legatees, and gave to his exe- cutors, among other powers, the power " to make, sign, and indorse all notes that might be required to settle and liquidate the affairs of his succession." By a subsequent clause in his will he gave his executors " all neces- sary rights and powers at any time to pay to any of his said children over the age of thirty years the whole or any part of their shares in his said estate for their assistance either in establishment or in case of need, the whole according to the discretion, prudence and wis- dom of said executors," &c. In an action against the executors to recover the amount of promissory notes given by the executors and discounted by them as such in order to secure a loan of money for the purpose of ad- vancing the amount of his legacy to one of the children who was in need of funds to pay personal debts. Held, affirming the judgment appealed from, that the two clauses of the will referred to were separate and distinct pro- visions which could not be construed together as giving power to the executors to raise the loan upon promissory notes for the purpose of advancing the share of one of the beneficiaries under the will. Banque Jaoques-Gartier v. Gratton, xxx., 317. 3. Devises and Legacies. 26. Construction — Devise to first great- grandson, — Devise defeated iy rule of lata — Void for remoteness — Intestacy — Estate tail — Heir-at4aw.'\ — P. F., sr., by a will, dated 3rd December, 1845, devised as follows : " It pleased the Lord to give me two sons equally- dear to my heart ; to give them equal justice I leave all my land to the first great-grand- son descending from them by lawful ordinary generation in the masculine line, to him I be- queath it, and to him I will that it pass free of any incumbrance, except the burying ground and the quarter of acre for a place of worship. To Duncan Ferguson, my son, I .bequeath my family Bible and five shillings ovor an'J above what I have done for him. ... To Peter Ferguson, my son, I bequeath my implements belonging to my farm, and to occupy the farm and answer State dues and public burdens himself, and the lawful male offspring of his body until the proper heir are come of age to take possession, but Peter him- self and all are restricted and prohibited from giving any wood or timber whatsoever kind away off the land, or bringing any other family on to it but his own. But if he leaves a situation so advantageous, and cannot main- tain himself upon it. ... I appoint Peter Mc Vicar, my grandson, to take charge of the whole place — farm and all that pertains to it — and occupy the same for his own benefit and advantage, according to the forementioned restrictions and conditions, until the heir be of lawful age as aforesaid." The testator died in 1849, leaving two sons, D. and P., jr., three daughters and one grandson, P. McV., being a son of a daughter. When he died the property was subject to a lease, which expired in 1857. P. F., jr., went into occupation, in that year conveyed his interest to P. McV. and left the place. Subsequently, the appel- lant, gon of D. F., and heir-at-law of P. F., sr., took a conveyance from P. McV., and thereupon the respondent, heir-at-law of P. F., jr., brought an action of ejectment, claim- ing that under the will his father took an estate tail which descended to him. The Court of Queen's Bench (39 U. C. Q. B. 232) de- cided in favour of the heir-at-law, and was reversed by the Court of Appeal for Ontario (1 Ont. App. R. 452). — On appeal to the Su- preme Court, Held, reversing the Court of Ap- peal for Ontario, Strong, J., dissenting, that the devise by the testator to his first great- grandson being void for remoteness and there being no intention to give P. F. jr., any estate or interest independent of, or unconnected with, the devise to the great-grandson, there was no valid disposition to disinherit the heir- at-law, and therefore the plaintiff was not en- titled to recover. — Per Ritchie, J. Where the rule of law, independent of and paramount to the testator's intentions, defeats the devise, the proper course is to let the property go as the law directs in cases of intestacy. Ferguson V. Ferguson, ii., 497. 27. Legacy — Alienation of property J>e- queathed — Partition of proceeds — Estoppel.] — By will dated 11th February, 1833, testator devised to M. his daughter by an Indian wo- man and to B. and M., his daughters by an- other woman, a defined portion of the Seigni- ories of Temiscouata and Madawaska, and the balance of said property to his sons W. and E. A short time after making this will the testator, who was heavily in debt, received an unexpected offer of £15,000 for the seigniories. 1537 WILL. 1538 and sold at once, paid liis most pressing debts, amoimtiug to f o,4U0, and invested the balance in loans on real estate. At liis deatli, his estate appearing to be vacant as regards the £9,600, a curator was appointed. On 27th September, 1839, the parties entitled under the will proceeded to divide and apportion their legacies, basing their calculations upon the ap- proximate area of the seigniories devised, and received the collected part of the sums allotted to each by the partition. In an action brought by W., residuary legatee, against the curator, the court ordered the curator to account, which he did, deposited $50,000 and other securities. On a report of distribution F. filed an opposition claiming his share under the will. Appellant contested, on the grounds : 1st. That the legacies were revoked and that in his capacity of universal legatee of his mother (the legitimate child, he alleged, of the testa- tor and the Indian woman who was commune en biens with the testator) he was entitled to one-half of the proceeds of the £9,600; and 2nd. that in the event of his claim to legiti- macy and revocation of the legacy being re- jected, as by the will the daughters were ex- empt from the payment of the debts, he should, as representing one of the daughters, be en- titled to her proportion of £15,000, the net proceeds of the sale. — Held, affirming the judgment appealed from (12 Q. JO. B. 327), that as appellant did not at the death of his mother, repudiate the partage to which she was a party, but ratified it and acted under it, he was estopped from claiming more than what was allotted to his mother. — Per Strong, Fournier and Taschereau, JJ. That under the law prior to the Code the sale of the seigniories which were the subject of the legacy in question in this cause, considering the circumstances under which it was made, had not the effect of defeating the legacy. Semile, per Henry, J. That there was a revo- cation of the legacy. — The court below (12 Q. L. R. 327), held that as the testator declared that the daughters should not be liable for the payment of his debts, partition, as regards them, should be made of the sum of £15,000, the price obtained from the sale of the seigni- ories bequeathed, and not of the £9,600 re- maining in his succession at his death. On cross-appeal the Supreme Court, Held, that on the pleadings no adjudication could be made as to the £5,400 paid by the curator for the debts, and that in the distribution of the moneys in court all that the appellant could claim, was the unpaid balance (if any) of his mother's share in the moneys, securities, in- terest, and profit of the £9,600 in accordance with the partage of the 27th September, 1839. Jones v. Fraser, xiii., 342. 28. Particular devise — Construction — Con- tingent interest.] — A testator having previ- ously given all his estate, real and personal, to trustees in trust for his wife for life, or during her widowhood, made a devise as fol- lows : — " In trust also, that at the death, or second marriage of my said wife, should such happen, my son Thomas, if he be then living, shall have and take lot number 1, &c., which I hereby devise to him, his heirs, and assigns to and for his and their own use for ever." The testator then gave to his other sons and to his daughters other real estate in fee. He directed that all the said devises " in this sec- tion of my will mentioned and devised" should take effect upon and from the death or mar- riage of his wife, and not sooner. He gave all his other lands in trust for sale, the rents s. c. B. — 49 and proceeds to be at his wife's disposal while unmarried, and after her death or marriage all his personal property and estate remaining was to be equally divided among his children ; provided always, that in the event of any child dying without issue before coming into possession of his or her share " of the property or money hereby devised or bequeathed," the share of such child should go equally among the survivors and their issue, if any, as shall have died leaving issue. The residuary clause was as follows :—" All other my lands, tene- ments, houses, hereditaments, and real estate," &c. Held, Ritchie, C.J., and Fournier. J., dissenting, reversing the judgment appealed from (Keefer\. McKay, 9 Ont. App. R. 117), that the interest devised to Thomas Avas con- tingent upon his surviving his mother, iler- chants Bank of Canada v. Keener, xiii., 51.5. 29. Devise subject to charge — Legacy to survivor — Contingent interest — Preccnting ivaste.] — Plaintiff was a beneficiary under a will by which the devise was to the testator's wife with a legacy to him provided he sur- vived her and, during her lifetime, he brought suit to protect his legacy against dissipation by the widow. Held, reversing the judgment appealed from, that plaintiff had more than a possibility or expectation of a future interest ; he had an existing contingent interest in the estate and was entitled to have the estate preserved that the legacy might be paid in case of the happening of the contin- gency on which it depended. Duggan v. Dug- gan, xvii., 343. 30. Words of grant — Charge ou realty — Legacy — Residuary devise — Priority — Notice.] — A legacy to B. with residuary devise to A. of " the balance and remainder of the property and of any estate " of the testator constitutes the legacy a charge upon the testator's realty, the words " property " and " estate " being both sufficient to pass realty. Cameron v. Harper, xxi., 273. 31. Construction of will — Devise to creditor — Specific lands — Unascertained chattels — Sa- tisfaction.] — The testator by clause " B " de- vised all his lands in Yorkville, and particu- larly described ira the first schedule, to his son George, his heirs and assigns, together with their actual and reputed appurtenances, or with the same or any part thereof, held, used and occupied or enjoyed, or known, taken or con- sidered as part or parcel thereof, together also with all and all manner of engines, fixtures, utensils and implements, and the appurtenances and stock in trade therein, or in or about the premises at his decease, he or they paying in exoneration of any other estate, any incum- brances which at the time of his decease shall affect the same ; " this devise to be accepted by and to be in full discharge of any and every claim he shall have against my estate at the time of my decease." — Clause ■" L " provided : " And it is my will and desire that, if at any time between the day of the date of this my will and the time of my decease, any sale or other disposition of any of the said lands and premises herein specifically de- vised by me shall be made by me, the con- sideration money received therefor in money or otherwise, to the amount thereof, or the value thereof, shall be a charge upon the whole of my real estate, and shall become due and pay- able to the devisee to whom the said land is herein specifically devised, or to his or her heirs,, executors, administrators or assigns. 1539 WILL. 1540 within five years after my decease, with inter- est after the first year of my decease, the securities (if any) received in part or whole payment of such consideration, if any being at the time of decease, to be transferred, con- veyed and assigned to the said devisee, his or her executors, administrators or assigns, and to be by him, her or them received as to the amount then owing thereon in part or in whole payment of the said consideration money as the case shall be." — Between the making of the will and his death, the testator sold his properties specifically devised by clause " B," comprising a brewery and stock and plant therein, to his son George, the purchase money being $33,987.20 and it was contended that, to the extent of this sum, $33,987.20, the appellant (his son George), was entitled, under clause " L " to a charge upon the estate. Held, reversing the judgment appealed from (18 Ont. App. R.T25), Gwynne, J., dissent- ing, that the devise of the lands was not sup- erseded. — But the appellant was not entitled to the value of the stock and plant in the brewery, in the event of their sale to him in the testator's lifetime, because what was given to him was not, as in the case of lands, certain specific ascertained property, but only fluctuating and unascertained property, that is, such property as should be on the premises at the time of the testator's decease. Appeal allowed with costs of all parties out of the estate. Severn v. Archer, Cass. Dig. (2 ed.) 875. 32. Construction — Devise to children and their issue — Per stirpes or per capita — Sta- tute of Limitations — Possession.'} — ^Under the following provision of a will " When my be- loved wife shall have departed this life and my daughters shall have married or departed this life, I direct and require my trustees and executors to convert the whole of my estate into money . . . and to divide the same equally among those of my said sons and daughters who may then be living, and the children of those my said sons and daughters who may have departed this life previous thereto :" — Held, reversing the judgment ap- pealed from (18 Ont. App. R. 25), Ritchie, C.J., dissenting, that the distribution of the estate should be per capita and not per stirpes. — A son of the testator and one of the executors and trustees named in the will was a minor when his father died, and after com- ing of age he never applied for probate though he knew of the will, and did not disclaim. With the consent of the acting trustee he went into possession of a farm belonging to the estate, and remained in possession over twenty years, and until the period of distri- bution under the clause set out arrived, and then claimed to have a title under the Statute of Limitations. Held, affirming the decision appealed from (18 Ont. App. R. 25), that as he held under an express trust by the terms of the will the rights of the other devisees could not be barred by the statute. Hough- ton V. Bell, xxiii., 498. [In the court below the case is reported sm6 mom. Wright v. Bell.} 33. Devise — Death of testator caused iy de- visee — Felonious act — Nullum commodum ■potest de injurid sud propriA.} — No devisee can take under the will of a testator whose death has been caused by the criminal and felonious act of the devisee himself, and in applying this rule no distinction can be made between a death caused by murder and one caused by manslaughter. The judgment ap- pealed from (21 Ont. App. R. 560, sub nam. McKinnon v. Lundy) reversed, Taschereau, J., dissenting. Lundy v. Lundy. xxiv., 650. Cf. Standard Life Assurance Co. v. Trn- deau (Q. R. 9 Q. B. 499, 31 Can. S. C. R. 37t)), Insubakce, Life, 1, at col. 698, supra. 34. Legacy — Bequest of partnership busi- ness — Acceptance by legatee — Right of legatee to an account.} — J. and his brother carried on business in partnership for over thirty years, and the brother having died, his will contained the following bequest : " I will and bequeath unto my brother J., all my interest in the business of J. & Co., in the said City of St. Catharines, together with all sums of money advanced by me to the said business at any time, for his own use absolutely forever, and I advise my said brother to wind up the said business with as little delay as possible." Held, affirming the decision of the Court of Appeal, that J. on accepting, the legacy was under no obligation to indemnify the testa- tor's estate against liability for the debts of the firm in case the assets should be insuffi- cient for the purpose and did not lose his right to have the accounts taken in order to make the estate of the testator pay its share of such deficiency. Robertson v. Junkin, xxvi., 193. 35. Words of futurity life estate — Joint lives — Time for ascertainment of class — Sur- vivor dying without issue — -" Lawful heirs."} — A devise of real estate to the testator's wife and only child for their joint lives, with estate for life to the survivor and remainder in fee to his lawful heirs, is not evidence of intention upon the part of the testator to ex- clude the child from the class entitled to the fee, in case such child should survive the testator. Judgment appealed from (23 Ont App. R. 29) affirmed. Thompson v. Smith, xxvii.. 628. 36. " Own right heirs " — Limited testa- mentary power of devisee — Conditional limi- tations — Vesting of estate.} — Under a devise to the testator's " own right heirs " the bene- ficiaries would be those who would have taken in the case of an intestacy unless a contrary intention appears, and where there was a de- vise to the only daughter of the testator con- ditionally upon events which did not occur, and, under the circumstances, could never happen, the fact of such a devise was not evidence of such contrary intention and the daughter inherited as the right heir of the testator. Judgment appealed from (24 Ont. App. R. 61) sub nom. In re Ferguson; Ben- nett V. Coatsworth, afSrmed. In re Ferguson; Turner v. Bennet; Turner v. Carson, xxviii., 38. 37. Construction of statute — H c6 15 Vict, c. 6 (Can.) — Devise to heirs — Abolition of law of primogeniture.} — The Act 14 & 15 Vict. c. 6 (Can.) abolishing the law of primogeniture in Upper Canada, placed no legislative interpretation on the word "heirs." Therefore, where a will made after it was in force devised property on certain contingencies to " the heirs " of a person named, such heirs were all the brothers and sisters of said per- son and not his eldest brother only. Judg- ment of the Court of Appeal (25 Ont. App. K. 326) affirmed. Wolff v. Sparks, xxix., 585. 1541 WILL. 1543 38. Condition of legacy — Religious Uherty — Piiilic policy — Restrictions as to marriage — Education — Eacclusion from succession.] — In the Province of Quebec the English law rules on the subject of testamentary disposi- tions, and,, therefore, in that province, a testa- tor may validly impose as a condition of a legacy to his children and grandchildren, that marriages of the children should be celebrated according to the rights of any church recog- nized by the laws of the province, and that the grandchildren should be educated accord- ing to the teachings of such church and may also exclude from benefit under his will any of his children marrying contrary to its pro- visions and grandchildren born of tlie forbid- den marriages or who may not have been edu- cated as directed. Renaud y. Lamothe, xxxii., 357. 39. Devise for life — Remainder to devisee's children — Estate tail.'\ — Land was devised to D. for life " and to her children if any at her death," if no children to testator's son and daughter. D. had no children when the will was made. Held, that the devise to D. was not of an estate in tail, but on her death her children took the fee. Grant v. Fuller, xxxiii., 34. 40. Condition in will — Devise of real estate — Restraint on alienation.] — A devisee of real estate under a will was restrained from sell- ing or incumbering it for a period of twenty- five years after the testator's death. Held. reversing the judgment appealed from, that as the restraint, if general, would have been void the limitation as to time did not make it valid. Blackburn v. McCallum, xxxiii., 65. 41. Deit by devisee to testator — Devise of all testator's property — Chose in action.] — A devise of all " my real estate and property whatsoever and of what nature and kind so- ever " at a place named does not include a debt due by the devisee, who resided and car- ried on business at such place, to the testator ; (4 Ont. L. R. 682, affirmed). Thome v. Thome, xxxiii., 309. [In the court below the case is reported sub mm. Thome v. Parsons.] 42. Construction of devise — Joint tenants — Tenants in common — Partition — Evidence — Abolition of joint tenancies.] — A devise to tes- tator's two sons, their heirs, &c., provided that the devisees should jointly and in equal shares pay testator's debts and the legacies in the will. There were six legacies of £50 each to other children of the testator, and these were to be paid by the devisees at the expiration of 2, 3, 4, 5, 6 and 7 years respectively. The estate vested before the statute abolishing joint tenancies in Nova Scotia came into ope- ration. Ileld, reversing the judgment appealed from (21 N. S. Rep. 378), Taschereau and Gwynne, JJ., dissenting, that these provisions tor payments of debts and legacies Indicated an intention on the testator's part to effect a severance of the devise and the devisees took as tenants in common and not as joint tenants. Visiter V. Anderson (4 Can. S. C. R. 406) followed. — On the trial of a suit between per- sons claiming through the respective devisees tor partition of the real estate so devised evi- dence of a conversation between the devisees, which plaintiff claimed would shew that a severance was made after the estate vested, was tendered and rejected as being evidence to assist in construing the will. Reld, Gwynne, J., dissenting, that it was properly rejected. Held, per Gwynne and Patterson, JJ., that the evidence might have been received as evi- dence of a severance between the devisees themselves if a joint tenancy had existed. Clarh v. Clarh, xvii., 376. 43. Devise of remainder — Survival of ten- ant for life — Possession — Decease of re- mainderman — Estate of inheritance — Owner in fee — Statute of Limitations.] ■ — On ap- peal from a judgment of Rose. .T.. affirmed by the Divisional Court, the judgment of the Court of Appeal for Ontario recited in effect, that action was for a declaration that plaintiff had an estate in fee simple in re- mainder in lands subject to an estate in de- fendant H. for the life of defendant R. De- fendants denied any title whatever in plain- tiff, and relied on actual possession and title by Statute of Limitations. — That on 4th June, 1844, W. R. conveyed the whole of lot 55, . . . Spadina avenue, Toronto, to J. H. and S. H. in fee simple, as tenants in com- mon, and the conveyance was duly registered. —On 14th August, 1846, J. H., by his will, devised to his wife, Anne, for life or widow- hood all his real estate, " consisting of the N. % of lot 55." The will then proceeded : " The above named property left to my wife at the end of her natural life, or when she become married again, I then will and be- queath to my brother S.H. during his natural life, and then at the expiration of that time it is to go to my heir. I also will and be- queath to my heir one sterling shilling. I hereby appoint my brother Simon sole execu- tor." — J. H. and S. H. were step-brothers without any blood relationship between tnem. — J. H. died in 1847 leaving his wife Anne surviving him, and there is no evidence who was his heir-at-law. It was agreed by coun- sel on the argument that no one has ever come forward to claim the property as heir. — On the death of J. H. his widow A. H. went into possession until hev death in June, 1856. — On the 12th May, 1854, S. H. made his will as follows : " I give all my property real and personal to my wife Eliza to be enjoyed by her during her natural life, and after her death I give to my adopted son G. W. and his heirs one-half of the lot that I own on Spadina avenue together with the house erect- ed on the said half -lot in which I now reside ; and the other half of the said lot with the house erected on the last mentioned half lot I give, devise and bequeath to W. and P. H., the sons of R. H., and their heirs after the death of my said wife. In this last mentioned half lot I have an estate in remainder expect- ant upon the death of Anne H. who has a life estate in the same." He died m January, 1885, leaving him surviving not only his own wife Eliza, but also the widow of J. H. — Anne H. died in June, 1856, and upon her death Eliza H. took possession, and some time afterwards married again a man named A R.— On 8th November, 1867, R. and his wife leased the land for fifteen years to P., reciting that S. H. had been seized thereof in his lifetime, and by his will had devised the same to his wife for her natural life, and on 15th December, 1870, this lease was assigned to A R., the husband, having died, his widow on 1st September. 1873, made another lease of the whole lot 55 to the same C. for the term of her natural life. In the ease the land is designated as more particularly described in the deed from W. R. to S. H. ot 1543 WILL. 1544 3rd June, 1844, and recited that the lessor's former husband, S. H., had by will devised the land to her for her life. This lease was sur- rendered, and on 16th October, 1882, Mrs. K. made a new lease of the whole lot for the term of her natural life to M. M., describing the land in the same manner and with the same recitals as the lease of September, 1873, to C. — In 1882 and 1884 respectively plaintifE acquired by purchase the estates in remainder of W. and P. H., named in the will of S. H. as devisees in fee after the deaith of Mrs. H., and in 1888 he was negotiating with Mrs. K. for a conveyance of her life estate, and a quit claim deed to plaintifE Was prepared and approved of by Mrs. R.'s solicitors, but was not executed. — On 22nd September, 1888, Mrs. R. by deed, expressed to be for $5,000, convey- ed the whole lot 55 in fee to her co-defendant H., reciting that about February, 1855, she entered into adverse possession thereof, and has ever since demeaned herself as owner thereof, and continued and is now in undis- puted possession and occupation of the same, whereby her title thereto has become absolute and indefeasible. — Action was brought on 22nd October, to determine the rights of the parties. — The parties signed admissions of the facts to the effect stated above, with this qualification. The first admission is : " That J. H. was in his lifetime the owner in fee of N. Vo of lot 55. plan D 10, on W. side Spadina avenue. Toronto, which is the land mentioned in plaintiff's statement of claim." The deed of the whole lot to both J. H. and S. H. as tenants in common in fee was not produced or referred to. This admission without any- thing further might well be taken to mean that J. H. was the sole owner of this land in his lifetime and at the time of his death, and accordingly the case was argued before the trial judge upon that footing, and upon this supposition that when S. H. made his will he had no title or interest in the land but what he derived under the will of J. H., viz., a life estate expectant on a prior life estate in Anne H., and that having predeceased her he had nothing to devise, and that nothing did or could pass to any one by his will. Under these circumstances the question was whether, although nothing could pass by her husband's will, Mrs. R. (or H.l having entered and occupied as tenant for life under the will, was not estopped as against the plaintiff from de- nying that her husband had title, and whether she could set up the Statutes of Limitations against the plaintiff's estate in remainder. — Rose, J., held that defendants were estopped, and gave judgment for the plaintiff, from which defendants appealed to the Divisional Court. — While the case was before the Di- visional Court the conveyance of 1844 was, at the suggestion of the court, produced in evidence, and that court expressing no dis- sent from the grounds on which Rose, J., had disposed of the case, held that it was manifest from the deed that Mrs. R.'s pos- session was under the will of her husband and that she could not be allowed to set up the Statutes of Limitations against the plain- tiff claiming under the same will. — On the next appeal the argument of appellant was that S. H. having no title but a life estate, expectant on a prior life estate in Anne H.. and having predeceased her. had no in- terest whatever which he could dispose of by his will, and that when Mrs. J. H. died S. H.'s widow could get nothing, not even pos- session by virtue of her husband's will, that she could take possession like any stranger. and if she did no one could turn her out but J. H.'s heir-at-law, that just as she could get nothing under the will so neither could V/ . and P. H., or the plaintifE claiming under them, and unless he could shew some title from J. H.'s heir-at-law, he must fail. The Court of Appeal thought the first question was whether upon the evidence, as it then was, S. H. had any title when he made his will and when he died, quite independently of J. H.'s will. — That the admissions of title to J. H. in his lifetime, read in the light of the deed of 1844, under which his title was ac- quired, shews that while it was the fact that J. H. had title there was also title to S. H., and that the latter had an estate in the land at the time of his death which passed by his will to his widow (now Mrs. R.), for life with remainder in fee to W. and P. H., who con- veyed to plaintitf; that the judgment might well be supported on the ground on which it was rested by the trial judge, on the suppo- sition that S. H. had no title when he made his will or when he died, but only a life es- tate. On that supposition this case is not dis- tinguishable from Board v. Board (L. R. 9 Q. B. 48), and was not affected by Re String- er's Trusts (6 Ch. D. 1), because it is dis- tinguishable for the reasons explained by the Chancellor in Smith v. Smith (5 Ont. R. 695) Clarke v. Adie (2 App. Cas. 435V. — The judg- ment in favour of plaintifE was affirmed. Held, as to the first ground taken by the Court of Appeal, that the evidence did not support it, for by the case in which the action was launched and by the admissions of counsel, as well as by the direct statement of S. H.'s will, J. H. owned the N. % of the lot. As to the second ground, that S. H. when he died having no estate or interest in the property which could pass by his will or any posses- sion, his widow entered as a stranger, and ad- versely to the heirs of J. H. ; that the state- ments in the leases, which were statements made to strangers, could not prevent the sta- tute from running in her favour against the heirs of S. H., much less to give title to parties who would have taken in remainder under S. H.'s will, if S. H. had owned in fee, or had had such possession as would have raised a presumption of ownership in fee ; and therefore there was no ease calling for any in- terference of the court to make a declaration as to the title of the lot in favour of the plaintiff as against the defendants : — Per Pat- terson, J. The judgment of the Court of Ap- peal proceeds upon grounds which would be of force if S. H. had died seized as did the testator in Board v. Board (L. R. 9 Q. B. 48), or had had possession so as to give ope- ration to the principle of Asher v. Whitloch (L. R. 1 Q. B. 1), or had title of any kind as in Paine v. Jones (L. R. 18 Eq. 320). — Appeal allowed with costs. Hayes v. Coleman, cf. Cass. Dig. (2 ed.) 833. 43 a. Will — Legacy — Trust — Claim on assets ■ — Priority — Registration — Charge on realty — Notice.] — H. and his brother were partners in business ; the latter died and H. became by will his executor and residuary legatee. Part of a legacy- to B. H. was paid and judgment recovered against the exe- cutor for the balance. H. having incumbered both his own share and that devised to him, one of his creditors, mortgagee of the pro- perty, obtained judgment against him and the appointment of receivers to his estate. E. H. asked to have it declared that his judgment for balance of legacy was a charge upon the 1545 WILL. moneys in the receivers' hands in priority to the personal creditors of H.. Held, affirming the Supreme Court (B. C), that the moneys held by the receivers being personal assets of the testator, or proceeds thereof, B. H. was entitled to priority of payment though his judgment was registered after those of the other creditors. Held, also, that the legacy was a charge upon the realty of the testator, the residuary devise being of "the balance and remainder of the property and of any estate " of the testator, and the words " pro- perty " and " estate " being both sufficient to pass realty. This charge upon realty operated against the mortgagees, who were shewn to have had notice of the will. Cameron v. Harper, xxU, 273. 44. Donation — Snistitution — Partition — Usufruct — Alimentary allowance — Accretion between legatees. See No. 18, ante. 45. Estates tail — Effect of abolishing Acts — Construction of will — Executory devise over — Dying without issue — " Lawful heirs " — " Heirs of the body " — Estate in remainder expectant — Statutory, title — Title by will — Conveyance by tenant in tail. See No. 19. ante. 46. Codicil — Testamentary succession— " Heir " — Universal legatee. See No. 20, ante. 4. Execution of Will. 47. Form—Holograph will executed abroad —Locus regit actum — Lex domicilii — Lex rei sitm — Legacy — Discretion of trustee — Vague- ness or uncertainty as to beneficiaries — Poor relatives — Public Protestant charities — Chari- table uses — Right of intervention — Persona designata.] — In 1865 J. G. R.. a merchant, then and at the time of his death domiciled in the City of Quebec, while temporarily in the City of New York made the following will in accordance with the law relating to holo- graph wills in Lower Canada : " I hereby will and bequeath all my property, assets or means of any kind, to my brother Frank, who will use one-half of them for public Protestant charities in Quebec and Carluke, say the Pro- testant Hospital Home, French Canadian Missipn, and amongst poor relatives as he may judge best, the other half to himself and for his own use, excepting £2,000, which he will send to Miss Mary Frame. Overton Farm." A. R. and others, heirs-at-law of the testator, brought action to have the will declared in- vaUd. Held, Taschereau, J., dissenting, that the will was valid. Held, further, Fournier and Taschereau. JJ., dissenting, that the rule locus regit actum was not, in the Province of Quebec, before the Code, nor since under the Code itself (art. 7), imperative, but permis- sive only. Held, also, Taschereau, J., dis- senting, that the will was valid even if the rule locus regit actum did apply, because it sufficiently appeared from the evidence that by the law of the State of New York the will would be considered good as to moveables wherever situated, having been executed ac- cording to the law of the testator's domicile, *?"1 good as to immoveables in the Province °i Quebec, having been executed according to tfle law of the situation of those immoveables. 1546 atI • A n*^''"" interventions were filed by Morrin College, an institution where youth are instructed in the higher branches of learn- ing, and especially young men intended for the ministry of the Presbyterian Church in (^anada, who are entitled to receive a free general and theological education, and are as- sisted by scholarships and bursaries to com- plete their education ; by the Finlay Asvlum a corporate institute for the relief of the' aged and inhrm, belonging to the communion of the Church of England; and by W. R., a first cousin of the testator, claiming as a poor rela- tive. _ Held, that Morrin College did not come within the description of a charitable institu- tion according to the ordinary meaning of the words, and had therefore no locus standi to intervene ; Sedgewick. J., dissenting ; but that i inlay Asylum came within the terms of the will as one of the charities which F. R. might select as a beneficiary, and this gave it a right to intervene to support the will. Held. further, that in the gift to " poor relatives " the word " poor " was too vague and uncer- tain to have any meaning attached to it, and must therefore be rejected, and the word relatives " should be construed as excluding all except those whom the law. in the case of an intestacy, recognized as the proper' class among whom to divide the property of a de- ceased person, and W. R. R. not coming within that class his intervention should be dismissed. Held, per Fournier and Taschereau, JJ., that the bequest to " poor relatives " was absolute- ly null for uncertainty. In the result the judgment appealed from (Q. R. 2 Q. B. 413) was affirmed, both the appeal and a cross-ap- peal being dismissed with costs. Ross v. Ross, XXV., 307. 48. Undue influence — Evidence.]' — In order to set aside a will on the ground that its exe- cution was obtained by undue influence on the mind of the testator it is not sufficient to shew that the circumstances attending the execu- tion are consistent with the hypothesis that it was so obtained. It must be shewn that they are inconsistent with a contrary hypo- thesis. Judgment appealed from (3 B. C. Rep. 513) affirmed. Adams v. McBeath. xxvii., 13. 49. Testamentary capacity — Form of will — Instructions for drafting. See No. 3, ante. 5. POWEBS. 50. Prohibition to alienate — Art. 972 C. C. — Art. 559 G. C. P. — Legacies exempted from seizure.] — The wife devised all her property to her children as universal legatees, subject to very extensive powers of administration and also to power to alter the disposition in favour of the children conferred by a subsequent clause to her husband as executor who was re- lieved from making an inventory and Tender- ing an account. The will also provided that the property so bequeathed should be exempt from seizure save for debts due by her estate. The husband, in his quality of testa- mentary executor and administrator, indorsed accommodation promissory notes' signed by C. L., one of the children, and the bank, respon- dent, as holder for value, obtained judgment against both the maker and indorser. An execution issued against the husband as execu- 1547 WILL. 1548 tor and certain real estate of the testatrix wliich lie lield in his said capacity, was seized and advertised for sale. The appellants, the children of the testatrix and the executor, de- fendant, opposed the sale on the ground that the property was insaisissable. Held, revers- ing the judgment appealed from (26 L. C. Jur. 271), Taschereau and Gwynne, J J., dis- senting, that the indorsement of accommoda- tion notes was not authorized by the will, and that the clause in the will exempting the pro- perty of the testatrix from execution was valid and effectual. Lionais v. Molsons Bank, x., 52G. 51. Powers of exectttors — Promissory note — Advancing legatee's share.} — M.. who was a merchant, by his will gave special directions for the winding up of his business and the division of the estate among a number of his children as legatees and gave to his executors, among other powers, the power " to make, sign and indorse all notes that might be re- quired to settle and liquidate the affairs of his succession." By a subsequent clause in his will he gave his executors " all necessary rights and powers at any time to pay to any of his said children over the age of 30 years the whole or any part of their share in his said estate for their assistance either in es- tablishment or in case of need, the whole ac- cording to the discretion, prudence and wis- dom of said executors," &c. In an action against the executors to recover the amount of promissory notes given by the executors and discounted by them as such in order to secure a loan of money for the purpose of advancing the amount of his legacy to one of the children who was in need of funds to pay personal debts. Held, affirming the judgment appealed from, that the two clauses of the will referred to were separate and distinct provisions which could not be construed to- gether as giving power to the executors to raise the loan upon promissory notes for the purpose of advancing the share of one of the beneficiaries under the will. Banque Jacques- Cartier v. Gratton, xxx., 317. 52. Mortgage iy testator — Foreclosure — Decree for sale — Conveyance iy purchaser — Assignment of mortgage — Statute confirming sale— 5 Geo. 11. o. 7 {Imp.) — R. 8. N. 8. U ser.) c. S6, s. 47.]-— A. M. died in 1838 and by his will left real estate to his wife, M. M., for her life, and after her death to their children. At his death there were two small mortgages on the real estate to one T. which were subse- quently foreclosed, but no sale was made un- der the decree on foreclosure. In 1841 the mortgages and interest of the mortgagee in the foreclosure suit were assigned to one TJ. who, in 1849, assigned and released the same to M. M. In 1841 M. M.. administrator with will annexed of A. M., filed a bill under 5 Geo. II. c. 7 (Imp.), for the sale of this real estate to pay debts of the estate, she having previously applied to the Governor-in-Council, under a provincial statute, for leave to sell, which was refused. A decree was made and the lands sold, M. M. becoming purchaser. She afterwards conveyed the lands to the Commissioners of the Lunatic Asylum and the title passed, by various Acts of the Legisla- ture, to the defendants. M. IC, devisee under the will of A. M., brought ejectment for re- covery of the lands, and contended that the sale under the decree was void, inasmuch as the only way in which land of a deceased per- son can be sold in Nova Scotia is by petition to the Governor-in-Council. The validity of the mortgages and of the proceeding in the foreclosure sale were also attacked. The ac- tion was tried before a judge without a jury and a verdict was found for defendants, which the Supreme Court refused to disturb. ffeW affirming the judgment appealed from (6 Russi & Geld. 92), that even if the sale under the decree in the chancery suit was invalid, the title to the land would be outstanding in the mortgagee, T., or those claiming under her, the assignment of the mortgages being merely a release of the debts and not passing the real estate, and the plaintiff, therefore, could not recover in an action of ejectment. — SemMe, that such sale was not invalid but passed a good title, the statute 5 Geo. II. c. 7, being in force in the Province. Henry. J., duhitaiite. —Held also, that the statute R. S. N. S. (4 ser.) c. 36, s. 47. vested the land in defendants if they had not a title to the same before. Henry, J., dubitante. Kearney v. Oreelman, xiv., 33. [The Privy Council refused leave to appeal from this judgment.] 53. Powers of executors — Breach of trust — _ ale of wild lands — Excess of estimate — Specific performance. 1 — Executors were au- thorized by will to sell such portion of the real estate as they in their discretion should think necessary to pay off a mortgage and such debts as the personal estate would not discharge. They offered for sale at auction a lot described as "sixty acres (more or less) section 78, Loch Epd Farm, Victoria Dis- trict," and giving the boundaries on three sides. The lot was unsurveyed and offered for sale by the acre, an upset price of $35 being fixed. By the conditions of sale a survey was to be made after the sale at the joint expense of vendors and purchaser. — S. purchased the lot for $36 per acre and on being surveyed it was found to contain 117 acres. The execu- tors refused to convey that quantity, alleging that only some $2,000 was required to pay the debts of the estate, and refused to execute a deed of the 117 acres tendered to S. In a suit by S. for specific performance of the contract for sale of the whole lot. Held, reyersiig the judgment appealed from and restoring that of the judge on the hearing (2 B. C. Rep. 67), Gwynne, J., dissenting, that S. was entitled to a conveyance of the 117 acres, and that the executors would not be guilty of a breach of trust in conveying that quantity. Sea v. Mc- Lean, xiv., 632. 54. Clause prohibiting husband interfering — Power of attorney to act for icife as execu- trix and legatee — Removal for waste — Fraudulent administration — Rejection of evi- dence.] — ^An action to remove executrix. Ap- pellant is the sole surviving executrix of the will of the late J. B., and the appellant and the respondent are the remaining legatees un- der the will. The respondent complained: — 1st. Appellant had given a power of attorney to her husband to manage the estate in viola- tion of the terms of the will; 2nd. Fraud in charging the estate with sums not legally chargeable to the estate ; in charging a commis- sion to remunerate her husband for the man- agement of the estate, while payingone T. a commission for the same services ; in taking bonuses for certain leases granted ; in making a fraudulent lease to C. at a notoriously insuffi- cient rent to the injury of the estate ; in agree- ing to pay $1,200 to H. and T. for cancella- 1549 WILL. 1550 tion of the lease of part of the estate; 3rd. Waste in pulling down and erecting buildings on the estate. — ^Appellant denied waste and fraud, and maintained that she had a right to give her husband a power of attorney. — ^As to the first point respondent relied on these words : " And it is furthermore my will and wish, that neither of the husbands of any of said daughters nor any of my daughters' future husbands, shall have any power over, control or interference in any manner, with the foregoing devise and bequest to them, but shall be as absolutely free from such power, control or interference as if they had re- mained unmarried and single." — Appellant complained that the testimony of her husband had been excluded, and that it was competent to the court to allow her husband to be ex- amined. (Art. 252 0. 0. P.; 35 Vict. c. 6, s. 9.) — The Superior Court, while admitting that under the will the husband could act as his wife's attorney, removed appellant, on the grounds that the administration of the estate had been fraudulent and wasteful, that the lease to C. had been imprudent and looked fraudulent, that in the receipt of bonuses by her husband there had been fraud, for which she was liable, and there had been other irre- gular transactions. — The Queen's Bench held that it was competent for the appellant under the will to appoint her husband her general attorney and agent ; that the trial judge not having admitted the husband's evidence, un- der the circumstances it would not be the duty of the court, even if it had the power, to send back the record to allow him to be ex- amined; that removal of a'n executrix, daugh- ter of the testator, herself a legatee, ought not to be ordered on evidence of small payments, which might have been avoided ; that payment of a commission to her husband for appreci- able services, such as collections, would not be ground for removing the executrix selected by the testator ; but aflBrmed the judgment on account of the transaction with C. and the taking of bonuses on several occasions without accounting for them. — ^On appeal, Held, af- firming the judgment appealed from (Q. R. 2 Q. B. 413), that the transaction with C. was sufficient cause for removal and that the evi- dence of the husband on behalf of his wife had been properly rejected. Boss v. Boss, Cass. Dig. (2 ed.) 306. See also 5 Legal News 197 ; 7 Legal News 65; 16 Legal News 92; the judgment of the court below being varied. 55. Donation mortis oausd, — Future succes- sion — Illegal consideration — Batification iy wUl — Power of executor — Seizin. See Donation, 3. 6. Revocation and Revival. 56. Codicil — Intention to revive — Befer- ence to date — Bemoval of executor — -Statute of Mortmain — Will executed under mistake — —Ontario Wills Act, B. S. O. (1887) c. 109 —9 Geo. II., c. 36 (/mp.)] — A will which has been revoked cannot, since the passing of the Ontario Wills Act (R. S. O. [1887] c. 109), be revived by a codicil unless the intention to revive it appears on the face of the codicil either by express words referring to the will as revoked and importing such in- tention, or by a disposition of the testa- tor's property inconsistent with anv Qther_ intention, or by other expressions conveying to the mind of the court, with reasonable certainty, the existence of the intention in question. — A reference in the codicil to the date of the revoked will, and the removal of an executor named therein and substitution of another in his place will not revive it. Held, per King, J., dissenting, that a codicil referring to the revoked will by date and re- moving an executor named therein is sufiici- ent indication of an intention to revive such will, more especially when the several in- struments are executed under circumstances shewing such intention. Held, per Gwynne and Sedgewick, JJ., that the Imperial Sta- tute, 9 Geo. II.. c. 36 (the Mortmain Act), is in force in the Province of Ontario, the courts of that province having so held (Doe d. Anderson v. Todd, 2 U. C. Q. B. 82 ; Cor- poration of Whitby v. Liscombe, 23 Gr. 1), and the legislature having recognized it as in force by excluding its operation from acts authorizing corporations to hold lands. Held, per Gwynne, J., that a will is not invalid be- cause it was executed in pursuance of a so- licitor's opinion on a matter of law which proved to be unsound. [The appeal from the judgment of the court below (20 Ont. App. B. 536, sub nom. Purcell v. Bergin) was dis- missed and the cross-appeal was allowed with costs.] Macdonell <,'. Purcell; Clearg v. Pur- cell, xxiii., 101. 7. Other Cases. 57. Estate in fee contingent — Executory devise over — Conditional estate — Dying with- out issue — Bevocation — Ejectment — Statute of Limitations — Acceptance of deed by person in possession — Estoppel — Interruption of sta- tute — Question not raised at trial.l — In 1830 J. G. took possession of east half of lot 13 in the 1st concession of East Hawkesbury. He resided on the west half of the lot with his sons, and occasionally assisted in working the whole lot, until his death, which occurred in 1857. In 1847-48, while his son Adam was working the east half and in possession, J. G. devised it to him by will, and the land was known as " Our Adam's." In 1857 J. 6. made a second will, in which he devised it to his son John, and in case John should die without leaving any lawful issue or child- ren of such issue surviving him, then in such ease to his son Thomas, his heirs and assigns, to have and to hold the same at the death of the said John Gray. After the father's death Adam remained in possession, and m 1862 he accepted a conveyance with full covenants for title from John. In 1868. Adam conveyed to A. McC one of the respondents, under whom R., the other respondent, claimed title. In 1874 John died without leaving lawful is- sue and in 1875, Thomas (appellant) brought ejectment against respondents. The_ trial judge found title by length of possession in J G and gave a verdict for plaintiff.— In the Common Pleas the verdict was set aside and iudgment entered for defendants (1 Ont App. R 116) . and this order was affirmed. Neither at the trial nor in term was any question raided as to the effect of John's deed to Adam. The Supreme Court in reversing the judgment of the Court of Appeal for Ontario (1 Ont. App. B 112) : Held, that J. G.. the father, at the time of his death had acquired a title to the lot by length of possession. That, under the will John took an estate in fee, with an exe- ontn ry devise over to Thomas, in the event 1551 WILL. 1552 hat happened of John dying without leaving awful issue. — That Adam, having recognized, n 1862, John's interest in the land by pur- ihasing from him, by deed of bargain and sale, I limited and contingent estate, its effect was stop the running of the statute, and the re- ipondents could not set up Adam's possession mder John to defeat the contingent estate. —That the Court of Appeal could not refuse ;o entertain the question as to the effect of lobn's deed, although not raised at the trial lor in term. Oray v. Riohford, ii., 431. 58. Debts of succession — Hypothecated, '.ands — Liability of universal legatee — Spe- yial legatees — Art. 889 C. C] — A testator in lis will provided that all his just debts, funer- il and testamentary expenses be paid by his ixecutors, as soon as possible after his death. By another clause he left to H. in usufruct, ind to his children in property, certain real "State which had been hypothecated for a aebt of $3,000. In a suit to recover the $3,000 ind interest. Held, reversing the judgment ippfealed from (26 L. C. Jur. 79), Strong, J., iissenting, that the direction by the testator to pay all his debts included the debt of $3,000 secured by the hypothec. Held, also, that «hen a testator does not expressly direct a particular legatee to discharge a hypothec on an immoveable devised to him, art. 889 C. C, does not declare such particular legatee liable for the payment of the hypothecary debt with- out recourse against the heir or universal legatee. Harrington v. Corse, ix., 412. 59. Substitution — Devise by institute — Transfer of interest — Sale of rights — Rever- sion.'] — In 1871 C. Z. D.. institute under a will of J. D., died without issue, and by his will made defendant his universal legatee. Plaintiff claimed a share in the estate of J. D. under assignment by defendant to him in 1862 of all right, title and interest in the es- tate. Held, that plaintiff did not acquire by the. deed of 1862 defendant's title or interest in anv portion of C. Z. D.'s share under the will of 1871. Held, further, that under the will of J. D.. C. Z. D.'s share reverted either to the surviving institutes or to the substi- tutes, and that all defendant took under the will of C. Z. D. was accrued interest on cap- ital of the share at the time of his death. Dorion v. Dorion, xx., 430. See Account, 4. CO. Construction — Division of estate — Right to postpone.'] — T. P. F. who, in part- nership with his brother J. F.. carried on business as manufacturers of boots and shoes in Montreal, by his last will left all his pro- perty and estate to be equally divided be- tween his two brothers, M. W. F., the appel- lant, and J. F., the respondent. The will contained also the following provision: — " But it is my express will and desire that nothing herein contained shall have the ef- fect of disturbing the business now carried on by my said brother Jeremiah and myself, in co-partnership under the name and firm of Fogarty & Brother, should a division be re- quested between the said .Jeremiah Fogarty and Michael William Fogarty. should the lat- ter not be a member of the firm, for a period of five years, computed from the day of my death, in order that my brother, the said Jeremiah Fogarty. may have ample time to settle his business and make the division con- templated between them and the said Michael William Fogarty. and in the event of the death of either of them, then the whole to go to the survivor." T. F. P. died on the 29th April, 1889. On the 30th April, 1889, a statement of the affairs of the firm was made up by the book-keeper, and J. W. and M. W. F., having agreed upon such statement, the balance shewn was equally divided between the parties, viz., $24,146.34 being carried to the credit of M., W. F., in trust, and $24,- 146.34 being carried to J. F.'s general ac- count in the books of the firm. At the foot of the statement a memo, dated 12th June, 1889. was signed by both parties, declaring that the said amount had that day been distributed te them. On the 6th March, 1890, M. W. n. brought an action against J. F., claiming that he was entitled to $24,146.34, with interest, from the date of the division and distribution, viz., 30th April. 1889. J. P. pleaded that un- der the will he was entitled to postpone pay- ment until five years from the testator's death, and that the action was premature. Held, affirming the judgment appealed from, that J. P. was entitled under the will to five years to make the division contemplated, and thai he had not renounced such right by signing the statement shewing the amount due on the 30th April, 1889. Fogarty v. Fogarty, xxil., 103. 61. Vendor and purchaser — Sale of lands — Waiver of objections — Lapse of time — Con- struction of will — Executory devise over — Defeasible title — Rescission of contract.'] — An agreement for the sale and purchase of land contained the provision that the vendee should examine the title at his own expense and have ten days from the date of the agree- ment for that purpose and should be " deemed to have waived all objections to title not raised within that time." Upon the investi- gation of the title by the purchaser it appear- ed that the vendors derived title through one P., a purchaser from one B. S., a devisee under a will by which the land in question was devised by the testatrix to her daughter, the said B. S., and certain other land to an- other daughter ; the will contained the direc- tion that " if either daughter should die with- out lawful issue the part and portion of the deceased shall revert to the surviving daugh- ter," and a gift over in case both daughters should die without issue. At the time of the agreement B. S. was alive and had children. An objection was taken to the title but not within the ten days from the date of the agreement. — The purchasers brought a suit for specific performance, or rescission of the contract. Held, reversing the judgment ap- pealed from (21 Ont. App. R. 183), that al- though B. S. took an estate in fee simple subject to the executory devise over in case she should die without issue living at her death, inasmuch as the purchaser would get a present holding title accompanied by pos- session, the objection taken did not go to the root of the title and was one to which effect could not be given not having been taken within the time limited by the agreement. Armstrong v. Nason; Armstrong v. 'Wright; Armstrong v. McClelland, xxv., 263. 62. Sheriff's deed — Evidence — Proof of heirship — Rejection of evidence — 'New trial — Champerty — Maintenance.'] — A will purporting to convey all the testator's estate to his wife was attacked for uncertainty by persons claiming under alleged heirs-at-law of the testator and through conveyances from them to persons abroad. The courts below held that the will was valid. Held, affirming 1553 WINDING-UP ACT. 1554 such decisions, that as the evidence of the re- lationship of the alleged grantors to the de- ceased was only hearsay and the best evidence liad not been adduced ; that as the heirship at law was dependent upon the alleged heir hav- ing survived his father and it was not estab- lished and the court would not presume that his father had died before him; and that as the persons claiming under the will had no information as to the identity of the parties in interest who were represented in ttie trans- actions by men of straw, one of whom was alleged to be a trustee, and there was no evidence as to the nature of his trust, and there was strong suspicion of the existence of champerty or maintenance on the part of the persons attacking the will, the latter had failed to establish the title of the persons under whom they claimed and the appeal should be dismissed. Judgment appealed from (23 Ont. App. R. 785) affirmed. May v. Jjogie, xxvii., 443. 63. Nomination of executor — Irregular ad- ministration — Cause of removal — Arts. 282, 285, 917 G. C.]— Art. 282 C. C. does not apply to executors chosen by the testator, and in an • action for the removal of one of several ex- ecutors, the existence of a law suit between such executor and the estate he represents_ and the evidence of irregularities in his ad- ministration, but not exhibiting any incapa- .city or dishonesty, are not sufficient cause for his removal. Strong, J., dissenting. Mitchell V. Mitchell, xvi., 722. 64. Right of action by substitute sale of latti gr4v6 — Conversion of freehold — Restora- tion of property as bequeathed — Revendica- tion — Damages — Prescription — A?-*. 2268 G. G. — Bad faith — Evidence. See No. 18, ante, and Substitution 4. 65. Executors and trustee — Breach of trust — Dealing with assets as executor or trustee — Presumption — Breach of trust — Notice — Inquiry. See Trusts, 12. 66. Testamentary succession — Balance due by tutor — Executors — Account, action for — Action for provisional possession — Parties to action. See BxECUTOBS and Administrators, 8. 67. Evidence — Nullified imstruments — Judicial admission — Forged tvill. See Evidence, 49. 68. Succession duties — Exempted property — Provincial bonds — Sale under will — Taxa- tion of proceeds of sale. See Duties. And see Trusts, 6, 9, 14, 15. ■WINDING-UP ACT. 1. Construction of statute — Conflict of laws — Foreign corporation — Winding-up — li^y Vict. c. 23 {D.)—28 d 29 Vict. c. 63 (Imp.)] —The Steel Co. of Canada, incorporated m England under the Imperial Joint Stock Companies Acts, 1862-1867, carrying on busi- ness in Nova Scotia, and having its principal place of business at Londonderry, N. S., was, on the application of the respondents and by consent, ordered to be wound up under 45 Vict. c. 23 (D.). The appellants, creditors of the company, objected to the winding-up order on the sole ground that the Act did not apply to foreign corporations. Held, re- versing the judgment of the Supreme Court of Nova Scotia, Fournier, J., dissenting, that 45 Vict. c. 23 (D.) should not be construed as intended to apply to foreign corporations doing business in Canada. Merchants Bank of Halifax v. Qillespie, x., 312. 2. Objection to order — Notice to creditors —45 Vict. c. 23, s. 2.4.]— It is a substantial objection to a winding-up order appointing a liquidator to the estate of an insolvent com- pany under 45 Vict. c. 23, that such order has been made without notice to the credit- ors, contributories, shareholders or members of the company as required by s. 24 of said Act, and an order so made was set aside, and the petition therefor referred back to the judge to be dealt with anew. — Per Gwynne, J., dissenting, that such an objection is pure- ly technical and unsubstantial, and should not be allowed to form the subject of an ap- peal to this court. Judgment appealed from (13 Ont. App. R. 268) reversed. Shoolbred V. Union Fire Ins. Co., xiv., 624. 3. Liquidation — Insolvent bank — 45 Vict. c. 23—41 Vict. 0. 39.]— Sections 2 & 8 of the Winding-up Act (47 Vict. c. 39, ss. 2, 3) do not apply to banks, but an insolvent bank whether in process of liquidation or not at the time it is sought to bring it under the Winding-up Act, must be wound up with the preliminary proceedings provided for by 45 Vict. c. 23, ss. 99-120. as amended by 47 Vict. c. 39, s. 2. Judgment appealed from (6 Russ. & Geld. 531) reversed. Strong and Gwynne, JJ., dissenting. Mott v. Bank of Nova Scotia. xiv., 650. 4. Insolvent bank — Double liability — The Bank Act — Galls — Contributory — Set-of — R. S. C. cc. 120. i29.]— A contributory of an insolvent bank, who is also a creditor, cannot set-ofiE the debt due to him by the bank against calls made in the course of winding-up pro-' ceedings in respect of the double liability im- posed by the Bank Act. Maritime Bank v. Troop, xvi., 456. 5. Compulsory liquidation — R. S. C. c. 129 — Provincial company — Procedure — Refer- ence to master.] — A company incorporated by the Legislature of Ontario may be put into compulsory liquidation and wound up under the Dominion Winding-up Act, R. S. C. c. 129. — In assigning to provincial courts or judges certain functions under the Winding- up Act, Parliament intended that the same should be performed by means of the ordinary machinery of the court and by its ordinary procedure. It is, therefore, no ground of ob- jection to a winding-up order that the se- curity to be given by the liquidator appointed thereby is not fixed by the order, but is left to be settled by a master.— Judgment appeal- ed from (16 Ont. App. R. 161) affirnied. Shoolbred v. Glarkej In re Vnton Fne Ins. Co., xvii., 265. 6 R S. G. c. 129, s. 3 — Constitutional law Foreign corporations — Liquidation —^ An- cillary proceedi"<7.s.]— Section 3 of Ihe Winding-up Act," Revised Statutes of Canada c 129 which provides that the Act applies to incorporated trading companies doing business 1555 WINDING-UP ACT. 1556 in Canada wheresoever incorporated is intra vires of the Parliament of Canada. — A wind- ing-up order by a Canadian court in the mat- ter of a Scottish company incorporated under the Imperial Winding-up Acts doing business in Canada, and having assets and owing debts in Canada, which order was made upon the petition of a Canadian creditor with the con- sent of the liquidator previously appointed by the court in Scotland as ancillary to the winding-up proceedings there, is a valid order under the Winding-up Act of the Dominion. Merchants Bank of Halifax v. QiUespie (10 Can. S. C. R. 312) distinguished. Judgment appealed from (16 Q. L. R. 79) aflBrmed. Allen v. Banson; In re Scottish Canadian Asiestos Co., xviii., 667. 7. B. S. C. c. 129 — Insolvent lank — Ap- pointment of liquidators — Right to appoint another bank — Discretion of judge.'] — The Winding-up Act provides that the sharehold- ers 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 among such nominees. In the case of the Bank of Liverpool the judge ap- pointed liquidators from among the nominees of the creditors, one of them being the defen- dant bank. Held, affirming the judgment ap- pealed from (22 N. S. Rep. 97) that there is nothing in the Act requiring both creditors and shareholders to be represented on the board of liquidators ; that a bank may be appointed liquidator ; and that if any appeal lies from the decision of the judge in exercising his judgment as to the appointment such discre- tion was wisely exercised in this case. For- sythe V. Bank of Nova Scotia^ In re Bank of Liverpool, xviii.. 707. 8. Possession of hooks iy manager — Re- fusal to delvoer up — Evidence — Findings of fact.'] — G. was manager for the Ottawa dis- trict of a company whose headquarters were in Edinburgh, and head office for Canada, in Toronto. The company having gone into liquidation an order was obtained from the Court of Sessions in Edinburgh for the de- livery of its books by the manager to the liqui- dator or to some person appointed by him. This order not having been obeyed an action was brought by the company to recover pos- session of the books from G. who set up the defence that he had already given them up, and also that the company had no locus standi to maintain the action. After proceed- ings in liquidation were commenced G. was dismissed as manager, whereupon he demand- ed an audit of the books which was commenc- ed but never completed, and G. swore that after handing over the books to the auditors he had never had possession of them. He also swore that they had never been in his control, having been kept in a safe of which a clerk of the company and the new manager alone had the combination. Some time after the audit an agent of the liquidator went to Ottawa to get the books and saw G.. who first agreed but afterwards refused to deliver them up, giving as the ground of his refusal that he was liable for rent of the office, and other debts of the company, and wished to retain what property of the company he had to pro- tect himself. The agent, with tne assistance of G-'s landlord, then obtained access to the office where he saw some books which he took to belong to the company, and a safe in which he believed there were others, but G. coming in refused to allow him to remove them and ejected him from the office. On this evidence the trial judge made an order against G. directing him to deliver to the liquidator all the books and papers of the company in his possession or under his control. This de- cision was affirmed by the Divisional Court and the Court of Appeal for Ontario. Held. that the books having been shewn to have been in the possession of G. at the date of the visit of the liquidator's agent to Ottawa, and the defendant not having attempted to shew what became of them after that date, and his testimony that he did not know what had become of them having been discredited by the trial judge, there was no reason for interfering with the order appealed from. Grant v. British Canadian Lumber Co., xviii., 708. 9. Insolvent 'bank — Joint and several debt- ors — Distribution of assets — Privilege — R. 8. 0. c. 129, s. S2— -Deposit with bank after suspension — Practice — Leave to appeal — Enlargement of time after hearing — Order nunc pro tunc.'] — Held, per Ritchie, C.J., and Taschereau, J., affirming the judgment ap- pealed from (M. L. R. 5 Q. B. 407), Strong and Fournier, JJ., contra, that a creditor is not entitled to rank for the full amount of his claim upon the separate estates of insol- vent debtors jointly and severally liable for the amount of the debt, but is obliged to de- duct from his claim the amount previously received from the estates of the other parties jointly and severally liable therefor. — Pet Gwynne and Patterson. JJ.. that a person who has realized a portion of his debt upon the insolvent estate of his co-debtors cannot be allowed to rank upon the estate (in liqui- dation under the Winding-up Act) of his other co-debtors jointly and severally liable without first deducting the amount he has previously received from the estate of his other co-debtor. Held, also, affirming the judgment appealed from, that a person who makes a deposit with a bank after its sus- pension, the deposit consisting of cheques of third parties drawn on and accepted by the bank in question, is not entitled to be paid by privilege the amount of such deposit. — ^No leave to appeal having been obtained under s. 76 of the "Winding-up Act," after the case had been argued, appellant, with the consent of the respondent, obtained from a judge of the court below an order to extend the time for bringing the appeal, and subse- quently, before the time expired, obtained. nunc pro tunc, an order from the Registrar of the Supreme Court giving leave to appeal in accordance with s. 76. and the order de- clared that all the proceedings had upon the appeal should be considered as taken subse- quently to the order granting leave to appeal. Ontario Bank v. Chaplin; In re Exchange Bank of Canada, xx., 152. 10. Insolvent bank — Bank Act. R. 8. G. c. 120, s. 79 — Lien on assets — Priority of note- holders— 5S Vict. c. SI. s. 5S.] — Under s. 79 of the Bank Act. R. S. C. c. 120. the note- holders have the first lien on the assets of an insolvent bank in priority to the Crown. Strong and Taschereau. JJ., dissenting. Judg- ment appealed from (27 N. B. Rep. 379) varied. Liquidators Maritime Bank v. Re- ceiver-Oeneral of 'New Brunswick, xx.. 695. 11. Contributories — Proceedings of foreign tribunal — Imperial Companies Act, 186Z — Order making calls against past member — 1557 WINDING-UP ACT. 1558 Right of action thereon — Declaration — De- murrer.] — Defendant had been holder of 100 shares in Barned's Banking Co, but had • ceased to be a member before commencement of winding-up. An order for winding-up of said company was made by the Court of Chancery in England, and defendant having been placed upon the list of contributories. pursuant to the provisions of the Winding-up Act, the said court, by an order made 2nd January, 1870, made a call on defendant in respect of his shares in the company, and di- rected him to pay it to one of the official liquidators. — • Subsequently plaintiff com- menced this action in Ontario, and the de- claration being demurred to by defendant, in 1875, the demurrer was disallowed. (36 U. C. Q. B. 256). Afterwards plain tifE amended the declaration as suggested in the judgment then given, by charging defendant distinctly as a past member, and, the amended declaration being again demurred to, on 4th October, 1877, the demurrer was allowed, Wilson, J., dissenting. (40 U. C. Q. B. .435.)— From this decision the company appealed and on 23rd December, 1878, judgment was delivered allowing the appeal. (3 Ont. App. R. 371.) — Defendant appealed to the Supreme Court of Canada, which decided that the liability of defendant to pay the calls was a debt whicb originated at the time he became a holder of the shares, and that the plaintiff was entitled to sue him here for the recovery thereof. — The declaration set out ss. 6, 7, 38, and B.-SS. 1, 2, 3 & 4 of s. 38 ; ss. 74, 75, 79. s.-ss. 4 & 5 ; s. 80 s.-s. 4 ; ss. 81. 83, 93, 98, 102 & 106 of the Companies' Act of 1862 (25 & 26 Vict. c. 89 Imp. ) , that plaintiff was a com- pany duly incorporated and registered in Eng- land under said Act, and limited by shares, and that defendant was holder of 100 shares in. the capital stock of the company, and was, in respect of said shares, a member of the com- pany, and had not ceased to be a member for the period of a year or upwards prior to the commencement of the winding-up therein- after mentioned, and was liable, in respect of the said shares, to contribute as a past mem- ber to its assets in the event of its being wound up and the said company became un- able to pay its debts, and thereupon such proceedings were had in Chancery in England, that it was proved to the satisfaction of said court that the company was unable to pay its debts, and the court was of opinion that it was just and equitable that the company should be wound up, and an order was duly made by said court for winding up the com- pany by the said court, and all things hap- pened and were done necessary to make the said order valid under the said Act. and by other orders of the said court H. W. Ban- ner and J. Young were duly appointed offi- cial liquidators of the company, and by an- other order made as soon as might be after the making of the said order for winding up the company, the said court duly settled the list of contributories to the assets of the com- pany, and thereby declared defendant to be, and settled him on the list as a contributory in respect of the 100 shares as a member or contributory in his own right, and as included in the list of contributories, on 6th Decem- ber, 1867, and afterwards by an order on 2nd January, 1870, the said court made a call upon the defendant of £33 per share in re- spect of 50 of said shares for which defend- ant had been so settled in the list of con- tributories, and a call of £39 10s, per share in respect, of the other 50 shares, and ordered that defendant should, on or before 9th Sep- tember. 1870, or within 24 days after service o| said order, pay said sum of £3,625 to said i±. W. Banner, one of said official liquidators, such sum being by the said order declared to be the amount due from defendant in respect of said calls. And the said order was, before 9th September, duly served upon defendant, and the said Act, during all the time afore- said, was and is still in force, and was and is the law of England; and all things happened and were done, and all times elapsed neces- sary to render defendant liable to pay said money, and to entitle plaintiff to maintain this action for non-payment thereof, and the said sum is equal to $17,642, currency of Can- ada, yet defendant had not paid same, and plaintiff claimed $30,000— To this declara- tion defendant demurred on the grounds : — That it did not shew any facts or circum- stances which, under the laws in force in Ontario, give the plaintiff any right of ac- tion against defendant ; That it did not shew that under the alleged act, or under the law of England, plaintiff had any right of action against defendant : That it appeared by said declaration, that said company was being wound up by the Court of Chancery in Eng- land, and under the authority of the alleged Act in the declaration mentioned, and plain- tiff was not shewn to have power under said Act to sue or bring action for any call made by said court : That it was not shewn that any calls were made on the alleged shares before said order for winding up was made, or that defendant was holder of said shares, or any of them, at the time of making any such calls or that he ever became indebted to plaintiff upon or in respect of said shares, or any of them : That it appeared by said de- claration that defendant had ceased to be holder of any of said shares before the com- mencement of winding up of the company, and that defendant was at most only a past mem- ber : That under the law of Ontario defendant would not be liable for any call made after he ceased to be a holder of said shares, and the declaration did not shew any provision of English law that made him liable to plaintiff for any such call: That it appeared by the English law as set out in said declaration that a past member like defendant was not subject to the same liability as a present member and said declaration did not shew that any debts or liabilities of the company existed to or in respect of which defendant was liable to contribute or in respect of which he could be placed on the list of con- tributories, or that he was liable to contribute anything: That as plaintiff was now suing on a law not in force in Ontario, and claim- ing a liability which did not exist under the laws of Ontario, it was bound to shew that the liability claimed clearly existed under the English law, which it had not done : That it appeared by said declaration that after an order had been made for winding up a com- pany all power in regard to collecting or get- ting in the assets of said company was in- vested in the Court of Chancery, which was a specially appointed tribunal for that pur- pose, and had special and extraordinary pow- ers which could not be enforced in Ontario ; That it appeared that any proceedings had were not final.-and that said court had power to rectify the list of contributories and could at any time remove defendant's name from such list: Also, that said court had power to restore to defendant all or any part of the moneys which he might pay under said order making said calls, and that the English law as presented by said declaration shewed that 1559 WINDIXG-UP ACT. 1560 the proceedings had were not final in their •character like a judgment, and the rights of plaintiff, if any, could be enforced only by said special tribunal, and not by suit at law in Ontario. Held, per Ritchie, C.J., and Fournier and Henry, JJ., (Strong and Gwynne. J J., dissenting), that assuming an action at law will lie for a call, such as was claimed to be due in this case, as plaintiff could not avail itself of s. 109 of " The Com- panies Act, 1862," to declare generally, nor of s. 106 of said Act, making the order con- clusive evidence that the money ordered to be paid was due, for the reason that neither of those sections applies to actions brought in this country ; and as defendant's liability, if any, was not on the order as a final judgment, but was a purely statutory liability of a lim- ited character, it was necessary to allege in the declaration everything required in the statute to fix the limited liability of a past member on defendant, and which allegation, if traversed, plaintiff would be bound to prove, and as the declaration on its face contained no such allegations as shew any such liability of defendant as a nast member, it was there- fore bad. — Per Henry and Taschereau, JJ. That the declaration did not shew any right under the Act in the plaintiff to sue in its own name. — Apneal from the iudgment in the court below (3 Out. App. R. 371) allowed with costs. Reynolds v. Barned'a Banking Go., Cass. Dig. (2 ed.) 170. 12. Contributory — Shares paid for iy trans- fer of property — Adequacy of consideration — Promoter selling property to company — Trust — Fiduciary relation.l — Shares in a joint stock company may be paid for in money or money's worth and if paid for by a transfer of property they must be treated as fully paid up : in proceedings under the Winding-up Act the master has no authority to inquire into the adequacy of the consideration with a view to placing the holder on the list of contribu- tories. — If a promotor purchases property for the company from a vendor who is to be paid by the company when formed, and by a secret arrangement with the vendor a part of the price, when the agreement is carried out, comes into the hands of the promoter, that is a secret profit which he cannot retain ; and if any part of such secret profit consists of paid-up shares of the company issued as part of the purchase price of property, such shares may, in winding-up proceedings, be treated, if held by the promoter, as unpaid shares for which the promoter may be made a contribu- tory. /« re Hess Mfg. Co.; Edgar r. Sloan, xxiii., 644. [Of. Morris v. Union Bank (31 Can. S. C. R. rVAi). No. 24, infra.] 13. Sale hy liquidator — Purchase hy direc- tor of insolvent company — Fiduciary relation- ship— B. 8. C. c. 129, s. 34.]— Upon the ap- pointment of a liquidator for a company being wound up under R. S. C. c. 129 (The Wind- ing-up Act), if the powers of the directors are not continued as provided by s. 34 of the Act their fiduciary relations to the company or its shareholders are at an end and a sale to them by the liquidator of a company is valid. Chatham 'National Banl; v. McKecn. xxiv.. 348. 14. Moneys paid out of court — Order made by inadvertence — .Jurisdiction to compel re-payment— B. S. C. c. 129. ss. 40, Ifl, 97/— Locus standi of Beceiver-Gcncral—55 & 5S Vict. c. 28, s. 2 — Construction of statute.] — The liquidators of an insolvent bank passed their final accounts and paid a balance, re- maining in their hands, into court. It ap- peared that by orders issued either through error or by inadvertence the balance so de- posited had been paid out to a person who was not entitled to receive the money, and the Receiver-General for Canada, as trustee of the residue, intervened and applied for an or- der to have the money re-paid in order to be disposed of under the provisions of the Wind- ing-up Act. Held, affirming the decision of the (Jourt of Appeal for Ontario (24 Ont. App. R. 470), that the Receiver-General was entitled to intervene although the three years from the date of the deposit mentioned in the Winding-up Act had not expired. Held, also, that even if he was not so entitled to intervene, the provincial courts had jurisdiction to com- pel re-payment into court of the moneys impro- perly paid out. Hogaboom v. Beceiver-Gen- eral of Canada; In re Central Banl; of Can- ada, xxviii.. 192. 15. Joint stock company — Irregular organ- ization — Subscription for shares — " The Com- panies Act " — " The Winding-up Act " ■ — Gontributories.] — After the issue of the order for the winding up of a joint stock company incorporated under " The Companies Act." a shareholder cannot avoid his liability as a contributory by setting up defects or illegali- ties in the organization of the company ; such grounds can be taken only upon direct pro- ceedings at the instance of the Attorney- General. Judgment appealed from (Q. R. 8 Q. B. 128) reversed. Common v. MoArthur, xxix., 239. See Company Law, 43. 16. B. C. Companies Amendment Act, 1898 — Winding-up order — B. C. Companies Act, ■0.890—60 Vict. c. U, s. 153 (B. C..)— Do- minion Winding-up Act. 1889.] — The bank ap- pealed to the full court in British Columbia from a winding-up order in respect of the British Columbia Iron Works Co. on the ground that the Dominion Winding-up Acts, under which the order had been made, did not apply to the company which was incorpor- ated under the provincial " Companies Act, 1890." The judgment appealed, from decided that the Dominion Acts applied and were authority for making the order. The judg- ment was reversed by the Supreme Court of Canada and the order set aside and petition dismissed with costs, Taschereau. J., dissent- ing and adopting the reasoning of McCoU. C.J., in the court below. Bank of British North America v. Warren, 12th November, 1900. 17. Insolvent bank — Priority of claim by the Crown — Acceptance of dividends — Waiver —1,5 Vict. c. 23 (D.)]— The Bank of P. E. Island became insolvent, and a winding-up order was made. The bank was indebted to Her Majesty in $93,494.20, public moneys of Canada on deposit to the credit of the Re- ceiver-General. The first claim filed at the request of the respondent (liquidator of the banki, did not specially notify the liquidator that Her Majesty would insist upon the privi- lege of being paid in full. Two dividends of 15% each were afterwards paid, and on the 28th February, 1884, there was a balance due of $65,426.95, and respondent was notified that Her Majesty intended to insist upon the prerogative right to be paid in full. At this 1561 WINDING-UP ACT. 15(33 time there was on hand a sum sufiBcient to pay the claim in full. The Supreme Court (P. E. I.) held that Her Majesty the Queen, represented by the Jlinister of Finance, anu the Receiver-General, had no prerogative or other right to receive the whole amount, but only a right to receive dividends as an or- dinary creditor of the bank. Held, reversing the judgment appealed from, 1. That the Crown claiming as a simple contract creditor has a right to priority over other creditors of equal degree. This prerogative privilege be- longs to the Crown as representing the Do- minion of Canada, when claiming as a credi- tor of a provincial corporation in a provincial court, and is not taken away in proceedings in insolvency by 45 Vict. c. 23. 2. That the Crown had not waived its right to be pre- ferred in this case by the form in which the claim was made, and by the acceptance of two dividends. The Queen v. Bank of Nova Scotia, xi., 1. 18. Construction of JfS Viet. o. 23, ss. 15, 76 — Contributories — Set-off — Retrospective effect of statute.'] — In an action by the bank on a promissory note, defendant pleaded set-off of a draft made by the bank and indorsed to him. Replication, that the defendant was a contri- butory on the stock book of the bank, and knew that the bank was insolvent when the draft was purchased. Demurrer, that replica- tion did not aver that the debt for which the action was brought was due from the defend- ant in his capacity as shareholder or contri- butory. — Held, reversing the Supreme Court of P. B. I., that tl^e replication was bad in law. — Appellant gave his note for $6,000 which was indorsed to the Bank of P. E. I. The Union Bank held a draft, made by the Bank of P. E. I. for nearly the same amount, which appellant purchased for about $200 less than its face value on 5th May, 1882. Being sued on the note he set off the amount of the draft and paid the difference. He admitted purchase for the purpose of off-set to the claim on his note, which he had made non- negotiable and also that, if he could succeed in his set-off, and another party could succeed in a similar transaction, the Union Bank would get in full their claim against the Bank of P. E. I., which had become insolvent. The trial judge charged that if the draft was in- dorsed to defendant to enable him to use it as a set-off, he could not do so, because he was a contributory within the meaning of s. 76 of the Winding-up Act, which comes into force 17th May, 1883, and was retrospective as re- gards indorsements before it was passed, but within 30 days before the commencement of winding-up proceedings. The jury, under the direction of the judge, found a general verdict for the plaintiff for the amount of the note and interest, which the Supreme Court refused to disturb. — Held, reversing the judgment ap- pealed from, that the appellant having pur- chased the draft for value and in good faith prior to the commencement of winding-up pro- ceedings, the Winding-up Act was not appli- cable, and, therefore, the appellant was en- titled to the benefit of his set-off. — That the Winding-up Act was not retrospective as to this indorsement. — Held, also, that ss. 75 and 76 in respect to claims acquired by contribu- tories within 30 days of winding-up proceed- ings for use as a set-off, only apply to actions against a contributory when the debt claimed is due from the person sued in his capacity as contributory. Ings v. Bank of P. B. I., xi., 19. Contnlutones—Sulscription for stock —I'ayment ly services. 'l—A.n Act of incorpo- ration of a joint stock company provided that no subscription for stock should be legal or valid until ten per cent, should have been actually and lona fide paid thereon." C. gave to the manager of the company a power of at- torney to subscribe for him ten shares in the company, containing the words : " and I here- with enclose ten per cent, thereof, and ratify and confirm all that my said attorney may do by virtue thereof." The ten per cent, was not, in fact, enclosed, but the amount was placed to the credit of C. in the books of the company, and a certificate of stock issued to him which he held for several years. The company having failed, proceedings were taken to have C. placed on the list of contributories. ihe^ sum to his credit was for professional services to the company as solicitor, and there had been an arrangement that his stock was to be paid for by such services. Held afiirm- ing the judgment appealed from (12 Ont. App. R. 486), Henry, J., dissenting, that C. was rightly placed on the list of contributories. Caston's Case, xii., 644. 20. Insolvent tank — Lien of note-holders — Prerogative — Insolvent lank — Assets — R. 8. G. CO. 120, 121i — Deposit ly insurance company — Priority of note-holders.'] — The prerogatives of the Crown exist in British colonies to the same extent as in the United Kingdom. The Queen v. Bank of Nova Scotia (11 Can. S. C. R. 1) followed. — The Queen is the head of the constitutional Government of Canada, and in matters affecting the Dominion at large her prerogatives are exercised by the Dominion Government. — The Crown prerogatives can only be taken away by express statutory en- actment. Therefore Her Majesty's right to payment in full of a claim against the assets of an insolvent bank in priority of all other creditors is not interfered with by the provi- sions of the Bank Act (R. S. C. c. 120, s. 791, giving note-holders a first lien on such assets, the Crown not being named in such enact- ment. Gwynne and Patterson. ,TJ., contra. — Held, per Gwynne, J., that under legislation of the old Province of Canada, left un- repealed by the B. N. A. Act. no such prero- gative could be claimed in the Provinces of Ontario and Quebec ; the Court would not, therefore, be justified in holding that such a right attached, under the B. N. A. Act, in one Province of Canada which does not exist in them all. — An insurance company, in order to deposit $50,000 with the Minister of Fi- nance and receive a license to do business in Canada according to the provisions of the In- surance Act (R. S. C. c. 124), deposited the money in a bank and forwarded the deposit receipt to the minister. The money in the bank drew interest which, by arrangement, was received by the company. The Bank hav- ing failed the Government claimed payment in full of this money as money deposited by the Crown. Held, reversing the judgment ap- pealed from (27 N. B. Rep. 351), Strong, .!., dissenting, that it was not the money of the Crown but held by the Finance Minister in trust for the company ; it was not. therefore, subject to the prerogative of payment in full in priority to other creditors. Maritime Bank V. The Queen, xvii., 657. 21. Insolvent lank — Legislative jurisdic- tion — Upper Canada Bank Trust — Crown lands.]— In 1866 the Bank of Upper Canada became insolvent and assigned all its property and assets to trustees. By 31 Vict. c. 17, the 1563 WINDING-UP ACT. 1564 Dominion Parliament incorporated said trus- tees, giving them authority to carry on the business of the bank so far as was necessary for winding up the same. By 33 Vict. c. 40 all the property of the bank vested in the trustees was transferred to the Dominion Gov- ernment which became seized of all the powers of the trustees. — Held, affirming the judgment appealed from (s«6 nom. The Queen v. County of Wellington, 17 Ont. App. R. 421) that these Acts were intra vires of the Dominion Parliament. — Per Ritchie, C.J., that the legis- lative authority of Parliament over " banking and the incorporation of banks " and over " bankruptcy and insolvency " empowered it to pass said Acts. — Per Strong, Taschereau, and Patterson, JJ., the authority to pass said Acts cannot be referred to the legislative jurisdic- tion of Parliament over " banking and incor- poration of banks " but to that over " bank- ruptcy and insolvency " only. Quirt v. The Queen, xix., 510. See Constitutional Law, 21. 22. Insolvent iank — Increased capital — Double liability — Gontributories — 45 Vict. c. 23 (jD.)] — The Bank of P. E. I. was incor- porated by 18 Vict. c. 10, capital stock fixed at £30,000 P. E. I. Cy., ($97,333.33) in shares of £10 ($32.44). Power to increase this capital by the issue of additional shares, of same value, was given by ss. 39, 40, 41 & 42. which prescribed thj manner of effecting this increase, and the sale of the new stock by auction, s. 43 provided that " the said ad- ditional shares shall be subject to all the rules, regulations and provisions to which the original stock is subject, or may hereafter be subject, by any law of this island." Section 19 of the Act was repealed, and re-enacted by s. 3 of 19 Vict. c. 11, as follows : — " The holders of the stock • of the said bank shall be chargeable in their private and individual capacity, and shall be holden for the pay- ment and redemption of all bills which may have been issued by the said corporation, and also for the payment of all debts at any time due from the said corporation, in proportion to the stock they respectively hold, provided, however, that in no ease shall any one stock- holder be liable to pay a sum exceeding twice the amount of stock actually then held by him. over and above, and in addition to the amount of stock actually by him paid into the bank, provided nevertheless that nothing in this Act, or in the said hereinbefore re- cited Act contained, shall be construed to ex- empt the joint stock of the said corporation from being also liable for, and chargeable with, the debts and engagements of the same." — No increase to capital was made. In 1872, the bank having a balance of net profits on hand of $27,286,41, pursuant to resolution at the general annual meeting of shareholders, on application to the legislature, 35 & 36 Vict, c, 23 was passed, enacting : — 1. "It shall and mav be lawful for the board of directors of the Bank of P. E. I. at any time, and from time to time, to enlarge the capital stock of the said bank by applying to each individual share of the capital a portion of the rest or surplus profits, lying at the time at the credit of the said bank." 2. " Such mode of enlarging the capital stock of the said bank shall not prevent the enlargement of the same by the mode pointed out in the 39th, 40th, 41st. 42nd and 43rd sections of the Act of incorporation." In 1872, the sum of $10,606,67 was taken out of the profits and added to the capital stock, raising the value of shares by $3-55 or to a total par value of $36. In 1875; $12,000 profits was carried to credit of capital stock making the capital $120,000, and the par value of shares $40.— On 19th June, 1882, an order was made for winding up the bank, which had become in- solvent within the meaning of the Act, 45 Vict. c. 23 (D.) Liquidators were appointed. Subsequently an order nisi was granted by Peters, J., calling upon all shareholders to shew cause why they should not pay calls to the amount of $80 per share, which he made absolute after hearing counsel for contribu- tories. This order was confirmed by the full court, two judges thinking themselves dis- qualified from hearing the appeal other than in a merely formal manner. — On appeal, Held, reversing this decision, Gwynne, J., dis- senting, that the shareholders were not liable to pay more than $64.89 per share, or twice the amount of their original stock. The Act of 1872, which authorized the alleged in- crease, had no provision creating any double liability, as was imposed on original stock, and new stock created under 38 Vict. c. 10, and the fair inference from the omission of any express enactment with reference to the increased stock was that the legislature did not intend to clothe it with double liability. Morris v. Liquidators Bank of P. E. I., Cass, Dig. (2 ed.) 68. 23, Appeal in winding-up proceedings — Amount in controversy — Joint or separate liability — Jurisdiction — Gontributories.^ — A decision of the Court of Appeal for Ontario reversed the order of the Master in Ordinary settling the respondents on the list of contri- butories under the Winding-up Act. Appeal lies to the Supreme Court' of Canada, in pro- ceedings under the Winding-up Act, only where the amount involved is $2,000 or over. In this case there were six persons placed on the list by the Master; one for $1,000, and the others for $900 each, and all were re- leased from liability by the decision of the Court of Anpeal from which this appeal was brought. The Supreme Court held that al- though the aggregate amount for which the respondents were sought to be made liable exceeded $2000, there was no jurisdiction un- der the Act to entertain the appeal, because the position was the same as if proceedings had been taken separately against each of the contributories. The appeal was quashed with costs. Stephens v. Gerth; In re On- tario Express & Transportation Co., xxiv., 716. 24, Joint stock company — Payment for shares — Equivalent for cash — -Written agree- ment — Gontributories.'] — M, and C, each agreed to take shares in a joint stock com- pany paying a portion of the price in cash and receiving receipts for the full amount the balance to be paid for in future services. The company afterwards failed. Held, af- firming the judgment of the Court of Appeal (27 Ont. App. R, 396) that, as there was no agreement in writing for the payment ot the difference by money's worth instead of cash under s. 27 of the Companies Act, M. & C. were liable to pay the balance of the price of the shares to the liquidator of the com- pany. Morris v. Union Bank of Canada; Union Bank of Canada v. Morris; Code v. Union Bank of Canada, xxxi,, 594. Sec No. 12. ante 25, Building society in liquidation — Admin- istrators and trustees — Sales to — Nullity of transfer — Art. H84 G. C. — Practice. See BuiLPiNG Society, 3, 1565 WINDOWS. WOKDS AND TEEMS. " Baggage." 1566 Bight of air, light and view — Boundary line — Evidence — Trespass — Wainer. /See Easement. 2 — Title to Land. 41. WITHDRAWAI,. See Retraxit. WITNESS. 1. Refusal to answer questions — Incrimina- tion — Misdirection.']— When a plaintiff re- fused to answer questions or to state whether or not he apprehended serious consequences if he answered and the judge directed that there had not been sufficient proof made. Held, that the defendant was entitled to the oath of the plaintifE that he objected to answer for fear that, in doing so, his answers might tend to criminate him. Judgment appealed from (20 N. B. Kep. 40) reversed. Power v. Ellis, Ti., 1. 2. Expert opinions — Hearsay — Extra-judi^ dal statement — Assessors' reports.] — Where there is a direct contradiction between equally credible witnessess, the evidence of those who speak from facts within their personal knowr ledge should be preferred to that of experts giving opinions based upon extra-judicial statements and municipal reports. Crawford V. City of Montreal, xxx., 406. 3. Agreement to charge lands — Statute of Frauds — Registry. See Kegistet Laws, 3. 4. Husiand and wife — Competency of wit- ness — Criminal cases — Canada Evidence Act, 189S — " Communications " — Privilege — Advice of legal counsel. See Obiminal Law, 25. And see Evidence. WORDS AND TERMS. " Additional remuneration." See Statutes, 63. "Against all casualties." See Cabeiees. 11. "All necessary accommodation." See Railways, 89. "Allow an appeal." See Appeal, 369. " At and from Quehec to Chreenoch " — Vessel to go out in tow." See INSUEANCE, Marine, 51. "At and from a port." See Insurance, Marine, 24. ' At or near." See Railways. 152. • " At owner's risk.'' See Caeriees, 11. Caeribes, 11. " Benefit assessment." See Drainage, 7. " Bounded by the river." See Railways, 153. " Buildings and erections " — " Improve- ments." See Lessor and Lessee, 2. "By practice " — "Manitoba public schools." See Constitutional Law, 69. " Communications." See Criminal Law. 25. " Conserver le fonds." See Will, 18. (L.) ' Court of last resort " — 52 Vict. c. 37 See Statutes, 62. " Cost of repairs." See Insurance, Marine, 18. " Currency." See Bills and Notes, 17. "Damage" — R. 8. G. c. 109, s. 21—51 Vict. c. 29 (D.) See Railways, 69. " Delivery." See Statutes, 59. " Disposition." See Deed, 22. " Dying without issue." See Will, 15. 16, 17. " Employee " 1881. Government Railway Act, See Grown, 64. " Estate." See Will. 30. " Extra salary." See Statutes, 63. " Final closing certificate." See Contract, 96. " Fixtures." See Statutes, 59. " Fournier les revenus." See Will. 18. ' Heir." See Will, 20. " Heirs of the body "— " Lawful heirs "— " Valid remainder." See Will, 19. "Improvements" — "Buildings and erec- tions." - n See Lessor and Lessee, i. " Improvidence." See Title to Land, 130. 1567 YUKON EXECUTIVE GOVERNMENT. 1568 " Injuring liability.'' See Drainage, 7. "Intent"— B. S. O. (1877) c. 118, s. 2. See E*RATJDULENT CONVEYANCES, 1 INSOL- VENCY, 7. " Judgment." See Appeal, 171. " Itaw of Canada." See Statutes, 2-1. " Lawful heirs." See Will. 19. " Legal holiday." See Election Law, 103. " iVeor " — " At or near." See Kailways, 152. " Nearest recurring anniversary." See Statutes, 146. " Never indebted." See Action, 21. " Officers and servants of the Crown." See Militia, 2. « " On advances." See Insurance, Marine, 20. ' On view." Fisheries, 1. " Or which has that effect " — " Preference." See Fraudulent Conveyances, 1. " Ores " — ■' Stone or ores." See Insurance, Marine, 23. " Other licenses." See Constitutional Law, 54. " Outlet liability." See Drainage, 7. " Owner for the time." See Maritime Law, 5. " Owner of land." See Drainage, 6. "Perils of the seas." See Insurance, Marine, 11. ' Personal chattels." See Statutes, 59. " Poor " — " Poor relatives." See Will, 47. " Preference." See Insolvency, 7. " Preference " — " Or which has that effect ' -R. S. 0. (1887) c. m. s. 2. See Fraudulent Conveyances, 1. See Statutes, 144. " Public Protestant charities." See Will. 47. " Public work." Militia, 2. " Revert." See Will, 15, 16, 17. " Stone or ores." See Insurance, Marine, 23. " Suing on behalf of themselves and other creditors." See Statutes, 143. "Title to lands." See Appeal, 38. " To "—" From " and " to." See Contract, 179 — Railways, 152. " Trader." See Insolvency, 4 — Pleading, 23. " Transmit." See Contract, 7. " Vnta." See Insurance, Fire, 42. " Used on railway." See Railways, 19. " Valid remainder." See Will, 19. " Vessel to go out in tow " — " At and from Quebec to Qreenock." See Insurance, Marine, 51. " Void against creditors." See Statutes, 143. " Property.' See Will. 30. WORKMEN. 1. Compensation for Injuries Act — Danger- ous machinery — Statutory duty — Cause of accident. See Negligence, 19. 2. Negligence — Use of dangerous materials — Proximate cause of accident — Injuries lo workmen — Employer's liability — Presume tions — Findings of jury sustained by court below. See Negligence, 144. And see Employer and Employee^Master AND Servant — and Negligence. YUKON EXECUTIVE GOVERNMENT. 1. Franchise granted over Crown lands — Tolls. See Constitutional Law, 78. 2. Administration and government — Mining lands-^Special appellate tribunal — Oold Com- missioner g- Legislative jurisdiction of Gover- nor-in-CouncU. See Appeal, 294. And see Mines and Minerals. 13, 14, 17. APPENDIX A. LIST OF CASES JUDICIALLY NOTICED AND REFERRED TO IN THIS DIGEST. Abrath v. North Eastern Eailway Co. (11 Q. B. D. 79, 440; 11 App. Cas. 247), considered; Malice; Malicious Peoseoutioj^/s— New Trial, 34 — Nonsuit^ 4. ^tna Insurance Co. v. Brodie (5 Can. S. C. E. 1), followed; Appeals to Supreme Court^ 212. Algoma Central Eailway Co. v. The King (7 Ex. C. E. 239; 33 Can. S. C. E. 277), referred to; Customs Duties, 5. Allen V. Merchants Marine Insurance Co. (15 Can. S. C. E. 488), followed; Insurance, Liee, 31 — Pleading, 37— Waiver, 4. Allen V. Pratt (13 App. Cas. 780), referred to as overruling Joyce V. Hart (1 Can. S. C. E. 321) ; Appeals to Supreme Court, 18, 24. Anderson v. Todd (2 U. C. Q. B. 82), followed; Statute of Mortmain, 2 — Will, 56. Angus V. Dalton (6 App. Cas. 740), referred to; Easement, 4. Archer v. Severn (12 Ont. P. E. 472), followed; Appeals to Supreme Court, 6. Arehbald v. DeLisle (25 Can.S. C. E. 1), followed; Warranty, 3. Archibald v. Hubley (18 Can. S. C. E. 116), distinguished; Assignments, 4 — Chattel Mortgage, 13 — followed; Chattel Mortgage, 5. Armstrong v. Hemstreet (22 0. E. 336), overruled in court below, judgment being affirmed on appeal: Fraudulent Preeeebnce, 11 — Insolvency, 23. Arpin v. The Queen (14 Can. S. C. E. 736), distinguished; Appeals to Supreme Court, 231. Asbestos and Asbestic Co. v. Durand (30 Can. S. C. E. 285), discussed and approved; Appeals to Supreme Court, 239 — Evid- ence, 83— Negligence, 144. Asher v. Whitlock (L.E. 1 Q. B. 1), referred to; Title to Land, 57— Will, 43. Association St. Jean Baptiste v. Brault (30 Can. S. C. E. 598), followed; Appeals to Supreme Court, 343 — Constitutional Law, 31 — referred to; Conspiracy, 1 — Contract, 165 — Trade Combina- tion. Atlas Assurance Co. v. Brownell (29 Can. S. C. E. 537), followed; Insurance, Fire, 42 — Principal and Agent, 29. Attorney-General V. The Queen Insurance Co. (3 App. Cas. 1090), distinguished; Constitutional Law, 56 — Licenses, 1. Attorney-General v. Sheraton (28 N. S. Eep. 492), approved and followed; Lease, 19 — Mines and Minerals, 5 — Statutes, 146. S.O.D.— 50 b 1570 APPENDIX A. Attorney-General for British Columbia v. Attorney-General of Canada (14 App. Cas. 295), commented on and distinguished; Ees Judicata, 5. Attorney-General for Canada v. Attorney- General for Ontario ([1897] A. C. 199; 25 Can. S. C. E. 434), followed; Constitutional Law, 8— Statutes, 154 — Tolls, 10 — applied; Constitutional Law, 9 — Indian Affairs — Ees Judicata, 18. Attorney- General for Canada v. Attorney-General for Ontario (23 Can. S. C. E. 468), referred to. Constitutional Law, 64. B. Baker v. DeLisle (25 Can. S. C. E. 1), followed; Waeeantx, 3. Ball V. MeCafEery (20 Can. S. C. E. 319), approved; Estoppel, 7. Ballagh v. Eoyal Mutual Fire Insurance Co. (5 Ont. App. E. 87), approved; Insurance, Fire, 40. Bank of Toronto v. Lambe (12 App. Cas. 575), followed; Con- stitutional Law, 56 — Licenses, 1 — distinguished; Constitutional Law, 54. Bank of Toronto v. Les Cure, &c., de la Sainte Vierge (12 Can. S. C. E. 25), referred to; Appeals to Supreme Court, 58. Bank of Toronto v. Perkins. (8 Can. S. C. E. 603), distinguished; Debtor and Creditor, 49. Banque Jacques-Cartier v. Banque d'Epargue de la Cite et du District de Montreal (13 App. Cas. Ill), followed; Bills and Notes, 19. Barrett v. City of Winnipeg ([1892] A. C. 445), applied, per Taschereau, J.; Constitutional Law, 2. Barter v. Smith (2 Ex. C. E. 455), overruled as to supply and manufacture; Patent of Invention, 15. Barton v. London and Northwestern Eailway Co. (38 Ch. D. 144; 24 Q. B. D. 77; 6 Times L. E. 70), followed; Bills and Notes, 19. Bate V. Canadiaji Pacific Eailway Co. (15 Ont. App. E. 388; 18 Can. S. C. E. 697), distinguished; Bail ways, 5 — Statutes, 142. Bell V. Corporation of Quebec (5 App. Cas. 84), referred to by Taschereau, J. ; Appeals to Supreme Court, 222 — Sale, 32. Bell Telephone Co. v. City of Quebec (20 Can. S. C. E. 230), followed; Appeals to Supreme Court, 292 — Municipal Corpor- ations, 174. Bellecha^se Election Case (5 Can. S. C. E. 91), referred to.; Appeals to Supreme Court, 219. Berthier v. Denis (27 Can. S. C. E. 147), referred to; Estoppel, 42 — EivEES AND Streams, 4 — Servitude, 7. Bernardin v. Municipality of North Duiferin (19 Can. S. C. E. 581), distinguished; Municipal Corporations, 108. Bissonette v. Laurent (15 E. L. 44), approved; Practice and Procedure, 144. Boale V. Dickson (13 U. C. C. P. 337), approved; Eivers and Streams, 1. Board v. Board (L. E. 9 Q. B. 48), referred to; Title to Land, 57— Will, 43. Borden v. Berteaux (19 Can. S. C. E. 526), followed; Election Law, 116. Briggs V. Grand Trunlc Eailway Co. (24 TJ. C. Q. B. 510), ap- proved and followed; Eailways, 11. APPENDIX A. 1571 Brisbois v. The Queen (15 Can. S. C. E. 421), referred to: Crim- inal Law, 10. Bristol ajid Exeter Eailway Co. v. Collins (7 H. L. Cas. 194), followed; Eailways, 3 — Warehousemen, 2a. Brittlebank v. Gray-Jones (5 Man. L. E. 33), distinguished; Constitutional Law, 76— Married Woman, 3— Statutes, 60. Broad v. Broad (L. E. 9 Q. B. 48), referred to; Title to Land, 57— Will, 43. See Board v. Board, ante. Brown v. The Tohjnto and Nipissing Eailway Co. (26 U. C. C. P. 206), overruled; Eailways, 41. Browne v. Pinsonault (3 Can. S. C. E. 102), noted as overruled by Porteous v. Reynar (13 App. Cas. 120) ; Landlord and Tenant, 5 — distinguished; Trusts, 5. Burland v. Moffatt (11 Can. S. C. E. 76), noted as overruled by Porteous v. Reynar (13 App. Cas. 120) ; Assignments, 2 — distin- guished; TSUSTS, 5. Burns v. Davidson (21 0. B. 547), approved and followed; Ac- tion, 71 — Lex Eei Sit^, 1. C. Canada Southern Eailway Co. v. Clouse (13 Can. S. C. E. 139), referred to; Eailways, 42, 43. Canadian Pacific Eailway Co. v. Little Seminary of Ste. Therese (16 S. C. E. 606), distinguished; Appeals to Supreme Court, 112. Canadian Pacific Eailway Co. v. Municipality of Notre Dame de Bonsecours ([1899] A. C. 367), followed; Constitutional Law, 57 — Eailways, 43. Chagnon v. Normand (16 Can. S. C. E. 661), referred to; Appeals to Supreme Court, 58. Chamberland v. Portier (23 Can. S. C. E. 371), referred to; Appeals to Supreme Court, 72 — distinguished; Appeals to Su- preme Court, 88 — Title to Land, 40. Champoux v. Lapierre (Cass. Dig., 2 ed., 426), referred to; Appeals to Supreme Court, 49 — discussed and distinguished; Appeals to Supreme Court, 81 — Opposition, 8. Chaudiere Machine and Foundry Co. v. Canada Atlantic Eailway Co. (33 Can. S. C. E. 11), followed; Action, 139— Damages, 15— Expropriation of Lands, 13. Chef dit Vadeboncoeur v. City of Montreal (29 Can. S. C. E. ■9), followed; Practice and Peocedueb, 8— Sheriee, 12— Title to Land, 67 — Substitution, 7. Cimon v. The Queen (23 Can. S. C. E. 62), referred to; Appeals to Supreme Court, 432 — Practice and Procedure, 32. City Discount Co. v. McLean (L. E. 9 C. P. 693), referred to; Debtor and Creditor, 16. Clark V. Adie (2 App. Cas. 423), referred to; Title to Land, 57_WiLL, 43. Clayton's Case (1 Mer. 572), referred to; Debtor and Creditor, 16 — Principal and Surety, 2. Collom V. Manley (32 Can. S. C. E. 371), followed; Mines and Minerals, 11. Commercial Bank v. Wilson (3 E. & A. Eep. 257), followed in •court below and referred to by Supreme Court of Canada in reversing judgment appealed from; Fraudulent Preferences, 7. 1572 APPENDIX A. Commercial Umon Assurance Co. v. Temple (39 Can. S. C. R. 806), followed; Contract, 72 — Insurance, Fire, 29, 30. ' Commune de Berthier v. Denis (27 Can. S. C. E. 147), referred to; Estoppel, 42 — Eivees and Streams, 4 — Servitude, 7. Confederation Life Assurance Association v. O'Donnell (10 Can. S. C. E. 92), approved; Insurance, Life, 8. Cooke V. Millar (3 E. L. 446; 4 E. L. 240), referred to; Limita- tions OF Actions, 13 — Peremption d^'Instance. Coplen V. Callaghan (30 Can. S. C. E. 555), followed; Mines AND Minerals, 10, 11. Cornwall, Town of, v. Derochie (24 Can. S. C. K 301), followed; Municipal Corporations, 144 — Negligence, 191. Cassette v. Dun (18 Can. S. C. E. 223) referred to; Appeals to Supreme Court, 19. Couture v. Bouchard (21 Can. S. C. E. 281), followed; Appeals TO Supreme Court, 8 — Statutes, 53. Cowaja v. Allen (36 Can. S. C. E. 292), followed; Codicil, 3— Will, .16. Cowen V. Evans (23 Can. S. C. E. 328, 331), followed; Appeals to Supreme Court, 55. Cox V. Worrall (26 N. S. Eep. 366), questioned; Debtor and Creditor, 27. Craig V. Great Western Eailway Co. (24 U. C. Q. B. 504), ap- proved and followed; Eailways, 11. Cunningham v. Grand Trunk Eailway Co. (9 L. C. Jur. 57; 11 L. C. Jur. 107), approved and followed; Eailways, 11. Cushing V. Dupuy (5 App. Cas. 409), followed; Appeals to Supreme Court, 281 — referred to in note to Privy Council, at page 1166. D. Dalton V. Angus (6 App. Cas. 740) referred to; Basement, 4. Danjou v. Marquis (3 Can. S. C. E. 251), followed; Appeals to Supreme Court, 67, 113 — referred to; Appeals to Supreme Court, 104 — Practice of Supreme Court, 185. Davis V. Kerr (17 Can. S. C. E. 235), followed; Insolvency, 50— Trusts, 23. Dawson v. MacDonald (11 Q. L. E. 181) followed; Limitations of Actions, 10.. Delorme v. Cusson (28 Can. S. C. E. 66), followed; Demoli- tion, 1 — Title to Land, 41. DesBarres v. White (1 Kerr N. B. 595), approved; Prescrip- tion, 15. Dickie v. Woodworth (8 Can. S. C. E. 193), followed; Election Law, 10. Dixson V. Snetsinger (33 U. C. C. P. 235), discussed; Constitu- tional Law, 81 — Navigable Waters, 2 — Eivees and Streams, 13. Doe d. Anderson v. Todd (3 U. C. Q. B. 82), followed by Gwynne and Sedgewick, JJ. ; Statute of Mortmain, 2 — Will, 56. Doe d. DesBarres v. White (1 Kerr.N. B. 595), approved; Pre- scription, 15. Douglas V. Eitchie (18 L. C. Jur. 274), referred to; Evidence, 160. Doyle V. Falconer (L. E. 1 P. C. 338),. commented on and fol- lowed ; Breach of Privilege ; Parliamentary Practice. APPENDIX A. 1573 Drysdale v. Dugas (26 Can. S. C. E. 20), followed; Nuisance, 6 — Tramway, 3. Dubois Y. Village of Ste. Eose (21 Can. S. C. E. 65), followed; Appeals to Supreme Court, 292— Municipal Corporations, 174. Ducondu V. Dupny (9 App. Cas. 150), followed; Title to Land, 126 — Warranty, 8. Dufresne v. Dixon (16 Can. S. C. E. 596), followed; Appeals to Supreme Court, 193, 287. Dufresne v. Gu6vrement (26 Can. S. C. E. 216), followed; Appeals to Supreme Court, 73 — Statutes, 145. Durkee v. Flint (19 N. S. Eep. 487), approved and followed; Assignments, 4 — Chattel Mortgage, 13. Duval V. Casgrain (19 L. C. Jur. 16), followed in court below and on appeal the judgment stood affirmed) on an equal division of opinion; Election Law, 73. E. Eddy v. Eddy (Cout. Dig. 130), followed; Appeals to Supreme . Court, 423 ; Practice op Supreme Court, 232. Emmett v. Quinn (7 Ont. App. E. 306), distinguished; Mort- gage, 65. Employers' Liability Assurance Corporation v. Taylor (29 Can. S. C. E. 104), followed; Action, 26 — Insurance, Fire, 35. Eureka Woollen Mills Co. v. Moss (11 Can. S. C. E. 91), distin- guished; Appeals to Supreme Court, 366 — approved and distin- guished; Insurance, Fire, 81. European Bank, In re; Ex parte Oriental. Commercial Bank (5 Ch. App. 358), followed; Negotiable Securitt^Pledge, 7. - Exchange Bank of Canada v. Gilman (17 Can. S. C. E. 108), followed; Practice of Supreme Court, 218. F. Piliatrault v. Goldie (Q. E. 2 Q. B. 368), distinguished; Immove- able Property, 1 — Moveables, 1 — Vendor and Purchaser, 8. Fisher v. Anderson (4 Can. S. C. E. 406), followed; Will, 42. Follis V. Porter (11 Gr. 442), referred to; Vendor and Pur- chaser, 21. Fonseca v. The Attorney-General for Canada (17 Can. S. C. E. 612), referred to; Crown, 93— Scire Facias, 2— Vente a Eemere. Footner v. Giges (2 Sim. 319), followed; Practice and Proce- dure, 77 — Statutes, 140. Freeborn v. Vandusen (15 Ont. P. E. 264), approved and fol- lowed; Practice and Procedure, 127. G. Gagnon & Prince (8 App. Cas. 103), approved; Privx Council, 7 — Eailways, 3— Sale, 96 (notes). Gardiner v. Gardiner (2 Q. B. (0. S.) 554 or 520 B.), referred to; Tutorship, 2 — Will, 24. Gardner v. Grace (1 F. & F. 359), followed; Infant— Minor- ity, 1 — Negligence, 43. Gendron v. McDougall (Cass. Dig. 2 ed. 429), followed; Appeals TO Supreme Court, 56— discussed and distinguished; Appeals to Supreme Court, 81— Opposition, 8. George Matthews Co. v. Bouchard (28 CaJi. S. C. E. 580), fol- lowed; Appeals to Supreme Court, 239— Evidence, 83— Neglig- ence, 144, 217 — Eailways, 74. 1574 APPENDIX A. Gibbons v. Wilson (17 Ont. App. E. 1), referred to; Debtoe and Ceeditoe, 28 — Fraudulent Peefeeence^ 13. Gilbert v. Gilman (16 Can. S. C. E. 189), approved; Appeals TO Supreme Couet, 38 — followed; Appeals to Supeeme Couet, 39 — referred to; Appeals to Supreme Couet^ 58. Gilbert v. Lionais (7 E. L. 339), referred to; Pleading, 30— Ultea Petita. Gilmour v. Whishaw (15 L. C. E. 177) approved; Peesceip- TION^ 26. Gingras v. Desilets (Cass. Dig. 2 ed. 212), reviewed and ap- proved; Appeals to Supreme Couet, 19 — followed; Appeals to Supreme Court, 32 — Damages, 5, 49. Gorman v. Dixon (26 Can. S. C. E. 87) followed; Practice of Supreme Court, 318. Graham v. Smith (27 U. C. C. P. 1), overruled; Stoppage in Transit. Granby, Village of, v. Menard (31 Can. S. C. E. 14), followed; Admiralty Law, 3— Appeals to Supreme Couet, 250 — Evidence, 65 — Navigation, 3. Grand Trunk Eailway Co. v. Coupal (28 Can. S. C. E. 531), followed; Expeopeiation of Lands, 12 — Municipal Corporations, 131. Grand Trunk Eailway Co. v. Morton (11 Can. S. C. E. 612),' disapproved ; see Grand Trunk Railway Co. v. Vogel, infra. Grand Trunk Eailway Co. v. Eosenberger (9 Can. S. C. E. 311), followed; Eailwats, 107. Grand Trunk Eailway Co. v. Vogel (11 Can. S. C. E. 612), dis- tinguished; Eailwats, 3, 5 — Statutes, 142 — Warehousemen, 2a — disapproved; Constitutional Law, 29 — Master and Servant, 37 — Negligence, 219 — Eailwats, 1 (note) and 51 — Statutes, 155. Gray v. Eichford (2 Can. S. C. E. 431), followed; Appeals to Supreme Court, 358. Gray v. TurnbuU (L. E. 2 H. L. Se. 53), referred to by Tas- ehereau, J.; Appeals to Supeeme Court, 222 — Sale, 33. Great Western Eailway Co. v. Braid (1 Moo. P. C. (N.S.) 101), followed; Appeals to Supeeme Couet, 83. Grindley v. Bkkie (19 N. S. Eep. 27), approved; Eegistet Laws, 24. Griffiths V. Earl of Dudley (9 Q. B. D. 357), followed; Lord Campbell^s Act, 2 — Master and Servant, 37 — Negligence, 219. H. Halifax, City of, v. Walker (Cass. Dig. 2 ed. 175), mentioned; Negligence, 189 — New Teials, 30. Hamel v. Hamel (26 Can. S. C. E. 17), approved and followed; Appeals to Supreme Court, 198 — Pleading, 40. Hay V. Gordon (L. E. 4 P. G. 337), referred to by Taschereau, J.; Appeals to Supreme Court, 332 — Sale, 32. Heinniker v. Wigg (4 Q. B. 793), referred to; Debtor and Cee- DITOE, 16. Hodge V. The Queen (9 App. Cas. 117), followed; Liquor L^WR, 3. Hogan V. City of Montreal (31 Can. S. C. E. 1), distinguished; Expeopeiation of Lands, 12 — Municipal Coepoeations, 131. Holman v. Green (6 Can. S. C. E. 707), followed; Haebours, 2. APPENDIX A. 1575 Hovey v. Whiting (14 Can. S. C. E. 515), followed; Chattel Mortgage, 4. Howell V. Alport (13 U. C. C. P. 375), overruled; Stoppage in Transit. Hunter v. Carrick (11 Can. S. C. E. 300), referred to; Paten;c OP Invention^ 8. Hurtubuise v. Desmarteau (19 Can. S. C. E. 562), followed; Appeals to Supkeme Court, 45. Johnston v. St. Andrews Church (3 App. Cas. 159), referred to in note to Privy Council, page 1166. Jonasson v. Bonhote (2 Ch. D. 298), applied; Ejectment, 1. Jones V. The Queen (7 Can. S. C. E. 570), followed; Con- tract, 96. Joyce T. Hart (1 Can. S. C. E. 321), overruled by Allen v. Pratt (13 App. Cas. 780) ; Appeals to Supreme Court, 18, 24 — reviewed and approved; Appeals to Supreme Court, 19. Kielley v. Carson (4 Moo. P. C. 63), commented upon and fol- lowed; Breach of Privilege — Parliamentary Practice. ' Kettlewell v. Watson (21 Ch. D. 685), referred to; Bills and Notes, 26 — Principal and Agent, 34. King's County Election Cases (8 Can. S. C. E. 192 and 19 Can. S. C. E. 626), followed; Election Law, 10, 116. Laberge v. Equitable Life Assurance Society (24 Can. S. C. E. 59), distinguished; Appeals to Supreme Court, 83, 296 — Execu- tors AND Administrators, 11. Lacroix v. Moreau (16 L. C. E. 180), referred to; Appeals to Supreme Court, 200. ■ Laine v. B61and (26 Can. S. C. E. 419)^ distinguished— Im- moveable Property, 1 — Moveables, 1 — Vendor and Purchaser, 8. Lambe v. Bank of Toronto (12 App. Cas. 575), distinguished; Constitutional Law, 54 — followed; Constitutional Law, 56 — Lambe v. Armstrong (27 Can. S. C. E. 309), followed; Appeals TO Supreme Court, 395— Notice, 32— Practice of Supreme Court, 239. Langevin v. Commissaires d'Ecole de St. Marc (18 Can. S. C. E. 599), followed; Appeals to Supreme Court, 88— Title to Land, 40. Lenoir v. Eitchie (3 Can. S. C. E. 575), noted as reversed; Queen's Counsel, and see Constitutional Law, 44, 64, 80. Levi V. Eeed (6 Can. S. C. E. 482), overruled; Appeals to Supreme Court, 24— followed; Appeals to Supreme Court, 32— Damages, 5, 49, 50— restored, affirmed and followed; Appeals to Supreme Court, 62. " Levrington," The (11 P. D. 117), followed; Admiralty Law, 2 — Maritime Law, 3. Lionais v. The Molsons Bank (10 Can. S. C. E. 527), followed; Appeals to Supreme Court, 350— Practice and Procedure, 66— Eeteasit. 1576 APPENDIX A. Lisgar Election Case, Collins v. Eoss (30 Can. S. C. E. 1), fol- lowed; Election Law, 103, 104. Lister v. Perryman (L. E. 4 H. L. 521), followed; Malice and Malicious Peosecutions, 2 — New Trials, 34 — Nonsuit, 4. Lizotte T. Descheneau (6 Legal News, 170), followed; Appeals TO Supreme Court, 78. "Local Option Act," In re, (18 Ont. App. E. 572), approved; Constitutional Law, 45 — Statutes, 21. M. MacFarlane t. Leclaire (15 Moo. P. C. 181), distinguished; Alimentary Allowance, 1 — Appeals to Supreme Court, 83 — referred to; Appeals to Supreme Court, 49. MagTiire v. Scott (7 L. C. E. 451), distinguished; Partner- ship, 35. Major V. Corporation of Three Eivers (Cass. Dig. 2 ed. 433), followed; Appeals to Supreme Court, 111. Martley v. Carson (13 Can. S. C. E. 439), followed; Appeals TO Supreme Court, 430. Matthews, The George, Co. v. Bouchard (28 Can. S. C. E. 580), followed; Appeals to Supreme Court, 239 — Evidencb, 83 — Negli- gence, 144, 217 — Eailwats, 74. Matthieu v. Quebec, Montmorency and Charlevoix Eailway Co. (15 Q. L. E. 300), followed; Arbitrations, 13. Megantic Election Case (8 Can. S. C. E. 169), discussed; Elec- tion Law, 92 — Practice and Procedure, 42. Merchants Baak of Halifax v. Gillespie (10 Can. S. C. E. 312), distinguished; Winding-up Act, 6. Metitopolitan Eailway Co. v. Wright (11 App, Cas. 152)', fol- lowed; Appeals to Supreme Court, 239 — Evidence, 83 — Negli- gence, 144. Mills V. Limoges (22 Can. S. C. E. 331), followed; Appeals to Supreme Court, 55. Mitchell V. Trenliolme (22 Can. S. C. E. 331), followed; Appeals TO Supreme Court, 55. Moir V. Village of Huntingdon (19 Can. S. C. E. 363), followed; Appeals to Supreme Court, 61. Monette v. Lefebvre (16 Can. S. C. E. 387), followed; Appeals to Supreme Court, 54 — referred to; Appeals to Supreme Court, 19. Monok Election Case (Hodgins Elec. Cas. 725), approved; Elec- tion Law, 26. Molsons Bank v. Halter (18 Can. S. C. E. 88), approved and followed; Fraudulent Conveyances, 2 — Fraudulent Preference, 6 — Mortgage, 12. Montreal Assurance Co. v. McGillivray (11 L. C. E. 325), men- tioned; Practice of Supreme Court, 179. Montreal, City of, v. Brown (2 App. Cas. 168), followed; Appeals to Supreme Court, 393 — referred to ; Damages, 6. Montreal, City of, v. Hogan (31 Can. S. C. E. 1) distinguished; Expropriation of Lands, 12 — Municipal Corporations, 131. Montreal, City of, v. McGee (30 Can. S. C. E. 582), followed; Action. 139 — Damages, 15 — Expropriation oe Lands, 13. Montreal Loan and Mortgage Co. v. Fuateux (3 Can. S. C. E. 411), followed; Appeals to Supreme Court, 350 — Practice and Procedure. 66 — Eetraxit. APPENDIX A. 1577 w..^Tt ^- /^°^«°^ (II Can. S. C. R. 210), referred to; Maeeied WOMAN-, 5 — Statutes, 68. Moreau v^ Motz (7 L. C. E. 147), followed; Limitations of Actions, 7 — Tutoeship, 4. Mowat V. DeLisle (25 Can. S. C. R. 1), followed; Waeeanty, 3 Murphy V. Labb^ (27 Can. S. C. E. 126), approved and followed; Landloed and Tenant, 18— Lease, 4— Negligence 142 Murray v. The Queen (26 Can. S. C. E. 203), discussed; Con- tract, 101. ' Me. ^ McCall y. Wolff (13 Can. S. C. E. 130), approved and distin- guished; Assignments, 21— Chattel Moetgage 4 McCorkill V. Knight (3 Can. S. C. E. 233),' followed; Appeals to Supheme Couet, 81— Opposition, 8. McDonald v. Abbott (3 Can. S. C. E. 278), followed; Appeals to Supreme Couet, 67, 113. McDonald v. Dawson (11 Q. L. E. 181), followed; Limitations of Actions, 10. McGoey v. Leamy (27 Can. S. C. E. 193), distinguished ; Appeals to Supeeme Couet, 88— Title to ^ Land, 40. McGreevy v. Paill^ (4 Legal News, 95), referred to; Evidence, 160. McGreevy v. The Queen (14 Can. S; C. E. 735), followed; Appeals to Supeeme Court, 208. McGugan v. Smith (21 Can. S. C. E. 263), followed; Con- TEACT, 152. McKay v. Crysler (3 Can. S. C. E. 436), followed; Assessments AND Taxes, 60. McKay V. Village of Hinchinbrooke (24 Can. S. C. E. 55), re- ferred to; Appeals to Supreme Couet, 292 — Municipal Coepor- ATIONS, 174. McLean v. Hannon (3 Can. S. C. E. 706), followed; Sheeief, 7. McQuarrie v. Municipality of St. Mary's (5 Euss. & Geld. 493), mentioned; Negligence, 189 — New Trial, 20. N. Nicolet Election Case (29 Can. S. C. E. 178), followed; Election Law, 103, 104. Nissouri, Township of West, v. Township of North Dorchester (14 0. E. 294), distinguished; Assessment and Taxes, 30; Muni- cipal COEPOEATIONS, 86. Noel V. Chevrefils (30 Can. S. C. E. 327), followed; Appeals TO Supreme Court, 296; Executoes and Administeators, 11. North British and Mercantile Insurance Co. v. Tourville (25 Can. S. C. E. 177), followed; Appeals to Supreme Court, 233. North Shore Eailway Co. v. Pion (14 App. Cas. 612), followed; EXPEOPEIATION OE LaNDS, 21. 0. Oakes v. Turquand (L. E. 2 H. L. 325), referred to by Strong, J.; Peactice and Procedure, 28 — Practice of Supeeme Couet, 314. 1578 APPENDIX A. O'Brien, In re (16 Can. S. C. E. 197), referred to; Appeals to Supreme Couet, 189, 191; Contempt of Couet^ 2. O'Brien v. Cogswell (17 Can. S. C. B. 420), followed; Assess- ment AND TaXES^ 60. O'Dell V. Gregory (34 Can. S. C. E. 661), followed; Appeals to Supreme Court, 74, 78, 88, 90 — Title to Land, 40. Ontario Bank t. Wilcox (43 U. C. Q. B. 460), distinguished; Sale, 12. Oriental Commercial Bank, Ex parte (5 Ch. App. 358), followed; Negotiable Security' — Pledge, 7. Osborne v. Morgan (13 App. Cas. 227), followed; Crown, 83 — Mines and Minerals, 17. Osgoode, Township of, v. York (24 Can. S. C. E. 282), followed; Deainage, 6 — Municipal Coepoeation, 93 — Statutes, 153. O'Shea v. O'Shea (15 P. D. 59), followed; Appeals to Supreme Court, 189, 191; Contempt of Court, 2. O'Sullivan v. Harty (13 Caji. S. C. E. 431), distinguished; Appeals to Supreme Court, 426 — followed; Appeals to Supeeme CouET, 427, 430. Paine v. Jones (L. E. 18 Eq. 320), referred to; Title to Land, 57— Will, 43. Parent v. Corporation de St. Sauveur (2 Q. L. E. 258), approved; Municipal Corporations, 159. Patton V. Morin (16 L. C. E. 267), followed; Sheriff, 8— Usufruct, 2 — Will, 12. Perera v. Perera ([1901] A. C. 354), followed; Duress, 3 — Will, 4. Perrault v. Gauthier (28 Can. S. C. E. 241), referred to; Expro- priation OF Lands, 9 — Municipal Corporations, 63, 117 — Servitude, 6. Phillips V. Phillips (4 Q. B. D. 127), referred to; Ejectment, 1. Piche V. City of Quebec (Cass. Dig., 2 ed., 497), followed; Prac- tice OF Supreme Court, 218. Pictou, Municipality of, v. Geldert ([1893] A. C. 524), followed; Municipal Corporations, 143, 171 — Nuisance, 5. Pion V. The North Shore Eailway Co. (14 App. Cas. 612), fol- lowed; Expropriation of Lands, 21. Porteous v. Eeynar (13 App. Cas. 120), referred to as overruling Burland v. Mojfatt (11 Can. S. C. E. 76), Assignments, 2 — distin- guished; Trusts, 5. Porter v. Flintoff (6 U. C. C. P. 335), distinguished; Chattel Mortgage, 10. Providence Washington Insurance Co. v. Corbett (9 Can. S. C. E. 256), approved; Insurance, Marine, 43. Prince v. Gagnon (8 App. Cas. lOSi), commented upon; Peivt Council, 7 — Eailwats, 3 (referred to in Privy Council, note) ; Sale, 96, note — Title to Land, 142, note — Vendoe and Puechasee, 34, note. Pym V. Campbell (6 E. & B. 370), followed; Bills and Notes, 26 — Principal and Agent, 34. APPENDIX A. 1579 Q. Quebec, City of, v. Leaycraft (7 Q. L. E. 56), distinguished;^ Assessment and Taxes, 40. Quebec, City of, v. The North Shore Kailway Co. (27 Can. S. C. E. 103), referred to; Estoppel, 43; EiviiRS and' Streams, .^^Seevi- tude, 7. Quebec, City of, v. The Queen (24 Can. S. C. E. 420), referred to; Action, 113 — Negligence, 201 — Public Wokk, 10. Quebec Street Eailway Co. v. The City of Quebec (13 Q. L. E. 205), referred to; Contract, 63. The Queen v. The Bank of Nova Scotia (11 Can. S. C. E. 1) followed; Constitutional Law, 80; Crown, 74, 75. The Queen v. Farwell (14 Can. S. C. E. 393), commented upon and distinguished; Ees Judicata, 5 — referred to; Practice and Pro- cedure^ 63. The Queen v. Dillon (10 Ont. P. E. 353), overruled; Betting, 1 — Criminal Law, 14 — Statutes, 30. The Queen v. Filion (24 Can. S. C. E. 482), approved; Action,. 113 — Negligence, 201 — followed ; Common Employment, 1., 2 — Master and Servant, 17, 26, 37 — Negligence, 20, 30, 31, 82, 219' — Public Work, 10 — Eailwats, 51. The Queen v. Grenier (30 Can. S. C. E. 42), followed; Common Employment, 2 — Master and Servant, 26; — Negligence, 20, 31, 82. The Queen v. Lacombe (13 L. C. Jur. 359), overruled; Criminal Law, 10. The Queen v. McGreevy (18 Can. S. C. E. 371), followed by majority of Court, but questioned by Strong, J. ; Ees Judicata, 9 — Stare Decisis, 2. The Queen v. Eobertson (6 Can. S. C. E. 52) followed; Consti- tutional Law^ 5 — Statutes, 22. The Queen v. Taylor (36 U. C. Q. B. 183), overruled; Consti- tutional Law, 43 — Liquor Laws, 1. Queen's Election Case (30 Can. S. C. E. 36), followed; Election Law, 116. E. Eaphael v. Maclaren (37 Can. S. C. E. 319), followed; Appeals- TO Supreme Court, 78. Eeburn v. Paroise de Ste. Anne (15 Can. S. C. E. 92), distin- guished; Appeals to Supreme Court, 43— overruled ; Appeals to- Supreme Court, 292— Municipal Corporations, 174. Eeg. V. Dillon (10 Ont. P. E. 352), overruled; Betting, 1— Criminal Law, 14 — Statutes, 30. Eeg. v. Lacombe (13 L. C. Jur. 259), overruled; Criminal Law, 10. Eeg. V. Taylor (36 U. C. Q. B. 183), overruled; Constitutional Law, 42 — Liquor Laws, 1. „ . Eenaud, Ex parte (1 Pugs. 273), distinguished; Constitutional Law, 69. , , o^ T Eex V. Eaderman (1 Den. C. C. 572), approved by Strong, J.;. Criminal Law, 11. , . n j -o Eichelieu Election Case (21 Can. S. C. E. 168), followed; Elec- tion Law, 97. 1580 APPENDIX A. Richards v. Bank of Nova Scotia (26 Can. S. C. R. 381), referred to; Bills and Notes, 26 — Principal and Agent, 34. Richardson v. Canada West Farmers' Mutual and Stock Insurance •Co. (16 U. C. C. P. 430), distinguished; Action, 21 — Careiers, 12 — Contract, 64. ; Robertson v. Provincial M. & G. Insurance Co. (8 N. B. Rep. 379), followed; Insurance, Marine, 15. Robertson v. The Queen (6 Can. S. C. R. 52), followed; Consti- tutional Law, 5 — Statutes, 22. Robinson v. The Canadian Pacific Railway Company ([1892] A. C. 481), distinguished; Lord Campbell's Act, 2 — Negligence, 219. Rodier v. Lapierre (21 Can. S. C. R. 69), followed; Appeals to -Supreme Court, 74, 78. Rolland v. La Caisse d'Economie de Quebec (24 Can. S. C. R. 405), discussed; Conspiracy, 1 — Contract, 165 — Trade Combina- T-ION. Ross V. Hunter (7 Can. S. C. R. 289), distinguished; Municipal Corporations, 89; Registry Laws, 2. Ross V. Torrance (2 Legal News, 186), overruled; Constitu- tional Law, 68 — Municipal Corporations, 2. Ryan v. Ryan (5 Can. S. C. R. 387), followed; Prescription, 16 — Title to Land, 80. S. St. John V. Rykert (10 Can. S. C. R. 278), followed; Interest, 3. St. Lawrence and Chicago Forwarding Co. v. The Molsons Bank (28 L. C. Jur. 127), referred to; Bill of Lading, 3 — Estoppel, 13. Salomon v. Salomon & Co. ([1897] A.C. 22, followed; Lease, 7. Salvas V. Vassal (27 Can. S. C. R. 68), referred to; Title to Land, 6. " Santanderino," The, v. Vanwart (23 Can. S. C. R. 145), follow- ed; Admiralty Law, 3 — Navigation, 3. Sauvageau v. Gauthier (L. R. 5 P. C. 494), referred to; Appeals TO Supreme Court, 21, followed; Alimentary Allowance, 1 — Ap- peals to Supreme Court, 82. Schwersenski v. Vineberg (19 Can. S. C. R. 243), distinguished; Appeals to Supreme Court,,. 231. Scott y. Phoenix Assurance Co. (Stu. K. B. 354), followed; Appeals to Supreme Court,, 358. Selkirk Election Case; Young v. Smith (4 Can. S. C. R. 494), followed; Election Law, 37, 51. Sen6sac v. Central Vermont Railway Co. (26 Can. S. C. R. 641), followed; Negligence, 217 — Railways, 74. Severn v. The Queen (2 Can. S. C. R. 70), distinguished; Con- stitutional Law, 54. Shaw V. St. Louis (8 Can. S. C. R. 385), distinguished; Appeals to Supreme Court, 170 — followed ; Appeals to Supreme Court, 181. Shelly 's Case (1 Co. 93 &) referred to; Will, 14. Sherbrooke, City of, v. McManamy (18 Can. S. C. R. 594), followed ; Appeals to Supreme Court, 40, 292 — Municipal Corpor- ation, 174 — distinguished; Appeals to Supreme Court, 60. Smith V. Baker ([1891] A. C. 325), applied; Action, 86. Smith V. Goldie (9 Can. S. C. R. 46), referred to; Patent of Invention, 8. APPENDIX A. 1581 Smith V. McLean (21 Can. S. C. E. 355), distinguished; Chattel MOETGAGEj 5. Smith V. St. Lawrence Tow Boat Co. (L. E. 5 P. C. 308), referred to by Taschereaii, J. ; Appeals to Supreme Court, 232^Sale, 32. Smith V. Smith (5 0. E. 690), referred to: Title to Land, 57— Will, 43. Sovereign Insurance Co. v. Peters (12 Can. S. C. E. 33), distin- guished; Insurance, Fire, 25— referred to by Taschereau, J., at eoL 687, under Insurance, Fire, 71. Standard Bank v. Dunham and Park (14 O.E. 67), mentioned; Partnership, 37. Stanstead Election Case (20 Can. S. C. E. 12), followed; Elec- tion Law, 94 — Evidence, 104. Stanton v. Home Insurance Co. (2 Legal Xews, 314), approved; Appeals to Supreme Court, 69. Stanton v. Canada Atltotic Eailway Co. (Cass. Dig., 3 ed., 430),, reviewed; Appeals to Supreme Court, 165 — Fraudulent Prefer- ence, 4. Stephen v. McGillivray (18 Ont. App. E. 516), disting-uished ; Assessment and Taxes, 30 — Municipal Corporations, 86. Stephens v. McArthur (19 Can. S. C. E. 446), followed; Fraudu- lent Preferences, 6 — Mortgage, 12. Stepney Election Case (4 O'M. & H. 34), referred to; Election Law. 27. Stringer's Trusts, Ee, (6 Ch. D. 1), referred to; Title to Land, .57— Will, 43. Summers v. The Commercial Union Assurance Co. (6 Can. S. C. E. 19), followed; Principal and Agent, 33. Sweeny v. Bank of Montreal (12 Can. S. C. E. 661; 12 App. Cas. 617), followed; Pledge, 5— Trusts, 7. Sydney, Town of, v. Bourke ([1895] A. C. 433), followed; Municipal Corporations, 143, 171 — Nuisance, 5. Toronto Eailway Co. v. The Queen (4 Bx.C.E. 262 ; 25 Can. S. C. E. 24; [1896] A. C. 551), discussed; Customs Duties, 5. Trust and Loan Co. v. Quintal (2 Dor. Q. B. 190), followed; Action, 13 — Practice and Procedure, 8 — Sheriff, 12. Turcotte v. Dansereau (26 Can. S. C. E. 578), followed; Appeals TO Supreme Court, 81 — Opposition, 8. Two Mountains Election Case (31 Can. S. C. E. 437), applied; Election Law, 67. U. Underwood v. Maguire (Q. E. 6 Q. B. 237), overruled; Contract, 134 — Domicile, 3. V. Vadeboncoeur v. City of Montreal (29 Can. S. C. E. 9), followed; Practice and Procedure, 8— Sheriff, 12— Title to Land, 67— Substitution, 7.,, ^ -,. n Valin V. Langlois (3 Can. S. C. E. 1; 5 App. Cas. 115), discussed and followed; Constitutional Law, 18. 1582 APPENDIX A. Venner v. The Sun Life Insurance Co. (17 Can. S. C. E. 394), followed; Conditions, 1 — Contract, 67 — Insurance, Life, 27. Vereheres, County of, v. Village of Varennes (19 Can. S. C. E. 265), followed; Appeals to Supreme Court, 40, 43, 292 — Muni- cipal Corporations, 174 — distinguished; Appeals to Supreme Court, 60. Virtue v. Hayes (16 Can. S. C. E. 721), distinguished; Appeals to Supreme Court, 112. Vogel V. Grand Trunk Eailway Co. (11 Can. S. C. E. 612), distin- guished; Bail WATS, 3, 5 — Statutes, 43 — Warehousemen, 2a — dis- approved; Constitutional Law, 29— Master and Servant, 37 — Negligence, 219 — Eailwats, 1 (note) and 51. W. Walker v. City of Halifax (Cass. Dig., 2 ed., 175), mentioned; Negligence, 189 — New Trials, 20. Walker v. The London and Northwestern Eailway Co. (L. E. 1 C. P. D. 518), referred to; Contract, 31. Walker v. McMillan (6 Can. S. C. E. 241), followed; Contract, 159. Walker v. Sweet (21 L. C. Jur. 29), approved and followed by Taschereau, J. ; Contract, 11. Wallbridge r. Farwell (18 Can. S. C. E. 1), followed; Con- tract, 66. Walmsley v. Griffith (13 Can. S. C. E. 434), followed; Appeals TO Supreme Court, 430. Webster v. City of Sherbrooke (24 Can. S. C. E. 52), distinguish- ed; Appeals to Supreme Court, 61 — referred to; Appeals to Su- preme Court, 292 ; Municipal Corporations, 174. West Nissouri, Township of, v. Township ol North Dorchester (14 0. E. 294), distinguished; Assessment and Taxes, 30 — Municipal Corporations, 86. Wheeler v. Black (14 Can. S. C. E. 242), referred to; Appeals to Supreme Court, 38. Whishaw v. Gilmour (15 L. C. E. 177), approved; Prescription, 26. Whitby, Corporation of, v. Liscombe (23 Gr. 1), followed by Gwynne and Sedgewick, JJ. ; Statute of Mortmain, 2^Will, 56. Williams v. Irving (22 Can. S. C. E. 108); followed; Appeals TO Supreme Court, 54 — Statutes, 55. Wilmot V. Vanwart (1 Pugs. & Bur. 456), mentioned; Nevt Trials, 35. Wilson V. City of Montreal (24 L. C. Jur. 222), approved. Strong, J., dubitante; Customs Duties, 5. Wineberg v. Hampson (19 Can. S. C. E. 369), distinguished; Appeals to Supreme Court, 57. Winnipeg, , City of, v. Barrett ([1892] A. C. 445) applied per Taschereau, J., Constitutional Law, 2. Wyke V. Eogers (1 DeG. M. & G. 408), followed; Debtor and Creditor, 51 — Principal and Surety, 3. Y. Yarmouth, Corporation of, v. Simmonds (L. E. 10 Ch. D. 518), followed; Statutes, 83 — Title to Land, 32. Young V. Smith (Selkirk Election Case), (4 Can. S. C. E. 494), followed; Election Law, 37, 51. APPENDIX B. LIST OF CASES CARRIED IN APPEAL FROM THE SUPREME COURT OF CANADA TO THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. From the time of the organization of tfie Court in 1875', to 2nd December, 1903. Adams & Burns v. The Bank of Montreal (32 Can. S. C. E. 719), leave to appeal refused (8 B. C. Eep. 337, note). Adamson v. Rogers (36 Can. S. C. E. 159), leave to appeal refused. Alexander v. Vye (16 Can. S. C. E. 501), leave to appeal refused. Allan V. City of Montreal (23 Can. S. C. E. 390), leave to appeal refused. Arpin v. The Queen (14 Can. S. C. E. 736), leave to appeal re- fused, 10 Can. Gaz. 275. Association Pharmaoeutique de Quebec v. Livemois (31 Can. S. C. E. 43), leave to appeal refused, August, 1901. Attorney- General for British Columbia v. Attorney-General for Canada (14 Can. S. C. E. 345), judgment reversed (14 App. Gas. 295, 58 L. J. P. C. 88; 60 L. T. 712; 5 Times L. E. 385). Attorney-General for Canada v. The Provinces of Ontario, Que- bec and Nova Scotia (26 Can. S. C. E. 444), judgment varied ([1898] A. C. 700). Attorney- General for Canada v. City of Toronto (23 Can. S. C. E. 514), leave to appeal refused, 21 Can. Gaz. 414. Attorney-General for Nova Scotia v. Gregory. See Halifax and Cape Breton Eailway Co. v. Gregory, infra. B. Barrett v. City of Winnipeg (19 Can. S. C. E. 374), judgment reversed ([1892] A. C. 445; 61 L. J. P. C. 58; 67 L. T 429) Beatty v. North-West Transportation Co. (12 Can. S. C. K. 59«), judgment reversed (12 App. Cas. 589; 56 L. J. P. C. 102; 57 L. T. 426; 36 W. E. 647). ^ o ^ -o .<^ i . Beaudet v. North Shore Eailway Co. (15 Can. S. C. E. 44), leave to appeal refused (10 Can. Gaz. 463). six i Belcher v. McDonald (33 Can. S. C. E. 321), leave to appeal ^^""BkHoXv.' Corporation of Chatham (16 Can. S- C. E. 235), leave to appeal refused on the ground that no question of public importance was involved (14 Can. Gaz. 153). Boulton V. Shea (22 Can. S. C. E. 742), leave to appeal refused (23 Can. Gaz. 298). ,^ -x , /oo n « r T? Brophy v. Attorney-General for Manitoba (22 Can. b. C. K. 577), judgment varied ([1895] A. C. 203). 1584 APPENDIX B. C. CadiCTix V. Montreal Gas Co. (28 Can. S. C. E. 382), leave to appeal granted on special terms as to costs [1898] A. C. 718; judg- ment reversed ([1899] A. C. 589). Calgary and Edmonton Eailway Co. v. The King; Calgary and Edmonton Land Co. v. The King (33 Can. S. C. E. 673), leave to appeal granted, July, 1903 (41 Can. Gaz. 400). Canada Atlantic Eailway Co. v. City of Ottawa (12 Can. S. C. E. 365), leave to appeal granted but not prosecuted (11 Can. Gaz. 394). Canada Atlantic Eailway Co. v. Township of Cambridge (15 Can. S. C. E. 219), leave to appeal granted but not prosecuted (11 Can. Gaz. 394). Canada Central Eailway Co. v. Murray (8 Can. S. C. E. 313), leave to appeal refused (8 App. Cas. 574). Canada Sugar Eefining Co.. v. The Queen (27 Can. S. C. E. 395), judgment affirmed ([1898] A. C. 735). Canadian Pacific Eailway Co. v. Township of Chatham (25 Can. S. C. E. 608), leave to appeal refused. Canadian Pacific Eailway Co. v. Eobinson (19 Can. S. C. E. 292), judgment reversed ([1892] A. C. 481; 61 L. J. P. C. 79; 67 L. T. 505). Carroll v. The Erie County Natural Gas and Fuel Co. (29 Can. S. C. E. 591), leave to appeal refused (34 Can. Gaz. 272). Central Vermont Eailway Co. v. Town of St. Johns (14 Can. S. C. E. 288), judgment affirmed (14 App. Cas. 590; 59 L. J. P. C. 15; 61 L. T. 441). Charlebois v. Delap (26 Can. S. C. E. 221), consent judgment reversed (31 Can. Gaz. 11). See [1899] A C. 114. Chevrier v. The Queen (4 Can. S. C. E. 1), leave to appeal re- fused. Citizens' Insurance Co. v. Parsons (4 Can. S. C. E. 215), judg- ment affirmed as to the validity of the Ontario Insurance Act, and, otherwise, reversed (7 App. Cas. 96; 51 L. J. P. 0. 11; 45 L. T. 721). Clergue v. Murray (32 Can. S. C. E. 450), leave to appeal refused. In refusing leave to appeal their Lordships of the Judicial Committee followed Prince v. Gagnon (8 App. Cas. 103). See ([1903] A. C. 521. Common School Fund, In re. Province of Quebec v. Province of Ontario and the Dominion of Canada (31 Can. S. C. E. 516), judg- ment reversed ([1903] A. C. 39). Consumers' Cordage Co. v. Connolly (31 Can. S. C. E. 244), judgment discharged and new trial granted on special terms as to deposit of sum in dispute, and as to costs, otherwise, the judgment of the Court of Eeview of 13th February, 1900, affirming the trial court judgment of 31st May, 1899, to stand and defendants to pay all costs in the trial court ; each party to bear their own costs on tiie appeal to the Privy Council (41 Can. Gaz. 440). Cooper V. Molsons Bank (26 Can. S. C. E. 611), judgment affirmed (30 Can. Gaz. 561). D. Davies v. McMillan (Cout. Dig. 662), appeal dismissed for want of prosecution. APPENDIX B. 1585 Dominion Cartridge Co. v. Cairns (38 Can. S. C. E. 361), leave to appeal refused. Dominion Cartridge Co. v. McArthur (31 Can. S. C. E. 392), leave to appeal in forma pauperis granted, August, 1902. Duggan V. London and Canadian Loan and Agency Co. (20 Can. S. C. E. 481), judgment reversed ([1893] A. C. 506; 63 L. J. P. C. 14), Domoulin v. Langtry (13 Can. S. C. E. 258), leave to appeal refused (57 L. T. 317). Dupuy V. Ducondu (6 Can. S. C. E. 425), judgment reversed (9 App. Cas. 150; 53 L. J. P. C. 12; 50 L. T. 129). E. Ecclesiastiquesi de St. Sulpice v. City of Montreal (16 Can. S. C. E. 399), leave to appeal refused (14 App. Cas. 660; 59 L. J. P. C. 20; 61 L. T. 653). Educational Statutes in Manitoba, In re (22 Can. S. C. E. 577), judgment varied ([1895] A. C. 202). Exchange Bank of Canada v. La Banque du Peuple (Cass. Dig., 2 ed., 79; 23 C. L. J. 391), leave to appeal refused (9 Can. G-az. 394). P. Ferguson v. Troop (17 Can. S. C. E. 527), leave to appeal re- fused. Fisheries Case (26 Can. S. C. E. 444), judgment varied ([1898] A. C. 700). Porsyth v. Bury (15 Can. S. C. E. 543), leave to appeal refused (11 Can. Gaz. 418). Fredericton, City of, v. The Queen (3 Can. S. C. E. 505). In a case from New Brunswick (Eussell v. The Queen) in which the same questions were in issue, the judgment was affirmed (7 App. Cas. 829). G. Gagnon v. Prince (7 Can. S. C. E. 386), leave to appeal vas re- fused (8 App. Cas. 103). Followed in Clergue v. Murray, ([1903] A. C. 521), ante. General Engineering Co. v. Dominion Cotton Mills Co. (31 ban. S. C. E. 75), judgment reversed ([1902] A. C. 570). „ „ ^^ Gerow v. British American Assurance Co. (16 Can. b. U. ±i. 524), leave to appeal refused. . ,^, n a n tj Glengarry Election Case; Purcell v. Kennedy (14 Can S C. E. 453), leave to appeal refused (59 L. T. 279; 4 Times L. E 664) Grand- Trunk Eailway Co. v. Beaver (22 Can. S. C. E. 498), leave to appeal refused (23 Can. Gaz. 320). „ ^ u 71^^ loavo Grand Trunk Eailway Co. v. Beckett (16 Can. S. C. E. 713), leave to appeal refused (9 Can. Gaz. 394). ,-,« Pa. q E 543^ Grand Trunk Eailway Co. v. McMillan (16 Can. S. C. E. 543), leave to appeal refused (Wheeler P. C. Law 982). S.O.D. — 51 1586 APPENDIX B. Grand Trunk Kailway Co. v. Washington (28 Can. S. C. R. 184), judgment affirmed ([1899] A. C. 275). See 30 Can. Gaz. 543; 31 Can. Gaz.. 343, 415; 32 Can. Gaz. 514. Great Western Insurance Co. v. Jordan (14 Can. S. C. R. 734), leave to appeal was granted, but the appeal was never prosecuted. See 8 Can. Gaz. 464. H. Halifax and Cape Breton Coal and Eailway Co. v. Gregory (Cass. Dig., 2 ed., 727), leave to appeal refused. See 11 App. Cas. 229; 55 L. J. P. C. 40; 55 L. T. 270; sub nom. Attorney-General for Nova Scotia V. Gregory. Hamel v. Leduc; Meolet Election Case (29 Can. S. C. R. 178), leave to appeal refused. Hanson v. Village of Grand 'Mere (33 Can. S. C. E. 50), leave for an appeal was granted in May, 1903. Hayes v. Elmsley (23 Can. S. C. E. 623), leave to appeal refused. Hobbs v. Esquimault and Nanaimo Eailway Co. (29 Can. S. C E. 450), appeal dismissed by consent upon settlement between the parties, February, 1900. Hoggan V. Esquimault and Nanaimo Eailway Co. (20 Can. S. C. E. 235), Judgment affirmed, ([1894] A. C. 429). House of Commons of Canada, In re Eepresentation of Prince Edward Island (33 Can. S. C. E. 594), leave to appeal granted 11th November, 1903. Huson V. Township of South Norwich (24 Can. S. C. E. 145), judgment affirmed. Sub nom. Attorney-General for Ontario v. Attorney-General for Canada et al. See " Prohibitory Liquor Acts," infra, and (1^96) A. C. 348. I. Imperial Bank of Canada v. The Bank of Hamilton (31 Can. S. C. E. 344), judgment affirmed ([1903] A. C. 49). Indian Claims Case (25 Can. S. C. E. 434), judgment affirmed (28 Can. Gaz. 272). Johnston v. Trustees of St. Andrews Church, (1 Can. S. C. E. 235), leave to appeal refused (3 App. Cas. 159; 37 L. T. 556; 26 W. E. 359). K. Kearney v. Creelman (14 Can. S. C. E. 33), leave to appeal re- fused (8 Can. Gaz. 154). King, The, v. Algoma Central Eailway Co. (32 Can. S. C. E. 277), judgment affirmed ([1903] A. C. 478). King, The, v. Carmack (32 Can. S. C. R. 586), on 4th March, 1903, leave was granted for an appeal and a cross-appeal; on 2nd December, 1903, the appeal was dismissed (40 Can. Gaz. 569; 42 Can. Gaz. 256). King, The, v. Chapelle (32 Can. S. C. E. 586), on 4th March, 1903, leave was granted for an appeal and a cross-appeal; on 2nd December, 1903, the appeal was dismissed (40 Can. Gaz. 569; 42 Can. Gaz. 256). APPENDIX B. 1587 A,^, M^^^ Ta^^i \ ^""^^^ ^''•^ ^°°g (32 C^^- S- C. R. 586), on March, 1903, leave was granted for an appeal and a cross-appeal; ^«o ^o n^'^^''''„J^?3' *^^ ^PP^^l ^as dismissed (40 Can Gaz 569; 43 Can. Gaz. 256). Lamoureux y. Molleur (Cass. Dig., 2 ed., 71), leave to appeal refused (8 Can. Gaz. 154). -^ Lawless v- Sullivan (3 Can. S. C. E. 117), judgment reversed (6 App. Cae. 373; 50 L. J. P. C. 33; 44 L. T. 897: 29 W R 917) Lemome v. City of Montreal (23 Can. S. C.' R. 390), leave to appeal refused. Lewin v. Wilson (9 Can. S. C. E. 637), judgment reversed (11 App. Cas. 639; 55 L. J. P. C. 75; 55 L. T. 410; 2 Times L. E. 741) Liquor License Act, 1883, In re (Cass. Dig., 2 ed., 509), judg- ment holding Act valid as to wholesale licenses reversed (6 Can Gaz. 152, 264). ^ London Assurance Corporation v. Great Northern Transit Co. (29 Can. S. C. E. 577), leave to appeal refused, July, 1899. London and Canadian Loan and Agency Co. v. Duggan (20 Can. S. C. E. 481), judgment reversed ([1893] A. C. 506: 63 L. J. P C. 14). J\Ic. McAllister v. Forsythe (12 Can. S. C. E. 1), leave to appeal re- fused. McKelvey v. The Le Eoi Mining Co. (32 Can. S. C. E. 664), leave to appeal refused, February, 1903. McLaren v. Caldwell (8 Can. S. C. E. 435), judgment reversed (9 App. Cas. 392; 53 L. J. P. C. 33; 51 L. T. 370). McLean v. Stewart (25 Can. S. C. E. 225), judgment varied. McQueen v. The Queen (16 Can. S. C. E. 1), leave to appeal refused (11 Can. Gaz. 368). M. Mackenzie v. The Building and Loan Association (28 Can. S. C. E. 407), leave to appeal refused. Manitoba Educational Statutes, In re (22 Can. S. C. E. 577), judgment varied ( [1895] A. C. 202). Manufacturers' Life Insurance Co. v. Anctil (28 Can. S. C. E. 103), judgment affirmed (33 Can. Gaz. 419, 442). Maritime Bank v. Eeceiver-General of JSTew Brunswick (20 Can. S. C. E. 695), judgment affirmed ([1892] A. C. 437; 61 L. J. P. C. 75; 67 L. T. 126). Maritime Bank v. The Queen (17 Can. S. C. E. 657), leave to appeal refused (15 Can. Gaz. 394). Martley v. Carson (20 Can. S. C. E. 634), appeal dismissed on preliminary objections without deciding on the merits (14 Can. Gaz. 270, sub nom. Clark v. Carson) . Meloche v. Simpson (29 Can. S. C. E. 3751, leave to appeal re- fused. May, 1899. Mercer v. The Attorney-General for Ontario (5 Can. S. C. E. ■538), judgment reversed (8 App. Cas. 767; 52 L. J. P. C. 84; 49 L. T. 312). 1588 APPENDIX B. Moffatt V. The Merchants Bank of Canada (11 Can. S. C. E. 46), leave to appeal refused (6 Can. Gaz. 153). Montmorency Election Case; Valin v. Langlois (3 Can. S. C. K. 1), leave to appeal refused (5 App. Cas. 115; 49 L. J. P, C. 37; 41 L. T. 662). Montreal, City of, v. Belanger (30 Can. S. C. E. 574), leave to appeal refused, March, 1901. Montreal, City of, v. Cadieux (29 S. C. E. 616), appeal dismissed for want of prosecution, March, 1901. Montreal, City of, v. Ste. Cunegonde (32 Can. S. C. E. 135). An application by the Town of Westmount, called into the case as warrantor of the City of Ste. Cunegonde, for leave to . appeal from the judgment of the Supreme Court of Canada was refused, July, 1902. Moore v. The Connecticut Mutual Insurance Co. (6 Can. S. C. E. 634), judgment afiSrmed (6 App. Cas. 644). N. Nasmith v. Manning (5 Can. S. C. E. 417), leave to appeal was granted but the appeal was not prosecuted. Nicolet Election Case (29 Can. S. C. E. 178), leave to appeal refused. North Shore Eailway Co. v. The City of Quebec (27 Can. S. C. E. 102), judgment affirmed (31 Can. Gaz. 11). North-West Electric Co. v. Walsh (39 Can. S. C. E. 33), leave to appeal refused. Nova Scotia, Attorney-General for the Province of, v. The Attorney-General for the Dominion of Canada (26 Can. S. C. E. 444), judgment varied ([1898] A. C. 700). 0. O'Gara v. Union Bank of Canada (22 Can. S. C. E. 404), appeal dismissed for want of prosecution (24 Can. Gaz. 224). Ontario Mining Co. v. Seybold (32 Can. S. C. E. 1), judgment affirmed ([1903] A. C. 73). Ontario, Attorneys-General for the Province of, and the Province of Quebec v. The Attorney- General for the Dominion of Canada (26 Can. S. C. E. 444), judgment varied ([1898] A. C. 700). See Common School Fund (31 Can. S. C. E. 516; [1903] A. C. 39), and Indian Claims (25 Can. S. C. E. 434) ubi supra. P. Parker v. Moiitreal City Passenger Eailway Co. (Cass. Dig., 2 ed., 731; 7 Legal News 194), leave to appeal refused (6 Can. Gaz. 174). Petrolea, Tovni of, v. Johnston (not reported, judgment of Su- preme Court of Canada delivered, 22nd February, 1899), leave to appeal refused (30 Can. Gaz. 585). Pion V. North Shore Eailway Co. (14 Can. S. C. E. 677), judg- ment affirmed (14 App. Cas. 612; 59 L. J. P. C. 25; 61 L. T. 525). Pontiac, County of, v. Eoss (17 Can. S. C. E. 406), leave to appeal refused. Pidnce Edward Island, In re, Eepresentation in the House of Commons (33 Can. S. C. E. 594), leave to appeal granted, 11th November, 1903. APPENDIX B. 1589 Prohibitory Liquor Laws, In re (24 Can. S. C. E. 145), judgment reversed ([1896] A. 0. 348). Purcell Y. Kennedy; Glengarry Election Case (14 Can. S. C. E. 453), leave to appeal refused (59 L. T. 279; 4 Times L. E. 664). Q. Quebec, City of, v. North Shore Eailway Co. (27 Can. S. C. E. 102); judgment affirmed (31 Can. Gaz. 11). Quebec, City of, v. The Quebec Central Eailway Co. (10 Can. S. C. E. 563), leave to appeal granted, but the appeal was not prosecuted. Quebec, Attorneys-General for the Province of, and the Province of Ontario v. The Attorney- General for the Dominion of Canada (26 Can. S. C. E. 444), judgment varied ([1898] A. C. 700). Quebec, Province of, v. The Province of Ontario and Dominion of Canada; In re Common School Fund (31 Can. S. C. E. 516), judgment reversed ([1903] A. C. 39). Seer Common School Fund (31 Can. S. C. E. 516; [1903] A. C. 39) and Indian Claims (25 Can. S. C. E. 434) uhi supra. Queen, The, v. Belleau (7 Can. S. C. E. 53), judgment reversed (7 App. Cas. 473.) Queen, The, v. Doutre (6 Can. S. C. E. 342), judgment affirmed (9 App. Cas. 745; 53 L. J. P. C. 85; 51 L. T. 669). Queen, The, v. Yule (30 Can. S. C. E. 24), leave to appeal re- fused (34 Can. Gaz. 272). Queen Insurance Co. v. Parsons" (4 Can. S. C. E. 215), judg- ment affirmed as to the validity of the Ontario Insurance Act, other- wise reversed (7 App. Cas. 96; 51 L. J. P. C. 11; 45 L. T. 721). E. Ealeigh, Township of, v. Williams (21 Can. S. C. E. 103), judg- ment reversed ([1893] A. C. 540; 63 L. J. P. C. 1; 6f; L. T. 506). Eeed v. Attorney-General for Quebec (Mousseau) (8 Can. S. C E. 408), judgment affirmed (10 App. Cas. 141; 54 L. J. P. C. 12; 52 L. T. 393; 33 W. E. 618). Eepresentation in the House of Commons of Canada, In re, Prince Edward Island (33 Can. S. C. E. 594), leave to appeal granted, 11th November, 1903. ^ ^ , Eoss V. Hurteau (18 Can. S. C. E. 713), leave to appeal refused. Eoss V. The Queen (25 Can. S. C. E. 564), judgment affirmed Eussell V. Lefrancois (18 Can. S. C. E. 335), leave to appeal refused. S. St. Catharines Milling Co. v. The Queen (13 Can S C R 577) judgment affirmed (14 App. Cas. 46; 58 L. J. P. C. 54; 60 L. T. 197, 5 Times L. E. 125). t x. /-,. n a n t? St. Lawrence and Ottawa Eailway Co. v. Lett (11 Can. b. O. K. 422), leave to appeal refused (6 Can. Gaz. 583). Saint Louis V The Queen (25 Can. S. C. E. 649) , leave to appeal ^^ ""'school Fund and Lands, Province of Quebec v. Province of On- tario and Dominion of Canada (31 Can. S. C. E. 516), judgment re- versed ([1903] A. C. 39). 1590 APPENDIX B. Sewell V. British Columbia Towing Co. (9 Can. S. C. E. 527), leave to appeal was granted, but the appeal was never prosecuted. Shields v. Leacock (Cass. Dig., 2 ed., 604), leave to appeal was granted, but the appeal was never prosecuted. Sinclair v. Preston (31 Can. S. C. E. 408), leave to appeal re- fused. Smith V. Goldie (9 Can. S. C. E. 46), leave to appeal refused. Sweeny v. Bank of Montreal (12 Can. S. C. E. 661), judgment affirmed (12 App. Cas. -617; 56 L. J. P. C. 79; 56 L. T. 897). T. "Thrasher," The, Sewell v. British Columbia Towing Co. (9 Can. S. C. E. 527), leave to appeal was granted, but the appeal was never prosecuted. Toronto, City of, v. Toronto Eailway Co. (37 Can. S. C. E. 640), leave to appeal refused. Toronto, City of, v. Virgo (22 Can. S. C. E. 447), Judgment affirmed ([1896] A. C. 88). Toronto Street Eailway Co. v. The Queen (25 Can. S. C. E. 24), judgment reversed ([1896] A. C. 551). U. Union Banlc of Canada v. 0'Gara (22 Can. S. C. E. 404), appeal dismissed for want of prosecution (24 Can. Gaz. 224). V. Valin V. Langlois; Montmorency Election Case (3 Can. S. C. E. 1), leave to appeal refused (5 App. Cas. 115; 49 L. J. P. C. 37; 41 L. T. 662). Vancouver, City of, v. Canadian Pacific Eailway Co. (23 'Can. S. C. E. 1), leave to appeal refused (23 Can. Gaz. 360). W. Wadsworth v. MeCord (12 Can. S. C. E. 466), judgment affirmed (14 App. Cas. 631; 59 L. J. P. C. 7; 61 L. T. 487), 5w& nom. McMul- len v. Wadsworth. West V. Corporation of Parkdale (12 Can. S. C. E. 250), judg- ment affirmed (12 App. Cas. 602; 56 L. J. P. C. 66; 57 L. T. 602). White V. City of Montreal (29 Can. S. C. E. 677), leave to appeal refused. May, 1900. Williams v. Township of Ealeigh (21 Can. S. C. E. 103), judg- ment reversed ([1893] A. C. 540; 63 L. .7. P. C. 1; 69 L. T. 506). Wilson V. The Canadian Development Co. (33 Can. S. C. E. 432), leave to appeal refused, July, 1903. Windsor and Annapolis Eailway Co. v. The Queen (10 Can. S. C. E. 335), judgment as to quantum of damages reversed (55 L. J. P. C. 41; 55 L. T. 271; 2 Times L. E. 743). Winnipeg, City of, v. Barrett (19 Can. S. C. E. 374), judgment reversed ([1892] A; C. 445; 61 L. J. P. C. 58; 67 L. T. 429). INDEX TO NAMES OF CASES DIGESTED. The bracketed Roman numerals refer to volumes of Supreme Court Reports. Cases alphabetically arranged in the Appendices A and B are not referred to in this Index. A. PAGE. Abbott, Fraser v. (Cass. Dig. 2 ed. 695) Ill Abbott V. Maedonald (iii. 278) 70, 1124 Abell V. Church (i. 442) 550 Abrahams v. The Queen (vi. 10) 398 Acadia Coal Co., Grant t. (xxxii. 427) 831, 937 Accident Ins. Co. of K. A., Caldwell v. (xxiv. 263) 556 Accident Ins. Co. of N. A. v. McLachlan (xviii. 627) 84, 388 Accident Ins. Co. of N. A. v. Young (xx. 280) 668 Adams, Crowe v. (xxi. 342) 1312 Adams v. The King (xxxi. 220) 424, 1299 Adams v. McBeath (xxvii. 13) 579, 1546 Adams and Bums v. Bank of Montreal (xxxi. 223) . .593, 1132, 1165 Adams and Bums v. Banlc of Montreal (xxxii. 719) . .256, 452, 626 Adamson v. Adamson (xii. 563) 1107, 1417 Adamson v. Eogers (xxvi. 159) 772 ^tna Ins. Co. v. Atty.-Gen. of Ontario (xviii. 707) 683 .^tna Life Ins. Co. v. Brodie (v. 1) 384, 705 ^tna Life Ins. Co. v. Brodie (Cass. Dig. 673) 1099 Agricultural Ins. Co. v. Sargeant (xxvi. 29) 1160 Agricultural Sav. and Loan Co., Liverpool & London & Globe Ins. Co. V. (xxxiii. 94) 352, 683, 862 Albert Mining Co., Spurr v. (ix. 35) 302 Alexander, Lewis v. (xxiv. 551) 381, 882 Alexander, Nordheimer v. (xix. 248) 917, 1504 Alexander v. Vye (xvi. 501) 553 Alexander v. Watson (xxiii. 670) 631 Algoma Central Ey. Co., The King v. (xxxii. 277) 428, 1325, 1349, 1366 Allan, Brown v. (Cass. Dig. 2 ed. 146) 308 Allan V. Evans (xxx. 416) 1386, 1532 Allan V. City of Montreal (xxiii. 390) 47, 98, 146, 602 Allan V. Price (xxx. 536) 1-139, 1514 Allen, Cowan v. (xxvi. 292) 1091, 1529 Allen v. Hanson (xviii. 667) 357, 282, 614, 1554 Allen v. Merchants' Mar. Ins. Co. (xv. 488) 710, 794, 1505 Allen V. O'Brien (xxx. 340) 398, 1443 Alley V. Canada Life Ass. Co. (xxviii. 608) 767, 1287, 1496 Allison, Lewis v. (xxx. 173) 1395, 1474 Allison V. McDonald (xxiii. 635) 8o9, 1389 1592 INDEX TO NAMES OF CASES. Almon V. Lewin (v. 514) 1535 Almon, Providence Washington Ins. Co. v. (Cass. Dig. 2 ed. 390) 721 Amer v. The Queen (ii. 592) 105, 127, 406 American Stoker Co. et al.. General Engineering Co. v. (xxxi. 75) 1038 Ames V. Fiiller (Cass. Dig. 2 ed. 140) 119, 307 Ames-Holden Co. v. Hatfield (xxix. 95) 368, 1275 Amyot V. Labrecque; Bellechasse Elec. Case (xx. 181) . . . .534, 568 Anchor Mar. Ins. Co. v. Corbett (ix. 73) 138, 724 Anchor Mar. Ins. Co., Keith v. (ix. 483) 717 Anctil, Manufacturers Life Ins. Co. v. (xxviii. 103) 544, 703 Anctil V. City of Quebec (xxxiii. 347) 30, 433, 603 Anderson, Bain v. (xxviii. 481) 66, 345, 355, 819 Anderson, Fawcett v. (Cass. Dig. 2 ed. 8) 348, 1148 Anderson, Fisher v. (iv. 406) '. 384, 1524 Anderson, Grand Trunk Ey. Co. v. (xxviii. 541) 966, 1202 Anderson v. Jellett (ix. 1) 607, 1443 Anderson v. Lawrence (xvii. 349) 444 Anderson, Segsworth v. (xxiv. 699) 667 Anglo-Continental Guano Works, Emerald Phosphate Co. v. (xxi. 422) 55 Anglo-French S. S. Co., Guilford v. (ix. 303) 977 Angus v. Calgary School Trustees (xvi. 716) 71 Angus V. Union Gas and Oil Stove Co. (xxiv. 104) , 632 Annand, Tupper v. (xvi. 718) 1018 Annapolis Elec. Case; Mills v. Eay (xx. 169) 539 Annual Conference of New Brunswick, Eay v. (vi. 308) . .1342, 1526 Antigonish Elec. Case; Thompson v. McGillivray (xx. 169) . . 529 Arbitration re Accounts and Subsidies (xxiv. 498) 275, 1370 Arbitration re Indian Claims (xxv. 434) 376 Arbitration re Indian Claims (xxx. 151) 280, 654, 1249 Arbitration re School Fund and Lands (xxviii. 609; xxx. 306; xxxi. 516) 47, 140, 349, 279 477 Archbald v. DeLisle (xxv. 1)..36, 62, 383, 950, 1020, 1034, 1085, 1513 Archbold, In re; Archbold, Kaulbach v. (xxxi. 387) 488, 1533 Archer, Severn v. (Cass. Dig. 3 ed. 875; 12 Ont. P. E. 473) . . 46, 1138, 1538 Archibald, Handley v. (xxx. 130) 793, 1431 Archibald v. Hubley (xviii. 116) 204, 593, 1399 Archibald, Imrie v. (xxv. 368) ■. 463, 856 Archibald v. McLaren (xxi. 588) 805, 983, 998 Archibald, Mulcahey v. (xxviii. 523) 451, 635 Archibald v. McNerhanie (xxix. 564) 376, 1024, 1340, 1352 Archibald r. The Queen (xxiii. 147) 1173 Archibald v. Truro (xxxi. 380) 747, 790, 884 Argenteuil Elec. Case; Christie v. Morrison (xx. 194) 516, 770 Armour, The Queen v. (xxxi. 499) 100, 1114 Armstrong, Lambe v. (xxvii. 309) 126, 1343, 1384 Armstrong, Lye v. (7th Dec, 1900) 1379 Armstrong v. McLelland (xxv. 363) 1499, 1553 Armstrong v. Nason (xxv. 263) 1499, 1553 Armstrong v. Wright (xxv. 263) 1499, 1553 Arnold, Byrne v. (Cass. Dig. 3 ed. 107) 747 INDEX TO NAMES OF CASES. 1593 Arpin v. Merchants Bank (xxiv. 142) 136 Arpin v. The Queen (xiv. 736) 93 Asbestos and Asbestic Co. v. Durand (xxx. 285), 249, 822, 823, 830, 923, 924, 933 Aseott V. Compton (xxix. 228) 8, 220, 876 Ash V. Methodist Church (xxxi. 497) 77, 1112 Ashdown, Dedriek v. (xv. 227) 238 Ashdown v. Manitoba Free Press Co. (xx. 43), 41, 746, 775, 974, 1047 Association Pharmaceutique de Quebec v. Brunet (xiv. 738) . . 1045 Association Pharmaceutique de Quebec v. Livernois (xxx. 400) . 68, 1056 Association Pharmaceutique de Quebec v. Livernois (sxxiii. 43) 68, 1351, 1353, 1354 Association St. Jean Baptiste v. Brault (xxxi. 172) 117, 287 Association St. Jean Baptiste v. Brault (xxx. 598) 293, 357, 404, 802 Atchison, Grand Trunk Ey. Co. v. (5th March, 1901) . . . .115, 1193 " Athabasca," The (Cass. Dig. 2 ed., 522) 1148 Atkinson v. City of Chatham (xxxi. 61) 956 Atkinson v Stewart (xxii. 315) 312 Atlantic & N. W. Ey. Co., Benning v. (xx. 177) 137 Atlantic & N. W. Ey. Co. v. Judah (xxiii. 231) 605 Atlantic & N. W. Ey. Co., Kerr v. (xxv. 197) 817, 1144, 1206 Atlantic Trusts, Consolidated Blee. Ey. Co. v. (xxviii. 603) .77, 391 Atlas Assur. Co. v. Brownell (xxix. 537) 12, 680, 1155, 1505 Attorney-General (B. C.) v. Attorney-General of Canada (xiv. 345) 827 Attorney-General (B.C.) v. Union Colliery Co. (xxvii. 637) .64, 734 Attorney-General (Can.) v. Attorney-General of B. C. (xiv. 345) 827 Attomev-General (Can.) v. Dominion Salvage and Wrecking Co. (xxi. 72) 257, 1298 Attorney-General (Can.) v. City of Montreal (xm. 352) . .158, 1100 Attorney-General (Can.) v. City of Toronto (xxiii. 514) .... 911 Attorney-General (Can.) v. Flint (xvi. 707) , . ■ 282 Attorney-General (Can.) v. Fonseca (xvii. 612). . . .420, 1243, 1431 Attorney-General (Can.) v. Attorney-General (Ont.) (xiv. 736) 1046 Attorney-General (Can.) v. Attorney-General (Ont.) (xxm. 458) 289, 771, 785, 1014, 1347 Attorney-General (Can.), O'Neil v. (xxvi. 122) ■■••••• ■ • ■ • • 29, 272, 403, 658, 628, 738, 1066, 1512 Attorney-General (Man.) v. Brophy (xxii. 577) 274, 1347 Attorney-General (N.S.) v. Axford (xiii. 294) 14:b5 Attorney-General (N.S.) v. Lovitt (xxxm. 350) ....... .... 386, 408, 443, 489, 599, 1386 Attornev-General (N.S.), Municipalitv of Lunenburg v. (xx. 59g) ^'•' Attornev-Generai (N.S.) Temple v. (xxiv. 355) . . . .763, 829, 1372 Attorney-General (Ont.) v. Attorney-General of Canada / • 7QC\ lU'iD A f+nrnpv' General ' (Ont.) v. Attornev-General of Canada (xxiii 458) ■ ■ • -289, 771, 785, 1014, 1347 Attornev-General (Ont.) v. ^tna Ins. Co. (xvii. 707) 683 1594 INDEX TO NAMES OF CASES. Attorney-GeneTal (Ont.) v. Mercer (v. 538) 413 Attorney-General (Ont.) v. Scully (xxxiii. 16) 116, 808 Attorney-General (Ont.) v. Vaughan Eoad Co. (xxi. 631) .111, 1441 Attorney-General (Que.), Eeed v. (viii. 408) 290 Attrill V. Piatt (x. 425) 493, 1431 Aubert-Gallion, Corp. of, v. Eoy (xxi. 456) 1441 Aubry, Lefebvre v. (xxvi. 602) 21, 810, 1021 Auer Incandescent Light Co., Dreschel v. (xxviii. 368) .65, 106, 385 Auer Incandescent Light Co., Dreschel v. (xxviii. 608) . . lOS?, 1359- Auger, Magann v. (xxxi. 186) 351, 477, 1013, 1057, 1506 Augusta, Township of, Elizabethtown v. (xxxii. 295) . . . .486, 885 Aurora, Town of, v. Village of Markham (xxxii. 457) 116, 130, 1127, 1362 Austin, Page v. (x. 132) 262 Axford, Attorney-General of N. S. v. (xiii. 294) 1465 Ayotte V. Boucher (ix. 460) ' 49, 615, 999 Ayr American Plow Co. v. Wallace (xxi. 256) 201 B. Badenach, Slater v. (x. 296) 164, 65& Baechler, Purdom v. (xv. 610) 1029 Bagot Elec. Case (xxi. 28) 533 Bailey, King v. (xxxi. 338) 397, 440, 790 Bailey v. Ocean Mar. Ins. Co. (xix. 153) 725 Bailey v. City of Vancouver (xxv. 62) ■. 218, 1344 Bain v. Anderson (xxviii. 481) 66, 345, 355, 81& Bain v. Cholette (x. 652) 513 Bain v. City of Montreal (viii. 252) 160, 570, 896, 1000 Baird, Ellis v. (xvi. 147) 82 Baker v. DeLisle (xxv. 1) . .36, 62, 383, 950, 1020,1024, 1085, 1513 Baker v. McLelland (xxiv. 416) 371, 834 ■Baker v. Societe, etc., Metropolitaine (xxii. 364) . .1077,. 1140, 1402 Balderson v. The Queen (xxviii. 261) 246, 1359' Balch & Peppard v. Eombough (12th June, 1900) 432, 609, 940, 12ia Balfour v. McNaught (xxxii. 690) 833, 1314 Balfour v. "Toronto Ey. Co. (xxxii. 239) 101, 127, 1134, 1502 Balfour v. Williams (xviii. 472) 1468 Ball V. Compton Corset Co. (xiii. 469) 1035 Ball V. McCaffery (xx. 319) 128, 539 Ball V. O'Shaugiinessy (xxi. 415) 540' Bank of British North America v. Walker (Cass. Dig. 214, 425, 671, 673, 670, 697, 701, 706) 88, 111, 112, 1048, 1101, 1103, 1115, 1125. Bank of British North America v. Warren (12th Nov., 1900) . 1560' Bank of Hamilton v. Halstead (xxviii. 235) 167, 183 Bank of Hamilton v. Harvey (xvi. 714) 197 Bank of Hamilton v. Henderson (xxiii. 716) 395- Bank of Hamilton v. Imperial Bank (xxxi. 344) 178, 837, 951 Bank of Liverpool re Forsyth v. Banlc of N. S. (xviii. 707) . . . 1555 Bank of Montreal, Adams & Burns v. (xxxi. 223) . .593, 1132, 1165 Bank of Montreal, Adams & Bums v. (xxxii. 719) . . .256, 452, 626 Bank of Montreal, Demers v. (xxvii. 197) 90, 101 Bank of Montreal, Demers v. (xxix. 435) . .101, 115, 131, 1126, 1132 Bank of Montreal v. HafEner (10 Ont. "App. E. 592) 783; INDEX TO NAMES OF CASES. 1595, PAGE. Bank of Montreal, Manitoba Mortgage Co. v. (xvii. 692) 102S Bank of Montreal, Sweeney v. (xii. 661) 1465 Bank of Montreal v. Worswick (Cass. Dig. 526) .'..'.'.'.' 783 Bank of New Brunswick v. McLeod (Cass. Dig. 6-14) 1166. Bank of New Brunswick, Scott v. (xxi. 30) 95, 995, Bank of New Brunswick, Scott v. (xxiii. 277) 447 Bank of Nova Scotia v. Eish (xxiv. 709) 557' Bank of Nova Scotia, Eorsyth v., re Bank of Liverpool (xviii. ^07) ; 1555, Bank of Nova Scotia, Mott v. (xiv. 650) 187, 1554 Bank of Nova Scotia, The Queen v. (xi. 1) 415, 1560 Bank of Nova Scotia, Eichards v. (xxvi. 381) 178, 1153 Bank of Nova Scotia v. Eobinson (6th June, 1896) 556 Bank of Nova Scotia, Smith v. (viii. 558) 185, 1308' Bank of P. E. Island, Ings v. (xi. 265) 186, 1353, 1561 Bank of P. B. Island, Morris v. (Cass. Dig. 2 ed. 68) 187, 1563' Bank of Toronto v. Les Cure, etc., de la Nativite (xii. 25) .... 49, 387, 388' Bank of Toronto v. Les Cure, etc., de la Ste. Vierge (Cass. Dig. 687) 1119' Bank of Toronto v. Perkins (viii. 603) 179 Bank of Toronto, Quebec Fire Ins. Co. v. (27th April, 1900) . . 101 Bannerman, Emerson v. (xix. 1) 205 Bannerman, Hamelin v. (xxxi. 534) 100, 459, 1265 Banque d'Hochelaga, Union Bank v. (Cass. Dig. 350) 845 Banque d'Hochelaga v. Waterous Engine Works Co. (xxvii. 406) 653, 863, 1279, 1490' Banque Jacques-Cartier, Brigham v. (xxx. 429) 167, 195, 213, 389, 626, 663 Banque Jacques-Cartier, Giraldi v. (ix. 597) 1151 Banque Jacques-Cartier v. Gratton (xxx. 317)-. .. .597, 1535, 1547' Banque Jacques-Cartier, Monarque v. (xxxi. 474) 126, 1430, 1488, 1492, 1514 Banque Jacques-Cartier v. The Queen (xxv. 84) . . 183, 197, 286, 340' Banque Nationale, Clement v. (xxxiii. 343) 69, 381 Banque du Peuple, City of Three Elvers v. (xxii. 352) 220 Banque du Peuple v. Trottier (xxviii. 422) 44, 66 Banque Provinciale, Ville de Maisonneuve v. (xxxiii. 418) .... 69, 316, 359 Banque Ville Marie v. Morrison (xxv. 289) . 160, 866, 892, 1489, 1515 Baptist V. Baptist (xxi. 425) 86 Baptist V. Baptist (xxiii. 37) 1532 Baptist Foreign Mission Board, Bradshaw v. (xxiv. 351) .1088, 1369^ Bar of Montreal, Honan v. (xxx. 1) 189, 740, 1168 Barbeau, Labelle v. (xvi. 390) • • ■ f Barber, Gibbins v. (xix. 204) S95, 864 Barber, McCuaig v. (xxix. 126) ■ • • •.•■■•• • -843, 861 Barclay, Lake Erie and Detroit Eiv. Ey. Co. v. (xxx. 360) . . 967, 1218 Barlow, Fairbanks v. (xiv. 217) lOol Barnard v. Molson (xv. 716) Barnard, Molson v. (xviii. 622) Barnard, Eiendeau (xxxi. 234) • Barnard v. Eiendeau (11th March, 1901) • •;^: ■ • - • • ■ ■ - • ■ • " " 1J"° Barnett's Banking Co., Eevnolds v (Cass. Dig 2 ed. 170) .... 1556 Barnes v. Exchange Bank of Canada (xiv. 716) -Ld»^ 1013 84 1496 k 1596 INDEX TO NAMES OP CASES. PAGE. Earrett v. Syndicat Lyonnais du Klondyke (xxxiii. 667) .... 108, 117, 1137, 1183 JBarrett v. City of Winnipeg (xix. 374) 296 Earrette, Mercier v. (xxv. 94) 1245, 1434 Barrington v. City of Montreal (xxt. 202) 63, 72 Barrington y. Scottifih Union and Nat. Ins. Co. (xviii. 615) . . 84 Barry, Eoss t. (xix. 360) 360 Earsalou v. Darling (ix. 677) 1451 Earsalou, Foumier t. (3rd May, 1898) 1112 Earsalou, North Am. Glass Co. v. (xxiv. 490) 345 Earss, Merchants Mar. Ins. Co. v. (xv. 185) 707, 716 Barthel v. Scotten (xxiv. 367) 462, 768, 1260, 1369 Eartling, Williams v. (xxix. 54^) • 743, 940 Earton, Township of. City of Hamilton v. (xx. 173) 880 Barton v. McMillan (xx.' 404) 587, 1333, 1340 Eartram v. London West (xxiv. 705) 114 Eastien v. Filiatranlt (xxxi. 129) 651 Eate V. Can. Pac. Ry. Co. (xviii. 697) 1189 Baxter v. Phillips (xxiii. 317) 1253 Baylis, Drammond v. (ii. 61) 1151 Bayne v. Eastern Trusts Co. (xxviii. 606) 581, 1163, 1473 Beach v. Stanstead (xxix. 736) 15, 800, 893 Eeaman, Paulson v. (xxxii. 655) 13, 41, 832 Beamish v. Kaulbach (iii. 704) 70 Eeamish v. Kaulbach (Cass. Dig. 677) 1108 Beatty v. Neelon (xiii. 1) 262 Beatty v. North- West Transportation Co. (xii. 598) 255 Eeatty, O'Donohoe v. (xix. 356) 52, 1339 Beatty v. Oille (xii. 706) 438, 996 Beaubien v. Bernachez (Cass. Dig. 433) 56 Beauchemin, Cadieux v. (xxxi. 370) 383, 583 Beaudet v. North Shore Ry. Co. (xv. 44) 141, 1199 Beaudoin, Lefeunteum v. (xxviii. 89) 99, 560, 591, 608 Beaudry, Grant v. (Cass. Dig. 581) 1003 Eeauharnois Elee. Case; Bergeron v. Desparois (xxvii. 232) . . 172, 529, 573 Eeauharnois Elec. Case; Loy v. Poirier (xxxi. 447) 535, 1360 Beauhamois Elec. Case; Loy v. Poirier (xxxii. Ill) . .139, 504, 1083 Eeaulieu, The Queen v. (1 Ex. C. R. 191) 136 Eeausoleil v. Normand (ix. 711) 1061 Beaver, Grand Trunk Rv. Co. v. (xxii. 498) 1189 Beckett, Grand Trunk Ry. Co. v. (xvi. 713) 430, 1301 Bedell, Owens v. (xix. 137) 1379 Beland, Laine v. (xxvi. 419) 327 Belanger v. Eelanger (xxiv. 678) 818 B61anger, City of Montreal v. (xxx. 574) 120, 161, 895 Belcher v. McDonald (xxxiii. 331) 103, 1134 Bell, Eraser v. (xiil. 546) 1053 Bell, Houghton v. (xxiii. 498) 1470, 1538, 1539 Bell V. Macklin (xv. 576) 616, 1397 Bell, Rickaby v. (ii. 560) 660 Bell V. Vipond (xxxi. 175) 4, 69 •Bell V. Vipond (39th Oct., 1901) .* 103 Bell V. Wright (xxiv. 656) 740, 1331 Bell's Asbestos Co. v. Johnson's Co (xxiii. 325) 310 INDEX TO NAMES OP CASES. 1597 PAGE. Be Te ephone Co. v. City of Chatham (xxxi. 61) 956 Be Telephone Co., Electric Despatch Co. y. (xx. 83) ' 305 Be 1 Telephone Co. v. City of Quebec (xx. 230) 54 Belleau v. Dussault (Cass. Dig. 686) ' " VV 'f^Vn incv Belleau .Dussault (x. 133)^ ...!....y: \ \ \ \ \ \ [ [.Hl l^l 'l^ Belleau, The Queen V. (vii. 53) .. . i^gA Bellechasse Elec. Case (y. 91) ! ! ! ! .' ! ! 92,' 502; Sio', 620 Be lechasse Elee. Case (xx. 181) '.534 ggg Bellemare, Dansereau y. (xyi. 180) 1036 Bender, Carrier y. (xv. 19) 304 Bender v. Carrier (Cass. Dig. 674) hqI Benedict, Scott y. (xiy. 735) ' ' .' ygj Benjamin, West y. (xxix. 282) .4 ' 1021 Bennett, re Ferguson, Turner y. (xxviii. 38) . 129, 391,' 542,' 64o' 1540 Bennmg y. Atlantic and N. W. Ey. Co. (xx. 177) .' 137 Benning y. Thibeaudeau (xx. 110) 666 1062 Bentley v. Peppard (xxxiii. 444) 793,' 1068', 1422 Berger, Munn y. (x. 512) 552 Bergeron, Brunet y. (xxxiii. 137) '.'.'.'. .5'3'o', 1082 Bergeron y. Desparois (xxyii. 232) 172, 529^ 573 Bergeron v. Lasalle (Cass. Dig. 495) '.....' 797 Bergeron, Tooke y. (xxyii. 567) 822, 944 Berlinquet v. The Queen (xiii. 26) 337^ 1114 Bernardin y. North Dufferin (xix. 581) ' 260, 346, 383, 875, 1072, 1299, 1366 Bemachez, Beaubien y. (Cass. Dig. 433) 56 Bemier, Tremblay y. (xxi. 409) 999 Berteaux, Bordon y. (xix. 526) 528 Berthier, Commune de, y. Denis (xxyii. 147) . .794, 1300, 1303, 1404 Berthier Elec. Case (ix. 102) 500, 512, 521 Bew V. Shortreed (Cass. Dig. 500) 782 Bickford y. Cameron (xxi. 379) 86, 391, 1306, 1330 Bickford v. Canada Southern Ey. Co. (xiy. 743) 47, 353, 1209 Bickford y. Town of Chatham (xyi. 235) 320, 869, 872, 1210 Bickford y. Grand Junction Ey. Co. (i. 696; Cass. Dig. 689) . . 847, 1122 Bickford y. Hawkins (xix. 362) 94, 608 Bickford y. Howard (Cass. Dig. 286) 95 Bickford y. Lloyd (Cass. Dig. 35, 673) 145, 1115 Bienyenu, Huot v. (xxxiii. 370) 631, 814, 1235 Bigamy Clauses, Grim. Code (xxyii. 461) 191, 287 Bigaouette y. North Shore Ey. Go. (xyii. 363) 604, 1199 Bigelow V. The Queen (xxxi. i28) 233 Biggs V. Preehold Loan and S. Co. (xxxi. 136) 861 Billington y. Proyincial Ins. Co. (iii. 182) 695 Bingham y. McMurray (xxx. 159) 9, 372, 1038 Birkett y. McGuire (Cass. Dig. 598) 1030 Birks V. Lewis (xxx. 618) 593 Blachford v. McBain (xix. 42) 52, 1270 Blachford v. McBain (xx. 269) 756 Black, Ellis V. (xiy. 740) 1482 Black y. The Queen (xxix. 693) 407, 749, 1071, 1390 Black y. Walker (Cass. Dig. 768) 96, 1277 Black, Wheeler y. (xiy. 242) 1301 Black Diamond S. S. Co., Trainor y. (xyi. 156) 228 1598 INDEX TO NAMES OF CASES. Elaekbum v. McCallum (xxxiii. 65) 1407, 1412, 1541 Elakeley v. Gould (xxvii. 682) 624, 663 Blanchard, Bourget v. (Cass. Dig. 423) 112 Elock, Eennie v. (xxvi. 356) 30, 244, 860, 1280 Boak V. Merchants Mar. Ins. Co. (i. 110) 75, 975, 1363 Boak V. Merchants Mar. Ins. Co. (Cass. Dig. 677) 388 Eoisseau, Caa. Pae. Ey. Co. v. (xxxii. 424) 583, 968, 1219 Eoisseau, Stephens v. (xxvi. 437) 166, 450, 1040 Bond, Conmee v. (Cass. Dig. 511) 806 Eond, Toronto Ey. Co. v. (xxiy. 715) 971, 1457 Bonness, St. Stephens Bank v. (xxiv. 710) 746 Bonsack v. Ealk (Q. E. 9 Q. B. 355) 46, 1128 Boomer, McGreevy v. (Cass. Dig. 139) 324, 330 Booth V. Eatte (xxi. 637) 86, 128, 438, 1086, 1094 Borden v. Berteaux (xix. 526) 528 Boscowitz, Cleary v. (xxxii. 417) 831 Boscowitz, Grifaths v. (xviii. 718) 3, 743, 975, 991 Bosse, Paradis v. (xxi. 419) 391, 575, 1330 Eossom, Wallace v. (ii. 488) 80, 659, 1051 Boston Mar. Ins. Co., Mowatt v. (xxvi. 47) 715 Eoston Eubber Co., Boston Eubber Shoe Co. v. (xxxii. 315) . . . 657, 1453 Eoston Eubber Shoe Co. v. Boston Eubber Co. (xxxii. 315) .... 657, 1453 Eothwell Elec. Case (viii. 676; Cass. Dig. 686) 506, 1113 Bouchard, Couture v. (xxi. 281) 65 Bouchard, George Matthews Co. v. (xxviii. 580) 823, 944 Boucher, In re (Cass. Dig. 325, 687) 104, 635, 1117 Boucher, Ayotte v. (ix. 460) 49, 614, 999 Boulanger, Grand Trunk Ey. Co. v. (Cass. Dig. 733) 934 Boultbee v. Gzowski (xxix. 54) 215, 1158 Eoulton v. Boulton (xxviii. 592) 544, 619 Boulton V. Shea (xxii. 742) 771 Bourget v. Blanchard (Cass. Dig. 423) 112 Bourne, O'Donohue v. (xxvii. 654) 90 Bowes, Seid Sing Kaw v. (17th May, 1898) 104, 638, 1117 Bowker v. Laumeister (xx. 175) .94, 608 Eowmanville Machine Co. v. Dempster (ii. 21) 1305 Boyce, Phcenix Mut. Life Ins. Co. v. (xiv. 723) 698, 703 Boyd V. Snider (xxvii. 201 ; xxvii. 219) 79, 504, 524 Boyle, Cosgrave v. (vi. 165) 197 Brackman & Kerr Milling Co., Oppenheimer v. (xxxii. 699) . . . 116, 369 Bradley, McLean v. (ii. 535) 1310 Bradley, The Queen v. (xxvii. 657) • 13S8 BradsW v. Baptist P. M. Board (xxiv. 351) 1088, 1369 Bradt, Dominion Grange Fire Ass. v. (xxv. 154) 349, 540, 682 Brady v. Stewart (xv. 82) 80O Brampton, Haggart v. (xxviii. 174) 466, 654 Brantford, Waterloo & L. E. Ey. Co. v. Huffman (xix. 336) ... 377 Brassard v. Langevin (ii. 319) 78, 501 Brassard v. Langevin (i. ]45) 513 Brault, Assoc. St. Jean Baptiste v. (xxx. 598) . .293, 357, 404, 802 Erault, Assoc. St. Jean Baptiste v. (xxxi. 172) 117, 287 Breakey v. Carter (Cass. Dig. 463) 11, 139, 431, 758, 1144 INDEX TO NAMES OF CASES. 1599 PAGE. Brecken, Jenkins v. (vii. 2-17) 505, 532, 608 Brennan, Ottawa Elec. Co. v. (xxxi. 311) 115, 1127 Bridgetown, Messenger v. (xxxi. 379') 643, 900, 909, 929, 957 Bridgewater Cheese Factory Co. v. Murphy (xxvi. 443) 177, 193, 253 Brien, Ganihier v. (xxi. 29) 79, 517 Brierley, In re (xxvii. 461) 191, 287 Brigham v. Banque Jacques-Cartier (xxx. 439) 167, 195, 313, 389, 626, 663 Brigham v. The Queen (xxx. 620) '. 608, 1443 Brighouse, City of New Westminster v. (xxv. 20) ' 903 Briggs V. Newswander (xxxii. 405) 372, 835 Brisbois v. The Queen (xv. 421) 399 British American Ass. Co. v. Gerow (xvi. 524) 712 British American Ass. v. Law (xxi. 325) • 713 British Can. Lumber Co., Grant v. (xviii. 708) 1555 British Columbia County Courts (xxi. 446) 283, 1337 British Columbia Mills Co. v. Scott (xxiv. 703) 936 British Columbia Towing Co. v. Sewell (ix. 527) 251, 914, 987, 1073, 1090, 1121 British Columbia Towing Co. v. SeweU (Cass. Dig. 480, 481, 670, 675, 679) 113, 233, 273, 1107, 1118 British & Foreign Mar. Ins. Co. v. Rudolf (xxviii., 607) . .581, 721 Broadhead, Penman Mfg. Co. v. (xxi. 713) 347 Broddy, Crawford v. (xxvi. 345) 490, 1530 Brodeur v. Charbonneau (xxi. 28) 533 Brodie, ^tna Life Ins. Co. (v. 1) 384, 705 Brodie, ^tna Life Ins. Co. v. (Cass. Dig. 673) 1099 Brookfield v. Brown (xxii. 398) 859, 1074 Brophy v. Atty.-Gen. of Manitoba (xxii. 577) 274, 1347 Brophy v. North Am. Life Ass. Co. (xxxii. 261) 30, 703 Brossard v. Dupras (xix. 531) 618 Broughton v. Gray & Blma (xxvii. 495) 156, 483, 883 Brown v. Allan (Cass. Dig. 2 ed. 146) 308 Brown, Brookfield v. (xxii. 398) 8o9, 1074 Brown, Darling v. (i. 360) H*^ SZ: Darlinf v. (ii. 26) 573, 594, 726, 114 Brown, Dominion S. & W. Co. v. (xx. 203) .... . . . . .... ■ • • • • ^■i Brown v. Town of Edmonton (xxiii. 308; xxviii. 510). .456, 642, 908 Brown, Great Western Ey. Co. v. (iii. 159) 1313 Brown v. Lamontagne (Cass. Dig. 120) • • • ■ ^*" Brown v. Leclerc (xxii. 53) If' If Brown v. London St. Ry. Co. (xxxi. 643) 939, 1455 Brown v. Moore (xxxii. 93) 358, 13W Brown v. McArthur (xvii. 61) 539, 833 Brown v. Torrance (xxx. 311) "^^^ -^^^^ Brown v. Pinsonnault (iii. lO^)..... I'o ' cq^' VifiV Brownell, Atlas Ass. Co. v. (xxix. 537) 13, 680, 1155 Brule, Poirier v. (xx. 97) Bruneau, Paradis v. (xxi. 168) • ■ V rr^K Bruneau v. Yenasse (xxxii. 118) . . . . . . . ....•.•■ • ■ • • • • ■ • "". f^ Brunet, Assoc. Pharmaceutique de Quebec (xiv. 738) . . . .... 1045 Brunet v. Bergeron (xxxiii. 137) 530, 1083 Brunet, Pilon v. (v. 318) 384, 649 753 1505 1468 .524 1600 INDEX TO NAMES OP CASES. Buck V. Knowlton (xxi. 371) 713 JBuilding & Loan Ass., Mackenzie v. (xxviii. 407) 835, 860 Bull, Imperial Fire Ins. Co. v. (xviii. 697) 686 Bulmer v. Dufresne (Cass. Dig. 2 ed. 873) 1380 Bulmer v. The Queen (xxiii. 488) 74, 340, 410, 423 Bulmer, Union Bank v. (Cass. Dig. 88) 198 Burfoot, Dumoulin v. (xxii. 120) 311 Burgess v. Conway (xiv. 90) 1290 Burkner, Wallace v. (2nd May, 1883; Cass. Dig. 669) . .1105, 1106 Burland v. Lee' (xxviii. 348) 822, 927 Burland v. MoSatt (xi. 76) 165 Burland v. City of Montreal (xxxiii. 373) 35, 1099 Burland, Rousseau v. (xxxii. 541) . .479, 480, 726, 813, 1234, 1239, 1318, 1332, 1386, 1427, 1515 Bumham, Davieson v. (Cass. Dig. 2 ed. 846) 1424 Bumham, Thornton v. (xxxi. 314) 527 Bumham v. Watson (Cass. Dig. 681) 1107, 1111 Bums, Cassels v. (xiv. 256) 92, 608, 1320 Bums, Commeau v. (viii. 204) 503 Bums & Lewis v. Wilson (xxviii. 207) 451, 625 Burrard Elee. Case (xxxi. 459) 526, 1123 Burris v. Rhind (xxix. 498) 465, 488 Burroughs v. The Queen (xx. 420) 410, 796 Bury, Deschamps v. (xxix. 274) 9, 549, 1075, 1317, 1383, 1414 Bury, Porsyth v. (xv. 543) 546 Bury V. Murphy (xxii. 137) 809 Bury, Murphy v. (xxiv. 668) 1055, 1327 Bury V. Murray (xxiv. 77) 11, 556, 1087 Busby, Winchester v. (xvi. 336) 232 Butler V. Merchants Mar. Ins. Co. (Cass. Dig. 390) 726 Butterfield, Grip P. & P. Co. v. (xi. 291; Cass. Dig. 687). 1034, 1120 Byers v. McMillan (xv. 194) 587 Byrne v. Amold (Cass. Dig. 2 ed. 107) 747 Byron v. Tremaine (xxix. 445) 356 C. Cadieux, City of Montreal v. (xxix. 616) 99, 564 Cadieux v. Beauchemin (xxxi. 370) 383, 583 Cadieux v. Montreal Gas Co. (xxviii. 382) 315, 629, 1373 Cadwell, Shaw v. (xvii. 357) 1029 Cahan, In re (xxi. 100) 46, 85 Cahoon, Parks v. (xxiii. 92) 1420 Cairns, Dominion Cartridge Co. v. (xxviii. 361) 820, 921, 933 Caisse d' Economic, &c., de Quebec, Retry v. (xix. 713) . .1240, 1383 Caisse d' Economie, &c., de Quebec, Rolland (xxiv. 405) .... 454 Calder, Hutchinson v. (Cass. Dig. 785) 346 Caldwell v. Accident Ins. Co. of N. A. (xxiv. 263) 556 Caldwell v. Eenny (xxiv. 699) • . 1425 Caldwell, MacLaren v. (viii. 435) 1263 Caldwell, Stadacona P. & L. Ins. Co. v. (xi. 212) 650, 693 Calgary & Edmonton Ry. Co. v. The King (xxxiii. 667) . .419, 1222 Calgary School Trustees, Angus v. (xvi. 716) 71 Callahan, Coplen v. (xxx. 555) 830, 1436 INDEX TO NAMES OF CASES. 1601 PAGE. Cambridge, Township of, Canada Atlantic Ey. Co. v. (xv. 219) . 873, 874, 875 Cameron, Bickford v. (xxi. 379) 86, 391, 1306, 1330 Cameron, Domville v. (Cass. Dig. 421, 684) 132, 1118 Cameron, Grant v. (xviii. 716) 169, 244, 787 Cameron v. Harper (xxi. 373) 595, 1397, 'l538^ 1544 Cameron, McDonald v. (xx. 169) 539 Cameron, McDongall v. (xxi. 379) 86, 391, 1306, 1330 Cameron, Mitchell v. (viii. 136) 526 Cameron, Perry v. (xx. 26) 515, 538, 1081 Cameron, Pictou School Trustees (ii. 690) 34, 1462 Cameron v. Tate (xv. 632) 1147 Cameron v. Wait (Cass. Dig. 332) 645 Campbell v. Grieve (xx. 331) S21 Campbell, Kingston & Bath Koad Co. v. (xx. 605) 954, 1443 Campbell v. Lator (7 Legal News 163) 391 Campbell, Maloney v. (xxviii. 228) 30, 167 Campbell, McDongall v. (vi. 502) 854 Campbell v. Patterson (Cass. Dig. 122) 623 Campbell, St. John City v. (xxvi. 1) 899 Campbell v. Young (xxxii. 547) 568 Canada v. Ontario and Quebec (Arbitration, xxiv. 498) . .275, 1370 Canada v. Ontario and Quebec (Indian Claims, xxv. 434) .... 276 Canada v. Ontario and Quebec (Indian Claims, xxx. 15l) .... 280, 654, 1249 Canada v. Ontario and Quebec (Fisheries), (xxvi. 444) .... 277, 611, 639, 803, 1260, 1348 Canada v. Ontario and Quebec (Pardoning Power) (xxiii. 458) 289, 1347 Canada v. Ontario and Quebec (Prohibitory Liquor Laws) (xxiv. 170) '. 290 Canada v. Ontario and Quebec (School Fund) (xxviii. 609; xxx. 306; xxxi. 516) 47, 140, 249, 279, 477 Canada Accident Ins. Co., Eastmure v. (xxv. 691).. 42, 312, 819, 1158 Canada Atlantic Ey. Co. v. Township of Cambridge (xv. 219) 872, 874, 875 Canada Atlantic Ey. Co., Chaudiere M. & F. Co. v. (xxxiii. 11) 441, 1007 Canada Atlantic Ey. Co. v. Henderson (xxix. 632) . .966, 1318, 1360 Canada Atlantic Ey. Co. v. Hurdman (xxv. 205) ... .20, 817, 1217 Canada Atlantic Ey. Co. v. Moxley (xv. 145) ... . 552, 565, 570, 1214 Canada Atlantic Ey. Co. v. City of Ottawa (xii. 365) . . . .871, 888 Canada Atlantic Ey. Co., City of Ottawa v. (xxxiu. 376) . . 644, 909, 1228 Canada Atlantic Ey. Co., Stanton v. (Cass. Dig. 430) 89 Canada Atlantic S'. S. Co., York v. (xxii. 167) 920, 937, 979 Canada Central Ey. Co. v. Murray (viii. 313) 345 Canada Co., Kyle v. (xv. 188) • ■ HO, 608 Canada Investment & Agcy. Co., McGregor v. (xxi 499) . 1312, 1380, 1485, 1527 Canada Life Ass. Co., Alley v. (xxviii. 608) 767, 1387, 1496 Canada N. W. Land Co., Lynch v. (xix. 204) • -^ .39o, 864 Canada Paint Co. v. Trainar (xxviii. 352) 580, 830, 9^1 Canada Publishing Co. v. Gage (xi. 306) l*^J- S.O.D.— 52 1602 INDEX TO NAMES OF CASES. PAGE. Canada Shipping Co., V. Hudon Cotton Co. v. (xiii. 401) . .27, 1146 Canada Southern Ry. Co., Bickford v. (xiv. 743) 47, 353, 1209 Canada Southern Ey. Co. v. Clouse (xiii. 139) 1199, 1350 Canada Southern Ry. Co. v. Cunningham (Cass. Dig. 34) . .146, 388 Canada Southern Ry. Co. v. Duil (Cass. Dig. 34) 146, 388 Canada Southern Ry. Co. v. Erwin (xiii. 162) 1200 Canada Southern Ey. Co. v. Gatfield (Cass. Dig. 34) 146, 388 Canada Southern Ry. Co. v. Jackson (xvii. 316) 1215 Canada Southern Ey. Co. v. Korvell (Cass. Dig. 34, 673) . . 146, 388, 1115 Canada Southern Ey. Co. v. Phelps (xiv. 132) 959, 1207 Canada Sugar Eef. Co., The Queen v. (xxvii. 395) 770, 1344 Canada Temperance Act, re Co. of Kent (Cass. Dig. 105) 223 Canada Temperance Act, re Co. of Perth (Cass. Dig. 106, 679) 223, 1106 Canadian Agricultural C. & C. Co., The Queen v. (xxiv. 713) 418, 834 Canadian Bank of Commerce, Federal Bank v. (xiii. 384) .... 1282 Canadian Bank of Commerce, Stevenson v. (xxiii. 530) 449 Canadian Coloured Cotton Mills Co. v. Kervin (xxix. 478) . . . 922 Canadian Coloured Cotton Mills Co. v. Talbot (xxvii. 198) . . 579, 939 Canadian Development Co. v. Wilson (xxxiii. 432) 226, 318, 381, 919, 980, 985, 1150 Canadian Fire Ins. Co. v. Robinson (xxxi. 488) 352, 672, 1156 Canadian Fire Ins. Co. v. Robinson (9th October, 1901) 1105 Canadian Pacific Ry. Co., Bate v. (xviii. 697) 1189 Canadian Pacific Ry. Co. v. Boisseau (xxxii. 424).. 583, 968, 1219 Canadian Pacific Ry. Co. v. Chalifoux (xxii. 721) 1190, 1202 Canadian Pacific Ry. Co. v. Chatham (xxv. 608) 156, 882 Canadian Pacific Ey. Co. v. Cobban Mfg. Co. (xxii. 132) . .90, 976, 995, 1088 Canadian Pacific Ey. Co. v. Cornwallis (xxix. 702) 159 Canadian Pacific Ey. Co. v. Fawcett (xxxii. 721) 930, 1220 Canadian Pacific Ily. Co. v. Fleming (xxii. 33) 97, 1094 Canadian Pacific Ry. Co. v. Guthrie (xxxi. 155) 1201, 1483 Canadian Pacific Ry. Co. v. Heliwell (Cass. Dig. 522) 1148 Canadian Pacific Ry. Co. v. Lawson (Cass. Dig. 729).. 74, 122, 540, 962, 995, 1110, 1217 Canadian Pacific Ry. Co. v. Little Seminary of Ste. Therese (xvi. 606) . . .' .■ 70, 141, 1194 Canadian Pacific Ry. Co., Major v. (xiii. 233) 1225 Canadian Pacific Ry. Co., McBryan v. (xxix. 359) 732, 1518 Canadian Pacific Ry. Co., City of Montreal v. (xxxiii. 396) . . 361, 389 Canadian Pacific Ry. Co. v. Neelon (Cass. Dig. 522) 1148 Canadian Pacific Ry. Co. v. City of Quebec (xxx. 73) 10, 152, 1223, 1376 Canadian Pacific Ry. Co. v. Robinson (xiv. 105) 430, 994, 1328 Canadian Pacific Ey. Co. v. Robinson (xix. 292) 791, 801, 1053 Canadian Pacific Ry. Co., Shaw v. (xvi. 703) 83, 471 Canadian Pacific Ry. Co. v.* Smith (xxxi. 367) 928, 968, 1192, 1203, 1218 Canadian Pacific Ey. Co. v. Toronto (xxvi. 682) 893 INDEX TO NAMES OF CASES. 1603 Canadian Pacific Ry. Co. v. Toronto (xxx. 337) 91, 1487 Canadian Pacific Ey. Co. v. City of Vancouver (xxiii. 1) . . . . 284, 614, 889 Canadian Pacific Ry. Co. v. Western Union Tel. Co. (xvii. 151) 248, 251, 365 Canadian Pacific Ry. Co. v. City of Winnipeg (xxx. 558) . .219, 867 Canadian Pacific Ry. Co., Wood v. (xxx. 110) 967, 1193 Canadian Railway Accident Co. v. McNevin (xxxii. 190) . .130, 670 Cannon v. Howland (Cass. Dig. Ill) 234 Cape Breton, County of, Crewe-Reed v. (xiv. 8) 826, 1259 Cape Breton, County of. International Coal Co. v. (xxii. 305) . . 151, 1222 Cape Breton, County of, v. McKay (xviii. 639) 901, 1344 Carey v. City of Toronto (xiv. 172) 493, 1404 Carleton County v. City of Ottawa (xxviii. 606) . . . .140, 879, 1374 Carmack v. The King (xxxii. 586) . .288, 418, 779, 831, 1004, 1042, 1169 Caron, O'Brien v. (xiv. 429) 78, 503 Carriek, Hunter v. (xi. 300) 1034 Carrier v. Bender (xv. 19 ; Cass. Dig. 674) 304, 1101 Carriere, Montreal St. Ry. Co. v. (xxii. 335) 59 Carroll v. Brie Co. Nat. Gas. & Fuel Co. (xxix. 591) 1249 Carroll v. Provincial Nat. Gas & Fuel Co. (xxvi. 181) .. . .326, 458 Carson, Re Ferguson, Turner v. (xxviii. 38) . .129, 391, 542, 640, 1540 Carson, Martley v. (xiii. 439) 131 Carson, Martley v. (xx. 634) 1516 Carter, Breakey v. (Cass. Dig. 463) 11, 139, 431, 758, 1144 Carter, Grassett v. (x. 105) 92, 207, 538, 587, 1340 1466 1240 1466 Carter v. Hamilton (xxiii. 172) 1037 Carter, Holmes v. (xvi. 473) 51, 547, 1243, Carter v. Long & Bisby (xxvi. 430) 39, 1159, Carter, Muir v. (xvi. 473) 51, 547, 1243, Carter, Macy & Co., The Queen v. (Audette Ex. Ct. Prae. 115) . 128 Carter, Macy & Co. v. The Queen (xviii. 706) 427 - - - - .- » ^Qd 1420 1320 194 Carvill v. Schofield (ix. 370) Casey v. Horton (xxii. 739) • • ■ ■ • • • Cassells v. Burns (xiv. 256) 93, 608, Cassidy, Yon v. (xviii. 713) ........... • • • ■ • ■ • • ■ • Caston's Case, In re Standard Fire Ins. Co. .(xu- 644) . .267, 1562 Caston, Consolidated Plate Glass Co. v. (xxix. 624).... 817, 945 Caston, City of Toronto v. (xxx. 390) 154, l^bb Castonguay v. Savoie (xxix. 613) ■ • • • -^^^^ ^*'* Caverhm v. Robillard (ii. 575) . • . .^. • .^. .^- ■ ^- ■ -538, 1461, 1483 Central Bank of Canada, In re (17 Ont. P. R. 395) . . ... .133 112, Central Bank, Be ; Hogaboom v. ^^ecewer-Gener^aUxxvm. ^192^) ^^^^ Central Vermont Ry. Co. v. Town of St. Johns (_xiv. 288) .^^.^ ^^^^ Central Vermont Ry. Co., Sdnesac v. (xxvi. 641) .'.562, 965, 1207 Chabot, Remillard v. (xxxiii. 328) 1^«5, iOdd Chagnon v. Normaud (xvi. 661) ■■■ -^ • • ■■■■■■ • ■ • • ' Chalifour V. Parent (xxxi. 224) . .... . • .26, 652, 1001, 1141 1421 Chalifoux, Can. Pac. Ry. Co. v. (xxii. 721 ; ^\l^' ^J^J Challoner v. Township of Lobo (xxxii. 505) i-^', 1«04 INDEX TO NAMES OF CASES. Chamberland v. Fortier (xxiii. 371) 59, 906 Chamberlin, Kloek v. (xv. 335) 650 Champion, McKenzie v. (xii. 649) 214, 989 Champoux v. Lapierre (Cass. Dig. 426) 56 Chandler Electric Co. v. Fuller (xxi. 337) 918 Chaplin, Hatheway v. (xxi. 23) 575 Chaplin, Ontario Bank v. (xx. 152) 174, 666, 1125, 1556 Chapman, Delaware Ins. Co. v. (Cass. Dig. 387) 714 Chapman v. Larin (iv. 349) • 373 Chapman, Providence Washington Ins. Co. v. (Cass. Dig. 386) 711, 1152 Chapman v. Eand (xi. 312) 223 Chapman v. Tufts (viii. 543) 200, 1052 Chappelle, The King v. (xxxii. 586) . .288, 418, 779, 831, 1004, 1042, 1169 Charbonneau, Brodeur v. (xxi. 28) • 533 Charland, The Queen v. (xiv. 721) 47, 608 Charlebois v. Charlebois (Cass. Dig. 592) 1015 Charlebois v. Delap (xxvi. 221) 252, 737 Charlebois v. Surveyer (xxvii. 556) 807 Charlevoix Elec. Case; Brassard v. Langevin (i. 145) 513 Charlevoix Elec. Case; Brassard v. Langevin (ii. 319) ... .78, 501 Charlevoix Elec. Case; Cimon v. Perrault (Cass. Dig. 695) . . 106, 503, 510 Charlevoix Elec. Case (v. 103) 510 Charlevoix Elec. Case; Langlois v. Valin (Cass. Dig. 684; Cass. S. C. Prac. 140) 388, 1118 Charlotte Co., St. Stephen v. (8th Nov., 1894) 1104 Charlotte Co., St. Stephen v. (xxiv. 329) 224, 892 Chatham National Bank v. McKeen (xxiv. 348) 255, 1559 Chatham, City of, Atkinson v. (xxxi. 61) 956 Chatham City of, v. Bell Tel. Co. (xxxi. 61) 956 Chatham, Town of, Bickford v. (xvi. 235) 330, 869, 872, 1210 Chatham, Township of. Can. Pac. Ey. Co. v. (xxv. 608) . . .156, 882 Chatham, Township of, v. Dover (xii. 321) 480, 885 Chatham, Township of, Sombra v. (xxi. 305) 482, 1006 Chatham, Township of, Sombra v. (xxviii. 1) 883, 1517 Chaudiere Machine & Foundry Co. v. Canada Atlantic Ey. Co. (xxxiii. 11) ' 441, 1007 Chausse, Stephens v. (xv. 379) 74, 943, 1110 Chef dit Vadeboncoeur v. City of Montreal (xxix. 9) . . . .548, 846, 1334, 1316, 1383, 1405, 1413 Chesley v. Murdoch (ii. 48) 550 Chesley, The Queen v. (xiv. 306) 574 Chesley, Simonds v. (xx. 174) 991 Chevalier v. Cuvilier (iv. 605) 81 Chevreiils, Noel v. (xxx. 337) 67, 1480 Chevrier v. The Queen (iv. 1) 1052, 1415 Chicoutimi & Saguenay Elec. Case (16th May, 1892) . . 78, 1111, 1113 Chicoutimi (Town) v. Legare (xxvii. 339) 313, 656, 911 Chicoutimi (Town) v. Price (xxix. 135) 318, 874, 1374 Chisholm v. Kenny (Cass. Dig. 539) 858 Chisholm, Kirk v. (xxvi. Ill) 165, 239, 616, 634, 1339 Chisholm, McLennan v. (xx. 38) 533, 538 Chisholm v. Eobinson (xxiv. 704) 1426 INDEX TO FAMES OP CASES. 1605 PAGE. Chittick, Creighton v. (vii. 348) 658 105^ Cholette v. Bain (x. 653) .' 513 Choquette v. Laberge (xv. 1) ' 523 Christie v. Morrison (xx. 194) 516 770 Christie v. City of St. John (xxi. 1) ' ' 898 Christie v. Town of Toronto Junction (xxv. 551) 74, 431 Church V. Abell (i. 442) ' 550 Church V. Fenton (v. 239) [[ 157^' 655' 1391 Churchill v. McKay (xx. 472) 171 Churchill & Co., Nova Scotia Mar. Ins. Co. v. (xxvi. 65) 721 Cimon v. Perrault (v. 103; Cass. Dig. 695) 106, 503, 510 Cimon v. The Queen (xxiii. 62) 324 Citizens Ins. Co., Green v. (xviii. 388) 145 Citizens Ins. Co. v. Johnston (Cass. Dig. 678) . ." 1106 Citizens Ins. Co. v. Parsons (iv. 215) 685 Citizens Ins. Co. y. Salterio (xxiii. 155) 677 Citizens Light & Power Co. v. Lepitre (xxix. 1) 823, 932 Citizens Light & Power Co. .v. Parent (xxvii. 316) 64, 1372 City of London Eire Ins. Co., Salterio v. (xxiii. 32) 676 City of London Ins. Co. v. Smith (xv. 69) 143, 696 Clark V. Clark (xvii. 376) 1394, 1541 Clark, Green v. (Cass. Dig. 614) 445 Clark V. Hagar (xxii. 510) .356, 1054 Clark T. Odette (Cass. Dig. 521) 1322 Clark V. Phinney (xxv. 633) 541, 547, 778, 1247 Clark, The Queen v. (xxi. 656) 87 Clark V. Scottish Imperial Ins. Co. (iv. 192, 706) 691 Clark, Scottish Imperial Ins. Co. v. (Cass. Dig. 688) 1120 Clark, Shoulbred v. (xvii. 265) 1094, 1554 Clark; Virtue v. Hayes (xvi. 721) 83 Clark V. White (iii. 309) 373 Clarke v. Converse (12 L. C. K. 402) 391 Clarke, Scammell v. (xxiii. 307) 984 Clarkson v. McMaster & Co. (xxv. 96) 243, 1371 Clarkson v. Eyan (xvii. 251) 117, 169, 289, 739 Claude, Weir v. (xvi. 575) 1006, 1519 Cleary v. Boscowitz (xxxii. 417) 831 Cleary v. Purcell (xxiii. 101) 247, 1343, 1549 Clement v. Banque Nationale (xxxiii. 343) 69, 381 Clergue v. Humphrey (xxxi. 66) 258, 1050 Clergue v. Murray (xxxii. 450) 1150, 1288, 1437, 1499, 1500 Cleveland, Lamb v. (xix. 78) 650, 1339 Clinch V. Pernette (xxiv. 385) 766 Close, Temple v. (Cass. Dig. 765) 1374 Clouse, Canada Southern Ey. Co.. v. (xiii. 139) 1199, 1350 Coatsworth, Carson v., Re Ferguson (xxviii. 38) 129, 391, 542, 640, 1540 Cobban Mfg. Co., Can. Pac. Ey. Co. v. (xxii. 132).. 90, 976, * 995, 1088 Cockburn & Sons v. Imperial Lumber Co. (xxx. 80) . • • -139, 1360, 1518 Code V. Union Bank (xxxi. 594) 266, 1307, 1564 Cogswell, O'Brien v. (xvii. 420) .... • 162, 854, 1000 Cogswell, Webber v. (ii. 15) ' ^80 Colchester, Municipality of, v. Watson (Cass. Dig. 175). .954, 978 1606 INDEX TO NAMES OP CASES. Colchester South v. Valad (xxiv. 622) 132, 1090, 1095 Cole V. Pope (xxix. 291) 347, 1287, 1496 Cole V. Sunmier (xxx. 379) 350 Coleman v. Hayes (Cass. Dig. (2 ed.) 833) 1409, 1542 Coleman v. Miller (Cass. Dig. (2 ed.) 301, 678, 683),. . . .1101, 1106, 1478, 1533 Collette T. Lasnier (xiii. 563) 1036, 1298 Collier v. Wright (xxiv. 714) 38, 811 Collins V. Cunningham (xxi. 139) 850 Collins V. Everitt (Cass. Dig. 210) 1047 Collins V. Eoss (xx. 1) .526, 526 CoUins Bay Eafting Co. v. Kaine (xxix. 247) 762, 948 Collins Bay Eafting Co. v. New York & Ottawa Ey Co. (xxxii. 216) : ■ 362 CoUister, Hibhen v. (xxx. 459) 1028 Collom V. Manley (xxxii. 371) 831 Colonist Print. & Pub. Co. v. Dunsmuir (xxxii. 679).. 266, 1171, 1309, 1362 Colter V. Glenn (xvii. 170) 501, 511 Colville, Titus v. (xviii. 709 93 Commeau v. Bums (viii. 204) 503 Commercial Bank of Windsor v. Morrison (xxxii. 98) . . . .196, 1156 Commercial Union Ass. Co., Logan v. (xiii. 270) 675 Commercial Union Ass. Co. v. Margeson (xxix. 601) . .328, 681, 1155 Commercial Union Ass. Co., Summers v. (vi. 19) 1147 Commercial Union Ass. Co. v. Temple (xxix. 206) 269, 677, 679, 1001 Commissaires d'Bcole v. Cordeau (9th Dec, 1895) 89, 808, 1078 Commissaires d'Eeole v. Langevin v. (xviii. 599) 84, 808 Commissaires d'Eeole v. Soeurs de la Congregation (xii. 45) . . 157 Commissaires d'Eeole de St. Valentin, Tremblay v. (xii. 546) . 1296 Common v. McArthur (xxix. 339) 265, 267, 1055, 1360, 1560 Common School Fund and Lands (xxviii. 609; xxx. 306) . .47, 140, 279, 477 Common School Fund and Lands (xxxi. 516) 249, 279 Commune de Berthier v. Denis (xxvii. 147) . .794, 1300, 1303, 1404 Compagnie, &c., au gaz de St. Hyacinthe v. Cie Hydrauliques de St. Hyacinthe (xxv. 168) 897, 1371 Compagnie de Villas de Gibraltar v. Hughes (xi. 537) 215 Compton Corset Co., Ball v. (xiii. 469) 1035 Compton Co., Ascott v. (xxix. 228) 8, 220, 876 Compton Co., Lennoxville v. (xxix. 228) 8, 220, 876 Confederation Life Ass. v. Miller (xiv. 330) 704, 990 Confederation Life Ass. v. O'Donnell (Cass. Dig. 370) 555 Confederation Life Ass. v. O'Donnell (x. 92) 699, 1100 Confederation Life Ass. v. O'Donnell (xiii. 218) 699 Confederation Life Ass. v. O'Donnell (xvi. 717) 698 Conger v. Kennedy (xxvi. 397) 297, 815, 1347, 1357 Conmee v. Bond (Cass. Dig. 511) 806 Connecticut Mut. Life Ins. Co., Moore v. (vi. 634) 75 Connecticut Mut. Life Ins. Co., Moore v. (Cass. Dig. 695) 1164 Connecticut & Passumpsie E. E. Co. v. Morris (xiv. 318) .... 592 Connell, Madden v. (xxx. 109) 830 Connell, Town of Prescott v. (xxii. 147) 920 Connely, Guardian Ass. Co. v. (xx. 208) 690 INDEX TO NAMES OF CASES. 1607 PAGE. Connolly, Consumers Cordage Co. v. (xxxi. 244) 271, 357, 1449 Connolly, Consumers Cordage Co. v. (11th Oct., 1900) . .1107, 1120 Connolly, Consumers Cordage Co. v. (7th Maf, 1901) 1165 Connolly, Provincial Ins. Co. v. (v. 258) 724 Connor v. Vroom (xxiv. 701) .' ' 1471 Consolidated Electric Ey. Co. v. Atlajitic Trusts ' Co." ("xxviii. 603) l^r^ 39-]^ Consolidated Electric Ey. Co. v. Pratt (xxviii. 603) . ..." . .77^ 391 Consolidated Plate Glass Co. v. Caston (xxix. 624) 817, 945 Consumers Cordage Co. v. Connolly (xxxi. 244) 271, 357, 1449 Consumers Cordage v. Connolly (ilth Oct., 1900) 1107^ 1120 Consumers Cordage Co. v. Connolly (7th May, 1901) 1165 Consumers Cordage Co. v. Converse (xxx. 618) 479, 598 Consumers Gas Co. v. City of Toronto (xxvii. 453) 151, 866 Converse v. Clarke (12 L. C. E. 402) 391 Converse, Consumers Cordage Co. v. (xxx. 618) 479, 598 Conway, Burgess v. (xiv. 90) 1290 Conwell, The " Eeliance " v. (xxxi. 653) 39, 914 Coombes v. The Queen (xxvi. 13) 1190 Cooper V. Mokons Bank (xxvi. 611) 183, 447, 1060, 1247 Ooplen V. Callahan (xxx. 555) 830, 1436 Corbett, Anchor Mar. Ins. Co. v. (ix. 73) 138, 724 Corbett, McKenzie v. (Cass. Dig. 384) 713 Corbett, Providence Washington Ins. Co. v. (ix. 256) 717 Corbett v. Smith (1st May, 1893) 588 Corby v. Williams (vii. 470) 366 Corcoran, Montreal EoUing Mills Co. v. (xxvi. 595).... 571, 578, 830, 921, 1067, 1357 Cordeau, School Commissioners of St. Charles v. (9th Dec, 1895) 89, 808, 1078 Corkery v. The King (xxxiii. 677) 867, 1177, 1259 Cornell, Walker v. (Cass. Dig. 595) 1018 Cornwall, Halifax Banking Co. v. (xxxii. 443) 671, 838, 1362 Cornwall, Town of, v. Derochie (xxiv. 301) 899, 955 Comwallis v. Can. Pac. Ey. Co. (xix. 703) 159 Corse, Harrington v. (ix. 412) 1551 Cory, Gilmour v. (22nd May, 1902) 1532 Oosgrave v. Boyle (vi. 165) 197 Cosgrave B. & M. Co., Starrs v. (xii. 571 ; Cass. Dig. 697) . .113, 1387 Cossette v. Dun (xviii. 322) 53, 430, 437, 439, 775 Cote V. Morgan (vii. 1) 153, 387 Cot^ V. Stadacona F. & L. Ins. Co. (vi. 193) 261 Cot6 V. Stadacona F. & L. Ins. Co. (Cass. Dig. 682, 683) . . 1102, 1111 Coughlin, Gray v. (xviii. 553) 858 Coulthard, Wisner v. (xxiii. 178) 1037 County Courts of British Columbia (xxi. 446) 383, 1337 Coupal, Grand Trunk Ey. Co. v. (xxviii. 531) 137, 580, 1197 Couture v. Bouchard (xxi. 281) 55 Cowan V. Allen (xxvi. 393) -1091, lo39 Cowan V. Evans (xxii. 328, 331) ^ ■ 58, 58 1356 Cowans v. Marshall (xxviii. 161) 947, 993, 996 ^S;:£;SSSkSi896)::::::::::::::::i99:378:v5K-io59 Cox V. Sutherland (Cass. Dig. 9) ■■■■ »1* Craig V. Samuel (xxiv. 278) 199, 1039 yi. 1608 INDEX TO NAMES OF CASES. PAGE. Craigen, North Am. Life Ass. Co. v. (xiii. 278) 702 Crawford v. Broddy (xxvi. 345) 490, 1530 Crawford v. City of Montreal (xxx. 406) 563, 600, 1565 Cream v. Davidson (xxvii. 362) 597, 1073, 1481 Credit Valley Ey. Co., Grand Trunk Ey. Co. v. (Doutre, Con. of Can. 337) ." 117, 282 Creelman, Kearney v. (xiv. 33) 1408, 1413, 1547 Creighton v. CMttiek (vii. 348) 658, 1052 Creighton, Duffus v. (xiv. 740) 1311 Creighton v. Halifax Banking Co. (xviii. 140) 1030 Creighton v. Kuhn (Cass. Dig. 2 ed. 845) 1419 Creighton, Eeid v. (xxiv. 69) 237, 239 •' Crete," The, The " Shenandoah " and (xxxiii. 1) 40, 915 Crewe-Eead v. Co. of Cape Breton (xiv. 8) , 826, 1259 Criminal Code, Bigamy Clauses (xxvii. 461) 191, 287 Crombie, McDonald v.' (xi. 107) 620 Crooks Township, Ellis v. (xxiii. 429) 156, 881, 942, 1095 Cross, Windsor Hotel Co. v. (xii. 624) 1513 Crosson, Johnson v. (Cass. Dig. 848) 422 Crowe V. Adams (xxi. 342) 1312 Crowley, Dorion v. (Cass. Dig. 709) 791, 1130 Crvsler, McKay v. (iii. 436) 1389 " Cuba," The, v. McMillan (xxvi. 651) 39, 811, 1323 CitUv v. Eerdais (xxx. 330) 67, 1406 Gumming v. Landed B. & L. Co. (xxii. 246) 1469 Gumming, NichoUs v. (i. 359) 152 Cummings, Gladwin v. (Cass. Dig. 426) 88, 388 Cummings, McDonald v. (xxiv. 331) 339 Cummings & Sons v. Taylor (xxviii. 337) 451, 625 Cmnmings, Taylor v. (xxvii. 589) 166, 450 Cunningham, Canada Southern Ey. Co. v. (Cass. Dig. 34) . . 146, 388 Cunningham, Collins v. (xxi. 139) 850 Cunningham v. Drysdale (xxi. 139) 850 Cunningham v. The Queen (Cass. Dig. 194) 401 Curran,' O'Keefe v. (xvii. 596) 1024 Currie v. Currie (xxiv. 712) 569, 1524 Currie v. Currie (6th May, 1895) 1091 Currie, White v. (Cass. Dig. 811) ■ 1330 Curry v. Currv (Cass. Dig. 3 ed. ' 676, 778) 387, 1401 Cusson, Delorme v. (xxviii. 66) 64, 310, 1248, 1434 Cuthbert, Genereaux v. (ix. 102) 500, 512, 531 Cuvilier, Chevalier v. (iv. 605) 81 D. Dallas V. Town of St. Louis (xxxii. 130) 878, 945, 1361 Danaher v. Peters (xvii. 44) 395, 796, 799 Danjou v. Marquis (iii. 251) 70, 80, 281, 384 Danks v. Dunham (Cass. Dig. 89) 1030 Dansereau v. Bellemare ( (xvi. 180) 1036 Dansereau, Letourneux v. (Cass. Dig. 677) 391 Dansereau, Letourneux v. (xii. 307) 659, 1390 Dansereau v. St. Louis (xviii. 587) 193, 511 Dansereau, Turcotte v. "(xxvi. 578) 63, 739, 1012 INDEX TO NAMES OF CASES. 1609 Dansereau, Tureotte v. (xxvii. 583) 32 1012 1079 I'nsq Darling, Barealou v. (ix. 677) ' ' ^"^"^^ J^^i Darling v. Brown (i. 360) .... . jfi" Darling v. Brown (ii. 36) g-vg ' VqV '^ofi 1 1 it Darling v. Eyan (Cass. Dig. 435) . ' ^^*' ^^^' ^^^ Darrow, Millard v. (xxxi. 196) . . oor Darrow, Millard v. C14tli May, 1901) 1 1 90 Dartmouth, Town of. The Queen v. (ix. 509) sns Dartmouth, Town of, v. The Queen (xiv. 45) ^al Dartmouth, Town of, y. The Queen (Cass. Dig. 285, '515) .".■■■ 118 Daveluy, Soe. Canadienne Frangaise, etc., v. (xx. 449) . . . .129, Davidson, Cream v. (xxvii. 362) 597 in7s' ia«i' Davidson, Gates y. (Cass. Dig. 847) ■.■.■.'.■ " ' ' til Davidson v. Georgian Bay Kav. Co. (xxxiii. 1) . . 40 915 Davidson, Lord v. (Cass. Dig. 683; xiii. 166) ' '1102' 1319 Davidson v. City of Montreal (xxviii. 421) ' 901 Davidson, Oliver v. (xi. 166) ] ^^527 Davidson, Queddy Eiver Dr. Boom Col v. (x'. '222') 295' 1268 Davidson v. Tremblay (10th May, 1895) '.'...' 1104 Davidson & Hay v. Fraser (xxviii. 272) 624 662 Davies v. Hennesy (xx. 26) .' ." .'sig/ ggg' 108I Dayies v. McMillan (1st May, 1903) 623, 662, 1053, 1244 D Avignon v. Jones (xxxii. 650) lOi 608 Davin v. MeDougall (xxvii. 215) .'.'..'.".'.'.'.'.'. 79,' 504 Davis V. Kerr (xvii. 235) [ 844' 1480 Davis, Macdonald v. (xxvii. 201) .'. . .' 524 Davis V. City of Montreal (xxvii. 539) . . 776, 807, 819^ 890^ 891, 1373 Davis, Eobertson v. (xxvii. 571) 33^ 196, 1163 Davis V. Eoy (xxxiii. 345) !....'. 69 Davis, Stevenson v. (xxiii. 629) 382 1498 Davison v. Bumham (Cass. Dig. 2 ed. 846) V. . . .' 1424 Dawson v. Dumont (xx. 709) 54, 472, 790, 1330 Dawson v. McDonald (Cass. Dig. 586, 587, 588, 683, 688) 1010, 1110, 1135, 1135, 1241, 1243 Dawson v. Ogden (Cass. Dig. 797) 1314 Dawson v. Union Bank (Cass. Dig. 428) . .• 125, 1134 Day, Lawlor v. (xxix. 441) 853, 1056 DeBeaujeu, Piliatrault v. (Cass. Dig. 676, 682) 503, 1111, 1113, 1122 DeBlaquiere, Synod of Toronto v. (Cass. Dig. 637) 841 DeBury v. The'King (xxxiii. 677) 867, 1177, 1259 Dedriek v. Ashdown (xv. 227) 238 DeKuyper, VanDulken v. (xxiv. 114) 1453 DeKuyper v. VanDulken (xxiv. 114) 1453 Delap, Charlebois v. (xxvi. 221) 252, 737 Delaware Mut. Ins. Co. v. Chapman (Cass. Dig. 387) 714 DeLisle, Archbald v. (xxv. 1) 36. 62, 383, 950, 1020, 1024, 1086, 1613 DeLisle, Baker v. (xxv. 1) . .36, 62, 383, 960, 1020, 1024, 1085, 1613 DeLisle, Mowat v. (xxv. 1) . .36, 62, 383, 960, 1020, 1024, 1085, 1513 Delorme v. Cusson (xxviii. 66) 64, 210, 1248, 1434 Demers v. Bank of Montreal (xxvii. 197) 90, 101 Demers v. Bank of Montreal (xxix. 435) . .101, 115, 131, 1126, 1132 Demers v. Duhaime (xvi. 366) 29 1610 INDEX TO NAMES OP GASES. Demers v. Montreal Steam Laundry (zxvii. 537) . .99, 608, 937, 940 Demers, The Queen v. (xxii. 482) 396, 1439 Dempster, Bowmanville Machine Co. v. (ii. 31) 1305 Dempster v. Lewis (xxxiii. 393) 103, 564 Denis, Commune de Berthier v. (xxvii. 147) . .794, 1300, 1303, 1404 Denmark, MeConaghy v. (iv. 609) 1416 Derochie, Town of Cornwall v. (xxiv. 301) 899, 955 Desaulniers v. Payette (xxxiii. 340) 91 Deschamps v. Bury (xxix. 374) 9, 549, 1075, 1317, 1383, 1414 Desilets, Gingras v. (Cass. Dig. 313) 95, 437 Deslauriers, Larue v. (v. 91) 93, 503, 510, 530 Desmarteau, Hurtubuise v. (xix. 563) 71, 1343 Desparois, Bergeron v. (xxvii. 332) 173, 539, 573 Dessert, Guilbault v. (xv. 458) 530 Dewe V. Waterbury (vi. 143) 568, 1170, 1338 DeWolf, Jones v. (Cass. Dig. 767) . ■ 348, 995 Dickie v. Woodworth (viii. 193) 502 Dickie v. Woodworth (xiv. 734) 119, 206 Dickson, Kearney v. (Cass. Dig. 431) 656 Dickson v. Kearney (xiv. 743) 641 Dillon V. Township of Ealeigh (xiv. 739) 538 Dingwall v. McBean (xxx. 441) 8, 1033, 1155, 1249, 1380 Dinner v. Humberstone (xxiv. 253) 386, 907, 1444 Diocesan Synod of N. S. v. Eitehie (xviii. 705) 190 Dionne v. The Queen (xxiv. 451) 1043 Dixon, Dufresne v. (xvi. 596) 1235, 1311 Dixon, Gorman v. (xxvi. 87) 119, 455, 1161 Dixon V. Eichelieu Nav. Co. (xviii. 704) 229 Dobell & Price, Magog T. & P. Co. v. (xiv. 664) 262 Dominion Atlantic Ey. Co., Pudsey v. (xxv. 691) 741, 927, 965, 984, 1302, 1227 Dominion Bank, Howland v. (xxii. 130) 1097 Dominion of Canada — See " Canada," Dominion Cartridge Co. v. Cairns (xxviii. 361) 83Q, 931, 933 Dominion Cartridge Co. v. McArthur (xxxi. 392) 100, 124, 566, 608, 949, 1133 Dominion Cartridge Co. v. McArthur (7th Oct., 1903) 1165 Dominion Coal Co. v. S.S. "Lake Ontario" (xxxii. 507) .... 39, 101, 608, 1335 Dominion Construction Co. v. Good & Co. (xxx. 114) 338 Dominion Cotton Mills Co., General Engineering Co. v. (xxxi. 75) 1038 Dominion Council of Eoyal Templars v. Hargrove (xxxi. 385) . 115, 1127 Dominion Grange Ins. Co. v. Bradt (xxv. 154) 349, 540, 683 Dominion Land and Colonization Co., Hall v. (viii. 631) 1430 Dominion Salvage and Wrecking Co. v. Atty.-Gen. of Canada (xxi. 73) 357, 1398 Dominion Salvage and Wrecking Co. v. Brown (xx. 203) .... 53 Dominion Telegraph Co. v. Gilchrist (Cass. Dig. 2 ed.. 844) . . . 1053, 1460 Dominion Telegraph Co. v. Silver (x. 238) 773, 985 Domville v. Cameron (Cass. Dig. 421, 684) 122, 1118 Domville v. Gleeson (Cass. Dig. 343) 805 Don, Warner v. (xxvi. 388) 854, 1237, 1356 INDEX TO NAMES OF CASES. 1611 PAGE. Donohue v. Donohue (xxxiii. 134) . , 108, 69& Donohue v. Hull (xxiv. 683) 1084 Donovan, Herbert v. (Cass. Dig. 2 ed. 653, 706) 1103, 1433 Doran v. Eoss (Cass. Dig. 829) 7 Dorion v. Crowley (Cass. Dig. 684, 709) 791, 1130 Dorion v. Dorion (xiii. 193) 1380' Dorion v. Dorion (xx. 430) 3, 973, 1384, 1551 Dorland, Jones v. (xiv. 39) 1179" Dostaler, Three Eivers Water Works v. (18 L. C. Jur. 196) 391 DouU, McDonald v. (Cass. Dig. 384) 710 DouU V. Mcllreith (xiv. 739) 1232 DouU, Western Ass. Co. v. (xii. 446) 674 Doutre, The Queen v. (vi. 343) 392 Dover Township, Township of Chatham v. (xii. 321) 480, 885 Dowker, Sehlomann v. (xxx. 323) 126, 383, 545, 1109 Downie v. The Queen (xv. 358) 398 Doyle V. McPhee (xxiv. 65) 462 Draper v. Eadenhurst (xxi. 714) 1428- Drennan, City of Kingston v. (xxvii. 46) 77, 899, 955 Dresehell v. Auer Incand. Light and Mfg. Co. (xxviii. 268) . . 65, 106, 385. Dresehell v. Auer Incand. Light and Mfg. Co. (xxviii. 608) . . . 1037, 1359 Drew, Eraser v. (xxx. 241) 745, 988, 1088 Drew V. The King (xxxiii. 228) 405, 1044 DriscoU, Milleville Mut. Mar. & Eire Ins. Co. v. (xi. 183) 552, 707, 718 Drouin v. Morrisette (xxxi. 563) 1430, 1515 Drummond v. Baylis (ii. 61) 1151 Drysdale v. Cunningham (xxi. 139) 850 Drysdale v. Dugas (xxvi. 20) 1006 Drysdale, Union S. S. Co. v. (xxxii. 379) 229, 790 Dubois V. Village of Ste. Eose (xxi. 65) 55 Dubuc V. Kidston (Cass. Dig. 779) 1291 Dubuc V. Kidston (xvi. 357) 19, 1096, 1096, 1391 Ducondu, Dupuy v. (vi. 425) ■ ■ • 1^90 Dueber Watch Case Mfg. Co. v. Taggart (24th April, 1900) . . Dueber Watch Case Co. v. Taggart (xxx. 373) 444, 1032 Duff, Can. Southern Ey. Co. v. (Cass. Dig. 34) 146, 388 Duffus V. Creighton (xiv. 740) - 1311 Duffus, Eoyal Ins. Co. v. (xviii. 711) 55o, 978 Duffy, Township of Langley v. (30th May, 1899) 108, 134 Dufresne, Bulmer v. (Cass. Dig. 2 ed. 873) ■ ■ • • 1^«0 Dufresne v. Dixon (xvi. 596) 1335, 1311 Dufresne v. Guevrement (xxvi. 216) o^ Dufresne v. Prefontaine (xxi. 607) • ■ • ^°* Dugas, Magnan v. (ix. 93) 530, 608 Dugas, Drysdale v. (xxvi. 20) ^^^^ Duggan V. Duggan (xvii. 343) Duggan V. London & Can. L. & A. Co. (xx. 481) . . ...... • • • ■ Wb. Duggan V. London & Can.^L. & A. Co. (23rd March, 1893) .... ^^^^ 1108 Duggan, Miller v. (xxi. 33) ■■■■■ ■ ■ . • , ^.g. Duguay, Eobin v. (xxvii._ 347) 1382, 1484, 1530 Duhaime, Demers v. (xvi. 366) 1612 INDEX TO ZSTAMES OF CASES. PAGE. Dumont, Dawson v. (xx. 709) 54, 472, 790, 1330 Dumoulin, Burfoot v. (xxii. 130) 311 DumoTilin v. Langtry (xiii. 258) 110, 246 Dun, Cosette v. (xviii. 222) 52, 430, 437, 439, 775 Duncan, Rogers v. (xviii. 710) 494 Dunham, Dunks v. (Cass. Dig. 89) 1030 Dunn V. The King (13th Nov., 1901) 728 Dunn, The Queen v. (xi. 385) 22 Dunn V. Prescott Elevator Co. (xxx. 620) 1511 Dunsmuir, Colonist P. & P. Co. v. (xxxii. 679) .266, 1171, 1309, 1362 Dunsmuir v. Lowenberg, Harris & Co. (xxx. 334) 380, 589 Dupont V. Morin (xxi. 28) 533 Dupras, Brossard v. (xix. 531) 618 Dupuis dit Gilbert, King v. (xxviii. 388) 66, 367, 1012, 1275 Dupuy V. Dueondu (vi. 425) 1290 Durand, Asbestos and Asbestie Co. v. (xxx. 285) ■ 249, 822, 823, 830, 923, 924, 933 Durocher v. Durocher (xxvii. 363) 222, 467, 561, 731, 737, 1076, 1458 Durocher v. Durocher (xxvii. 634) 739, 1242 Dussault, Belleau v. (Cass. Dig. 686) 79, 530, 1119 Dussault, Belleau v. (xi. 133) 511, 513, 519 Duval V. Maxwell (xxxi. 459) 526, 1123 Dwyer v. Town of Port Arthur (xxii. 241) 873, 1350 Dyer v. Town of Trenton (xxiv. 474) 865, 1366 Dyment, Thomson v. (xiii. 303) 1271 E. Eastern Townships Bank v. Swan (xxix. 193) .126, 1003, 1133, 1242 Eastern Trusts Co., Bayne v. (xxviii. 606) 581, 1163, 1473 Easthope, North, Gibson v (xxiv. 707) 483, 886 Eastman v. Richard Co. (xxix. 438) 751 Eastmure v. Can. Accident Ins. Co. (xxv. 691) . . .42, 312, 819, 1158 Eaton, Quebec Ins. Co. v. (May, 1900) 1107 Baton Co. v. Sangster (xxiv. 708) 946 E. B. Eddy Co., Spratt v. (xxix. 411) ^, 210 Ecclesiastiques de St. Sulpice v. City of Montreal (xvl. 399, 407) ■....' 50,159, 1165 Eckhardt v. Lancashire Ins. Co. (xxxi. 72) 682 Eddy V. Eddy (4th Oct., 1898) 130, 1132, 1164 Eddy Co., Spratt v. (xxix. 411) 210 Edgar v. Sloan (xxiii. 644) 264, 267, 1470, 1559 Edmonds v. Tiernan (xxi. 406) 783 Edmonton, Town of, Brown v. (xxiii. 308, xxviii. 510) . .456, 642, 908 Edmonton, Town of, Heiminck v. (xxviii. 501) 413, 641, 908 Educational Statutes in Manitoba (xxii. 577) 274, 1347 Edwards v. Mayor of St. John (Cass. Dig. 48) 155 Eisenhaur, Kaulbach v. (xx. 169) 529 Eisenhaur, Nova Scotia Mar. Ins. Co. v. (6th Nov.. 1904) 811 Electric Despatch Co. v. Bell Telephone Co. (xx. 83) 305 E. Leonard & Sons, Williams v. (xxvi. 406) . .77, 205, 236, 237, 1133 Elgin County, Wilson v. (xxiv. 706) 1297 Elizabethtown v. Tp. of Augusta (xxxii. 295) 486, 885 INDEX TO NAMES OF CASES. leia PAGE. Ellice Township v. Crooks (xxiii. 429) 156, 881, 942, 1095 Ellice Township v. Hiles (xxiii. 429) 156, 881, 942, 1095 Eliot, Flanagan v. (xii. 435) 153^ 1512 Elliot, Peers v. (xxi. 19 ) 941 993 Elliot, Sun Life Ass. Co. v. (xxxi. 91) 620, 861 Ellis V. Baird (xvi. 147) ' 82 Ellis V. Black (xiv. 740) 1482 Ellis, Kent v. (xxxi. 110) 1056, 1340 Ellis, Power v. (vi. 1) 551, 989, 1565 Ellis V. The Queen (Cass. Dig. 133) 89 Ellis V. The Queen (xxii. 7) 90, 300, 402 Elma, Tp. of Broughton v. (xxvii. 495) 156, 483, 883 Elmsley, Hayes v. (xxiii. 623) 1498 Elson V. North Am. Life Ass. Co. (xxxiii. 383) 701 Emerald Phosphate Co. v. Anglo-Continental Guano Works (xxi. 422) 55 Emerson y. Bannerman (xiv. 1) 205 Employers' Liability Ins. Co. v. Taylor (xxix. 104) 11, 670 " Erie Belle " and " M. C. Upper " (vii. 36) 387, 925 Equitable Life Ass. Soc., Laberge v. (xxiv. 59) 61 Equitable Life Ass. See, Laberge v. (xxiv. 595) 354 Erdman, Town of Walkerton v. (xxiii. 352) 556 Ernst V. Zwicker (xxvii. 594) 1344, 1531 Erratt, Jellett v. (xxvi. 282) 592, 1238. Erb V. Great Western Ey. Co. (v. 179) 1146 Erie Co. Nat. Gas. and Fuel Co., Carroll v. (xxix. 591) 1249 Erwin, Canada Southern Ey. Co. v. (xiii. 162) 1200" Esquimault and Nanaimo Ey. Co., Hobbs v. (xxix. 450) . .837, 1287, 1335, 1501 Esquimault and Nanaimo Ey. Co., Hoggan v. (xxiii. 235) 421 Esquimault and Nanaimo Ey. Co., Waddington v. (xxiii. 235) . 421 Esson v. McGregor (xx. 176) 981 Esson, Wood v. (ix. 239) 913, 1437 Ethier v. Ewing (xxix. 446) 91, 734 Ethier v. Legault (xxxi. 437) 527, 584, 1050 . Ethier v. Legault (xxxii. 55) 107, 504 * Ethier v. Legault (24th Nov., 1902) 531 Eureka Woollen Mills Co. v. Moss (xi. 91) 76, 975, 980' Evans, Allan v. (xxx. 416) 1386, 1532 Evans, Cowan v. (ii. 328, 331) 58, 58, 1356 Evans, King v. (xxiv. 356) • ■ ■ • 15^» Evans v. Skelton (xvi. 637) "^54. J59 Everitt, Collins v. ( Cass. Dig. 210) ■ • • 104J Ewing, Ethier v. (xxix. 446) • • • • ■ • • ■ ■ ■ • 91. l^Jt Exchange Bank, In re (xx. 152) 174, 666, 1125, 1556 Exchange Bank, Bams v. (xiv. 716) 1^87 Exchange Bank v. Fletcher (xix. 278) • • • • ■ • • ■ ■ • ^liZ Exchanle Bank v. Gilman (xvii. 108) . . . .119, 562, 1086, 1100, 1252 Exchange Bank v. Peoples' Bank (Cass. Dig. 79) 1^^ Exchange Bank, Springer v. (xiv. 716) F. Fairbanks v. Barlow (xiv. 217) • • • • J J^J Fairbanks, Fraser v. (xxiii. 79) »^9' ■^*°* 1614 INDEX TO NAMES OF CASES. Fairbanks v. The Queen (xxiv. 711) 601 Fairchild v. Ferguson (xxi. 484) 193 Fairman v. City of Montreal (xxxi. 310) 16, 433, 603, 896 Fairman v. City of Montreal (ISth March, 1901) 1105 Falk, Bonsaek v. (Q. E. 9 Q. B. 355) 46, 1138 Farmer v. Livinp;ston (v. 331) 1401 Farmer v. Livingston (viii. 140) 1433 Farnham, Town of, Schwob v. (xxxi. 471) 790, 1044 Farquharson v. Imperial Oil Co. (xxx. 188) 115, 1136, 1353, 1376, 1518 Farquharson, Skinner v. (xxxii. 58) 1533 Farwell, Ontario Car Co. v. (xviii. 1) 781, 1491 Farwell, The Queen v. (xiv. 393) .....' 417, 1438 Farwell v. The Queen (xxii. 553) 384, 1085, 1344 Farwell, Wallbridge v. (xviii. 1) 781, 1491 Farewell & Glendon v. Jameson (xxvi. 588) 473, 753 Faulds V. Harper (ix. 639) 793 Fauteux, Montreal L. & M. Co. v. (iii. 411) 1310, 1311, 1414 Fawcett v. Anderson (Cass. Dig. 3 ed. 8) 348, 1148 Fawcett v. Can. Pac. Ey. Co. (xxxii. 731) 930, 1330 Federal Bank v. Can. Bank of Commerce (xiii. 384) 1383 Federation Brand Salmon Canning Co. v. Short (xxxi. 378) . . 1038 Feindel, Zwicker v. (xxix. 516) 543, 1496 Felitz ex rel. In re O'Brien (xvi. 197) 83, 300 Fenton, Church v. (v. 339) 157, 655, 1391 Ferdais, Cully v. (xxx. 330) 67, 1406 Ferdais, Macdonald v. (xxii. 360) 1303 Ferguson, Fairchild v. (xxi. 484) 193 Ferguson v. Ferguson (ii. 497) 1408, 1536 Ferguson, Glengoil S.S. Co. and Gray v. (xxviii. 146) . . . .330, 813, 1333 Ferguson v. Innis (xxiv. 703) 1436 Ferguson v. Troop (xvii. 537) : 753 Ferguson, In re Turner v. Bennett & Carson & Coatsworth (xxviii. 38) 139, 391, 543, 640, 1540 Ferland, Flatt v. (xxi. 33) 54 . Ferrier v. Trepannier (xxiv. 86) 135, 596, 918, 1077, 1475 Fielding v. Mott (xiv. 354) 837 Filiatrault, Bastien v. (xxxi. 139) 651 Filiatrault v. DeBeaujeu (Cass. Dig. 676, 683) .503, 1111, 1113, 1133 Filiatrault, Hardy v. (xvii. 393) 1458 Filion, The Queen v. (xxiv. 483) 833, 934,' 943, 957 Finnie, City of Montreal v. (xxxii. 335) . .16, 137, 435, 1065, 1134, 1306 Fish, Bank of Nova Scotia v. (xxiv, 709) 557 Fisher v. Anderson (iv. 406) , 384, 1534 Fisher v. Fisher (xxviii. 494) 114, 190 Fisher, Jones v. (xvii. 515) .1360, 1519 Fisheries Case (xxvi. 444) .377, 611, 639, 803, 1360, 1348 Fisk, Stevens v. (Cass. Dig. 335) 474 Fitzgerald, Grand Trunk Ey. Co. v. (v. 304) 330, 1184 Fitzgerald, Grand Trunk Ey. Co. v. (xix. 359) 1305 Fitzgerald v. McKinley (Cass. Dig. 107) 334, 1145 Fitzrandolph v. Mutual Eelief Soc. of N. S. (xvii. 333) 705 Fitzrandolph, Shanley v. (Cass. Dig. 379) 540 INDEX TO NAMES OF CASES. 1615 Flanagan v. Elliott (xii. 435) 153, 1513 Flatt V. Ferland (xxi. 32) 54 Fleming, Can. Pae. Ry. Co. v. (xxii. 33) ' 97, 1094 Fletcher, Exchange Bank v. (xix. 378) 179 Flint, Atty-Gen. of Canada t. (xvi. 707) 383 Fogarty v. Fogarty (xxii. 103) 1551 Foley, Webster v. (xxi. 580) 834, 943 Fonseca, Atty.-Gen. of Canada v. (xvii. 613) 430, 1343, 1431 Foot V. Foot (xv. 699) 1537 Foran v. Handley (xxiv. 706) 1111 Forristal v. McDonald (Cass. Dig. 433, 698, 763) 113, 739 Forristal v. McDonald (ix. 12) 1378 Forsyth v. Bury (xv. 543) 546 Forsyth, Hechler v. (xxii. 489) 453 Forsyth, McAllister v. (xii. 1) 339 Forsythe v. Bank of Nova Scotia (xviii. 707) 1555 Fortier, Chamberland v. (xxiii. 371) 59, 906 Fortier v. Lamb (xxv. 433) 393, 778 Fortier v. Prefontaine (xxi. 630 note) 784 Foster, Walker v. (xxx. 399) 470, 479 Foumier v. Barsalou (3rd May, 1898) 1113 Fournier, Leger v. (xiv. 314) 1386 Fournier dit Larose, Lamoureux v. (xxxiii. 675) 937 Fowlie, Ocean Accident & Guarantee Corp. v. (xxxiii. 353) .... 671 Francis v. Turner (xxv. 110) 454 Frank v. Sun Life Ins. Co. (32nd May, 1894) 706 Frankel Bros., Grand Ttunk Ry. Co. v. (xxxiii. 115) .331, 1188, 1511 Eraser v. Abbott (Cass. Dig. 3 ed. 695) Ill Eraser v. Bell (xiii. 546) 1053 Eraser v. Davidson & Hay (xxviii. 372) .-634, 663 Eraser v. Drew (xxx. 341) 745, 988, 1088 Eraser v. Fairbanks (xxiii. 79) 859, 1488 Eraser v. Eraser (xxvi. 316) 347, 1530 Eraser, Jones v. (Cass. Dig. 678) 1107 Eraser, Jones v. (xiii. 343) 1536 Eraser v. Pouliot (iv. 515) 457, 1380 .^Eraser, Price v. (xxxi. 505) 77, 1077, 1131 Eraser, Proulx v. (xx. 196) 534 Eraser v. Stephenson (Cass. Dig. 575) 577, 996 Eraser v. Tupper (Cass. Dig. 431, 677) 104, 383, 1108 Eraser, Wallace v. (ii. 533) '3'53 Frechette v. Goulet (viii. 169) 519 Frechette v. Goulet (ix. 279) 510, 519, 533, 608, 1378 Frechette v. Simmonneau (xxxi. 12) 68 " Frederick Gerring, jr." v. The Queen (xxviii. 271) . .278, 612, 1459 Fredericton, City of, v. The Queen (iii. 505) 281 Freehold Loan & Svgs. Co., Biggs v. (xxxi. 136) 861 French River Tug Co. v. Kerr Engine Co. (xxiv. 703) .... .... ^63 Frey, Mut. Fire Ins.Co. of Wellington v. (v. 83) 680, 11^1 Fulier V. Ames (Cass. Dig. 2 ed. 140) 119, 307 Fuller, Chandler Electric Co. v. (xxi. 337) • ■ • • • 918 Fuller, Grajit v. (xxxiii. 34) 141?^' 1541 Fulton V. McNamee (ii. 470) • ^^'^ 1G16 INDEX TO NAMES OP CASES. G. PAGE. Gage, Canada Pub. Co. v. (xi. 306) 1451 Gagnon v. Prince (vii. 386) 2 Galarneau v. Guilbault (xvi. 579) 51, 1440 Gallagher v. Taylor (v. 368) 716 Galivan, Macdonald v. (xxviii. 358) 65 Gardner v. Kloepfer (xv. 390) 168 Gareauv. Montreal St. Ry. Co. (xxxi. 463) . .100, 431, 563, 1007, 1455 "Garland," The (vii. 409) 14 Garland v. Gemmill (xiv. 321) 383 Garland, McLean v. (xiii. 366) 659 Gastonqnay v. Savoie (xxix. 613) 668, 1474 Gates V. Davidson (Cass. Dig. 847) 983 Gatfield, Can. Southern Ry. Co. v. (Cass. Dig. 34) 146, 388 Gauthier v. Brien (xxi. 39) 79, 517 Gauthier v. Jeannotte (xxviii. 590) 389, 532, 1338 Gauthier v. Masson (xxvii. 575) 27, 580, 1067 Gauthier v. Normandeau (xiv. 429) 78, 503 Gauthier, Perrault v. (xxviii. 341) 14, 1454 Geddes, Wilkins v. (iii. 203) 80, 1080 Gemley, Low v. (xviii. 685) 1468 Gemmill, Garland v. (xiv. 331) 383 Gendron v. McDougall (Cas,s. Dig. 439) 56, 388 General Eng. Co. v. Dominion Cotton Mills Co. (xxxi. 75) 1038 Genereux v. Cuthbert (ix. 102) '. 500, 513, 531 George Matthews Co. v. Bouchard (xxviii. 580) 833, 944 Georgian Bay Lumber Co. v. McDonald (ii. 364) 383, 664, 1397 Georgian Bay Nav. Co., Davidson v. (xxxiii. 1) 40, 915 German v. Eothery (xx. 376) 532 Gerow v. British Am. Ass. Co. (xvi. 534) 713 Gerow, Providence Washington Ins. Co. (xiv. 731) 131, 711, 738, 990, 1099 Gerow, Providence Washington Ins. Co. (xvii. 387) 713 Gerow v. Eoyal Can. Ins. Co. (xvi. 534) 713 Gerriken, Reeves v. (Cass. Dig. 689) 1133 " Gerring, Jr.," Ship " Frederick," v. The Queen (xxvii. 371) . . 378, 612, 1459 Gerth, Stephens v., Re Ont. Ex. & Tr. Co. (xxiv. 716) 61, 1564 Gibbins v. Barber (xix. 304) 395, 864 Gibbons v. McDonald (xx. 587) 632, 845 Gibbs, Wheeler v. (iii. 374) 78, 503 Gibbs, Wheeler v. (iv. 430) 509, 520 Gibeault v. Pelletier (xx. 185) 533, 1081 Gibraltar Villas v. Hughes (xi. 537) 215 Gibson v. Nelson (9th Dec, 1902) 127 Gibson v. North Easthope (xxiv. 707) 483, 886 Gibsone v. Quebec M. & C. Ry. Co. (xxix. 340) . 379, 605, 1197, 1334 Giguere, Mut. Life Ass. Co. v. (xxxii. 348) 558, 707 Gilbert, Dupuis dit; King v. (xxviii. 388X 66, 367, 1012, 1275 Gilbert v. Oilman (xvi. 189) .• '. 49 Gilbert, Jonas v. (v. 356) 864 Gilbert, McDonald v. (xvi. 700) 51, 574, 1033 Gilbert B. & D. Co. v. The King (xxxiii. 31) 344, 1175 Gilchrist, Dom. Telegraph Co. v. (Cass. Dig. 2 ed. 844) . .1053, 1460 INDEX TO NAMES OF CASES. 161? Gillespie, Merchants Bank of Halifax v. (x. 313) 257, 271, 283, 1363, 1553 Gillespie v. Stephens (xiv. 709) 7 Gillespie, Toronto, City of, v. (1st May, 1893) 873 Oilman, Exchange Bank v. (xvii. 108)' . .119, 562, 1086, 1100, 1252 Oilman, Gilbert v. (xvi. 189) 49 Gilmour v. Cory (22nd May, 1902) 1532 Gilmour v. Magee (xviii. 579) 756 Oingras v. Desilets (Cass. Dig. 212) 95^ 437 Oingras v. Symes (Cass. Dig. 14) 306 Giraldi v. Banque Jacques-Cartier (ix. 597) 1161 Gladwin v. Cummings (Cass. Dig. 426) 88, 388 Gleeson, Domville v. (Cass. Dig. 343) 80.5 Glen, McKay v. (iii. 641) 509 Glengarry Elec. Case; McLennan v. Chisholm (xx. 38) 523, 528 Glengarry Elec. Case; Purcell v. Kennedy (xiv. 453) . .78, 503, 532 Glengoil S.S. Co. v. Ferguson (xxviii. 146) 330, 812, 1333 Glengoil S.S. Co. v. Pilkington (xxviii. 146) 330, 812, 1323 Glenn, Colter v. (xvii. 170) 501, 511 Gloucester Elec. Case ( viii. 204) ' 503 Gloucester Co. v. Grimmer (xxxii. 305) 880, 1361 Goderich, Town of, v. Holmes (xxxii. 211) 369, 470 Godson V. City of Toronto (xviii. 36) 1167 Gold Medal F. Mfg. Co., Lumbers v. (xxx. 55) 463, 768, 1393 Goldie, Smith v. (ix. 46 ; Cass. Dig. 689) 736, 1033, 1123 Goldsmith, City of London v. (xvi. 231) 898, 953 Good & Co., Dominion Construction Co. v. (xxx. 114) 328 Gooderham, City of Toronto v. (xxv. 246) 641, 907, 1356 Goodwin v. The Queen (xxviii. 373) 341 Gordon, Stephens v. (xxii. 61) 331 Gorman v. Dixon (xxvi. 87) 119, 455, 1161 Gore Dist. Mut. Fire Ins. Co. v. Samo (ii. 411) 695 Gosnell, Toronto Ry. Co. v. (xxiv. 582) 936, 971 Oosselin, Ouertin v. (xxvii. 514) 129, 730, 733, 1008, 1010, 1075, 1076, 1079 Oosselin v. The King (xxxiii. 355) 405, 560, 1362 Ooulet, Frechette v. (viii. 169) 519 Goulet, Frechette v. (ix. 279) 510, 519, 523, 608, 1378 Ooulet, Migner v. (xxxi. 26) 837 Oongeon, City of Ste. Cunegonde v. (xxv. 78) 62, 869, 1352 Gould, Blakeiey v. (xxvii. 682) 624, 663 Governor and Co. of Adventurers of England Tradmg into Hudson Bay v. Joanette (xxiii. 415) 628, 1168, 1300 Oranby, Village of, v. Menard (xxxi. 14) 99, 608 Grand Junction Ry. Co., Biekford v. (i. 696 ; Cass. Dig. 689 ) Grand Junction Ry. Co. v. Co. of Peterborough (viii. 76) . .871, 1211 Grand 'Mere, Village of, Hanson v. (xxxni. 50) • • «74 Grand Trunk Ry. Co. v. Anderson (xxvm. 541) 96b, l^u^ Grand Trunk Ry. Co. v. Atchison (5th March, 1901) 115, 119^ Grand Trunk Ry. Co. v. Beaver (xxii. 498) • • • • iis^ Grand Trunk Ry. Co. v. Beckett (xvi. 713) 430. 1201 Omnd T^k Ry.' Co. v. Boylanger (Cass Dig. 733) .... .... 934 Grand Trunk Ry. Co. v. Coupal (xxvni. 531) 137, 580, 1197 B.O.D. — 53 1618 INDEX TO NAMES OP CASES. PAGE. Grand Trunk Ey. Co. v. Credit Valley Ey. Co. (Doutre, Con. of Can. 337) 11?, 283 Grand Trunk Ey. Co. v. Fitzgerald (v. 204) 230, 1184 Grand Trunk Ey. Co. v. Fitzgerald (xx. 359) 1205 Grand Trunk Ey. Co. v. Frankel Bros, (xxxiii. 115) . .231, 1188, 1511 Grand Trunk Ey. Co. v. Halton, Co. of (Cass. Dig. 91) 1211 Grand Trunk Ey. Co., Jackson v. (xxxii. 245) 941, 1219, 1502 Grand Trunk Ey. Co., v. James (xxxi. 420) 968, 1201, 1219 Grand Trunk Ey. Co., Jones v. (xviii. 696) 1216 Grand Trunk' Ely. Co. v. McMillan (xvi. 543) . .317, 547, 1185, 1510 Grand Trunk Ey. Co. v. Miller (xxxii. 454) 969, 1219 Grand Trunk Ey. Co. v. Morton (xi. 612) 1185 Grand Trunk Ey. Co. v. City of Quebec (xxx. 73) . 10, 152, 1323, 1376 Grand Trunk Ey. Co. v. Eainville (xxix. 301) 966, 1307 Grand Trunk Ey. Co., Eobertson v. (xxiv. 611) 1187, 1370 Grand Trunk Ey. Co. v. Eosenberger (ix. 311) 1214 Grand Trunk Ey. Co. v. Sibbald (xx. 259) 960, 1193, 1316 Grand Trunk Ey. Co. v. Therrien (xxx. 485) 293, 1200 Grand Trunk Ey. Co. v. Tremaine (xx. 259) 960, 1192, 1316 Grand Trunk Ey. Co. v. Vallee (18th March, 1901) 116 Grand Trunk Ey. Co. y. Vogel (xi. 631) 1185 Grand Trunk Ey. Co., Washington v. (xxviii. 184) . . 965, 1193, 1358 Grand Trunk Ey. Co. v. Weegar (xxiii. 432) 98, 964 Grand Trunk Ey. Co. v. Wilson (Cass. Dig. 723) 1316 Grange v. McLennan (ix. 385) 303 Grant v. Acadia Coal Co. (xxxii. 437) 831, 937 Grant v. Baudry (Cass. Dig. 581) 1003 Grant v. British Can. Lumber Co. (xviii. 708) 1555 Grant v. Cameron (xviii. 716) 169, 244, 787 Grant v. Fuller (xxxiii. 34) 1412, 1541 Grant, Hamilton v. (xxx. 566) 365, 583 Grant, Howland, Sons & Co. v. (xxvi. 372) 268, 444 Grant v. Maclaren (xxiii. 310) 77, 1075, 1470 Grant v. McLaren (9th May, 1894) 1183 Grant, Northern Pac. Ey. Co. v. (xxiv. 546) ; 317, 1186 Grant, People's Loan & Dep. Co. v. (xvii. 262) 727 Grant v. The Queen (xx. 297) 407, 422, 1099 Grasett v. Carter (x. 105) 92, 207, 538, 587, 1340 Gratton, Banque Jacques-Cartier v. (xxx. 317) 597, 1535, 1547 Gray v. Coughlin (xviii. 553) 858 Gray v. Eichford (ii. 431) 1078, 1129, 1341, 1550 Great Eastern Ey. Co. v. Lamb (xxi. 431) 106, 784, 1011 Great Northern Transit Co., London Ass. Corp. v. (xxix. 577) . 680 Great North-West Tel. Co. v. Montreal Tel. Co. (xx. 170) 764 Great Western Ins. Co. v. Jordan (xiv. 734) 719 Great Western Ey. Co. v. Brown (iii. 159) 1213 Great Western Ey. Co. v. Brb (v. 179) 1146 Green v. Citizens Ins. Co. (xviii. 338) 145 Green v. Clarke (Cass. Dig. 614) 445 Green v. Miller (xxxi. 177) 776, 984, 994 Green v. Miller (xxxiii. 193) . . . .123, 559, 777, 985, 995, 1096, 1124 Green v. Ward (xxix. 573) 457, 1406 Greene v. Harris (xiv. 714) 1305 Greene, Holman v. (vi. 707) 639, 1437 Greenwood, White v. (xx. 169) 539 INDEX TO NAMES OF CASES. 1619 PAGE. Gregoire v. Gregoire (xiii. 319) 789, 1480 Gregory, Halifax & C. B. Ey. & Coal Co. v. (Cass. Dig. 727) . . 309 Gregory, O'Dell v. (xxiv. 661) 61 Grenier, The Queen v. (xxx. 42) . .15, 249, 287, 702, 802, 822, 825, 924, 967, 1203, 1376 Grenville, Tp. of. Ward v. (xxxii. 510) 945, 1266, 1305, 1504 Grey & Glengoil S.S. Co., Ferguson & Pilkington v. (xxviii. 146) 230, 812, 1323 Grey & Elma, Broughton v. (xxvii. 495) 156, 483, 883 Grieve, Campbell v. (xx. 331) 521 Griffin, Power v. (xxxiii. 39) 1039 GriflQth v. Harwood (xxx. 315) 91, 106, 1056 Griffiths V. Boscowitz (xviii. 718) 3, 743, 975, 991 Griffiths, Town of Portland v. (xi. 333) ■ 925, 998 Griffiths, Walmsley v- (xiii. 434) 131 Griffiths, Walmsley v. (Cass. Dig. 670, 697, 699) 113, 113 Grimmer v. Co. of Gloucester (xxxii. 305) 880, 1361 Grinnell v. The Queen (xvi. 119) 427, 1354 Grinsted, Toronto St. Ey. Co. v. (xxiv. 570) 970 Grip Print. & Pub. Co. v. Butterfield (xi. 291; Cass. Dig. 687) . 1034, 1120 Guarantee Co. of N. A., Harbour Commrs- of Montreal v. (xxii. 542) 1389 Guardian Ass. Co. v. Connely (xx. 208) 690 Guardian F. & L. Ass. Co., Hobbs v. (xii. 631) 678 Guay v. The Queen (xvii. 30) 1195 Guelph Lumber Co., Petrie v. (xi. 450) 254 Guevremont, Dufresne v. (xxvi. 216) 63 Guerin V. Manchester Fire Ins. Co. (xxix. 139) . .ll, 138, 169, 270, 673, 677, 679, 681, 684, 688, 688, 856, 1379 Guertin v. Gosselin (xxvii. 514) . . . .129, 730, 733, 1008, 1010, 1075, 1076, 1079 Guertin v. Sansterre (xxvii. 522) 21, 216, 1472, 1485 Guilbault v. Dessert (xv. 458) 530 Guilbault, Galameau v. (xvi. 579 ) 51, 1440 Guilbault v. McGreevy (xviii. 609) 320 Guilford v. Anglo-French S.S. Co. (ix. 303) 977 Guillet, Henderson v. (x. 635) 500, 507 Guilmartin, Talbot v. (xxx. 482) 68 Gunn V. Cox (iii. 396) 573 Guthrie, Can. Pac. Ey. Co. v. (xxxi. 155) 1201, 1483 Gzowski, Boultbee v. (xxix. 54) 315, 1158 H. Hackett v. Larkin (xxvii. 241) 501, 514 Hackett v. Perry (xiv. 265) • °^° Haffner, Bank of Montreal v. (10 Ont. App. E. 592) • 783 Hagar, Clarke v. (xxii. 510) 356, 1054 Hagar, Seath v. (xviii. 715) • ■ • • ■ 1^^ Haggart v. Town of Brampton (xxvm. 174) 4bb, b54 Haldimand Elec. Case; Colter v. Glenn (xvii. 170 . . • v ■ -501, 511 Haldimand Elec. Case ; Walsh v. Montague (xv. 495) . .507, 514, 521 Hale, Porter v. (xxiii. 365) ....... ..;^. 572, 749 1077 Halifax Banking Co., Cornwall v. (xxxu. 442) 671, 838, 1362 1620 INDEX TO NAMES OE CASES. Halifax Banking Co., Creighton v. (xviii. 140) 1030 Halifax Banking Co. v. Matthew (xvi. 721) 844 Halifax Banking Co., N. S. Central Ey. Co. v. (xxi. 536) 1063 Halifax Banking Co. v. Smith (xviii. 710) 553 Halifax & Cape Breton Ey. & Coal Co. v. Gregory (Cass. Dig. 727) ■ : 309 Halifax & Cape Breton Ey. & Coal Co., Hoekin v. (Cass. Dig. 423) 88 Halifax & Cape Breton Ey. & Coal Co., Levy v. (Cass. Dig. 579) 980, 998 Halifax, Citv of, v. Kenny (iii. 497) 148 Halifax, City of, v. Lithgow (xxvi. 336) 643, 893 Halifax, City of, v. Lordly (xx. 505) 898 Halifax, City of, Oakes v. (iv. 640) 119, 144 Halifax, City of, v. Walker (Cass, Dig. 175) 954, 978 Halifax, City of, v. Eeeves (xxiii. 340) 72, 906, 1086 Halifax City Ey. Co. v. The Queen (Cass. Dig. 37, 679) . .1106, 1118, 1225 Halifax Electric Tramway Co. v. Inglis (xxx. 256) 971, 1454 Halifax St. Ey. Co. v. Joyce (xvii. 709) 132, 976 Halifax St. Ey. Co. v- Joyce (xxii. 258) 970 Hall V. Dom. of Canada L. & C. Co. (viii. 631) 1430 Hall V. McFadden (Cass. Dig. 723) 961, 1191 Hall, City of Montreal v. (xii. 74) 789, 804, 1103 Hall Mines (Limited) v. Moore (20th May^ 1898) 133, 1003, 1107, 1112 Halstead, Bank of Hamilton v. (xxviii. 235) 167, 183 Halter, Molsons Bank v. (xviii. 88) 616 Halton Co., Grand Trunk Ey. Co. v. (Cass. Dig. 91) 1211 Halton Elec. Case (xix. 557) 78, 106, 515, 1111, 1113 Halton Elec. Case (15th March, 1903) 516, 1111, 1113 Hamburg- American Packet Co. v. The King (xxxiii. 252) . .409, 915, 959, 1176, 1266 Hamel v. Hamel (xxvi. 17) 90, 106 Hamel v. Leduc (xxix. 178) 526, 1083 Hamelin v. Bannerman (xxxi. 534) 100, 459, 1365 Hamilton, City of, v. Township of Barton (xx. 173) 880 Hamilton, Carter & Co. v. (xxiii. 172) 1037 Hamilton v. Grant (xxx. 566) 265, 583 Hamilton, Liggett v. (xxiv. 665) 1028 Hamilton, Peters v. (Cass. Dig. 763) 96, 555, 565, 976 Hamilton v. Prefontaine (xxi. 630 note) 784 Hamilton Bridge Co. v. O'Connor (xxiv. 598) 939 Hamilton Police Benefit Fund, Miller v. (xxviii. 475) 190 . Hamilton St. Ey. Co. v. Moran (xxiv. 717) 926, 995 Hamilton, William, Mfg. Co. v. Victoria Lumber Co. (xxvi. 96) 563, 563, 578 Hampson, Vineberg v. (27th Feb., 1896) 491 Hampson, Wineberg v. (xix. 369) 53 Hancock, Long v. (xii. 532) 621 Handley, Archibald v. (xxx. 130) 793, 1431 Handley, Foran v. (xxiv. 706) 1111 Hannan, Eoss v. (xix. 227) 1374 Hannon, McLean v. (iii. 706) 1311 Hansen, Law v. (xxv. 69) 578, 614, 736, 1345 INDEX TO NAMES OF, CASES. i63l PAGE. Hanson, Allen v. (xviii. 667) 257, 383, 614, 1554 Hanson, Venning v. (ix. 206) 611 Hanson v. Village of Grand' Mere (xxxiii. 50) 874 Harbour Oomrs. of Montreal v. Guarantee Co. of N. A (xxii 543) :. . . . 1389 Hardman v. Putnam (xviii. 714) , 990 Hardy v. Filiatrault (xvii. 293) 1458 Hardy Lumber Co. v. Pickerel River Imp. Co. (xxix. 211) . . 353, 258, 542, 1248, 1364, 1374, 1442 Hargrove, Dominion Eoyal Templars v. (xxxi. 385) 115, 1137 Harper, Cameron v. (xxi. 273) 595, 1397, 1538, 1544 Harper, Faulds v. (ix. 639) 792 Harrington v. Corse (ix. 413) • 1551 Harris v. Greene (xiv. 714) 1305 Harris, Eex v. (33nd May, 1903) ■ 405 Harris v. Robinson (xxi. 390) 1334 Harrison, Western Ass. Co. v. (xxxiii. 473) 697 Hart, Joyce v. (i. 330) • 34, 48, 1033 Hart, Malzard v. (xxvii. 510) 99, 348, 563, 608 Hart V. McMullen (xxx. 245) 496, 1406 Hart, Parsons v. (xxx. 473) ■ 304, 1450 Hart, Troop v. (vii. 513) 172 Hart, Trusts & Guarantee Co. v. (xxxii. 553) ■ 630 Hartley v. Matson (xxxii. 575) 107, 298 Hartley v. Matson (xxxii. 644) 832 Harty, Kehoe v. (xiii. 431) • 131, 1487 Harty, O'Sullivan v. (xi. 322) 594 Harty, O'Sullivan v. (xiii. 431) 131, 1487 Harvey v. Bank of Hamilton (xvi. 714) 197 Harvey, Pictou Bank v. (xiv. 617) 1373 Harvey Van Norman Co. v. McNaught (xxxii. 690) 833, 1318 Harwich, Township of, McGregor v. (xxix. 443) 877, 944 Harwich, Township .of, v. Township of Raleigh (18th May, 1895) 58 Harwood, Griffith v. (xxx. 315) 91, 106, 1056 Hastings Mut. Fire Ins. Co. v. Shannon (ii. 394) 689 Hatfield, Ames-Holden Co. (xxix. 95) 368, 1375 Hatfield, St. John Gas Light Co. v. (xxiii. 164) 831 Hateley, Merchants Despatch Trans. Co. v. (xiv. 572) 327 Hathaway v. Chaplin (xxi. 23) • 575 Haubner, Martin v. (xxvi. 143) 376, 558, 1376, 1340 Hawkins, Bickford v. (xix. 363) 94, 608 Hawkins, Roberts v. (xxix. 318) • 936, 1461 Hawkins v. Smith (viii. 676; Cass. Dig. 686) 506, 1113 Hawley v. Wright (xxxii. 40) 929 Hayes v. Coleman (Cass. Dig. 3 ed. 833) 1409, 1543 Hayes v. Elmsley (xxiii. 633) • 1498 Hayes, Virtue v. (xvi. 731) ••••■• J^t Headford v. McClary Mfg. Co. (xxiv. 391) 98, 608, 935 H^ert, Pinsonnault v. (xiii. 450) 30 Hechler v. Forsyth (xxii. 4a9) • 453 Hedge, McMillan v. (xiv. 73^) • • ■ • 1^^^ Hefferman, Walsh v. (xiv. 738) • • ■ • 128, 1184 Heiminck v. Town of Edmonton (xxvin. 501) 413, 641, 908 Heliwell, Can. Pac. Ry. Co. v. (Cass. Dig. 533) 1148 1622 INDEX TO NAMES OF CASES. PAGE. Hempenstal, Merritt v. (xxv. 150) ..98, 557, 562, 655, 817, 835, 937, 944 Henderson v. Bank of Hamilton (xxiii. 716) 395 Henderson, Can. Atlantic Ey. Co. v. (xxix. 632) 966, 1218, 1360 Henderson v. Guillet (x. 635) • 500, 507 Henderson, Osborne v. (xviii. 698) 1468 .Henderson,, The Queen v. (xxviii. 425) 342, 728, 1174, 1359 Hennessy, Davies v. (xx. 26) 515, 528, 1081 " Henry L. Phillips " v. The Queen (xxv. 691) 611 Henning, MacLean v. (xxxiii. 305) 1533 Herbert v. Donovan (Cass. Dig. 2 ed. 653, 706) 1103, 1433 Hereford Ey. Co. v. The Queen (xxiv. 1) 292, 1221 Hess Mfg. Co., In re (xxiii. 644) . 264, 267, 1470, 1559 Hesse v. St. John Ey. Co. (zxx. 218) 744, 993 Hesslein, Wallace v. (xxix. 171) 375, 1335, 1435, 1499, 1505 Hett V. Pun Pong (xviii. 290) 1329 Heve, Eoyal Electric Co. v. (xxxii. 462) • 499, 933 Howard v. O'Donohue (xix. 341) 1140, 1418 Hibben v. Collister (xxx. 459) .' ; 1028 Hickey, Eose v. (Cass. Dig. 534) • 588 Higgins V. Stephens (xxxii. 132) 1022, 1133 Higgins V. Walkem (xvii. 225) 774, 990 Hiles, Bllice v. (xxiii. 429) 156, 881, 942, 1085 HiUiker, Knights of Maccabees v. (xxix. 397) 706, 1055, 1505 Hinchinbrook, McKay v. (xxiv. 55) 61 Hislop V. McGillivray (xv. 188) • 110, 608 Hislop V. McGillivray (xvii. 479) 902 Hobbs V. Esquimalt & Nanaimo Ey. Co. (xxix. 450) . .837, 1287, 1335, 1501 Hobbs V. Guardian P. & L. Ass. Co. (xii. 631) 678 Hobbs V. Northern Ass. Co. (xii. 631) • 678 Hobbs V. Ontario Loan & Deb. Co. (xviii. 483) 750 Hochelaga Bank, Union Bank v. (Cass. Dig. 350) 845 Hochelaga Bank v. Waterous Engine Works Co. (xxvii. 406) . . 653, 863, 1279, 1490 Hockin v. Halifa.x & C. B. Ey. & Coal Co. (Cass. Dig. 423) 88 Hoe, Mullin v. (Cass. Dig. 219) 309 Hogaboom v. Eeceiver- General (xxviii. 192) . .189, 1092, 1358, 1559 Hogan, HoUiday v. (20th Feb., 1894) .' 1159 Hogan, City of' Montreal v. (xxxi. 1) , 385, 602, 891, 1129 Hoggan V. Esquimault & Nanaimo Ey. Co. (xxiii. 235) 421 Holland v. Mitchell (xvi. .687) 1467 Holland V. Eoss (xix. 566) • 420 Hollester v. City of Montreal (xxix. 402) 602, 877, 891, 1304 HoUiday v. Hogan (20th Feb., 1894) 1159 Holliday v. Jackson (xxii. 479) 1389 Holman v. Greene (vi. 707) • 639, 1437 Holmes v. Carter (xvi. 473) 51, 547, 1243, 1466 Holmes, Goderich v. (xxxii. 211) 369, 470 Home Life Ass. v. Eandall (xxx. 97) 12, 270, 1050, 1075 Honan v. Bar of Montreal (xxx. 1) . . . «>. 189, 740, 1168 Hood, Mclntyre v. (ix. 556) . . . . • 347 Hood V. Sangster (xvi. 723) 51 Hoofstetter, Booker v. (xxvi. 41) '. . .849, .1000, 1233 Horn, Monaghan v. (vii. 409) ■ 14 INDEX TO NAMES OP CASES. 1623 PAGE. Horton v. Casey (xxii. 739 ) 1420 IJorton V. Humphries (xxii. 739) • 1420 Hosterman, Lecain v. (Cass. Dig. 837) 498 Hosking v. LeEoi No. 3 (37th Oct., 1903) 1129 Houghton V. Bell (xxiii. 498) 1470, 1528, 1.53!) House of Commons, Eepresentation in (xxxiii. 475, 594) . .280, 648, 1145, 1367 Houston & Ward, Merchants Bank of Halifax v. (xxxl. 361) . . 183, 242 Hovey V. Whiting (xiv. 515) 168, 255 Howard, Bickford v. (Cass. Dig. 286) 95 Howard v. Lancashire Ins. Co. (xi. 92) 120, 692, 976 Howe, Lewin v. (xiv. 732) . . .■ 1121, 1132, 1164 Howland, Cannon v. (Cass. Dig. Ill) 334 Howland v. Dominion Bank (xxii. 130) 1097 Howland, Sons & Co. v. Grant (xxvi. 372) . . . 368, 444 Hubert, The Queen v. (xiv. 737) 136 Hubley, Archibald v. (xviii. 116) 204, 592, 1299 Hudon Cotton Co. v. Canada Shipping Co. (xiii. 401) 27, 1146 Hudson Bay Co. v. Joanette (xxiii. 415) • . .628, 1168, 1300 Huffman, Brantford W & Lake Erie Ey. Co. v. (xix. 336) . . . 377 Hughes, Villas du Cap Gibraltar v. (xi. 537) 215 Hull, Donohue v. (xxiv. 683) 1084 Humberstone, Dinner v. (xxvi. 252) 286, 907, 1444 Humphrey, Clergue v. (xxxi. 66) 358, 1050 Humphrey v. The Queen (xxv. 91) 305, 407 Humphries, Horton v. (xxii. 739) 1430 Hunt V. Taplin (xxiv. 36) 60, 370 Hunter v. Carrick (xi. 300) 1034 Hunter, City of Ottawa v. (xxxi. 7) 68, 1346 Hunter, Boss v. (vii. 389 ) 467, 1000, 1236 Huntingdon, Moir v. (xix. 363) • 53 Huot V. Bienvenu (xxxiii. 370) 631, 814, 1235 Hurdman, Canada Atlantic Ey. Co. v. (xxv. 205) ... .20, 817, 1217 Hurlbert, Sleeth v. (xxv. 620) . . . .224, 547, 1066, 1246, 1299, 1513 Huron West Elec. Case (viii. 126) ■ ■ ^l<^ Huron, Synod of, Wright v. (xi. 95; Cass. Dig. 673) . . . .247, 1101 Hurtean, Eoss v. (xviii. 713) ■ • • '^fj^ Hurtubuise v. Desmarteau (xix. 562) • '-L, J^^i^ Hus V. School Commrs. of Ste. Victoire (xix. 477) 1296 Huson V. South Norwich (xxi. 669) • ■ ■ • ^^ Huson V. South Norwich (xxiv. 145) ^: " ' : ' :; ' ' " ' Vot' Hutchinson, St. John Y. M. C. A. v. (Cass. Dig. 210) . . . .437,^ ^^^ Hutchinson v. Calder (Cass. Dig. 785) • • ■ • ■ ■ • 346 Hyde V. Lefaivre (xxxii. 474) 672, lo06 Hyde v. Lindsay (xxix. 99) • „ ' Hyde V. Lindsay (xxix. 595) 667, 1,4J I. Imperial Bank v. Bank of Hamilton (xxxi 344) . . . .178, 837, 951 Imperial Fire Ins. Co. v. Bull (xviii. ««^^ Imperial Fire Ins. Co., Torrop v. (xxvi. Imperial Ins. Co., Wyman v. (xiv. 715) imperial r>aim v. jjaxxj^ ^x _^^,..„.-.._ _, , Imperial Fire Ins. Co. v. Bull (xvui. 697) . .... 686 Imperial Fire lns.^0., Torrop v. (xxvi. 585) .313, 677, llo.. 1624 INDEX TO ISTAMES OF CASES. PAGE. Imperial Loan and Inv. Co., Kelly v. (xi. 516) 849 Imperial Lumber Co., Cockbum & Sons v. (xxx. 80) . 139, 1360, 1518 Imperial Oil Co., Farquharson v. (xxx. 188) 115, 1126, 1353, 1376, 1518 Imrie v. Archibald (xxv. 368) ■ . .463, 856 Ince V. City of Toronto (xxxi. 323) 900, 956 Indian Claims Case (xxv. 434) • 276 Indian Claims Case (xxx. 151) 280, 654, 1249 Inglis, Halifax Electric Tramway Co. t. (xxx. 256) 971, 1454 Ings V. Bank of P. E. Island (xi. 265) . 186, 1353, 1561 Innes, Ferguson v. (xxiv. 703) 1426 Insurance Co. of North. America v. McLeod (xxix. 449) .... 709 International Coal Co. v. Co. of Cape Breton (xxii. 305) . .151, 1222 Inverness Elec. Case (xx. 169) 529 Irvine, Williams v. (xxii. 108) • 46, 1355 Irwin, Victoria IlarTDOur Lumber Co. v. (xxiv. 607) 367, 1489 Isbester v. The Queen (vii. 696) 1172 Isbester v. Eay, Street & Co. (xxvi. 79) 193, 736, 1031 Jackson, Canada Southern Ey. Co. v. (xvii. 316) 1215 Jackson v. Grand Trunk Ey. Co. (xxxii. 245) 941, 1219, 1502 Jackson, Moore v. (xxii. 210) 455, 1355 Jackson, Mylius v. (xxiii. 485) • 119, 1054 Jackson & Hallett, Holliday v. (xxii- 479) 1389 Jacobs V. The Queen (xvi. 433) 400 Jacques-Cartier Bank, Brigham v. (xxx. 429) . .167, 195, 213, 389, 626, 663 Jacques-Cartier Banli, Gratton v. (xxx. 317) 597, 1535, 1547 Jacques-Cartier Bank v. The Queen (xxv. 84) . . .183, 197, 286, 340 Jacques-Cartier Election Case (ii. 216) 508, 518 James, Grand Trunk Ey. Co. v. (xxxi. 420) 968, 1201, 1219 James, Scammell v. (xvi. 593) 46, 76, 105, 125, 128, 1131 Jameson, Farewell & Glendon v. (xxvi. 588) 473, 753 Jaipeson v. London & Can. L. & A. Co. (xxvii. 435) 760, ' 848 Jamieson v. London & Can. L. & A. Co. (xxx. 14) 761, 857 Jamieson v. Steele (Cass. Dig. 465) 755, 759 Jarvis, Citv of Toronto v. (xxv. 237) 882, 1233, 1356 Jeanotte, Gauthier v. (xxviii. 590) 389, 522, 1328 Jellett, Anderson v. (ix. 1) 607, 1443 Jellett V. Erratt (xxvi. 282) • . 592, 1238 Jellett V. Powell (xxvi. 282) 592, 1238 Jellett V. Scottish 0. & M. Land Co. (xxvi. 282) .' 592, 1238 Jellett v. AVilkie (xxvi. 282) 592, 1238 Jenkins v. Brecken (vii. 247) • 505, 532, 608 Jenkins, Murray v. (xxviii. 565) 360, 836, 1494 Jermyn v. Tew' (xxviii. 497) 66, 860 Joanette, Hudson Bay Co. v. (xxiii. 415) 628, 1168, 1300 " John Owen," The (Cass. Dig. 519) 1320 John V. The Queen (xv. 384) 399 Johnson, In re (Cass. Dig. 329, 677) . . • 389, 637 Johnson v. Crosson (Cass. Dig. 848) 422 Johnson v. Kirk (xxx. 344) 1237, 1427 Johnson, People's Bank of Halifax v. (xx. 541) 356, 1388 INDEX TO NAMES OF CASES. 1625 PAGE. Johnson's Company, Bell's Asbestos Co. v. (xxiii. 225) 310 Johnston, Citizens Ins. Co. v. (Cass. Dig. 678) 1106 Johnston, Oliver v. (Cass. Dig. 2 ed. 651) 1418 Johnston, St. Andrews Church v. (i. 335) 13 Johnston, Western Ins. Co. v. (iv. 315) 685 Joliette Election Case (xv. 458) 530 Jonas V. Gilbert (v. 356) 864 Jones, Ex parte (35 N. B. Eep. 108) . .1079, 1087, 1093, 1098, 1134, 1134 Jones, D' Avignon v. (xxxii. 650) 101, 608 Jones V. DeWolf (Cass. Dig. 767) 348, 995 Jones V. Dorland (xiv. 39) ■ 1179 Jones v. Fisher (xvii. 515) 1260, 1519 Jones v. Eraser (Cass. Dig. 678) 1107 Jones V. Eraser (xiii. 342) • 1536 Jones V. Grand Trunlc Ey. Co. (xviii. 696) 1216 Jones v. Kinney (xi. 708) • . . . 661 Jones V. McKean (xix. 489) • 1074 Jones, McKean v. (xxvii. 349) 1471 Jones, Moodie v. (xix. 266) . . • 30, 561, 789, 1291 Jones V. The Queen (vii. 570) 333 Jones, Shorey v. (xv. 398) 488 Jones V. St. John City (xxx. 132) ■ . .155, 476, 866 Jones V. St. John City (xxxi. 320) 147, 1250 Jones V. Tuck (xi. 197) ^6, 1090 Jordan, Great Western Ins. Co. v. (xiv. 734) • 719 Jordan v. Provincial Provident Institution (xxviii. 554) . .369, 337, 705 Joyce, Halifax St. Ey. Co. v. (xvii. 709) 133, 976 Joyce, Halifax St. Ey. Co. v. (xxii. 358) 970 Joyce V. Hart (i. 330) ■ 34, 48, 1033 Judah, Atlantic & N. W. Ey. Co. v. (xxm. 231) 605 Junkin, Eobertson v. (xxvi. 193) 1033, 1540 K. 948 80 Kaine, Collins Bay Eftg. Co. v. (xxix. 347) 762, Kandick v. Morrison (ii. 12) • Kane v. Magee (Cass. Dig. 347) 497 Kane, Wright v. (Cass. Dig. 596) • • • • 1019 Kaulbach v. Archbold (xxxi. 387) . . • 488, 1523 Kaulbach, Beamish v. (iii. 704) ^" Kaulbach, Beamish v. (Cass. Dig. 677) -Li^» Kaulbach, Bisenhauer v. (xx. 169) ................ ■ • • • ■ • • ^f Kaulbach v. Sperry; Lunenberg Election Case (xxvu. 226) 5^7 Kean, Kearney v. (Cass. Dig. 673, 684) HOI, 1118 Kean, Kearney v. (iii. 333) ■ • • • • ■■- Kearney v. Creelman (xiv. 33) 1408, 1413, 1547 Kearney v. Dickson (Cass. Dig. 431) ■ o°° Kearney v. Dickson (xiv. 743) ^^ Kearney v. Kean (iii. 332) • ■ • • ■■■■• Kearney v. Kean (Cass. Dig. 672, 684) 1101, 1118 KearneV v. Letellier (xxvii. 1) ^ia' i4=;q Kearney v. Oakes (xviii. 148) • *-^^' ^*°^ Kearney v. The Queen (Cass. Dig. 313) 1626 INDEX TO NAMES OF CASES. PAGE. Keefer, Merchants Bank of Canada v. (xiii. 515) 1131, 1537 Keefer v. Phoenix Ins. Co. (xxxi. 144) 694 Eehoe v. Harty (xiii. 431) • 131, 1487 Keith, Anchor Mar. Ins. Co. v. (iv. 483) 717 Kelly, Imperial Loan and Inv. Co. v. (xi. 576) 849 Kelly, New Brunswick Ey. Co. v. (xxvi. 341) 468, 1337 Kelly T. Sullivan (i. 1) '. 70, 144, 297, 1368 Kelly V. Sullivan (Cass. Dig. 695) ■ 1164 Kennedy, Conger v. (xxvi. 397) 297, 815, 1347, 1357 Kennedy v. Pigott (xviii. 699) 136 Kennedy, Purcell v. (xiv. 453) 78, 503, 532 Kenny, Caldwell v. (xxiv. 699) 1425 Kenny, Chisholm v. (Cass. Dig. 539) ■ 858 Keoiny, City of Halifax v. (iii. 497) 148 Kent V. Ellis (xxxi. 110) 1056, 1340 Kent County, In re, Canada Temperance Act (Cass. Dig. 106, 679) .'...- 223, 1106 Keroack, McKinnon v. (xv. Ill) 82, 196, 622 Kerr, Atlantic & F. W. Ry. Co. v. (xxv. 1^7) 817, 1144, 12.06 Kerr, Davis v. (xvii. 235) 844, 1480 Kerr, Milloy v. (viii. 474) • . . .387, 1509 Kerr Engine Co., French Eiver Tug Co. v. (xxiv. 703) 363 Kerr, Sherhrooke St. Ry. Co. v. (7th Nov. 1899) 972, 994 Kervin, Canada Coloured Cotton Mills v. (xxix. 478) 922 Kidston, Dubuc v. (xvi. 357) .' . . . 19, 1096, 1096, 1391 Kidston, Dubuc v. (Cass. Dig. 779) 1291 King, The, Adams v. (xxxi. 220) 424, 1299 King, The, v. Algoma Central Ry. Co. v. (xxxii. 277) . .428, 1335, 1349, 1366 King, The, Calgary and Edmonton Ey. Co. v. (xxxiii. 667) . . 419, 1222 King, The, v. Carmack (xxxii. 586) . .288, 418, 779, 831, 1004, 1042, 1169 King, The, v. Chappelle (xxxii. 586) . .288, 418, J79, 831, 1004, 1043, 1169 King, The, Corkery v. (xxxiii. 677) 867, 1177, 1359 King, The, DeBury v. (xxxiii. 677) 867, 1177, 1259 King, The, Drew v. (xxxiii. 228) 405, 1044 King, The, Dunn v. (12th Nov., 1901) 728 King, The, Gilbert B. & D. Co. v. (xxxiii. 31) 344, 1175 King, The, Gosselin v. (xxxiii. 355) 405, 560, 1363 King, The, Hamburg- American Paclcet Co. v. (xxxiii. 252) . . 409, 915, 959, 1176, 1266 King, The v. Harris (32nd May, 1902) ■ 405 King, The, Letourneaux v. (xxxiii. 335) 24, 957, 1138, 1176 King, The, v. Larose (xxxi. 206) 413, 836, 1175, 1359 King, The, v. Likely (xxxii. 47) 601, 1175 King, The, Rice v. (xxxii. 480) 107, 405, ' 1363 King, The, Ross v. (xxxii. 533) • 428 King, The, v. Stewart (xxxii. 483) 313 King, The, Tucker v. (xxxii. 732) -33, 343, 408, 1170, 1331 King, The, Turnbull Real Estate Co. v. (xxxiii. 677) 867, 1177, 1259 King, The, v. Tweed & Woog (xxxii. 586) 288, 418, 779, 831, 1004, 1043, 1169 INDEX TO NAMES OF CASES. 1627 PAOE. Kmg V. Bailey (xxxi. 338) 397 440, 790 King V. Dupuis dit Gilbert (xxviii. 388) 66 367 1012 1275 King V. Evans (xxiv. 356) ' ' ' ^523 King V. MeHendry (xxx. 450) 651 King V. Eoche (xxvii. 319) '.'.'.'.'.'.79' 504 King, St. George's Parish v. (ii. 143) • • ■ ' ^^^ King, Seeton v. (xviii. 712) 358 Kinghom v. Larue (xxii. 347) • 59 King^s County Election Case ; Borden v. Berteaux' (xix. '526) .' .' 528. King's County Election Case; Dickie v. Woodworth (viii. 192) . 502 Kingston v. Drennan (xxvii. 46) • 77 899 955 Kingston and Bath Eoad Co. v. Campbell (xx. 605)'.'.'. . .'.954' 1443 Kingston Forwarding Co. v. Union Bank (9th Dec, 1895) . .' ^ ' 203, 541, 1054, 1481 Kingston and Pembroke Ey. Co. v. Murphy (xvii. 582) 1195 Kinloch v. Seribner (xiv. 77) .' 1272 Kinney, Jones v. (xi. 708) • 661 Kirk V. Chisholm (xxvi. Ill) 165, 239, 616, 624, 1339- Kirk, Johnson v. (xxxi. 344) 1237 1437 Kittredge, Toothe v. (xxiv. 287) ■ .' 1341 Kittridge, McKenzie v. (iv. 368) 260 Kittridge, McKenzie v. (Cass. Dig. 165) 1118 Klock V. Chamberlin (xv. 325) 650 Klock V. Lindsay (xxviii. 453) • 755, 7G0, 947 Kloepfer, Gardner v. (xv. 390) 168 Kbepfer v. Wamock (xviii. 701) 622 Knight, McCorkill v. (iii. 233; Cass. S. C. Prac. 40) 66, 1415 Knight, Penrose v. (Cass. Dig. 3 ed. 689, 776) 1123, 1495 Knight V. Whitfield (Cass. Dig. 186) • 263 Knights of Maccabees, Hilliker v. (xxix. 397) . . . .706, 1055, 1505 Knock V. Knock (xxvii. 664) 494, 788 Knowlton, Buck v. (xxi. 371) 713 Kuhn, Creighton v. (Cass. Dig. 3 ed. 845) 1419 Kyle V. Canada Company (xv. 188) 110, 608 Labbe, Murphy v. (xxvii. 136) 579, 755, 759, 947 Labelle v. Barbeau (xvi. 390) • 50 Labelle, Leonard v. (10th Dec, 1902) 529 Labelle v. Montreal (xiv. 741) 430, 1100, 1110, 1328 Laberge, Choquette v. (xv. 1) • ■ 538 Laberge v. Equitable Life Ass. Soc. (xxiv. 59) 61 Laberge v. Equitable Life Ass. Soc. (xxiv. 595) 354 Labrecque, Amyot v. (xx. 181) • 534, 568 Lachance v. Societe de P. & P. de Quebec (xxvi. 300) 62 Laooste v. Wilson (xx. 318) 443, 1234 Laflamme, Mail Printing Co. v. (Cass. Dig. 493) . . . .431, 776, 979 .Laflamme, Somerville v. (ii. 216) -508, 518 Lafontaine, Lafrance v. (xxx. 20) 544, 1265, 1304 Lafontaine, Eichmond v. (xxx. 155) 315, 913, 1506 Lafrance v. Lafontaine (xxx. 20) 544, 1365, 1304 Laine v. Beland (xxvi. 419) ■ 'if Laird, Eoss v. (Cass. Dig. 351) • ■ • • &" Lake, O'Sullivan v. (xvi. 636) 131, 976 1628 INDEX TO NAMES OP CASES. Lake Erie & Detroit E. Ry. Co. v. Barclay (xxx. 360) 967, 1218 Lake Brie & Detroit R. Ey. Co. t. Sales (xxvi. 663) 203, 317, 608, 1050, 1187 " Lake Ontario," Dominion Coal Co. (rxxii. 507) . . 39, 101, 608, 1325 Lake Simeoe Ice & C. S. Co. v. McDonald (xxxi. 130) 1265 Lakefield Lumber & Mfg. Co. v. Shairp (xix. 657) . . . . ■ 420 Lakin v. Xuttal (iii. 685) 109, 361 Laliberte v. The Queen (i. 117) 73, 550, 977, 1350 Lalonde, Valade v. (xxvii. 551) 442, 1008, 1286 Lamarehe, L'Heureux v. (xii. 460) 3, 7, 388, 1053, 1108 Lamb v. Cleveland (xix. 78) ■ 650, 1339 Lambe v. Armstrong (xxvii. 309) 126, 1243, 1284 Lambe, Portier v. (xxv. 422) 292, 778 Lambe, Great Eastern Ey. Co. v. (xxi. 431) 106, 784, 1011 Lambe, Molson v. (xv. 253) • 796 Lamontagn-e, Brown v. (Cass. Dig. 120) 240 Lamothe, Eenaud v. (xxxii. 357) • . . . . 1171, 1541 Lamoureux v. Molleur (Cass. Dig. 71) 180 Lamoureux v. Fournier dit Larose (xxxiii. 675) 927 Lancashire Ins. Co., Eckhardt v. (xxxi. 72) \' • . . . 682 Lancashire Ins. Co., Howard v. (xi. 92) 120, 692, 976 Land Security Co., Wilson v. (xxvi. 149) 1161, 1489 Landed Banking & Loan Co., Cumming v. (xxii. 246) 1469 Landers v. Woodworth (ii. i58) 212, 1014 Lane, McDonald v. (vii. 462) '. . . 28 Langevin, Brassard v. (i. 145) 513 Langevin, Brassard v. (ii. 319) 78, 501 Langevin, Comrs. d'Ecole de St. Marc (xviii. 599) 84, 808 Langley v. Van Allen (xxxii. 174) • 626, 1041 Langley v. Duffy (30th May, 1899) 108, 134 Langlois, Valin v. (iii. 1 ) 281 Langlois^ Valin v. (iii. 90) ■ 525 Langlois, Valin v. (Cass. Dig. 684; Cass. Prac. 140) 388, 1118 Langtry, Dumoulin v. (xiii. 258) 110, 246 Lapierre, Champoux v. (Cass. Dig. 426) 56, 1239 Lapierre, Eodier v. (xxi. 69) 55 Lapierre, Union St. Joseph v. (iv. 164) 118, 1060 Laprairie Election Case (xx. 185) 532, 1081 Larin, Chapman v. (iv. 349) • 373 Lariviere v. School Commrs. of Three Elvers (xxiii. 723) .... 60 Larkin v. Haekett (xxvii. 241) 501, 514 Larose v. The King • 412, 826, 1175, 1259 Larose, Pournier dit, Lamoureux v. (xxxiii. 675) 937 Larue v. Desaulniers (v- 91) 92, 502, 510, 520 Larue, Kinghorn v. (xxii. 347) 59 Larue, Rattray v. (xv. 102) • 1380, 1478 Lasnier, Collette v. (xiii. 563) 1036, 1298 Lassalle, Bergeron v. (Cass. Dig. 495) ■ 797 L'Assomption Elec. Case; Gauthier v. Brien (xxi. 29) 79, 517 L'Assomption Elec. Case; Gauthier v. Normandeau (xiv. 429) . 78, 503 Laumeister, Bowker v. (xx. 175) 94, 608 Laurie, Eobertson v. (xiv. 258) • 517 Later v. Campbell (7 Legal News 163) 391 Laval Election Case ClOth Dec, 1902) 529 INDEX TO NAMES OF CASES. 1639 PAGE. Law, British America Ass. Co. v. (xxi. 325) ■ . . 713 Law V. Hanson (xxv. 69) 578, 614, 736, 1245 Lawless v. "Sullivan (iii. 117) 148 1118 Lawlor v. Day (xxix. 441) . . ■ 853^ 1056 Lawlor v. Lawlor (x. 194) 855, 1427 Lawrason, Trust & Loan Co. v. (x. 679) • . . . ; 387^ 857 Lawrence v. Anderson (xvii. 349) 444 Law Society of U. C. v. Macdougall (xviii. 203) 539, 1329 Lawson, Can. Pac. Ey. Co. v. (Cass. Dig. 729) . .74, 122, 540, 962,995,1110, 1217 Lawson, Williston v. (xix. 673) 128S Lazier, In re (xxix. 630) 105, 404, 606, 638, 1117 Lea, Wallace v. (xxviii. 595) 816, 1359 Leaeock, Shields v. (Cass. Dig. 604) 1025 Leak v. City of Toronto (xxx. 321) 602, 728 Leamy, McGoey v. (xxvii. 193) 63 Leamy, McGoey v. (xxvii. 545) 138, 332 Lebeau, Poitras v. (xiv. 742) 14 LeBell, Norwich Union Fire Ins. Co. v. (xxix. 477) 350, 694 Leblanc v. Eobitaille (xxxi. 582) 424, 1436 LeBlond, Price v. (xxx. 539) 26, 766, 1435 Lecain v. Hosterman (Cass. I)ig. 827) 498 Leclerc, Brown v. (xxii. 53) 943, 946 Leduc, Hamel v. (xxix. 178) 526, 1082 Leduc, McGreevy v. (Cass. Dig. 801) 1283 Lee, Burland v. (xxviii. 348) 833, 937 Lees, Stewart v. (Cass. Dig. 93) 208 Lefaivre, Hyde v. (xxxiii. 474) 672, 1506 Lefebvre v. Aubry (xxvi. 602) 21, 810, 1031 Lefebvre, Monette v. (xvi. 387) 50, 388 Lefebvre v. Quebec, City of, (Cass. Dig. 176) 1306 Lefeiunteum v. Beaudoin (xxviii. 89) 99, 560, 591, 608 Lefeuntum v. Veronneau (xxii. 303) 90, 106, 1098 Lefrangois, Eussell v. (viii. 335) 608, 1522 Lefrangois, Eussell v. (Cass. Dig. 679) 1106 Legare v. Town of Chicoutimi (xxvii. 339) 313, 656, 911 Legault, Ethier v. (xxxi. 437) 527, 584, 1050 Legault, Ethier v. (xxxii. 55) 107, 504 Legault, Ethier v. (24th Nov., 1902) 531 Leger v. Fournier (xiv. 314) 1286 Legatt V. Marsh (xxix. 739) 313, 429, 1059 Lemay, McEae v. (xviii. 280) 144 Lemoine v. City of Montreal (xxiii. 390) 47, 98, 146, 603 Lennoxville, Village of, v. Co. of Compton (xxix. 228) .8, 220, 876 Lenoir v. Eitchie (iii. 575) 80, 294, 1182 Leonard v. Labelle (10th Dec, 1903) 5^^ Leonard, Eoyal Electric Co. v. (xxiii. 398) ..•■■• ^5d Leonard & Sons, Williams v. (xxvi. 406) ... .77, 205, 336, 337, 1133 Lepitre, Citizens Light & Power Co. v. (xxix. 1) . . . .... .833, 93^ Le Eoi Mining Co., McKelvey v. (xxxii. 664) 101, lOH, ^ 130, 608, 938, 941, 1503 Le Eoi No. 2, Hoskins v. (27th Oct., 1903) 1129 Lesslie, New York & Ottawa Ey. Co. v. (xxxii. 316) .... .... 362 Letellier, Kearney v. (xxvii. 1) ^^[' ^'^"' 1030 INDEX TO NAMES OF CASES. Letourneux v. Dansereau (Cass. Dig. 677) 391 Letourneux v. Dansereau (xii. 307) '. 659-^ 1390 Letourneux t. The King (xxxiii.) 335 24, 957, 1138, 1176 Lett, St. Lawrence & Ottawa Ey. Co. v. (xi. 422) 430 Levi V. Eeed (vi. 482) 48, 93, 1328 Levis, Town of, Quebec Warehouse Co. v. (xi. 666) 887 Levis, Town of, v. The Queen (xxi. 31) 95 Levis Election Case, Belleau v. Dussault (Cass. Dig. 686) . .79, 530, 1119 Levis Election Case (xi. 133) 511, 513, 519 Levy V. Halifax & C. B. Ey. & Coal Co. (Cass. Dig. 579) . .980, 998 Lewin, Ex parte (xi. 484) 149, 1505 Lewin, Almon v. (v. 514) 1525 Lewin v. Howe (xiv. 722) 1121, 1132, 1164 Lewin, Wilson v. (ix. 637) 786 Lewis V. Alexander (xxiv. 551) 221, 822 . Lewis V. Allison (xxx. 173) 1395, 1474 Lewis, Birks v. (xxx. 618) 593 Lewis, Dempster v. (xxxiii. 292) 102, 564 L'Heureux v. Lamarche (xii. 460) 3, 7, 388, 1053, 1108 Liggett V. Hamilton (xxiv. 665) 1028 Liggett, Tracey v. (ix. 441) 478 Likely, The King v. (xxxii. 47) .• 601, 1175 Limoges, Mills v. (xxii. 331) 58, 1356 Limoilou, Paradis v. (xxx. 405) 99, 608 Lindsay, Hyde v. (xxix. 99) 47, 129 Lindsay, Hyde v. (xxix. 595) 667, 1249 Lindsay v. Kloek (xxviii. 453) 755, 760^ 947 Lionais v. Molsons Bank (x. 526) 118, 194, 592, 1010, 1546 Liquor License Act, 1883, In re (Cass. Dig. 509) . . .797, 1106, 1107 Lisgar Election Case (xxi.) 526, 526 Lifhgow, Halifax v. (xxvi. 336) 643, 893 Little Seminary of Ste. Therese, Can. Pac. Ey. Co. v. (xvi. 606) 70, 141, 1194 Littlejohn, Soper v. (xxxi. 572) 752, 761, 1506 Livernois, Pharmaceutic Ass. of Quebec v. (xxx. 400) 68, 1056 Livernois v. Pharmaceutic Ass. of Quebec (xxxi- 43) 68, 1351, 1353, 1354 Liverpool, Town of, v. Liverpool & Milton Ey. Co. (xxxiii. 180) 875, 1456 Liverpool L. & G. Ins. Co. v. Agricultural Sav. & Loan Co. (xxxiii. 94) 353, 683, 862 Liverpool L. & G. Ins. Co. v. Wyld (i. 604) 387, 689, 1108 Liverpool & Milton Ey. Co., Town of Liverpool (xxxiii. 180) . .875, 1456 Livingstone, Farmer v. (v. 221) 1401 Livingstone, Farmer v. (viii. 140) 1423 Lloyd, Bickford v. (Cass. Dig. 35, 673) 145, 1115 Lobo, Township of, Challoner v. (xxxii. 505) 137, 392 Logan V. Commercial Union Ins. Co. (xiii. 370) 675 Logan, Township of, v. Township of McKillop (xxix. 702) . . . 140, 484, 883, 1375 Logic, May v. (xxvii. 443) 579, 1552 London, City of, v. Goldsmith (xvi. 231) 898, 953 London, City of, v. Watt (xxii. 300) 154, 865, 1368 INDEX TO NAMES OF CASES. lesi London Ass. Corp. y. Great Northern Transit Co. (xxix. 577) . Tso London & Can. L. & A. Co., Duggan v. (xx. 481) ^ 1062 TZf"" Tn ; ^- \ \^°-' °^g^^^ ^- (^3rd March, 1893) . 1108 London & Can. L. & A. Co., Jameson v. (xxvii. 435) . ! . . .760 848 London & Can. L. & A. Co., Jamieson v. (xxx 14) 76l' 857 London & Can. L. & A. Co., Morris v. (xix. 434) ' 85 London & Can. L. & A. Co. v. Warin (xiv. 232) ..." 496 912 1138 London Life Ins. Co. v. Wright (v. 466) ' '259 London & Liverpool & Globe Ins. Co. v. Agricuitiirai S.&L.' Co. T i^^'r'- ^*^ •; V ;.; 352, 683, 862 Liondon & Liverpool & Globe Ins. Co. v. Wyld (i. 604) .387 689 1108 London Loan Co. v. Manley (xxvi. 443) .'....' 860 London St. Ey. Co. v. Brown (xxxi. 642) V. . VsV 1455 London West, Bartram v. (xxiv. 705) '..'.'.' '.\ .' 114 Long V. Hancock (xii. 532) 621 Long & Bisby, Carter v (xxvi. 430) 29, llsV 1240 Longueuil Nav. Co. v. City of Montreal (xv. 566) '. .29l', 640 Lord V. Davidson (Cass. Dig. 683) .' ii02 Lord V. Davidson (xiii. 166) 1319 Lord V. The Queen (xxxi. 165) 133 1079 Lordly, City of Halifax v. (xx. 505) '.'.'. . . .' 898 Lortie, Quebec Central Ey. Co. v. (xxii. 336) 964, 1192 Love, Eex v. (14th Nov., 1901) IIO5 Lovitt V. Atty-Gen. of Nova Scotia (xxxiii. 350) 386, 408, 443, 489, 599, 1386 Low V. Gemley (xviii. 685) 1468 Lowenberg, Harris & Co., Dunsmuir v. (xxx. 334) 380, 589 Lowenberg, Harris & Co. v. WooUey (xxv. 51) 950, 1158 Loy V. Poirier (xxxi. 447) 525, 1360 Loy V. Poirier (xxxii. Ill) 129, 504, 1082 Lucas, Merchants Bank of Canada v. (xviii. 704) 195 Lumbers v. Gold Medal Ftre Mfg. Co. (xxx. 55) 461, 768, 1293 Lundy v. Lundy (xxiv. 650) 403, 1539 Lunenburg v. Atty.-Gen. of Nova Scotia (xx. 596) 879 Lunenburg Election Case; Kaulbach v. Essinhauer (xx. 169) . . 529 Lunenburg Election Case; Kaulbach v. Sperry (xxvii. 226) . . . 527 Lush V. Waldie (xix. 557) . ". 78, 106, 515, 1111, 1113 Lush V. Waldie (15th March, 1903) 516, 1111, 1113 Lye V. Armstrong (7th Dec, 1900) 1379 Lynch v. Canada N. W. Land Co. (xix. 204) 295, 864 Lynch v. Seymour (xv. 341) 828 Lynch v. Wood (Cass. Dig. 783) 374 Lyon, Murray v. (xx. 626) 532, 533, 1081 M. MacArthur v. MacDowall (xxiii. 571) 202 Maccabees, Knights of, v. Hilliker (xxix. 397) 706, 1055, 1505 Macdonald, Ex parte (xxvii. 683) 637, 748 Macdonald v. Abbott (iii. 278) 70, 1134 Macdonald v. Davis (xxvii. 201) 524 Ma:edonald, Dawson v: (Cass. Dig. 586, 587, 588, 683, 688) .... 1010, 1110, 1135, 1135, 1341, 1343 Macdonald Election Case (xxvii. 201) 534 Macdonald v. Ferdais (xxii- 260) 1302 1632 INDEX TO NAMES OF CASES. PAGE. Macdonald v. Galivan (xxviii. 358) 65 Macdonald v. Georgian Bay Lumber Co. (ii. 364) 382, 664, 1397 Macdonald v. Eiordan (xxx. 619) 287, SS?, 1022, 1227, 1347 Macdonald v. Whitfield (xxvii. 94) 33, 1162, 1514 Macdonald v. Worthington (ix. 327) 1017 Macdonald v. Pureell (xxiii. 101) 247, 1343, 1549 MacDougall v. Water Commissioner of Windsor (xxxi. 326) . . 364, 877 Macdougall v. Law Society of Upper Canada (xviii. 203) . .539, 1329 MacDowall, MacArthur t. (xxiii. 571) 202 Mack V. Mack (xxiii. 146) , 1469 Mackenzie v. Building & Loan Ass. (xxviii. 407) 825, 860 Mackenzie y. Mackenzie (20th Feb., 1897) 1473 Mackinnon v. Keroack (xv. Ill) 82, 196, 622 Maelaren, Grant v. (xxiii. 310) 77, 1075, 1470 Maclaren, Eaphael v. (xxvii. 319) 64 MacLean v. Henning (xxxiii. 305) ; . 1533 MacLean v. The Queen (4 Ex. C. E. 257) .' 133, 1116 Maclean v. The Queen (Cass. Dig. 39,9) 727 Maclean v. The Queen (viii. 210) 336 Macklin, Bell v. (xv. 576) 616, 1397 MacMillan, Grand Trunk Ey. Co. v 317, 547, 1185, 1510 MacKab v. Wagler (Cass. Dig. 699) 1126 Macnider, Young v. (xxv. 272) 540, 973, 1064, 1153 Macrae, News Printing Co. (xxvi. 695) 132, 1487 Madden v. Connell (xxx. 109) ' 830 Mader v. McKinnon (Cass. Dig. 122) 623 Magann v. Auger (xxxi. 186) 351, 477, 1013, 1057, 1506 Magee, Gilmour v. (xviii. 579) 756 Magee, Kane v. (Cass. Dig. 247) 497 Magnan v. Dugas (ix. 93) 520, 608 Magog Textile & Print Co. v. Dobell (xiv. 664) 262 Magog Textile & Print Co. v. Price (xiv. 664) : 262 Mail Printing Co. v. Lafiamme (Cass. Dig. 493) 431, 776, 979 Maire, &c., de Terrebonne v. Soeurs de la Providence (Cass. Dig. 434) 72, 384 Maiisonneuve, Ville de, v. Banque Provinciale du Canada (xxxiii. 418) 69, 316, 359 Major, Can. Pac. Ey. Co. v. (xiii. 233) 1225 Major V. McCraney (xxix. 182) 33, 404, 1345, 1474 Major V. City of Three Elvers (18 C. L. J. 122 ; Cass. Dig. 422) . 71, 388 Makins v." Piggott (xxix. 188) . 582, 932, 1461 Maloney v. Campbell (xxviii. 228) 30, 167 Malzard v. Hart (xxvii. 510) 99, 248, 562, 608 Manchester Fire Ins. Co., Guerin v. (xxix- 139) 11, 138, 169, 270. 673, 677, 679, 681, 684, 688, 85'6, 1379 Manigault, Waters v. (xxx. 304"! 67, 1518 Manitoba Education Statutes (xxii. 577) 274, 1347 Manitoba Free Press Co., Ashdown (xx. 43) . .41, 746, 775, 974, 1047 Manitoba Free Press Co. v. Martin (xxi. 518) 982 Manitoba Mortgage Co. v. Bank of Montreal (xvii. 692) ...... 1023 Manley, Collom v. (xxxii. 371) 831 Manley, London Loan Co. v. (xxvi. 443) 860 Manley, Pither & Leiser v. (xxxii. 651) 838 INDEX TO NAMES OF CASES. 1633 PAGE. Mann, Eobinson v. (xxxi. 484) 196 238 Manning, Nasmith v. (v. 417) '.'.'. V.V.V. . . .' 261 Manning, Nasmith v. (Cass. Dig-. 695) 1132 Manning, McDonald v. (xix. 112) 376 Manufacturers Accident Ins. Co. v. Pudsey (xxvii. 374) . .669, 1154 Manufacturers Life Ins. Co. v. Anetil (xxxiii. 103) 544, 703 Mareheterre, Ontario & Quebec Ey. Co. v. (xvii. 141) 83' 1125 Margeson, Commercial Union Ass! Co. v. (xxix. 601) . .328, 681' 1155 « Marion Teller," The (Cass. Dig. 521) ...: 1322 Maritime Banli, The Queen v. (xvii. 657) 187, 416, 1562 Maritime Banlc v. Eeceiver-General of N. B. (xx. 695). .187,' 298, 416, 1.55(j Maritime Bank v. Stewart (xx. 105) 85 Maritime Bank v. Troop (xvi. 456) 187, 1554 Markham, Yillage of. Town of Aurora v. (xxxii. 457) 116' 130, 1127, 1362 Marquette Election Case (xxvii. 219) 79, 504 Marquis, Danjou v. (iii. 251) 70, 80, 281, 384 Marsh, Leggatt v. (xxix. 739) 313, 429, 1059 Marsh, Webb v. (xxii. 437) 544, 1342, 1419 Marshall, Cowans v. (xxviii. 161) 947, 992, 996 Marshall, McEae v. (xix. 101) 818 Marshall v. Mcpty. of Shelburne (xiv. 737) 573 Martin v. Hauhner (xxvi. 142) 376, 558, 1276, 1340 Martin, Manitoba Free Press Co. v. (xxi. 518) 982 Martin v. Moore (xviii. 634) 84 Martin, Morse v. (Cass. Dig. 2 ed. 839) 1453 Martin, Northern Pac. Express Co. v. (xxvi. 135) .11, 229, 326, 1055 Martin, The Queen v. (xx. 240) 407, 790, 960, 1204, 1354 Martin v. Eov (Cass. Dig. 682) 1111 Martin v. Sampson (xxvi. 707) 132 Martindale v. Powers (xxiii. 597) 815, 1050, 1055, 1386 Martley v. Carson (xiii. 439) 131 Martley v. Carson (xx. 634) 1516 MassoD, Gauthier v. (xxvii. 575) 37, 580, 1067 Massawippi Valley Ey. Co. v. Eeed (xxxiii. 457) . .31, 103, 211, 441, 459, 535, 758, 765, 772, 1068, 1078, 1141, 1228, 1335, 1361, 1267, 1398, 1515. 1518 Matheson Bro., Thomson v. (xxxiii. 57) 328, 1376 Mathieu/ Quebec M. & C. Ey. Co. v. (xix. 436) 94, 137, 1195 Matson, Hartley v. (xxxii. 575) 107, 298 Matson, Hartley v. (xxxii. 644) 832 Matthew, Halifax Banking Co. v. (xvi. 721) 844 Matthews Co., George v. Bouchard (xxviii. 580) 833, 944 Maxwell, Duval v. (xxxi. 459) 536^ 1133 May V. Logie (xxvii. 443) 579, 1553 May V. M'cArthur (Cass. Dig. 3 ed. 674, 779) . . . .1101, 1284, 1497 Mav V. McDougall (xviii. 700) 12^1 Mayes v. The Queen (xxiii. 454) ■■■ ■ • ■ ■ f^^ Mayhew v. Stone (xxvi. 58) 38, 119, 1104 Mayor of Fredrickton v. The Queen (111. 505) - • • ■ • ■ ■ ■ /^»^ — ■■' , 749, 804, 1 155 ilyor of Montreal V. Hall (xil 74) ~ '. 749, 804, 1102 Mayor of St. John, Edwards v. (Cass- Dig. 48) Mayor of St. John v. MacDonald (xiv. 1) ^'^'^ Mayor of St. John, McSorley v. (vi. 531) 152, 816 s.d.D.— 54 1463 1634 INDEX TO NAMES OP CASES. Mayor of St. John v. Pattison (Cass. Dig. 173) 904 Mayor of St. John, Sears v. (xvii. 703) 757 " M. C. Upper," The, and the " Erie Belle " (vii. 36) ... .389, 925 Meagher, Power v. (xvii. 287) 1467 Magantic Election Case (viii. 169) 387, 519 Mcoantic Election Case (ix. 279) 510, 519, 523, 608, 1378 Meldrum, Wilson v. (7th Oct., 1902) 1039 Meloche v. Simpson (xxix. 375) 469, 792, 1334, 1385, 1405 Menard, Village of Granby v. (xxxi. 14) 99, 608 Mercer v. Atty.-Gen. for Ontario (v. 538) 413 Merchants Bank of Canada, Arpin v. (xxiv. 142) 126 Merchants Bank of Canada v. Keefer (xiii. 515) 1131, 1537 Merchants Bank of Canada v. Lucas (xviii. 704) 195 Merchants Bank of Canada, Moffatt v. (xi. 46) 110, 460 Merchants Bank of Canada v. McKay (xv. 672) 1388 Merchants Bank of Canada v. McLachlan (xxiii. 143) . . . .814, 1031 Merchants Bank of Canada v. McLaren (xxiii. 143) . .. .814, 1031 Merchants Bank of Canada t. The Queen (Cass. Dig. 636) 241 Merchants Bank of Canada v. Smith fviii. 512) 282, 1509 Merchants Bank of Canada v. Smith (Cass. Die. 688) 1130 Merchants Bank of Canada v. Whitfield (Cass. Dig. 681) . 1103, 1110 Merc'hants Banlc of Canada v. Whitfield (xxvii. 94) . . 33, 1162, 1514 Merchants Bank of Halifax v. Gillespie (x. 312) 257, 271, 282, 1363, 1553 Merchants Bank of Halifax, Houston & Ward v. (xxxi. 361) . . 183, 242 Merchants Bank of Halifax v. McNutt (xi. 126) 198 Merchants Bank of Halifax v. Whidden (xix. 53) 176, 1152 Merchants Despatch Tr. Co. v. Hately (xiv. 572) 227 Merchants Mar. Ins. Co., Allen v. (xv. 488) 710, 794, 1505 Merchants Mar. Ins. Co. v. Barss (xv. 185) 707, 716 Merchants Mar. Ins. Co., Boak v. (i. 110) 75, 976, 1363 3Ierehants Mar. Ins. Co., Boak v. (Cass. Dig. 677) 388 Merchants Mar. Ins. Co., Butler v. (Cass. Dig. 390) 726 Merchants Mar. Ins. Co., O'Connor v. (xvi. 331) 709 Merchants Mar. Ins. Co. v. Eumsey (ix. 577) 716 Merchants Mar. Ins. Co., Troop v. (xiii. 506) 719 Mercier v. Barrette (xxv. 94) 1245, 1434 Mercier, Price v. (xviii. 303) 1432 Mercier, St. Laurent v. (xxxiii. 314) 419, 833 Merritt v. Hempenstal (xxv- 150) 98, 557, 562, 655, 817, 835, 927, 944 Messenger v. Bridgetown (xxxi. 379) 643, 900, 909, 925, 957 Methodist Church, Ash v. (xxxi. 497) 77, 1112 Methodist Church v. Pay (vi. 308) 1342, 1526 Metropolitaine, Societe et., Balcerv. (xxii. 364) 1077, 1140, 1402 Michaels v. Michaels (xxx. 547) ■ 20, 651 Michigan Central Ey. Co. v. Wealleans (xxiv. 309) 1223, 1369 Midland Ey. Co. r. Young (xxii. 190) 1327, 1368, 1438 Migner v. Goulet (xxxi. 26) 837 Milburn v. Wilson (xxxi. 481) 259, 1156, 1309 Millar v. Plummer (xxii. 253) 198 Millard v. Darrow (xxxi. 196) 385 Millard v. Darrow (14th Mav, 1901) 1133 Miller, Coleman v. (Cass. Dig. 2 ed. 301, 678, 683) 1101, 1106, 1478, 1533 INDEX TO NAMES OF CASES. 1635 PAGE. Miller, Confederation Life Ass. v. (xiv. 330) 704. 990 Miller v. Duggan (xxi. 33) 1236 Miller, Grand Trunk Ry. Co. v. (xxxii. 454) 969, 1219 Miller, Green v. (xxxi. 177) 776, 984, 994 Miller, Green v. (xxxiii. 193) 123, 559, 777, 985, 995, 1096, 1124 Miller v. Hamilton Police Fund (xxviii. 475) 190 Miller v. Plummer (xxii. 253) 198 Miller, Stephenson v. (xvi. 722) 990, 1279 Miller, White v. (xvi. 445) 552 Milloy V. Kerr (viii. 474) 387, 1509 Mills V. Limoges (xxii. 331) 58, 1356 Mills V. Eay (xx. 169) 529 Millville Mut. Mar. & F. Ins. Co. v. DriscoU (xi. 183) .552, 707, 718 " Minnie," The, v. The Queen (xxiii. 478) 577 " Minnie Morton," The (Cass. Dig. 519) 1320 Mitchell V. Cameron (viii. 126) 526 Mitchell V. Holland (xvi. 687) 1467 Mitchell V. Mitchell (xvi. 722) 595, 1553 Mitchell V. Trenholme (xxii. 331) 58, 1356 Mockler, McGowan v. (Cass. Dig. 420, 421) 122, 384, 979 MofEatt, Burland v. (xi. 76) 165 MofEatt V. Merchants Bank of Canada (xi. 46) 110, 460 Moir V. Huntingdon (xix. 363 ) 53 Moir, Sovereign Fire Ins. Co. v. (xiv. 612) 675 Molleur, Lamoureux v. (Cass. Dig. 71) 180 Molson, Barnard v. (xv. 716) ' 1013 Molson V. Barnard (xviii. 622) 84 Molson V. Lambe (xv. 253) 796 Molsons Bank, Cooper v. _(xxvi. 611) 183, 447, 1060, 1247 Molsons Bank v. Halter (xviii. 88) 616 Molsons Bank, Lionnais v. (x. 526) 118, 194, 592, 1010, 1546 Molsons Bank, Thompson v. (xvi. 664) 179 Monaghan v. Horn (vii. 409) 14 Monarque v. Banque Jacques-Cartier (xxxi. 474) 126, 1430, 1488, 1492, 1514 Moneton, City of, MeCleave v. (xxxii. 106) 878, 1067, 1157 Monette v. Lefebvre (xvi. 387) 50, 388 Montague, Walsh v. (xv. 495) 507, 514, 521 Montcalm Election Case (ix. 93) 520, 608 Montmagny Election Case (xv. 1) 528 Montminy,' The Queen v. (xxix. 484) ... .32, 423, 1298, 1398, 1501 Montmorency Election Case (iii. 1) ^81 Montmorency Election Case (iii. 90) 525 Montreal, Bar of, Honan v. (xxx. 1) 189, 740, 1168 Montreal, City of, Allan v. (xxiii. 390) 47, 98, 146, 602 Montreal, City of, Attv.-Gen. v. (xiii. 352) 158, 1100 Montreal, City of, Bain v. (viii. 252) 160, 570, 896, 1000 Montreal, City of, Barrington v. (xxv. 202) 62, 72 Montreal, City of, Belanger v. (xxx. 574) 120, 161, 895 Montreal, City of. Burland v. (xxx. 373) 35, 1099 Montreal, City of, v. Cadieux (xxix. 616) _.99, 564 Montreal, City of. Can. Pac. Ry. Co v. (xxxm. 396) 361, 389 Montreal, City of, v. Chef dit Vadeboncoeur (xxix- 9) . . . .548, -' -^ ' 846,1234,1316,1382,1405, 1413 Montreal, City of, Crawford v. (xxx. 406)- 563, 600, 1565 1636 INDEX TO NAMES OF CASES. PAGE. Montreal, City of, Davidson v. (xxviii. 421) 901 Montreal, City of, Davis v. (xxvii. 539) .776, 807, 819, 890, 891, 1373 Montreal, City of, Eccl6siastiques de St. Sulpice v. (xvi. 399, 407) 50, 159, 1165 Montreal, City of, v. Fairman (xxxi. 210) 16, 432, 603, 896, Montreal, City of, Fairman v. (13th March, 1901) 1105 Montreal, City of, Finnie v. (xxxii. 335) 16, 127, 435, 1065, 1134, 1306 Montreal, City of, v. Hall (xii. 74) 789, 804, 1102 Montreal, City of, v. Hogan (xxxi. 1) 385, 602, 891, 1129 Montreal, City of, Hollester v. (xxix. 402) 602, 877, 891, 1304 Montreal, City of, v. Labelle (xiv. 741) 430, 1100, 1110, 1382 Montreal, City of, Longueuil Nav. Co. v. (xv. 566) 291, 640 Montreal, City of, v. Lemoine (xxiii. 390) 47, 98, 146, 602 Montreal, City of, Montreal St. Ey. Co. v. (xxiii. 259) 151 Montreal, City of, v. McGee (xxx. 582) 15, 389, 432 791 Montreal, City of, Mulcair (xxviii. 458) 907, 1007 Montreal, City of, v. Eamsay (xxix. 298) 866, 894 Montreal, City of, v. Ste. Cunegonde (xxxii. 135) 433, 485 Montreal, City of, Stevenson v. (xxvii. 187) 63, 894 Montreal, City of, Stevenson v. (xxvii. 593) 1247 Montreal, City of, Vadeboncoenr v. (xxix. 9) 548, 846, 1234, 1316, 1382, 1405, 1413 Montreal, City of. White v. (xxix. 677) 161, 895, 1360 Montreal, .City of, Wylie v. (xii. 384) 158 Montreal City Passenger By. Co. v. Parker ^Cass. Dig. 674, 683, 686, 731) 96, 608, 972, 1101, 1102, 1120 Montreal Gas Co., Cadieuz v. (xxviii. 382) 315, 629, 1373 Montreal Gas Co. v. St. Laurent (xxvi. 176) 99, 608, 1514 Montreal Harbour Commissioners v. Guarantee Co. of N. A. (xxii. 542) 1389 Montreal Loan and Mortgage Co. v- Fauteux (iii. 411) . . .1310, 1311, 1414 Montreal & Ottawa Ey. Co., City of Ottawa v. (xxxiii. 376) 644, 909, 1228 Montreal, 0. & W. Ey. Co., County of Ottawa v. (xiv. 193) . 304, 1210 Montreal Park & Island Ey. Co., McFarren v. (xxx. 410) . .19, 651 Montreal Park & Island Ey. Co., Shannon v. (xxviii. 374) . . 65, 134, 1196 Montreal Eecorder's Court v. Pigeon (xvii. 495) 291 Montreal' Eolling Mills Co. v. Corcoran (xxvii- 595) 571, 578, 820, 921, 1067, 1357 Montreal Steam Laundry Co., Demers v. (xxvii. 537) ... .99, 608, 927, 940 Montreal St. Ey. Co. v. Carriere (xxii. 335) 59 Montreal St. Ey. Co., Gareau v. (xxxi. 463) 100, 431. 563, 1007, 145.3 Montreal St. Ey. Co. v. Montreal Citv (xxiii. 259) 151 Montreal St. Ey. Co. v. Eitchie (xvi. 623) 656 Montreal Telegraph Co., Great N. W. Tel. Co. v. (xx. 170) * 764 Moodie v. Jones (xix. 266) 30, 561, 789, 1291 Moodyville Saw Mill Co., Sewell v. (Cass. Dig. 480, 481, 670, 675, 679) . .112, 233, 251, 273, 914, 987, 1073, 1090, 1107, 1118, 1121 Mooney v. Mcintosh (xiv. 740) 1482 INDEX TO NAMES OF CASES. 1637 Moore, Brown v. (ixxii. 93) ono -Xko Moore v. Connecticut Mut. Life Ins. Co'. ' (Vi'. 634\ ' 75 ZZ\SZf'T! ^ol.^lf!i-„c- (Cass. Dig. 695)- : ! ! : ! nil Moore, Hall Mines v. (20tli May, 1898) ] 123 1003 lloV All Moore v. Jackson (xxii. 210) . ' . ^ ' ' ' ' ^"°'^' ^IZ' ^lll Moore, Martin v. (xviii. 634) ' ^'^H Moore v. Woodstock Woollen Mills Co. (xxix' 627) Vs?' alt Moran, Hamilton St. Ey. Co. v. (xxiv. 717) .! '. [ [ \ \ \ S 995 Moran, Taylor v. (ix. 347) y„g Morden, Municipality of South Dufferin y.' '(xix.' 204y.V.V29V 864 Morgan, Cote V. (vii. 1) lf;q 11^ Morin, Dupont v. fxxi. 28) ' 533 Morm V. The Queen (xviii. 407) 4OO Morin v. The Queen (xx. 515) 412 ggi' 1208 Morns, Connecticut & Passumpsic K. E. Co. v (xiv 318)' ' 592 Morris v. Bank of P. E. Island (Cass. Dig. 2 ed. 68) . . 187 1563 Morris v. London & Can. Loan & A. Co. (xix. 434) .' 85 Morris y. Union Bank (xxxi. 594) .266,' iVoV 1564 Morris, Union Bank v. (xxxi. 594) 266 1307 1564 Morrisette, Drouin v. (xxxi. 563) ' . . . .1430 ' 1515 Morrison, Banque Ville Marie y. (xxv. 289) . 160, 866, 892, 1489,' 1515 Morrison, Commercial Bank of Windsor v. (xxxii. 98) 196,' 1156 Morrison, Christie y. (xx. 194) 515' 770 Morrison, Kandick y. (ii. 12) .' go Morrison v. McCuaig (Cass. Dig. 642) 24, 1136 Morrow, Waterous y. (Cass. Dig. 138) .' 323 Morse y. Martin (Cass. Dig. 3 ed. 839) 1452 Morse v. Phinney (xxii. 563) 237 Morton, Grand Trunk Ey. Co. y. (xi. 621) 1185 Moss, Eureka Woollen Mills Co. y. (xi. 91) 76, 975, 980 Moss, The Queen y. (xxyi. 322) 299, 409, 912, 1006^ 1268 Mott V. Bank of Noya Scotia (xiv. 650) 187, 1554 Mott, Fielding v. (xiv. 254) 827 Mott, Stuart v. (xiv. 734) 1023 Mott, Stuart v. (xxiii. 153, 384) 376, 1245 Mousseau, Eeed v. (yiii. 408) 290 Mowat y. Boston Mar. Ins. Co. (xxvi. 47) 715 Mowat V. DeLisle (xxv. 1) . .36, 62, 383, 950, 1020, 1024, 1085, 1513 Mowat v. McFee (v. 66) : . 609 Mowat, Provident Svgs. Life Ass. Soc. v. (xxxii. 147) 352, 701 Mowat, Provident Svgs. Life Ass. Society of N.Y. v.- (11th Oct. 1901) 1107 Moxley, Canada Atlantic Ey. Co. v. (xv. 145) ... . 552, 565, 570, 1214 Muir v. Carter (xvi. 473) 51, 547, 1243, 1466 Muirhead v. Sheriff (Cass. Dig. 684) 1119 Muirhead v. Shirreff (xiv. 735) 1087, 1329 Mulca'hy v. Archibald (xxviii. 523) 451, 625 Mulcair v. City of Montreal (xxviii. 458) 907, 1007 Mullin y. Hoe (Cass. Dig. 219) 309 Mulock, Patterson v. (Cass. Dig. 682) 1113 Munn V. Berger (xi. 512) 552 Murdoch, Chesley v. (ii. 48) 550 Murdoch v. West (xxiv. 305) 354 Murphy, Bridgewater Cheese Co. v. (xxvi. 443) 177, 193, .^52 Murphy, Bury v. (xxii. 137) 809 1638 INDEX TO NAMES OF CASES. Murphy v. Bury (xxiv. 688) 1055, 1337 Murphy, Kingston & Pembroke Ry. Co. (xvii. 582) 1195 Murphy v. Labbe (xxvii. 126) . . '. 579, 755, 759, 947 Murphy, The Queen v. (Cass. Dig. 314) 96 Murray, Bury v. (xxiv. 77) 11, 556, 1087 Murray, Canada Central Ry. Co. v. (viii. 313) 345 Murray, Clergue v. (xxxii. 450) ,1150, 1288, 1437, 1500 Murray v. Jenkins (xxviii. 565) 360, 836, 1494 Murray v. Lyon (xx. 626) 522, 533, 1081 Murray, The Queen v. (xxvi. 203) 23, 341 Murray, Warner v. (xvi. 720) 93 Murray v. Westmount (xxvii. 579) 64, 534 Mutual Fire Ins. Co. of Wellington v. Frey (v. 82) 680, 1121 Mutual Life Ass. Co. v. Giguere (xxxii. 348) 558, 707 Mutual Relief Society, Fitzrandolph v. (xvii. 333) 705 Mutual Relief Society v. Webster (xvi. 718) 704 Myers, Sault Ste. Marie Pulp & Paper Co. v. (xxxiii. 23) 923 Mylius V. Jackson (xxiii. 485) 119, 1054 Mc. McAllister v. Forsyth (xii. 1) 239 McArthur v. Brown (xvii. 61) 539, 833 McArthur, Common (xxix. 239) 265, 267, 1055, 1360, 1560 McArthur, Dominion Cartridge Co. v. (xxxi. 392).. 100, 566, 608, 949 McArthur, Dominion Cartridge Co. v. (7th Oct., 1902) 124, 1132, 1165 McArthur, May v. (Cass. Dig. 2 ed. 674, 779) . . . .1101, 1284, 1497 McArthur, Stephens v. (xix. 446) 618 McBain, Blatchford v. (xix. 42) 52, 1270 McBain, Blatchford v. (xx. 269) 756 McBean, Dingwall v. (xxx. 441) 8, 1032, 1155, 1249, 1280 McBeath, Adams v. (xxvii. 13) 579, 1546 McBryan, Can. Pac. Ry. Co. and Shaw v. (xxix. 359) . . .732, 1518 McCafEery, Ball v. (xx. 319) 128, 539 McCall V. McDonald (xiii. 247) 621 McCall V. Wolff (Cass. Dig. 673) 1099 McCall V. Wolff (xiii. 130) 236 McCallum, Blackburn v. (xxxiii. 65) 1407. 1412, 1541 MeCallum v. Odette (vii. 36) 387, 925 MeCarron, McGreevy v. (xiii. 378) 319 McCarron v. McGreevy (Cass. Dig. 144) 576 McClary Mfg. Co., Headford v. (xxiv. 291) 98, 608, 935 McCleave v. City of Moncton (xxxii. 106) 878, 1067, 1157 McClellan, North British & Mercantile Ins. Co. v. (xxi. 88) . . 690 McClennand, Armstrong v. (xxv. 263) 1499, 1552 McColl, Scoullar v. (24th March, 1896) 1152 :\rcColl, Tupper v. (xx. 169) 529 McConaghy v. Denmark (iv. 609) 1416 McCord, Wadsworth v. (xii. 466) 476 McCorldll V. Knight (iii. 233; Cass. S. C. Prac. 40) 56, 1415 McCrae v. White (ix. 22) 843 McCracken v. Mclntvre (i. 479) 260, 1307 McCraney, Major v. (xxix. 182) 33, 404, 1345, 1474 McCuaig' V. Barber (xxix. 126) 842, 861 INDEX TO NAMES OF CASES. 1639 Tvr /n ■ PAGE. !;^''f.'''''^'^^.°?",'^''°'' ^- ^^^''- ^^S- 643) r 24, 1136 McDonald, Allison v. (xxiii. 635) 859 1389 McDonald, Belcher v. (xxxiii. 321) ..'.'.'.'. 102' 1134 McDonald V. Cameron (xx. 169) .'........'.'. ' 529 McDonald v. Crombie (xi. 107) .'.'.'.'.'.'.'.'.'.'.".'.'.'.'.'.'.'.'.'.' 620 McDonald v. Cummings (xxiv. 321) '.'.''. 239 McDonald, Dawson v. (Cass. Dig. 586, 587, 588,' 683, 688) ,' .' ,^ ^ ,, 1010,1110,1135,1135,1241, 1243 McDonald v. DouU (Cass. Dig. 384) 710 McDonald, Porristal v. (Cass. Dig. 422, 698, 763). '.'.'.'.'.112, 739 McDonald, Forristal v. (ix. 12) v 1378 McDonald v. GeorEjian Bay Lumber Co. (ii. 364) 382, 664, 1397 McDonald, Gibbons v. (xx. 587) 622, 845 McDonald v. Gilbert (xvi. 700) 51^ 574^' 1032 McDonald, Lake Simeoe Ice & C. S. Co. v. (xxxi. 130) .'....' 1265 McDonald v. Lane (vii. 462) 28 McDonald v. Manning (xix. 112) 376 McDonald v. MeCall (xiii. 247) - 621 McDonald v. McDonald (xxi. 201) 1428 McDonald v. McDonald (xxxiii. 145) 584, 630 McDonald v. McPherson (xii. 416) 1278 McDonald, St. John, Mayor, &c., of, v. (xiv. 1) 926 McDonald, Worthington v. (xi. 327) 1017 McDonell v. McMaster (Cass. Dig. 246) 465 McDougall V. Cameron (xxi. 379) 86, 391, 1306, 1330 McDoTigall V. Campbell (vi. 502) 854 McDongall, Davin v. (xxvii. 215) 79, 504 McDougall, Gendron v. (Cass. Dig. 429) '56, 388 McDougall, Law Society of U. C. t. (xviii. 203) 539, 1329 McDougall, May v. (xviii. 700) 1271 McDougall, McGreevy v. (3rd March, 1888)^ 74 McDougall, Smyth v. (i. 114) 1093, 1100, 1332 McDougall V. Water Commissioners of Windsor (xxxi. 326) . . 364, 877 MePadden, Hall V. (Cass. Dig. 723) 961, 1191 McFarlane, Parish of St. Cesaire v. (xiv. 738) 1210 McFarlane, Peterldn v. (Cass. Dig. 535) 851 McFarlane, The Queen v. (vii. 216) 22 McFarlane v. The Queen (xvi. 393) 400, 552, 1066 McFarlane, Eaphael v. (xviii. 183) 1467 McFarren v. Montreal Park and Island Ey. Co. (xxx. 410) . . 19, 651 McFee, Mowat v. (v. 66) 609 McGeachie v. North Am. Life Ins. Co. (xxiii. 148) 706 McGee, City of Montreal v. (xxx. 582) 15, 389, 432, 791 McGhee, Phoenix Ins. Co. v. (xviii. 61) 93, 719 McGill, Western Bank r. (xxxii. 581) 194, 489, 747 McGillivray, Town of, Hislop v. (xv. 188) 110, 608 McGillivray, Township of, Hislop v. (xvii. 479) 902 McGillivray, Thompson (xx. 169) 529 McGoey v. Leamy (xxvii. 193) 63 McGoey v. Leamy (xxvii. 545) 138, 332 McGowan v. Mockler (Cass. Dig. 420, 421) 122, 384, 979 McGreevy v. Boomer (Cass. Dig. 139) 324, 330 McGreevy, Guilbault v. (xviii. 609) 320 McGreevy v. Ledue (Cass. Dig. 801) 1282 1640 INDEX TO NAMES OP CASES. PAGE. MeGreevy v. McCarron (Cass. Dig. 144) 576 McGreevy t. McCarron (xiii. 378) 319 MeGreevy v. McDougall (3rd March, 1888) 74 McGreevy v. Faille (Cass. Dig. 141) 575 MeGreevy v. The Queen (xiv. 735) 124 McGreevy v. The Queen (xix. 180) 143, 145 McGreev}', The Queen v. (xviii. 371) 339 McGregor v. Canada Investment & Agency Co. (xxi. 499) . . . 1312, 1380, 1485, 1537 McGregor, Esson v. (xx. 176) 981 JIcGregor v. Township of Harwich (xxix. 443) 877, 944 McGugan v. McGugan (xxi. 267) • 85 MeGugan v. Smith (xxi. 263) 1334 McGuire, Birkett v. (Cass. Dig. 598) 1030 McHendry, King v. (xxx. 450) 651 Mcllreith, Doull v. (xiv. 739) 1232 Mcintosh, Mooney v. (xiv. 740) 1482 Mcintosh V. The Queen (xxiii. 180) 2, 74, 402 Mclntyre, Hood v. (ix. 556) 347 Melntyre, McCraken v. (i. 479) 260, 1307 McKay, Cape Breton County v. (xviii. 639) 901, 1344 McKay, Churchill v. (xx. 472) •. 171 McKay, Crysler v.- (iii. 436) 1289 McKay v. Glen (iii. 641) '. 509 McKay V. Township of Hinehinbrook (xxiv. 55) 61 McKay, Merchants Bank v. (xv. 672) 1388 McKean v. Jones (xix. 489) 1074 McKean, Jones v. (xxvii. 249) 1471 McKeen, Chatham National Bank v. (xxiv. 348) 255, 1559 McKelvey v. Le Eoi Mining Co. (xxxii. 664) . .101, 108, 120, 608, 938, 941, 1502 McKenna v. McNamee (xv. 311) 330 McKenzie v. Champion (xii. 649) 214, 989 McKenzie v. Corbett (Cass. Dig. 384) 713 McKenzie v. Kittridge (iv. 368) 260 McKenzie v. Kittridge (Cass. Dig. 165) 1118 McKenzie v. McKenzie (20th Feb., 1897) 1473 McKenzie v. North- West Trans. Co. (xxv. 38) 203, 226, 349 McKenzie, Shaw v. (vi. 181) 225 McKercher v. Sanderson (xv. 296) 1428 McKillop, Township of, v. Township of Logan (xxix. 702) .140, 484, 883, 1375 McKinlay, Fitzgerald v. (Cass. Dig. 107) •. . . .224, 1145 McKinnon, Mader v. (Cass. Dig. 122) ' 623 McLachlan, Accident Ins. Co. of N. A. v. (xviii. 627) 84, 388 McLachlan, Merchants Bank v. (xxiii. 143) 814, 1031 McLaren, Archibald v. (xxi. 588) 805, 982, 998 JIcLaren v. Caldwell (viii. 435) 1263 McLaren v. Grant (xxiii. 310) 77, 1075, 1470 McLaren, Grant v. (9th May, 1894) 1183 McLaren, Merchants Bank v. (xxiii. 143) 814, 1031 McLaughlin v. McLellan (xxvi. 646) 1523 McLean v. Bradley (ii. 535) 1310 McLean v. Garland (xiii. 366) 659 McLean v. Hannon (iii. 706) 1311 INDEX TO NAMES OF CASES. 1641 T\/r T rni. ' PAGE. iVicJ^ean, The Queen v. (Cass. Dig. 399; 4 Ex. C. E. 257).. .133, McLean, The Queen v. (viii. SIO) . . ^^^' ^336 McLean, Sea v (xiy. 632) ; ; ; 374; iVgl, 1548 McLean, Smith v. (xxi. 355) . • 2O6 McLean v. Stewart (xxv. 225) '' '^ ^ ::::::::::: ^70, 1021 McLean v. Wilkms (xiv. 22) ' 858 McLellan, McLaughlin v. (xxvi. 646) 1523 McLellan v. North British & Merc. Ins. Co. (xxi. 288) 690 McLelland, Armstrong v. (xxv. 263) I499 1553 McLelland v. Baker (xxiv. 416) '[ _ 371' 334 McLennan v. Chisholm (xx. 38) 523' 528 McLennan, Grange v. (ix. 385) .'.'.'.'.'.'. . . .' 303 McLeod, Bank of New Brunswick v. (Cass. Dig. 644) 116.6 McLeod, Ins. Co. of North America v. (xxix. 449) 708 McLeod V. New Brunswick Ey. Co. (v. 281) 301, 387 McLeod, Nova Scotia Mar. Ins. Co. v. (xxix. 449) .' 708 McLeod, The Queen v. (viii. i.) 1190, 1213 McLeod, Western Ass. Co. v. (xxix. 449) ' 708 McManamy, City of Sherbrooke v. (xviii. 594) 52 McMaMer, McDonnell v. (Cass. Dig. 246) 465 McMaster & Co., Clarlison v. (xxv. 96) 243, 1371 McMicken v. Ontario Bank (xx. 548) ; .460, 588, 1397 McMillan, Barton v. (xx. 404) 587, 1333' 1340 McMillan, Byers v. (xv. 194) 587 McMillan, The " Cuba" v. (xxvi. 651) ^39^ 811, 1323 McMillan, Davies v. (1st May, 1893) 623, 662, 1053,' 1244 McMillan, Grand Trunk Ey. Co. v. (xvi. 543) . .317, 547, 1185, 1510 McMillan v. Hedge (xiv. 736) 1302 McMillan v. South West Boom Co. (iii. 700) 118, 1051 McMillan v. Valois (xxii. 1) 79, 106, 504, 533, 1082 McMillan, Walker v. (vi. 241) 917, 1052 McMullin, Hart v. (xxx. 245) 496, 1406 McMurray, Bingham v. (xxx. 159) 9, 372, 1038 McNab V. Wagler (Cass. Dig. 699) 1126 McNamee, Fulton v. (ii. 470) 586 McNamee, McKenna v. (xv. 311) 330 McNaught, Harvey VanNorman Co. & Balfour v. (xxxii. 690).. 833, 1314 McNeill, Oland v. (xxxii. 23) 1294, 1398 McNerhanie, Archibald v. (xxix. 564) 376, 1024, ]340, 1352 McNevin, Can. Ey. Ace. Ins. Co. v. (xxxii. 190) '.130, 670 McNider, Youn? v. (xxv. 272) 540, 573, 1064, 1153 McNutt, Merchants Bank v. (xi. 126) 198 McPhee, Doyle v. (xxiv. 65) 462 MePherson, McDonald v. (xii. 416) 1278 McQueen v. Phcenix Mut. Fire Ins. Co. (iv. 660) 673 McQueen v. Phoenix Mut. Fire Ins. Co. (Cass. Dig. 688) . .728, 1120 McQueen, The Queen r. fxvi. 1 ; Cass. S. C. Prac. 108) . .1114, 1255 McEae v. Lemay (xviii. 280) .' 144« McEae v. Marshall (xix. 10) 818 McSorley v. Mayor, &c., of St. John (vi. 531) 153, 816. 1462 McWillie, North Shore Ey. Co. v. (xvii. 511) 1205 1642 INDEX TO NAMES OE CASES. N. ■ PAGE. Nasmith v. Manning (v. 417) 361 Nasmith v. Manning (Cass. Dig. 695) 1132 Nason, Armstrong y. (xxv. 263) ) 1499, 1552 Nativity de la Sainte Vierge, &c., Bank of Toronto v. (xii. 25) 49, 387, 388 Fativite de la Ste. Vierge, &c., Bank of Toronto v. ( Cass. Dig. 687) 1119 Naylor, Wrayton v. (xxiv. 295) 1495 Neelon, Beatty v. (xiii. 1) 262 Neelon, Can. Pac. Ey. Co. v. (Cass. Dig. 522) 1148 Neelon v. Town of Thorold (xxii. 390) 363 Neelon v. City of Toronto (xxv. 579) 325, 557 Neill V. Travellers Ins. Co. (9 Ont. App. 54) 133 Neill V. Travellers Ins. Co. (xii. 55) 668 Neill V. Travellers Ins. Co. (Cass. Dig. 373) 1078 Neilson, Snowball v. (xvi. 719) 735 Nelles, White v. (xi. 587) 756, 1424 Nelson, Gibson v. (9th Dec, 1902) 127 Nevins, The Queen v. (Cass. Dig. 427) 71, 384 New Brunswick Ey. Co. v. Kelly (xxvi. 341) 469, 1237 New Brunswick Ey. Co. v. McLeod (v. 281) 301, 387 New Brunswick Ey. Co. v. Eobinson (xi. 688) 1214 New Brunswick Ey. Co. v. Vanwart (xvii. 35) 960,. .1215 New Glasgow, &c., Co. v. Tobin (7th Nov., 1894) 577 New Hamburg v. Co. of Waterloo (xxii. 296) 889, 1368 New Westminster v. Brighouse (xxv. 20) 903 New York Life Ins. Co., Vezina v. (vi. 30) 702 New York & Ottawa Ey. Co., Collins Bay E. & F. Co. v. (xxxii. 216) ■ ■ 362 News Printing Co. v. Macrae (xxvi. 695) 132, 1487 Newswander, Briggs v. (xxxii. 405) 372, 835 Niagara Dist. Fruit Growers Co. v. Walker (xxvi. 629) 632, 1162 Nicholls V. Gumming (i. 395) , 152 Nicholson, Temple v. (Cass. Dig. 114) 240 Nicolet, County of, v. Toussignant (xxxii. 353) . . ! . .107, 902, 909 Nicolet Election Case (xxxi. 178) 526, 1082 Nixon v. Queen Ins. Co. (xxiii. 26) 676 Noel V. Chevrefils (xxx. 327) 67, 1480 Nordheimer v. Alexander (xix. 248) 917, 1504 Normand, Beausoleil v. (ix. 711) . . . ., 1061 Normand, Chagnon v. (xvi. 661) 51 Normandeau, Gauthier v. (xiv. 429) 78, 503 North American Glass Co. v. Barsalou (xxiv. 490) 345 North American Ins. Co. v. McLeod (xxix. 449) 708 North Am. Life Ins. Co., Brophy v. (xxxii. 261) 30, 703 North Am. Life Ins. Co. v. Craigen (xiii. 278) 702 North Am. Life Ins. Co. v. Bison (xxxiii. 383) 701 North Am. Life Ins. Co. v. McGeaehie (xxiii. 148) 706 North British & Merc. Ins. Co. v. McClellan (xxi. 288) 690 North British & Merc. Ins. Co. v. Tourville (xxv. 177) . . 98, 608, 685 Northcote v. Vigeon (xxii. 740) 1335, 1500 North Dufferin, Bernardin v. (xix. 581) 260, 346, 383, 875, 1072, 1299, 1366 North Easthope, Gibson v. (xxiv. 707) 483, 886 INDEX TO NAMES OF CASES. 164S PAGE. North Gore & Chatham v. Dover (xii. 321) 480, 885 Northern Ass. Co., Hobbs v. (xii. 631) .' 678 Northern Pacific Express Co. v. Martin (xxvi. 135) . .11, 229, 326, 105.5 Northern Pacific Ey. Co. v. Grant (xxiv. 546) 317, 1186 North Ontario Elec. Case (iii. 374) 78^ 502 North Ontario Elec. Case (iv. 430) 509, 520 North Perth Elec. Case (xx. 331) V. . . .' 521 North Shore Ry.' Co., Beaudet v. (xv. 44) 141, 1199 North Shore Ey. Co., Bigaouette v. (xvii. 363) 604, 1199 North Shore Ey. Co. v. McWillie (xvii. 511) 1205 North Shore Ey. Co., Pion v. (xiv; 677) 1205, 1260, 1519 North Shore Ey. Co., City of Quebec v. (xxvii. 102) . .464, 589, 1491 North Shore Ey. Co. v. Trudel (Cass. Dig. 793) 1293 North Shore Ey. Co. v. Ursulines of Quebec (Cass. Dig. 36) . . 135, 999 North- West Electric Co. v. Walsh (xxix. 33) 256, 264 North- West Trans. Co., Beatty v. (xii. 598) 255 North- West Trans. Co. v. Mckenzie (xxv. 38) 203, 226, 349 North York Elec. Case (Cass. Dig. 682) 1113 Norvel, Canada Southern Ey. Co. v. (Cass. Dig. 34, 673) .... 146, 388, 1115 Norwich Union Fire Ins. Co. v. LeBell (xxix. 470) 350, 694 Nova Scotia Synod v. Eitehie (xviii. 705) 190 Nova Scotia v. Canada (Fisheries Case) (xxvi. 444) . .277, 611, 639, 803, 1260, 1348 Nova Scotia Central Ey. Co. v. Halifax Banking Co. (xxi. 536) 1063 Nova Scotia Mar. Ins.' Co. v. Churchill (xxvi. 65) 721 Nova Scotia Mar. Ins. Co. v. Eisenhauer (6th Nov., 1904) 811 Nova Scotia Mar. Ins. Co. v. McLeod (xxix. 449) 708 Nova Scotia Mar. Ins. Co. v. Stephenson (xxiii. 137) 723 Nova Scotia Telephone Co., O'Connor v. (xxii. 276) .905, 1365, 1434, 1460 Nuttal, Lakin v. (iii. 685) 109, 361 0. Oakes v. City of Halifax Civ. 640) 119, 144 Oakes, Kearney v. (xviii. 148) 414, 1459 O'Brien v. Allen (xxx. 340) 298, 1443 O'Brien v. Caron (xiv. 429) '^8, 503 O'Brien v. Cogswell (xvii. 420) 162, 854, 1000 O'Brien v. O'Brien (Cass. Dig. 297) 554, 992 O'Brien v. The Queen (iv. 529; Cass. Dig. 686) 333, 1118 O'Brien, In re v. The Queen, Ex. rel. Felitz (xvi. 197) 82, 300 Ocean Ace. & Guarantee Corp. v. Fowlie (xxxiii. 253) 671 Ocean Mut. Mar. Ins. Co., Bailey v. (xix. 153) 725 Ocean Mut. Mar. Ins. Co., Spinney v. (xvii. 326) 715 O'Connor, Hamilton Bridge Co. v. (xxiv. 598) . . . ■ 939 O'Connor v. Merchants Mar. Ins. Co. (xvi. 331) 709 O'Connor v. Nova Scotia Telephone Co. (xxii. 276) . .905, 1365, O'Dell V. Gregory (^^-^^61)^ 61 Odette, Clarke v. (Cass. Dig 521) 1322 Odette, McCallum v. (vii. 36) --i^h a^f 1644 INDEX TO NAMES OF CASES. Odette, Owen v. (Cass- Dig. 519, 521) 1320 O'Donnell, Confederation Life Ass. v. (Cass. Dig. 370) 555 O'Donnell, Confederation Life Ass. v. (x. 92) 699, 1100 O'Donnell, Confederation Life Ass. v. (xiii. 318) 699 O'Donnell, Confederation Life Ass. v. (xvi. 717) 698 O'Donohoe v. Beatty (xix. 356) 52, 1329 O'Donohoe v. Boume (xxvii. 654) 90 O'Donohoe v. Heward (xix. 841) 1140, 1418 O'Donohoe, Stammers v. (xi. 358) 1488 Oelrichs, Trent Valley Woollen Mfg. Co. v. (xxiii. 682) . .367, 1149, 1272, 1450 O'Gara v. Union Bank (xxii. 404) 1388 Ogden, Dawson v. (Cass. Dig. 797) 1314 Ogilvie, The Queen v. (xxix. 299) 447, 1040 Oille, Beatty v. (xii. 706) 438, 996 O'Keefe v. Curran (xvii. 596) 1024 Oland V. McNeill (xxxii. 23) 1294, 1398 Oliver & Lobo, Ohalloner v. (xxxii. 505) 127, 392 Oliver v. Davidson (xi. 166) 1527 Oliver v. Johnston (Cass. Dig. 2 ed. 651) 1418 Oliver, Vernon v. (xi. 156) 144, 1100 O'Meara v. City of Ottawa (xiv. 742) 888 O'Neil V. Attorney-General (xxvi. 122) 29, 272, 403, 558, 628, 738, 1066, 1512 Ontario v. Canada (Pardons) (xxiii. 458) 289, 771, 785, 1014, 1347 Ontario v. Canada (Property and Civil Eights) (xiv. 736) 1046 Ontario v. Canada (Prohibition) (xxiv. 170) 290 Ontario v. Canada (Subsidies) (xxiv. 498) 275, 1370 Ontario v. Canada (Indian Claims) (xxv. 434; xxx. 151) .... 276, 280, 654, 1249 Ontario v. Canada (Fisheries) (xxvi. 444) . .277, 611, 639, 803, 1260, 1348 Ontario v. Canada (Common School Fund) (xxviii. 609; xxx. 306; xxxi. 516) 47, 140, 249, 279, 477 Ontario Bank v. Chaplin (xx. 152) 174, 666, 1125, 1556 Ontario Bank, McMieken v. (xx. 548) 460, 588, 1397 Ontario Bank v. Stewart (Cass. Dig. 571) 174 Ontario Car Co. v. Farwell (xviii. 1) 781, 1491 Ontario Coal Co., Western Ass. Co. v. (xxi. 383) 709 Ontario Express & Tr. Co., In re (xxiv. 716) 61, 1564 Ontario Loan & Deb. Co., Hobbs v. (xviii. 483) 750 Ontario Mining Co., Seybold v. (xxxi. 125) 115, 1126 Ontario Mining Co. v. Seybold (xxxii. 1) 1436 Ontario & Quebec Ey. Co. v. Marcheterre (xvii. 141) 83, 1125 Ontario & Quebec Ey. Co. v. Philbrick (xii. 288) 139, 1198 Ontario & Quebec Ey. Co. v. Philbrick (Cass. Dig. 687, 688) . . 1119, 1131 Oppenheimer v. Brackman & Ker Milling Co. (xxxii. 699). .116, 369 Ordway, Veilleux & Price v. (15th May, 1903) 108 O'Eegan v. Peters (xvii. 44) 295, 796, 799 Osborne v. Henderson (xviii. 698) 1468 " Oscar & Hattie," The (xxiii. 396) 569 Osgoode, Township of, v. York (xxiv. 282) 881, 1356 O'Shaughnessy v. Ball (xxi. 415) 540 INDEX TO NAMES OF CASES. 1645 PAGE. Ostrom V. Sills (xxviii. 485) 491, 1517 O'Sullivan v. Harty (xi. 332) 594 O'Sullivan v. Harty (xiii. 431) 131, 1487 O'Sullivan v. Lake (xvi. 636) 121, 976 O'Toole, Wallace v. (Cass. Dig. 713) 1167 Ottawa Agricultural Ins. Co. v. Sheridan (v. 157) 692 Ottawa, City of, v. Canada Atlantic By. Co. (xii. 365) 871, 888 Ottawa, City of, v. Canada Atlantic Ey. Co. (xxxiii. 376) . .644, 909, 1228 Ottawa, City of, v. County of Carleton (xxviii. 606) . .140, 879, 1374 Ottawa, City of, v. Hunter (xxxi. 7) 68, 1346 Ottawa, City of, v. Montreal & Ottawa Ey. Co. (xxxiii. 376) . . 644, 909, 1228 Ottawa, City of, O'Meara v. (xiv. 742) 888 Ottawa, County of, v. Montreal, Ottawa & Western Ey. Co. (xiv. 193) . . . ; ■ 304, 1210 Ottawa Electric Co. v. Brennan (xxxi. 311) 115, 1127 Ottawa Electric Co. v. St. Jacques (xxxi. 636) .316, 499 Outerbridge, Owen v. (xxvi. 272) 228, 1323 Owen V. Odette (Cass. Dig. 519) 1320 Owen V. Outerbridge (xxvi. 272) 228, 1323 Owens V. Bedell (xix. 137) 1379 P. Pacaud v. The Queen Cxxix. 637) 10, 569 Page V. Austin (x. 132) 262 Paille, McGreevy v. (Cass. Dig. 141) 575 Paint .V. The Queen (xviii. 718) 604, 1199 Palliser, Simpson v. (xxix. 6) 106, 396 Palmer v. Wallbridge (xv. 650) 828 Palmer, Warmington v. (xxxii. 126) 440, 830, 929 Palmerston, Town of, Waterous Eng. Works Co. v. (xxi. 556) . . 888 Paradis v. Bosse (xxi. 419) 391, 575, 1330 Paradis v. Bruneau (xxi. 168) • • • 524 Paradis v. Limoilou (xxx. 405) 99, b08 Paradis, The Queen v. (1 Ex C. E. 191) ^^^ • .... .... 136 Pardoning Power (xxin. 458) 289, 771, 775, lUi4 Pare v. Pare (xxiii. 243) ■ • . ; ■ ■ ; 1139 Parent, Chalifour v. (xxxi. 224) 26, 652, 1001, 1141, 1421 Parent, Citizens Light & Power Co. v. (xxvu. 316) 64, 137. Parent v Quebec North Shore Turnpike Eoad Trustees (xxxi. 556) 211, 471, 1407 Parkdale, West v. (xii. 250) ... ..^ ...._-. .-.^ . . . ■ . • • ■ 1«6 Parker v. Montreal City Pass. Ey. Co-^(<;ass.^Di^^674, 683,^686, ^^^^^ Parker, White v. (xvi. 699) J^ Parks V. Cahoon (xxiii. 92) • -^^^^ Parsons, Citizens Ins. Co. v (iv. 215) ■ . . . js& Parsons v. Hart (xxx. 473^ . . . . ^, . - . ._. 204, 14o0 Parsons, Queen Ins. Co. v. (Cass. Dig. 69o) 1164 Parsons, Queen Ins. Co. v. (iv. ^l/) h«.^ Parsons, Standard Eire Ins. Co. (v. 233) 674 Partlo V. Todd (xvii. 196) . . . .^^. ^f^ Patch V. Pitman (Cass. Dig. 389) '^30 1646 INDEX TO NAMES OF CASES. PAGE. Patterson, Campbell v. (Cass. Dig. 122) 623 Patterson v. Muloek (Cass. Dig. 682) 1113 Pattison v. Mayor of St. JoJin (Cass. Dig. 173) 904 Paulson V. Beaman (xxxii. 655) 12, 41, 832 Pavey & Co., Purdon v. (xxvi. 412) 18, 773 '■ Pawnee," The v. Koberts (xxxii. 509) 40, 1325 Payette, Desanlniers v. (xxxiii. 340) 91 Peak, Shields v. (viii. 579) 81, 387, 664 Pearson, Sherren v. (xiv. 581) 1139, 1422 Peck V. Powell (xi. 494) 1035 Peers v. Elliott (xxi. 19) 941, 992 Pelletier, Gibeault v. (xx. 185) '. 532, 1081 Pelton, Porter v. (xxxiii. 449) 22, 78, 1099 Penman Mfg. Co. v. Broadhead (xxi. 713) T . . . 347 Penrose v. Knight (Cass. Dig. 2 ed. 689, 776) 1122, 1495 People's Bank, Exchange Bank v. (Cass. Dig. 79) 173 People's Bank of Halifax v. Johnson (xx. 541) 356, 1388 People's Loan & Deposit Co. v. Grant (xvii. 262) . , 727 People's National Bank of Charleston, Stewart v. (Cass. Dig. 81) 202 Peppard, Bentley v. (xxxiii. 444) 793, 1067, 1422 Perkins, Banlv of Toronto v. (viii. 603) 179 Pernette, Clinch v. (xxiv. 385) 766 Perrault, Cimon v. (v. 103; Cass. Dig. 695) 106, 503, 510 Perrault v. Gauthier (xxviii. 241) 14, 1454 Perrault, Eeeves v. (x. 616) 855 Perrv v. Cameron (xx. 26) 515, 528, 1081 Perry v. Hackett (xiv. 265) 518 Perry, Standby v. (iii. 356) 1363, , 1403 Perth County, In re Canada Temperance Act (Cass. Dig. 106, 679) . .' 223, 1106 Peterborough, Co. of. Grand Junction Ey. Co. v. (viii. 76) . . 871, 1211 Peterborough, Co. of, v. County of Victoria (Cass. Dig. 558) . . 905 Peterkin v. McFarlane (Cass. Dig. 535) 851 Peterkin, Eose v. (Cass. Dig. 535) 851 Peterkin, Eose v. (xiii. 677) 1232 Peters, Danaher v. (xvii. 44) 295, 796, 799 Peters v. Hamilton (Cass. Dig. 763) 96, 555, 565, 976 Peters, O'Eegan v. (xvii. 44) 295, 796, 799 Peters v. Quebec Harbour Commissioners (xix. 685) 321 Peters v. St. John, City of (Cass. Dig. 56) 150 Peters, Sovereisn Fire Ins. Co. v. (xii. 33) 674 Peters & Co. v. Worrall (xxxii. 52) 4, 838 Peterson, Snetsinger v. (23rd May, 1894) 146 Petrie v. Guelph Lumber Co. (xi. 450) 254 Petry, Caisse d'Economie de Quebec v. (xix. 713) 1240, 1383 Pharmaceutique Ass. de Quebec v.Brunet Cxiv. 728) 1045 Pharmaceutique Ass. de Quebec v. Livernois (xxx. 400) . .681, 1056 Pharmaceutique Ass. de Quebec v. Livernois (xxxiii. 43) .... 1351, 1353, 1354 Phelps, Canada Southern Ey. Co. v. (xiv. 132) 959, 1207 Philbrick, Ontario & Quebec Ey. Co. v. (xii. 288) 139, 1198 Philbrick, Ontario & Quebec Ev. Co. v. (Cass. Dig. 687, 688) . . • 1119, 1131 INDEX TO NAMES OF CASES. 1647 PAGE. Phillips, Baxter v. (xxiii. 317) 125g •• PMlips " The '• Henry L," v. The Queen (xxv.' '691) '.'.'.'. 611 Phinney, Clark v. (xxv. 633) 541, 547, 778, 1247 Phinney, Morse v. (xxii. 563) 237 Phoenix Ins. Co., Keefer v. (xxxi. lU) ..'.'......'.'.. .'.'.['..'. 694 Phoenix Ins. Co. v. McGhee (xviii. 61) 93 719 Phoenix Mut. Fire Ins. Co., Boyce v. (xiv. 723) ......... .698' 703 Phoenix Mut. Fire Ins. Co., McQueen v- (iv. 660) ' 673 Phcenix Mut. Fire Ins. Co., McQueen v. (Cass. Dig. 688) . .728, 1120 Piehe y. City of Quebec (Cass. Dig. 2 ed. 497) 1447 Pickerel Eiver Imp. Co., Hardy Lumber Co. y. (xxix. 211) . . 252, 258, 542, 1248, 1264, 1374, 1442 "Picton," The (iy. 648) 92, 282 Picton Bank y. Harvey (xiv. 617) 1273 Picton School Trustees v. Cameron (ii. 690) 34, 1462 Picton Election Case (xx. 169) 529 Pigeon y. Eecorder's Court and Montreal (xvii. 495) 291 Piggott, Kennedy y. (xviii. 699) 136 Piggott & Inglis, Makins v. (xxix. 188) 582, 932, 1461 Pilkington, Glengoil S. S. Co. and Grey y. (xxviii. 146) . .230, 812, 1323 Pilon y. Brunet (y. 318) 384, 649 Pinsonnault, Browne v. (iii. 102) 752 Pinsonnault v. Hebert (xiii. 450) 26 Pion y. North Shore Ey. Co. (xiv. 677) 1205, 1260, 1519 Pither & Leiser v. Manley (xxxii. 651) 838 Pitman v. Patch (Cass. Dig. 389) 720 Piatt, Attrill v. (x. 425) 493, 1431 Plowman, In re (xxvii. 461) 191, 287 Plumb v. Steinhoff (xiv. 739) 1392 Plummer, Miller v. (xxii. 253) 198 Pointe Claire Turnpike Eoad Co., St. Joachin v. (xxiv. 486) . . 907, 1354 Poirier v. Brule (xx. 97) 1468 Poirier, Loy v. (xxxi. 447) 525, 1360 Poirier, Loy y. (xxxii. Ill) 129, 504, 1082 Poirier, The Queen v. (xxx. 36) 119, 461, 549, 765, 1129 Poitras v. Lebeau (xiv. 742) 14 Poitvin, In re (Cass. Dig. 327, 675) 233, 637 Pontiac, County of, v. Eoss (xvii. 406) 880 Pontiac Election Case (xx. 626) 522, 533, 1081 Pope, Cole v. (xxix. 291) 347, 1287, 1496 Port Arthur, Dwyer v. (xxii. 241) 873, 1350 Portage Extension of Bed Eiver Valley Ey., In re (Cass. Dig. 487) 1326 Porter v. Hale (xxiii. 265) 572, 749, 1077 Porter v. Pelton (xxxiii. 449) 22; 78, 1099 Portland, City of, y. Wilhams (xix. 159) 903, 953 Portland, Town of, v. Griffiths (xi. 333) 925, 998 Poulin y. City of Quebec (ix. 185) 795 Pouillot, Eraser v. (iv. 515) 457. 1380 Powell, Jellett y. (xxvi. 282) 592, 1238 Powell, Peck v. (xi. 494) 1035 Powell, Watters y. (xxviii. 133) .. . .467, 468, 469, 801, 1397, 1430, 1514 1648 INDEX TO NAMES OF CASES. . Power, Ellis v. (vi. 1) 551, 989, 1565 Power V. Griffin (xxxiii. 39) 1039 Power V. Meagher (xvii. 287) 1467 Powers, Martindale v. (xxiii. 597) 815, 1050, 1055, 1386 Pratt, Consolidated, Electric Ey. Co. v. (xxviii. 603) 77, 391 Preeper v. The Queen (xv. 401) 399 Pr^fontaine, Dufresne v. (xxi. 607) 784 Prefontaine, Fortier v. (xxi- 630, note) 784 Prefontaine, Hamilton v. (xxi. 630, note) 784 Prefontaine, Vallee v. (xxi. 607) . . . '. 784 Prescott Election Case (xx. 196) 524 Prescott Elevator Co., Dunn v. (xxx. 620) 1511 Prescott, Town of, v. Connell (xxii. 147) 920 Preston, Sinclair v. (xxxi. 408) 448, 728 Prevost, Turner v. (xvii. 283) 574, 1332 Price, Allan v. (xxx. 536) 1429, 1514 Price, Chicoutimi, Town of, v. (xxix. 135) 218, 874, 874, 1374 Price, Eraser v. (xxxi. 505) 77, 1077, 1131 Price v. LeBlond (xxx. 539) 26, 766, 1435 Price, Magog Textile and Print Co. v. (xiv. 664) 262 Price v. Mercier (xviii. 303) 1432 Price V. Ordway (15th May, 1903) 108 Price V. Roy (xxix. 494) 928, 931 Price V. Talon (xxxii. 123) 936 Prince Election Case; Hackett v. Perry (xiy. 265) 518 Prince Election Case; Perry v. Cameron (xx. 26) . .515, 527, 1081 Prince Edward Island Representation in House of Commons (xxxiii. 475, 594) 280, 648, 1145, 1367 Prince, Gagnon v. (vii. 386) 2 Prohibitory Liquor Laws, In re (xxiv. 170) 290 Proulx V. Eraser (xx. 196) 524 Providence Washington Ins. Co. v. Almon (Cass. Dig. 2 ed. 390) .• 721 Providence Washington Ins. Co. v. Chapman (Cass. Dig. 386) . 711, 1152 Providence Washington Ins. Co. v. Corbett (ix. 256) 717 Providence Washington Ins. Co. v. Gerow (xiv. 731).. 121, 711, 738, 990, 1099 Providence Washington Ins. Co. v. Gerow (xvii. 387) .;.... 712 Provident Sav. Life Ass. Soc. of N. Y., Mowat v. (xxxii. 147) . . 352, 701 Provident Sav. Life Ass. Soc. of N.Y. v. Mowat (11th Oct., 1901) 1107 Provincial Fisheries, In re (xxvi. 444) . . . .277, 611, 639, 803, 1260, 1348 Provincial Ins. Co., Billington v. (iii. 182) 695 Provincial Ins. Co. v. Connolly (v. 258) 724 Provincial Natural Gas and Fuel Co., Carroll v. (xxvi. 181) . . 326, 458 Provincial Provident Institution, Jordan v. (xxviii. 554) 269, 327, 705 Pudsey v. Dominion Atlantic Ry. Co- Cxxv. 691) . . . .741. 927, 965,984,1202! 1227 Pudsey, Manufacturers Ace. Ins. Co. v. (xxvii. 374) 669 1154 Pugh, Robertson v. (xv. 706) 710 735 INDEX TO NAMES OF CASES. 1649 PAGE. 992 Pugsk-y V. Ring (Cass. Dig. 241) ^90 Pun Pong, Het V. (xviii. 290) . ' ,„,„ Purcell, Clear,^ v. (xxiii. 101) ^V. ' iViV i.fn Purcc41, iiacdonell v. (xxii. 101) :,],\ °?J '■'" Purdom, Baechler v. (xv. 610) . " ' ' Purdona v. Pavey & Co. (xxvi. -112) iV Purdom v. Eobinson (xxx. 64) ... . ' l_,or Putnam, Hardman v. (xviii. 714) 1549 1029 77.3 990. Q. (i;;s Quai Sing, In re (17Ui May, 1898)' 10 1 ,;-s " Quebec," In re. The, (xx. '472) ..'.■.■.■.■.■.'.'.■ ' ' ' ' lii Quebec v. Canada (Indian Claims) . . (xxv. 434, xxx. 151) .... n 1, n ;, .c, , -.• ' 376,280, 654, 1249 yviebec v. Canada (Subsidies) (xxiv. 498) 275 1370 Quebec v. Canada (Common School Fund) (xxviii. 609Vxxx! 306, xxxi. 516) 47^ 140, 349,' 279, 477 Quebec, Canada v. (Fisheries) (xxvi. 444) 277, 611, 639, ^ , 803, 'l260,' 1348 Quebec v. Canada (Prohibitory Liquor Laws) (xxiv. 170) 290 Quebec Bridge Co. v. Eoy (xxxii. 572) 605, 1198, 1455 Quebec Central Railway Co. v. Lortie (xxii. 336) 964, 1192 Quebec Central Ey. Co., Quebec City v. (x. 563) 1224 Quebec City, Anctil v. (xxxiii. 347) 30, 433, 603 Quebec City, Bell Telephone Co. v. (xx. 230) 54 Quebec City v. Can. Pac. Ry. Co. (xxx. 73) 10, 152, 1223, 1376 Quebec City v. Grand Trunk Ry. Co. (xxx. 73) . .10, 152, 1223, 1376 Quebec City, Lefebvre v. (Cass. Dig. 176) 1206 Quebec Citv v. Xorth Shore Ev. Co. (xxvii. 102) 464, 589, 1491 Quebec City v. Piche (Cass. 'Dig 2 ed. 497) 1447 Quebec Citv, Poulin v. (ix. 185) 795 Quebec City, Quebec Central Ry. Co. v. (x. 563) 1224 Quebec Citv, Quebec Gas Co. v. (xx. 230) 54 Quebec City v. Quebec St. Ry. Co. (xv. 164) 890 Quebec Citv v. The Queen (xxiv. 420) 285, 958, 1349 Quebec Coiintv Election Case (xiv. 429) 78, 503 Quebec Fire Ins. Co. v. Bank of Toronto (27th April, 1900) . . 101 Quebec Gas Co. v. City of Quebec (xx. 230) .i4 Quebec Harbours Commissioners, Peters v. (xix. 685) 321 Quebec Ins. Co. v. Eaton (May, 1900) 1107 Quebec, Montmorency & Charlevoix Ey. Co. v. Gibsone (xxix. 340) ' 379, 605, 1197, 1234 Quebec, Montmorency & Charlevoix Ev. Co., Gibsone v. (xxix. 340) ' 379, 605, 1197, 12.34 Quebec, Montmorency & Charlevoix Ey. Co. v. Mathieu (xix. 426) 9^-137. 1W5 Quebec N. S. Turnpike Trustees, Parent v. (xxxi. 556). .211, ^ , 471, 1407 Quebec N. S. Turnpike Trustees 'V. V&ina (Cass. Dig. 758) .. . 646, 1180 Quebec Pharmaceutic Association v. Brunet (xiv. 738) 1045 Quebec Pharmaceutic Association v. Livernois (xxx. 400) . . 68, 1056 3 . c . D . — 55 1650 INDEX TO NAMES OP CASES. i-AGE. Quebec Pharmaceutic Association v. Livernois (xxxiii. 43) ... . 68, 1351, 1353, 1354 Quebec St. Ry. Co. v. City of Quebec (xv. 164) 890 Quebec Warehouse Co. v. Town of Levis (xi. 666) 887 Queddy River Boom Co. v. Davidson (x. 222) 295, 1268 Queen, The Abrahams v. (vi. 10) 398 Queen, The, Amer v. (ii. 592) 105, 127, 406 Queen, The, Archibald v. (xxiii. 147) 1173 Queen, The, v. Armour (xxxi. 499) 100, 1114 Queen, The, Arpin v. (xiv. 736) 93 Queen, The, Balderson v. (xxviii. 261) 246, 1359 Queen, The, v. Bank of Xova Scotia (xi. 1) 415, 1560 Queen, The, Banque Jacques-Cartier v. (xxv. 84) 183 Queen, The, v. Beaulieu (1 Ex. C. R. 191) 136 Queen, The, v. Beileau (vii. 53) 1180 Queen, The, Berlinquet v. (xiii. 26) 337, 1114 Queen, The, Bigelow v. (xxxi. 128) 233 Queen, The, v. Black (xxix. 693) .-.407, 749, 1071, 1390 Queen, The, v- Boucher (Cass. Dig. 325) 104, 635 Queen, The, v. Bradley (xxvii. 657) 1358 Queen, The, Brigham v. (xxx. 620) 608, 1443 Queen. The, Brisbois v. (xv. 421) , . 399 Queen, The, Bulmer v. (xxiii. 488) 340, 410, 423 Queen, The, Burroughs v. (xx. 420) 410, 796 Queen, The, v. Canada Sugar Refining Co. (xxvii. 395) . . 770, 1344 Queen, The, v. Can. Agricultural C. & C. Co. (xxiv. 713) .418, 834 Queen, The, Carter Macy & Co. v. (Audette Ex. Ct. Prac. 115).. 128 Queen, The, Carter Macy & Co. v. (xviii. 706) 427 Queen, The, v. Charland (xiv. 721) 47, 608 Queen, The, v. Chesley (xiv. 306) 574 Queen, The, Chevrier v. (iv. 1) 1052, 1415 Queen, The, v. Cimon (xxiii. 62) 324 Queen, The, v. Clark (xxi. 656) 87 Queen, The, v, Coombes (xxvi. 13) . . ■. 1190 Queen, The, Cunningham v. (Cass. Dig. 194) 401 Queen, The, v. Dartmouth (Cass. Dig. 515) 118 Queen, The, v. Town of Dartmouth (ix. 509) 808 Queen, The, Dartmouth v. (xiv. 45) 164 Queen, The, v. Demers (xxii. 483) 296, 1439 Queen, The, Dionne v. (xxiv. 451) 1043 Queen, The, v. Doutre (vi. 343) 392 Queen, The, Downie v. (xv. 358) 398 Queen, The, v. Dunn (xi. 385) 22 Queen, The, Ellis v. (Cass. Dig. 133) 89 Queen, The, Ellis v. (xxii. 7) 90, 300, 402 Queen, The, Fairbanks v. (xxiv. 711) 601 Queen, The, v. Farwell (xxii. 553) 284, 1085, 1244 Queen, The, Farwell v. (xiv. 392) 417, 1438 Queen, The, v. Filion (xxvi. 482) 822, 924, 943, 957 Queen, The, v. Fredericton, Mayor of (iii. 505) 281 Queen, The, "Frederick Gerring, jr." v. (xxvii. 271).. 278, 612, 1459 Queen, The, Goodwin v. (xxviii. 273) 341 Queen, The, Grant v. (xx. 297) 407, 422, 1099 INDEX TO NAMES OF CASES. 1651 PAGE. Queen, The, v. Grenier (xxx. 42) . .15, 249, 287, 702, 802, 822, 825, 924, 967, 1203, 137G Queen, The, Grinnell v. (xvi. 119) 427, 1354 Queen, The, Guay v. (xvii. 30) . ; 1195 Queen, The, Halifax City Ey. Co. v. (Cass. Dig. 37, 679) 1106, 1118, 1225 Queen, The, v. Henderson (xxviii. 425) . . . . . .342, 728, 1174, 1359 Queen, The, The " Henry L. Phillips " v. (xxv. 691) 611 Queen, The, Hereford Ey. Co. v. (xxiv. 1) z92, 1221 Queen, The, v. Hubert (xiv. 737) 136 Queen, The, Humphrey v. (xxv. 91) 305, 407 Queen, The, Isbester v. (vii. 696) 1173 Queen, The, Jacobs v. (xvi. 433) 400 Queen, The, Jacques- Cartier Bank v. (xxv. 84) . .183, 197, 386, 340 Queen, The, John v. (xv. 384) 399 Queen, The, Jones v. (vii. 570) 333 Queen, The, Kearney v. (Cass. Dig. 213) 601 Queen, The, Laliberte v. (i. 117) 73, 550, 977, 1350 Queen, The, Levis, Town of, v. (xxi. 31) 95 Queen, The, Lord v. (xxxi. 165) 133, 1079 Queen, The, Maritime Bank Liquidators v. (xvii. 657).. 187, 416, 1562 Queen, The, v. Martin (xx. 240) 407, 790, 960, 1204, 1354 Queen, The, Mayes v. (xxiii. 454) 339 Queen, The, v. Mayor of Predericton (iii. 605) 281 Queen, The, v. McParlane (vii. 216) 22 Queen, The, McParlane v. (xvi. 393) 400, 552, 1066 Queen, The, v. McGreevy (xiv. 735) 124 Queen, The, v. McGreevy (xviii. 371) 339 Queen, The, McGreevy v. (xix. 180) 143, 145 Queen, The, Mcintosh v. (xxiii. 180) 2, 74, 402 Queen, The, v. McLean (Cass. Dig. 399) 727 Queen, The, Maclean v. (4 Ex. C. E. 257) 133, 1116 Queen, The, v. MacLean (viii. 210) 336 Queen, The, v. McLeod (viii. 1) 1190, 1213 Queen, The, McQueen v. (xvi. 1 ; Cass. S. C. Prac. 108) . . 1114, 1255 Queen, The, Merchants Bank v. (Cass. Dig. 636) 241 Queen, The, The " Minnie " v. (xxiii. 478) 577 Queen, The, Morin v. (xviii. 407) 400 Queen, The, Morin v. (xx. 515) 412, 961, 1208 Queen, The, v. Montminy (xxix. 484) . . .32, 423, 1298, 1398, 1501 Queen, The, v. Moss (xxvi. 322) 299, 409, 912, 1006, 1268 Queen, The, v. Murphy (Cass. Dig. 314) 96 Queen, The, Murray v. (xxvi. 203) 23, 341 Queen, The, v. Nevins (Cass. Dig. 427) 71, 384 Queen, The, O'Brien v. (iv. 529 ; Cass. Dig. 686) 333, 1118 Queen The, O'Brien ex rel. Pelitz (xvi. 197) 82, 300 Queen, The, Ogilvie v. (xxix. 299) 447, 1040 Queen, The, The " Oscar & Hattie " v. (xxiii. 396) 569 Queen' The, Pacaud v. (xxix. 637) 10, 569 Queen, The, Paint v. (xviii. 718) : 604, 1199 Queen, The, v. Paradis (1 Ex. C. E. 191) 136 Oupen The " Phillips, Henrv L.," v. (xxv. 691) 61] Queen," The, v. Poirier (xxx. 36) 119, 461, 549, 765, 1129 Queen^ The, Preeper v. (xv. 401) 399 1652 INDEX TO NAMES OF CASES. Queen, The, City of Quebec v. (xxiv. 430) 385, 958, 1349 Queen, The, Quirt v. (xix. 510) 283, 425, 1562 Queen, The, v. Eobertson (vi. 52) 609, 1267 Queen, The, v. Eobinson (xxv. 693) 1174 Queen, The, Ross v. (xxv. 564) 1246, 1338 Queen, The, St. Catharines M. & L. Co. v. (xiii. 577) 655, 1391 Queen, The, St. John Water Commissioners v. (xix. 125) .410, 1173 Queen, The, St. Louis v. (xxv. 649) 578 Queen, The, Schultze v. (6 Ex. C. R. (note) 273) 114, 1127 Queen, The, Scott v. (iii. 349; Cass. Dig. 681) 397, 1111 Queen, The, Severn v. (ii. 70) 289, 794, 1067 Queen, The, v. Smith (Cass. Dig. 664) 322 Queen, The, Smith (x. 1) 336 .Queen, The, v. Starrs (xvii. 118) 138, 140, 338, 388 Queen, The, v. Taylor (i. 65) 46, 1343 Queen, The, Theal v. (vii. 397) 398 Queen, The, Toronto Ey. Co. v. (xxv. 24; Cass. S. C. Prac. 87) . 428, 738, 1194 Queen, The, v. Trepannier (xii. Ill) 633, 1116 Queen, The, S. S. "Troop" Co. v. (xxix. 662). .48, 233, 583, 748, 812, 1324, 1375 Queen, The, Tylee v. (vii. 65l) 1254 Queen, The, Union Colliery Co. v. (xxxi. 81) 253, 405 Queen, The, Vezina v. (xvii. 1) 1194 Queen, The, Viau v. (xxix. 90) 74, 123, 404, 1351 Queen, The, Windsor and Annapolis Ey. Co. v. (x. 335) 1445 Queen, The, Wood v. (vii. 631) '. 390 Queen, The, Wood v. (vii. 634) 335 Queen, The, v. Woodburn (xx^x. 112) 114, 343, 1174 Queen, The, Wright v. (15th March, 1895) 1119 Queen, The, v. Yule (xxx. 24) 379, 1375, 1445 Queen Ins. Co., Nixon v. (xxiii. 36) .> 676 Queen Ins. Co. v. Parsons (Cass. Dig. 695) 1164 Queen Ins. Co. v. Parsons (iv. 215) 685 Queen's County Election Case; Davies v. Hennessy (xx. 36) . . 515, 528, 1081 Queen's County Election Case; Jenkins v. Breeken (vii. 247) . . 505, 532, 608 Quirk V. Thomson (xviii. 695) 237, 243 Quirt V. The Queen (xix. 510) 283, 425, 1562 E. Eadenhurst, Draper v. (xvi. 714) 1428 Eainville, Grand Trunk Ey. Co. v. (xxix. 201) 966, 1207 Ealeigh, Township of, Dillon v. (xiv. 739) 538 Ealeigh, Township of, Harwich v. (18th May, 1895) 58 Ealeigh, Township of, Williams v. (xxi. 103) 482 Eamsay, City of Montreal v. (xxix. 398) 866, 894 Eamsay, Eei'd v. (Cass. S. C. Prac. 81, 83 ; Cass. Dig. 420, 421) . 87, 384, 1101 Eand, Chapman v. (xi. 312) 333 Eandall, Home Life Ass. v. (xxx. 97) 13, 370, 1050, 1075 Rankin, Eoblee v. (xi. 137) 82, 195, 639 Eaphael v. McFarlane (xviii. 183) .■ „ 1467 INDEX TO NAMES OE CASES. 1653 Eaphael v. Maclaren (xxvii. 319) 64 Eatte, Booth v. (xxi. 637) 86, 128, 438, 1086, 1094 Eattray v. Larue (xv. 102) 1380, 1478 Eattray v. Young (Cass. Dig. 149, 692) 595, 1123 Eay V. Annual Conference of N. B. (vi. 308) 1342, 1526 Eay, Mills v. (xx. 169) 529 Eay, Street & Co., Isbester v. (xxvi. 79) 193, 736, 1031 Eeburn v. Ste. Anne du Bout de I'lsle (xv. 92) . 49, 902 EeceiverrGen. of Canada, Hogaboom v. (xxviii. 192).... 189, 1092, 1358, 1559 Eeceiver-Gen. of New Brunswick, Maritime Bank v. (xx. 695) . 187, 298, 416, 1556 Eecorder's Court, Pigeon v. (xvii. 495) 291 Eector of St. George's Parish v. King (ii. 43) 142 Eed Biver and Assiniboine Bridge Co., Eolston v. (Cass. Dig. 564) 1263 Eed Eiver Valley Eailway, In re Portage Extension (Cass. Dig. 487) 1226 Eeed v. Attorney-General of Quebec (viii. 408) 290 Eeed, Levi v. (vi. 482) 48, 92, 1328 Eeeves v. Geriken (Cass. Dig. 689) 1122 Eeeves, City of Halifax v. (xxiii. 340) 72, 906, 1086 Eeeves v. Perrault (x. 616) 855 Eeid V. Creighton (xxiv. 69) 337, 239 Eeid, Massawippi Valley Ey. Co. v. (xxxiii. 457) 31, 103, 211, 441, 459, 535, 758, 765, 772, 1068, 1078, 1141, 1228, 1235, 1261, 1267, 1398, 1515, 1518 Eeid V. Eamsay (Cass. S. C. Prac. 30, 64, 81; Cass. Dig. 420). . 87, 384, 1101 " Eeliance," The, v. Conwell (xxxi. 653) 39, 914 Eemillard v. Chabot (xxxiii. 328) 1385, 1533 Eenaud v. Lamothe (xxxii. 357) 11^1> 1541 Eennie v. Block (xxvi. 356) 30, 244, 860, 1280 Eennie, Utterson Lumber Co. v. (xxi. 218) 1493 Eex V. Love (14th Nov., 1901) 1105 Eex V. Harris (22nd May, 1902) ■■••••••- ■ ••;::•••• JfJl Eeynolds v. Barnard's Banking Co. (Cass. Dig. 2 ed. 170) . - . 1556 Ehind, Burris v. (xxix. 498) -^^ -465 488 ' Eice V. The King (xxxii. 480) 107, 405, 1362 Eichard & Co., Eastman v. (xxix. 438) • ■ ■ • ^^^ Eichards v. Bank of Nova Scotia (xxvi. 381) • ■ • • ■ • - ; ' -J^J tt^^t. Eichardson, Vaughan v. (xvii. 703 121, 124, 1115, 1116 Eichardson, Vaughan v. (xxi. 359) ^ -^ _• y«i Eichelieu Election Case ; Paradis v. Bruneau (xxi. 168) . ... 524 Eichelieu Election Case; Venasse v- Bruneau (xxxii. 118) . . 130, Eichelieu Navigation Co., Dixon v. (xvui. ^04) ^^. ..^^. • • ■ • • Eichford, Gray v. (ii. 431) 1078, 1129 1341, Eichmond v. Lafontaine (xxx. 155) 6^^, J^^y ?rrrw(£«T.::::«4;3S4;»3;io8i;i«.iV3-6, Eiendeau, Barnard v. (xxxi. 234) ;^*^" Eiendeau Barnard v. (11th March, 1901) • - - • 110 Eing, Pugsley v. (Cass. Dig. 241 . .^^ .^^^^ • ^492 992 Eiordan, Macdonad v (xxx. 619) 287, 357, 1022 1227, 1347 Eiou V. Eiou (xxviii. 53) 458, 495, i.iU4 505 229 1550 1506 660 1338 1654 INDEX TO NAMES OF CASES. PAGE. Eitchie, Lenoir v. (iii. 575) 80, 294, 1182 Eitchie, Montreal St. Eailway Co. v. (xvi. 632) 656 Eitchie, Snowball v. (xiv. 741) 1392 Eitchie, Synod of Nova Scotia v. (xviii. 705) 190 Eitz, Schmidt v. (xxxi. 602) 394, 1355 Eoberts v. Hawkins (xxix. 218) 936, 1461 Eoberts v. S. S. " Pawnee " v. (xxxii. 509) 40, 1325 Eoberts v. Vaughan (xi. 273) 200 Eobertson v. Davis (xxvii. 571) 33, 196, 1163 Eobertson v. Grand Trunk Ky. Co. (xxiv. 611) 1187, 1370 Eobertson v. Jnnkin (xxvi. 192) 1032, 1540 Eobertson v. Lawrie (xiv. 258) 517 Eobertson v. Pugh (xv. 706) 710, 725 Eobertson v. The Queen (vi. 52) 609, 1267 Eobertson v. Taylor (xxxi. 615) 393, 593, 731, 951, 1058, 1060, 1238, 1317, 1331, 1448 Eobertson v. Wigle (xv. 214) 124 Eobertson v. Wigle (xvi. 720) 1320 Eobillard, Caverhill v. (ii. 575) 538, 1461, 1483 Eobin V. Duguay (xxvii. 347) 1382, 1484, 1530 Eobinson, Bank of Nova Scotia v. (6th June, 1896) 556 Eobinson, Can. Fire Ins. Co. v. (xxxi. 488) 352, 672, 1156 Eobinson, Can. Fire Ins. Co. v. (9th Oct. 1901) 1105 Eobinson, Can. Pa. Ey. Co. v. (xiv. 105) 430, 994, 1328 Eobinson, Can. Pa. Ey. Co. v. (xix. 292) 791, 801, 1053 Eobinson, Chisholm v. (xxiv. 704) 1426 Eobinson, Harris v. (xxi. 390) 1334 Eobinson, Mann v. (xxxi. 484) 196, 238 Eobinson, New Brunswick Ey. v. (xi. 688) 1214 Eobinson, Purdom v. (xxx. 64) 1406 Eobinson, The Queen v. (xxt. 692) 1174 Eobitaille, Leblanc v. (xxxi. 582) 424, 1436 Eoblee v. Eankin (xi. 137) 82, 195, 629 Eoche, King v. (xxvii. 219) 79, 504 Eodbum v. Swinney (xvi. 297) 1147 Eodier v. Lapierre (xxi. 69) 55, 1335 Sogers, Adamson v. (xxvj. 159) 772 Eogers v. Duncan (xviii. 710) 494 Eogers v. Toronto Public School Board (xxvii. 448) 918 • Eolland, Caisse d'Economie de Quebec v. (xxiv. 405) 454 Eolston V. Eed Eiver & Assiniboine Bridge Co. (Cass. Dig. 564) 1263 Eombough, Balch & Peppard v. (13th June, 1900) 432, 609, 940. 1918 Eomney, Township o'f, Sutherland-Innes Co. v. (xxx. 495) .484, 883 Eooker v. Hoofstetter (xxvi. 41) 849, 1000, 1233 Eooney, Schroeder v. (Cass. Dig. 403, 434) 97 Eose V. Hickey (Cass. Di?. 534) 588 Eose V. Peterkin (Cass. Dig. 535) . . , 851 Eose V. Peterkin (xiii. 677) . .'. 1333 Eosenberger, Grand Trunk Ey. Co. v. (ix. 311) 1314 Eoss V. Barry (xix. 360) 360 Eoss, Collins v. (xx. 1) ' 536, 536 Eoss, Doran v. (Cass. Dig. 829) 7 Eoss V. Hannan (xix.'337) 1374 Eoss, Holland v. (xix. 566) 420 liNTDBX TO NAMES OF GASES. 1655 PAGE. Boss V. Hunter (vii. 289) 467, 1000, 1336 Eoss V. Hurteau (xviii. 713) I273 Eoss V. The King (xxxii. 532) 428 Eoss V. Laird (Cass. Dig. 351) " 619 Eoss, Pontiac, County of, v. (xvii. 406) y. ........... . 880 Eoss, The Queen v. (xxv. 564) 1246' 1338 Eoss V. Eoss (Cass. Dig. 2 ed. 306) 596' 1543 Eoss V. Eoss (xxv. 307) 731^ 768,' 1545 Eothery, German v. (xx. 376) 523 Eourke v. Union Ins. Co. (xxiii. 344) 707, 1279, 1464 Eousseau v. Bui-land (xxxii. 541) . . .'.479, 480, 726, 813,' 1234,' ]239, 1318, 1332, 1386, 1427, 1.515 Eouville Election Case (xxi. 28) 533 Eowan v. Toronto Ey..Co. (xxix. 717) 744^ 928, 988 Eoy, Corporation of Aubert-Gallion v. (xxi. 456) '....'. 1441 Eoy, Davis v. (xxxiii. 345) 69 Eoy, Martin v. (Cass. Dig. 682) 1111 Eoy, Price v. (xxix. 494) 928^ 931 Eoy, Quebec Bridge Co." v. (xxxii. 572) 605, 1198, 1455 Eoyal Canadian Ins. Co., Gerow v. (xvi. 524) 712 Eoyal Canadian Ins. Co., Smith v. (Cass. Dig. 385) * . 722 Eoyal Electric Co. v. H6ve (xxxii. 462) 499, 933 Eoyal Electric Co. v. Leonard (xxiii. 298) 353 Eoyal Electric Co., Starr, Son & Co. v. (xxx. 384) 364, 1159 Eoyal Electric Co. v. City of Three Bivers (xxiii. 289) 325 Eoyal Ins. Co. v. Duffus (xviii. 711) 553, 978 Eoyal Templars v. Hargrove (xxxi. 385) 115, 1127 Eudolph, British & Foreign Mar. Ins. Co. v. (xxviii. 607) . . 581, 721 Bumsey, Merchants Mar. Ins. Co. v. (is. 577) 716 Bussell V. Lefrangois (viii. 335) 608, 1522 Eussell V. Lefrangois (Cass. Dig. 679) 1106 Bnttan, Trust & Loan Co. v. (i. 564; Cass. Dig. 688) 461, 1122 - Eyan, Clarkson v. (xvii. 251) 117, 169, 289, 739 Eyan, Darling v. (Cass. Dig. 435) 57 Eyan v. Eyan (v. 387, 406) 92, 1417 Eyan, Whelan v. (xx. 65) 163 Eyan v. Willoughby (xxxi. 33) 329, 875 Eykert, St. John v. (x. 278) 727, 787 S. St. Andrews Church, Johnston v. (i. 235) 13 Ste. Anne du Bout de I'Isle, Eeburn v. (xv. 921) , . 49, 902 St. Catherines Milling Co. v. The Queen (xiii. 577) 655, 1391 St. Cesaire Parish v. McFarlane (xiv. 738) 1210 St Charles School Commissioners v. Cordeau (9th Deer. 1895) 89, 808, 1078 Ste. Cunegonde, City of, v. Gougeon (xxv. 78) 62, 869, 1352 Ste. Cunegonde, City of, Montreal v. (xxxii. 135) 433, 485 Ste. Cunegonde, City of, v. St. Henri (xxxii. 135) 433, 485 Ste. Cunegonde, Town of, v. Westmount (xxxii. 135) . . . .433, 485 St. Gabriel Village, St. James v. (Cas;^. Dig. 147) _. . 377 St Gabriel School Commissioners v. Sojurs de la Congregation (xii. 45) 157 St- Georges Parish v. King (ii. 143) 142 1656 INDEX TO NAMES OF CASES. PAGE. St. Henri, City of, Ste. Cunegonde v.-(xxxii. 135) . .433, 485 St. Henri, City of, v. St. Laurent (xxvi. 176) 99, 608, 1514 St. Hyacinthe Gas Co. v. St. Hyaeinthe H. P. Co. (xxv. 168) . . 897, 1371 St. Jacques, Ottawa Electric Co.- v. (xxxi. 636) • 316, 499 St. James v. St. Gabriel (Cass. Dig. 147) 377 St. James Election Case; Bunnet v. Bergeron (xxxiii. 137). 530, 1082 St. Jean Baptiste Asstn. v. Brault (xxx. 598) . .293, 357, 404, 802 St. Jean Baptiste Asstn. v. Brault (xxxi. 173) 117, 287 St. Joachim de la Pointe Claire v. Pointe Claire Turnpike Eoad Co. (xxiv. 486) 907, 1354 St. John V. Rykert (x. 278) 727, 787 St. John, City of, v. Campbell (xxvi. 1) •. 899 St. John, City of, v. Christie (xxi. 1) 898 St. John, City of, Edwards v. (Cass. Dig. 48) 155 St. John, City of, Jones v. (xxx. 122) 155, 476, 866 St. Johh, City of, Jones v. (xxxi. 320) 147, 1250 St. John, City of, v. Macdonald (xiv. 1) 926 St. John,. City of, McSorley v. (vi. 531) " 152, 816, 1463 St. John, City of, v. Pattison (Cass. Dig. 173) 904 St. John, City of, Peters v. (Cass. Dig. 56) 150 St. John, City of. Sears v. (xviii. 703) 757 St. John, City of, Timmerman v. (xxi. 691) 117, 149 St. John City Ey. Co., Hesse v. (xxx. 318) 744, 993 St. John City Ey. Co., Smith v. (xxviii. 603) 77, 391 St. John City Water Commissioners v. The Queen (xix. 125) . 410, 1173 St. John Gas Light Co. v. Hatfield (xxiii. 164) 821 St. John Y. M. C. Assn. v. Hutchison (Cass- Dig. 210) . .437, 919, 997 St. Johns, Town of, Central Vermont Ey. Co. v. (xiv. 288) . . 158, 391, 655, 1369 St. Laurent, Montreal Gas Co. v. (xxvi. 176) 99, 608, 1514 St. Laurent v. Mercier (xxxiii. 314) 419, 833 St. Laurent, St. Henri v. (xxvi. 176) 99, 608, 1514 St. Lawrence & Ottawa Ey. Co. v. Lett (xi. 422) '. 430 St. Louis, Dallas v. (xxxii. 201) 878, 945, 1361 St. Louis, Dansereau v. (xviii. 587) ' 193, 511 St. Louis v. The Queen (xxv. 649) 578 St. Louis, Shaw v. (viii. 385) : 81 " St. Magnus," The, (xv. 214) 134 " St. Magnus/' The (xvi. 720) 1320 St. Marc School Commissioners, Langevin v. (xviii. 599) . .84, 808 St. Paul F. & M. Ins. Co. v. Troop (xxvi. 5) 714 St. Eose, Dubois v. (xxi. 65) 55 St. Stephens's Bank v. Bonness (xxiv. 710) 746 St. Stephen, Town of, v. Co. of Charlotte (xxiv. 329) 224, 892 St. Stephen, Town of, v. Co. of Charlotte (8th Nov., 1894) . . . 1104 St. Valentin School Commissioners, Tremblay v. (xii. 546) . 1296 St. Victoire School Commissioners v. Hus (xxix. 477) 1296 Ste. Vierge, Les Cure, &c., Bank of Toronto v. (Cass. Dig. 687) 1119 Sales, Lake Brie & D. R. Ey Co. v. (xxvi. 663) . .203, 317, 608, 1050, 1187 Salterio, Citizens Ins. Co. v. (xxiii. 155) 677 INDEX TO NAMES OF CASES. 1657 PAGE. Salterio, City of London Ins. Cb. v. (xxiii. 32) .'. . 676 Salvas V. Vassal (xxvii. 68) '. 1064, 1286 Sampson, Martin v. (xxvi. 707) .' 132 Samo, Gore Dist. Mut. Fire Ins. Co. v. (ii. 411) 695 Samuel, Craig v. (xxiv. 278) I99, 1039 Sanderson, McKercher v. (xv. 296) .' 1428 Sangster, Hood v. (xvi. 723) 51 Sangster, T. Eaton Co. v. (xxiv. 708) 946 Sansterre, Guertin v. (xxvii. 522) 21, 216, 1472, 1485 " Santanderino," The, v. Vanvert (xxiii. 145) 98, 608 Sargeant, Agricultural Ins. Co. v. (xxvi. 29) 1160 Sault Ste. Marie Pulp & P. Co. v. Myers (xxxiii. 23) i)«3 Savoie, Castonguay v. (xxix. 613) . . . .' 667, 1474 Scammell v. Clarke (xxiii. 307) 984 Scammell v. James (xvi. 593) 46, 76, 105, 125, 128, 1131 Scanlan, Western Ass. Co. v. (xiii. 207; Cass. Dig. 681) . .718, 1111 Sehlomann v. Dowker (xxx. 323) 126, 383, 545, 1109 Schmidt v, Eitz (xxxi. 602) 394, 1355 Schofield, Carvill v. (ix. -370) 303 School Commissioners of St. Charles v. Cordeau (9th Dec, 1895) 89,808, 1078 School Commissioners of St. Marc, Langevin v. (xviii. 599) .84, 808 School Commissioners of Ste. Victoire, Hus v. (xix. 477) 1296 School Commissioners of St. Valentin, Tremblay v. (xii. 546) . . 1296 School Commissioners for Three Eivers, Lariviere v. (xxiii. 723) 60 Schroeder v. Eooney (Cass. Dig. 403, 434) 97 Schultz V. Wood (vi. 585) 1124, 1493 Schultze V. The Queen (6 Ex. C. E. (note) 273) 114, 1127 Schwersenski v. Vineberg (xix. 243) 94, 587, 608 Schwob V. Town of Famham (xxxi. 471) 790, 1044 Scoble, Sinnott v. (xi. 571) 419 Scott, Bank of New Brunswick v. (xxi. 30) 95, 995 Scott, Bank of New Brunswick v. (xxiii. 277 447 Scott V. Benedict (xiv. 735) 781 Scott, British Columbia Mills Co. v. (xxiv. 702) ". . . 936 Scott, The Queen v. (ii. 349 ; Cass. Dig. 681) 397, 1111 Scotten, Barthel v. (xxiv. 367) 462, 768, 1260, 1269 Scottish Can. Asbestos Co., In re (xviii. 667) . .257, 282, 614, 1554 Scottish Imperial Ins. Co. v. Clark (iv. 192, 706) 691 Scottish Imperial Ins. Co., Clark v. (Cass. Dig. 688) 1120 Scottish Ontario & Manitoba Land Co., Jellett v. (xxvi. 282) . . 592, 1238 Scottish Union & Nat. Ins. Co., Barrin^on v. (xviii. 615) 84 Scoullar v. MeColl (24th March, 1896) 1152 Scribner, Kinloch v. (xiv. 77) 1272 Scully Atty.-Gen. of Ontario v. (xxxiii. 16) 116, 808 Sea V McLean (xiv. 632) 374, 1281, 1248 Seaman, West v. (Cass. Dig. 388) 723 Sears v. St. John (xviii. 702) 757 Seath V. Hagar (xviii. 715) 105 Seeley Cox v. (6th May, 1896) 199, 378, 555, 1059 Seeton v. King (xviii. 712)_. . . 358 Seffsworth v. Anderson (xxiv. 699) 667 Seid Sing Kaw v. Bowes (17th May, 1898) 104, 638, 1117 1658 INDEX TO NAMES OF CASES. Selkirk Election Case (iv. 494) 510, 513 Seminary of Ste. Therese, Can. Pae. Ey. Co. v. (xvi. 606) . .70, 141, 1194 Sdnesae v. Central Vermont Ey. Co. (xxvi. 641) 562, 965, 1207 Severn v. Archer (Cass. Dig. 2 ed. 875; 12 Ont. P. E. 472) . . 46, 1128, 1538 Severn, The Queen v. (ii. 70) ' 289, 794, 1067 Sevrell v. British Columbia Towing Co. (Cass. Dig. 480, 481, 670, 675, 679) 112, 233, 273, 1107,' 1118 Sewell V. British Columbia Towing Co. (ix. 527) 251, 914, 987, 1073, 1090, 1121 Seybold, Ontario Mining Co. v. (xxxi. 125) 115, 1126 Seybold, Ontario Mining Co. v. (xxxii. 1) 1436 Seymour, Lynch v. (xv. 341) 828 Shairp, Lakefield Lumber & Mfg. Co. v. (xix. 657) .' 420 Shanly v. Pitzrandolph (Cass. Dig. 279) 540 Shannon, Hastings Mut. Fire Ins. Co. v. (ii. 394) 689 Shannon, Montreal P. & I. Ey. Co. v. (xxviii. 374) . . .65, 134, 1196 Shaw v. Caldwell (xvii. 357) '. \ . 1029 Shaw, Caa. Pac. Ey. Co. v. (xvi. 703) 83, 471 Shaw, McKenzie v. (vi. 181) 225 Shaw V. St. Louis (viii. 385) 81 Shea, Boulton v. (xxii. 742) 771 Shelbume Election Case; Eobertson v. Lawrie (xiv. 258) .... 517 Shelburne Election Case; White v. Greenwood (xx. 169) 529 Shelbume Municipality, Marshall v. (xiv. 737) : 573 " Shenandoah," The, and The "Crete" (xxxiii. 1) 40, 915 Sherbrooke, City of, v. McManamy (xviii. 594) 52 Sherbrooke, City of, Webster v. (xxiv. 52) 60, 865 Sherbrooke St. Ey. Co. v. Kerr (7th Nov., 1899) 972, 994 Sheridan, Ottawa Agri. Ins. Co. v. (v. 157) 693 Sheriff, Swim v. (Cass- Dig. 142) 1312 -Sherren v. Pearson (xiv. 581) 1139, 1423 Shields v. Leacock (Cass. Dig. 604) 1025 Shields v. Peak (viii. 579) 81, 387, 664 Shirreff, Muirhead v. (Cass. Dig. 684) 1119 Shirreff, Muirhead v. (xiv. 735) 1087, 1329 Shirreff, Swim v. (Cass. Dig. 142) 1312 Shoolbred v. Clark (xvii. 265) 1094, 1554 Shoolbred v. Union Fire Ins. Co. (xiv. 624) 1554 . Shorey v. Jones (xv. 398) 488 Short, Federation Brand Salmon Canning Co. v. (xxxi. 378) . . 1038 Shortreed, Bew v. (Cass. Dig. 500) 783 Sibbald, Grand Trunk Ey. Co. v. (xx. 359) 960, 1193, 1316 Sills, Ostrom v. (xxviii. 485) 491, 1517 Silver, Dominion Telegraph Co. v. (x. 238) 773, 985 Simonds v. Chesley (xx. 174) 991 Simonneau, Frechette v. (xxxi. 12) 68 Simpson, Meloche v. (xxix. 375) 469, 792, 1234, 1385, 1405 Simpson v. Palliser (xxix. 6) 106, 396 Sinclair v. Preston (xxxi. 408) 448, 728 Sinnott v. Scoble (xi. 571) 419 Skelton v. Evans (xvi. 637) - T. . . .754, 759. Skinner v. Farquharson (xxxii. 58) 1533 Slater v. Badenach (x. 296) 164, 658 INDEX TO NAMES OF CASES. 1659. PAGE. Sleeth v^ I-Iurlbert (xxv. 620) 234, 547, 1066, 1246, 1299, 1513 Sloan, Edgar v. (xxiii. 644) 264, 267, 1470, 1559 bmali V. Thompson (xxviii. 219) 407 815 Smart, In re (zvi. 396) '_'l04 131 635' 1117 Smith V. Bank of Nova Scotia (viii. 558) ...'.".'.' ' '.185,' 1308 Smith, Can. Pac. Ey. Co. v. (xxxi. 367) . .928, 968, 1192,' I203' 1318 Smith, City of London Fire Ins. Co. v. (xv. 69) 143, 696 Smith, Corbett v. (1st May, 1893) ' 538 Smith V. Goldie (xi. 46; Cass. Dig. 689) 736^ IO33', 1123 Smith, Halifax Banking Co. v. (xviii. 710) 553 Smith, Hawkins v. (viii. 676 ; Cass. Dig. 686) 506, 1113 Smith, McGugan v. (xxi. 263) I334 Smith V. McLean (xxi. 355) 30(; Smith, Merchants Bank v. (viii. 572) 282, 1509 Smith, Merchants Bank v. (Cass. Dig. 688) 1130 Smith V. Eoyal Canadian Ins. Co. (Cass. Dig. 385) 722 Smith, The Queen v. (Cass. Dig. 634) 323 Smith, The Queen v. (x. 1) 336 Smith, St. John City Ey. Co. v. (xxviii. 603) 77, 391 Smith, Thompson v. (xxvii. 638) 1540 Smith, Wiley v. (ii. 1) 1378 Smith, Young v. (iv. 494) 510, 512 Smyth V. McDougall (i. 114) 1093, 1100, 1333 Snell, Toronto Ey. Co. v. (xxxi. 241) 536, 834, 972, 1455 Snetsinger v. Peterson (23rd May, 1894) 146 Snider, Boyd v. (xxvii. 201, 319) 79, 504, 534 Snow, Eider v. (xx. 12) 124, 384, 533, 1081, 1133, 1136, 1338 Snowball v. Neilson (xvi. 719) 735 Snowball v. Eitchie (xiv. 739) 1393 Snowball v. Stewart (Cass. Dig. 570) 983 Societe Canadienne-Francaise, &c. v. Daveluy (xx. 449).. 129, 316, 1062 Societe de Con. Metropolitaine, Baker v. (xxii. 364).. 1077, 1140, 1402 Societe de Frets et de Placements de Quebec, Lachance v. (xxvi. 200) 62, 1141 Sceurs de La Providence v. Maire de Terrebonne (Cass. Dig. 434) 'i'^ 384 Soeurs de Notre Dame v. School Commissioners de. St. Gabriel (xii. 45) ■• -IS^ Sombra, Township of, v. Township of Chatham (xxi. 305) . . 483, 1006 Sombra, Township of, v. Township of Chatham (xxviii. 1).. 88oj 1517 Somerville v. Laflamme (ii. 216) ■ ■ • ■ 508, 518 Soper V. Littlejohn (xxxi. 572) _. • • ■ • -^^^ ■ • •^53, 761, 1506 Soulanges Election Case; Cholette v. Bam (x. 652) ... ■■••■.•• ^^^ Soulanges Election Case ; Filiatrault v. De Beaujeu ( Ca^^- Dig- 676,682) ■ 503,1111.1113, 11.^ South Dufferin v. Morden (xix. 204) ^95, «b4 South Norwich, Huson v. (xxi. 66_9_)^ ^-^- ^»^^ 509 551 South Norwich^ Huson v. (xxiv. 145) 389, 1348 Souther, Wdlaee v." (Cass. Dig. 672, 682) ^02 South Ontario Election Case (iii. 641) Souther, Wallace v. (ii. 598} , 1660 INDEX TO NAMES OP CASES. PAGE. Souther, Wallace v. (xvi. 717) 194, 199, 201, 201 ■Southwest Boom Co. v. McMillan (iii. 700) 118, 1051 Sovereign Fire Ins. Co. v. Moir (xiv. 613) 675 Sovereign Fire Ins. Co. v. Peters (xii. 33) 674 Sparks, Wolff v. (xxix. 585) 1346, 1540 Spears v. Walker (xi. 113) 356 Sperry, Kaulbach v. ; Lunenberg Elec. Case (xxvii. 236) .... 537 Spinney v. Ocean Mut. Mar. Ins. Co. (xvii. 336) 715 Spratt V. B. B. Eddy Co. (xxix. 411) 310 Springer v. Exchange Bank of Canada (xiv. 716) 1387 Sproule, In re (xii. 140) 634, 1318 Spurr V. Albert Mining Co. (ix. 35) 303 ,Spurr, Venning v. (ix. 306) 611 Stadacona F. & L. Ins. Co., Caldwell v. (xi. 313) 650, 693 Stadacona P. & L. Ins. Co., Cote v. (vi. 193; Cass. Dig. 682, 683) : . ; 261, 1102, 1111 Stammers, O'Donohue v. (xi. 358) 1488 Standard Fire Ins. Co., Caston's Case (xii. 644) 267, 1562 Standard Fire Ins. Co., Parsons v. (v. 233) 674 Standard Life Ins. Co. v. Trudeau (xxx. 308) 67, 1056 Standard Life Ins. Co. v. Trudeau (xxxi. 376) 698, 701, 1155 Standly v. Perry (iii. 356) 1363, 1403 Stanstead, Beach v. (xxix. 736) 15, 800, 893 Stanstead Election Case (xx. 12) 124, 384, 523, 1081, 1122, 1136, 1338 Stanton v. Canada Atlantic Ey. Co. (Cass. Dig. 430) 89 Starr, Son & Co. v. Eoyal Electric Co. (xxx. 384) 364, 1159 Starrs v. Cosgrave B. & M. Co. (xii. 571 ; Cass. Dig. 697) . .113, 1387 Starrs, The Queen v. (xvii. 118) 138, 140, 338, 388 Steadman, Venning v. (ix. 206) 611 Steel, Jamieson v. (Cass. Dig. 759) 755, 759 iSteinhoff, Plumb v. (xiv. 739) 1392 Stephens v. Boisseau (xxvi. 437) 166, 450, 1040 Stephens v. Chausse (xv. 379) 74, 943, 1110 Stephens v. Gerth (xxiv. 716) 61, 1564 Stephens, Gillespie v. (xiv. 709) 7 Stephens v. Gordon (xxii. 61) 331 Stephens, Higgins v. (xxxii. 132) 1022, 1133 Stephens v. McArthur (xix. 446) 618 Stephenson, Eraser v. (Cass. Dig. 465) 577, 996 Stephenson, Miller v. (xvi. 722) 990, 1279 Stephenson, Williams v. (xxxiii. 333) 102, 433, 988 Stevens v. Fisk (Cass. Dig. 335) 474 Stevenson v. Canadian Bank of Commerce (xxiii. 530) 449 Stevenson v. Davis (xxiii. 639) 383, 1498 Stevenson v. Montreal & White (xxvii. 187) 63, 894 Stevenson v. Montreal & White (xxvii. 593) 1347 Stevenson, Nova Scotia Mar. Ins. Co. v. (xxiii. 137) 723 Stewart v. Atkinson (xxii. 315) 312 Stewart, Brady v. (xv. 82) 800 Stewart, The King v. (xxxii. 483) ' 313 Stewart v. Lees (Cass. Dig. 93) 308 Stewart, Maclean v. (xxv. 235) 170, 1021 Stewart, Maritime Bank v. (xx. 105) 85 Stewart, Ontario Bank v. (Cass. Dig. 571) 174 INDEX TO NAMES OF CASES. 1661 tage. Stewart, People's Nat. Bank of Charleston (Cass. Dig. 81) . . 202^ Stewart, Snowball v. (Cass. Dig. 570) 983 Stone, Mayhew v. (xxvi. 58) 38 119 1104 Stuart V. Mott (xiv. 734) ...........' .' 1023 Stuart V. Mott (xxiii. 153, 384) "..'..'..... .376, 1245 Sulivan, Kelly v. (i. 1) 70, 144, 297^ 1368 Sullivan, Kelly v. (Cass. Dig. 695) 1164 Sullivan, Lawless v. (iii. 117) 148, 1118 Suite V. Three Rivers (xi. 25) 795 Summers v. Commercial Union Ass. Co. (vi. 19) 1147 Sumner, Cole v. (xxx. 379) 350 Sun Life Ins. Co. v. Elliott (xxxi. 91) 620, 861 Sun Life Ins. Co., Prank v. (22nd May, 1894) 706. Sun Life Ins. Co., Venner v. (xvii. 394) 119, 700, 1005, 1129 Surveyer, Charlebois v. (xxvi. 556) 807 Sutherland, Cox v. (Cass. Dig. 9) 214 Sutherland-Innes C(3. v. Township of Eomney (xxx. 495) . .484, 883 Swan, Eastern Townships Bank v. (xxix. 193) .126, 1003, 1133, 1242 Sweeny v. Bank of Montreal (xii. 661) 1465- Swim V. Sheriff (Cass. Dig. 142) 1312 Swinney, Eodbum v. (xvi. 297) ' . . 1147 Sword, Sydney & Louisburg Coal & Ey. Co. v. (xxi. 152) . . 543, 1347, 1349, 1433, 1497- Sydney & Louisburg Coal & Ey. Co. v. Sword (xxi. 152) . . 543, 1347, 1349, 1433, 1497 Symes, Gingras v. (Cass. Dig. 14) 306 Syndicat Lyonnais du Klondyke, Barrett v. (xxxiii. 667) . . 108, 117, 1127, 1183 Synod of Huron, Wright v. (xi. 95 ; Cass. Dig. 673) 247, 1101 Synod of Nova Scotia v. Eitchie (xviii. 705) 190' Synod of Toronto v. DeBlaquiere (Cass. Dig. 537) 841 T. Taggart, Dueber Watch Case Mfg. Co. v. (24th April, 1900) . . ^^ ' 127, 1133 Taggart, Dueber Watch Case Co. v. (xxx. 373) 444, 1032 Talbot, Can. Col. Cotton Mills Co. v. (xxvii. 198) 579, 939 Talbot V. Guilmartin (xxx. 482) o8 Talon, Price v. (xxxii. 123) -■ ^^° Taplin, Hunt v. (xxiv. 36) ^"' -^[^ Tate, Cameron v. (xv. 622) '■'-'^' Taylor v. Cummings (xxvii. 589) 166, 450 Taylor, Cummings & Sons v. (xxviii. 337) ••.••■■••• ^^}' ^;° Taylor, Employers' Liability Ins. Co. v. ("xxix. 104) 11, b/u Taylor, Gallagher v. (v. 368) JJ° Taylor v. Moran (ix. 347) ''' Wn\' 'oki ' VnVa' T/,l„r . no^^n „„i. 01=)- »'.,«. m,«, 1058, ^^^^ Taylor, The Queen v. (i. 65) ^^- J^JJ Taylor v. Wallbridge (ii. 616) g^g T. Eaton Co. v. Sangster (xxiv. 708) . . . . . • • • ■ • • „" 1107 Templars of Temperance v. Hargrove (xxxi. 385) ... .^^. ■ i^o, ^ Temple v. Atty.-Gen. of N. S. (xxvii. 355) 763, 8.9, irf^^ Temple v.' Close (Cass. Dig. 765) 1662 INDEX TO NAMES OF CASES. I'AGE. Temple, Commercial Union Ass. Co. v. (xxix. 206) 369, 677, 679, 1001 Temple v. Nicholson (Cass. Dig. 114) 240 Temple, Western Ass. Co. v. (xxxi. 373) 339, 548, 677, 678, 849, 1050 Terrebonne Election Case (39tli Nov., 1901) 385, 517 Terrebonne, Maire, &c., v. Soeurs de la Providence (Cass. Dig. 434) 73, 384 Tew, Jermyn v. (xxviii. 497) 66, 860 Theal v. The Queen (vii. 397) 398 Therrien, Grand Trunk Ey. Co. v. (xxx. 485) 393, 1300 Thibaudeau, Benning v. (xx. 110) 666, 1063 Thompson v. Matheson (xxxiii. 57) 338, 1376 Thompson v. McGillivray (xx. 169) 539 Thompson, Molsons Bank v. (xvi. 664) 179 Thompson, Small v. (xxviii. 219) 467, 815 Thompson v. Smith (xxvii. 638) . ! '. 1540 Thomson v. Dyment (xiii. 303) 1^71 Thomson v. Matheson (xxxiii. 57) 338, 1376 Thomson v. Quirk (xviii. 695) .' 337, 343 Thome v. Thome (xxxiii. 309) 345, 1541 Thornton v. Bumham (xxxi. 314) 537 " Thrasher," The (ix- 537; Cass. Dig. 480, 481, 670, 675, 679) . 113, 351, 373, 914, 987, 1073, 1090, 1107, 1118, 1121 Three Rivers, City of, v. Banque du Peuple (xxii. 353) 330 Three Rivers, City of, Major v. (18 C. L. J. 122; Cass. Dig. 422) 71, 388 Three Rivers, Royal Electric Co. v. (xxiii. 289) 335 Three Rivers School Commissioners, Lariviere v. (xxiii. 733) . . 60 Three Rivers, City of. Suite dit Vadeboncoeur v. (xi. 35) 795 Thorold, Town of, Neelon v. (xxii. 390) 263 Tiernan, Edmonds v. (xxi. 406) 783 Timmerman, City of St. John v. (xxi. 691) 117, 149 Titus V. Colville (xviii. 709) 93 Tobin, New Glasgow Iron & Coal Ry. Co. v. (7th Nov., 1894) . . 577 Todd, Partlo v. (xvii. 196) 1451 Tooke V. Bergeron (xxvii. 567) 822, 944 Toothe V. Kittredge (xxiv. 287) 1341 Toronto, Bank of, Quebec Eire Ins. Co. v. (27th April, 1900) . 101 Toronto, City of, Atty.-Gen. of Canada v. (xxiii. 514) 911 Toronto, City of, v. Can. Pac. Ry. Co. (xxvi. 683) 893 Toronto, City of, Can. Pac. Ry. Co. v. (xxx. 337) 91, 1487 Toronto, City of, Carey v. (xiv. 173) 493, 1404 Toronto, City of, Gaston v. (xxx. 390) 154, 1366 Toronto, City of, Consumers' Gas Co. v. (xxvii. 453) 151, 866 Toronto, City of, v. Gillespie (1st May, 1893) 873 Toronto, Godson v. (xviii. 36) 1167 Toronto, City of, Gooderham v. (xxv. 346) 641, 907, 1356 Toronto, Cii;y of, Ince v. (xxxi. 323) 900, 956 Toronto, City of, Jarvis v. (xxv. 237) 882, 1233, 1356 Toronto, City of. Leak v. (xxx. 331) 602, 728 Toronto, City of, Neelon v. (xxv. 579) 325, 557 Toronto, City of, Toronto Rv- Co. v. (xxiv. 589) 971 Toronto, City of. v. Toronto Ry. Co. (xxvii. 640) 73, 1357 INDEX TO NAMES OF CASES. 1663 Toronto, City of, v. Toronto Street Ey. Co. (xxiii. 198) . .160, ''^™' Toronto, City of, Virgo v. (xxii. 447) ^^^' ^tu Toronto Diocesan Synod v. DeBlaquiere (Cass. Dig. 537) '.'.'.'. 841 Toronto Gravel Eoad Co. v. County of York (xii. 517) . 304 Toronto Junction, Town of, Christie v. (xxv 551) ' 74 431 Toronto Pub. Sch. Board, Eogers v. (xxvii. 448) " ' 918 Toronto Ey. Co., Balfour v. (xxxii. 239) 101,' 127^ 1134, 1502 loronto Ey. Co. v. Bond (xxiv. 715) 97I 1457 Toronto Ey. Co. v. Gosnell (xxiv. 682) 926 971 Toronto Ey. Co. v. Grinstead (xxiv. 570) ' ' 970 Toronto By. Co. v. The Queen (xxv. 24) 428 1194 Toronto Ey. Co. v. The Queen (Cass. S. C. Prac. 87) ' 728 Toronto Ey. Co., Eowan v. (xxix. 717) 744 928 988 Toronto Ey. Co. v. Snell (xxxi. 241) 536, 824,' 972,' 1455 Toronto Ey. Co., City of Toronto v- (xxiv. 589) 971 T;'oronto Ey. Co. v. City of Toronto (xxvii. 640) 73, 1357 Toronto St. Ey. Co., City of Toronto v. (xxiii. 198) . .160, 33l' 1456 Toronto, Synod of, v. DeBlaquiere (Cass. Dig. 537) 841 Torrance, Brown v. (xxx. 311) .34, 1390 Torrop v. Imperial Fire Ins. Co. (xxvi. 585) 312, 677^ 1153 Tourville, North British & Merc. Ins. Co. v. (xxv. 177).. 98, 608, 685 Toussignaut v. County of Nicolet (xxxii. 353) 107, 902, 909 Tracey, Young v. (Cass. Dig. 147) 315 Trainor, Black Diamond S. S. Co. v. (xvi. 156) 228 Trainor, Canada Paint Co. v. (xxviii. 352) 580, 820, 921 Travellers Ins. Co., Neill v. (9 Ont. App. E. 54) 133 Travellers Ins. Co., Neill v. (xii. 55) .' 668 Travellers Ins. Co., Neill v. (Cass. Dig. 373) 1078 Treacey v. Liggett (ix. 441) 478 Trebilcock, Walsh v. (xxiii. 695) 191, 403, 1351 Tremaine, Byron v. (xxix. 445) 356 Tremayne, Grand Trunk Ey. Co. v. (xx. 259) 960, 1192, 1216 Tremblay v. Bernier (xxi. 409) 999 Tremblay v. Davidson (10th May, 1895) 1104 Tremblay v. School Commissioners of St. Valentin (xii. 546) . . 1296 Trenholme, Mitchell' v. (xxii. 331) ' 58, 1356 Trenton, Town of, v. Dyer (xxiv. 474) 865, 1366 Trent Valley Woollen Mfg. Co. v. Oelrichs (xxiii. 682) . .367, 1149, 1272, 1450 Trepanier, In re (xii. Ill) 633, 1116 Trepanier, Ferrier v. (xxiv. 86) 125, 596, 918, 1077, 1475 Troop V. Ferguson (xvii. 527) 753 TVoop V. Hart (vii. 512) 1^3 Troop, Maritime Bank v. (xvi. 456) 187, 1554 Troop v. Merchants Mar. Ins. Co. (xiii. 506) 719 Troop, St. Paul F. & M. Ins. Co. v. (xxvi. 5) 714 "Troop," The S. S., v. The Queen (xxix. 662) . .48, 233, 583, 748, 813, 1324, 1375 Trottier, Banque du Peuple v. (xxviii. 423) 44, 66 Trudeau, Standard Life Ins. Co. v. (xxx. 308) 67, 1056 Trudeau, Standard Life Ins. Co. v. (xxxi. 376) 698, 701, 1155 Trudel, North Shore Ey. Co. v. (Cass. Dig. 793) 1393 Truro, Archibald v. (xxxi. 380) 747, 790, 884 1664 INDEX TO NAMES OF CASES. Trust & Loan Co. v. Lawrason (x. 679) 387, 857 Trust & Loan Co. v. Euttan (i. 564) 461 Trust & Loan Co. v. Ruttan (Cass. Dig. 688) 1122 Trusts & Guarantee Co. v. Hart (xxxii. 553) 630 Trustees of St. John Y. M. C. A. v. Hutchinson (Cass. Dig. 210) 437, 919, 997 Tuck, Jones v. (xi. 197) 76, 1090 Tucker v. The Kin.^ (xxxii. 722) 23, 343, 408, 1170, 1331 Tucker v. Young (xxx. 185) 73, 1126 Tufts, Chapman v. (viii. 543) 200, 1052 Tupper V. Annand (xvi. 718) 1018 Tupper, Eraser v. (Cass. Dig. 421, 677) 104, 383, 1108 Tupper V. McColl (xx. 169) 529 Tureotte v. Dansereau (xxvi. 578) 63, 739, 1012 Turcotte v. Dansereau (xxvii. 583) 32, 1012, 1079, 1089 Turnbull Real Estate Co. v. The King (xxxiii. 677).... 867, 1177, 1259 Turner v. Bennett (xxviii. 38) 129, 391, 542, 640, 1540 Turner V. Carson (xxviii. 38) 129, 391, 542, 640, 1540 Turner, Francis v. (xxv. 110) 454 Turner v. Prevost (xvii. 283) 574, 1332 Tweed & Woag v. The King (xxxii. 586) . .288, 418, 779, 831, 1004, 1042, 1169 Two Mountains Election Case (xxxi. 437) 527, 584, 1050 Two Mountains Election Case (xxxii. 55) 107, 504 Two Mountains Election Case (24th Nov., 1902) 531 Tylee v. The Queen (vii. 651) 1254 U. Union Bank of Canada, Code v. (xxxi. 594) 266, 1307, 1564 Union Bank of Canada, Kingston Forwarding Co. v. (9th Dec, 1895) 203, 541, 1054, 1481 Union Bank of Canada v. Morris (xxxi. 594) 266, 1307, 1564 Union Bank of Canada, Morris v. (xxxi. 594) 266, 1307, 1564 Union Bank of Canada v. O'Gara (xxii. 404) 1388 Union Bank of Halifax, Whitman v. (xvi. 410) . .45, 165, 206, 1135 Union Bank of Lower Canada v. Bulmer (Cass. Dig. 88) . . . . : . 198 Union Bank of Lower Canada, Dawson v. (Cass. Dig. 428) .125, 1134 Union Bank of Lower Canada v. Hochelaga Bank (Cass. Dig. 350) 845 Union Colliery Co. v. Atty.-Gen. of B. C. (xxvii. 637) 64, 734 Union Colliery Co. v. The Queen (xxxi. 81) 253, -405 Union Fire Ins. Co., In re (xvii. 265) 1094, 1554 Union Fire Ins. Co., Shoolbred v. (xiv. 624) 1554 Union Gas and Oil Stove Co., An.gus v. (xxiv. 104) 632 Union Ins. Co., Rourke v. (xxiii. 3-14) 707, 1279, 1464 Union St. Joseph de Montreal v. Lapierre (iv. 164) 118, 1060 Union S. S. Co. v. Drysdale (xxxii. 379) 229, 790 " Upper," The M. C.,' and the " Erie Belle," (vii. 36) ... . 387, 925 Ursulines of Quebec, North Shore Rv. Co. v. (Cass- Dig. 36) 135, 999 Utterson Lumber Co. v. Rennie (xxi. 218) 1493 INDEX TO NAMES OF CASES. 1665 V. PAGE. Vadeboncoeur, Chef dit v. City of Montreal (xxix. 9).. 548, 846, 1234, 1316, 1382; 1405, 1413 Vadeboncoeur, Suite dii v. Ci1;y of Three Hi vers (xi. 25) 71)5 Valad, Colchester South v. (xxiv. 622) 132, 1090, 1095 Valade v. Lalonde (xxvii. 551) 442, 1008, 1286 Valin V. Langlois (iii. 1) 281 Valin V. Langlois (iii. 90) 625 Valin, Langlois v. (Cass. Dig. 684; Cass. S. C. Prac. 140) . .388, 1118 Vallee, Grand Trunk Ey. Co. v. (18th March, 1901) 116 Vallee v. Prefontaine (xxi. 607) 784 Valois, McMillan v. (xxii. 1) 79, 106, 504, 533, 1082 Van Allen, Langley v. (xxxii. 174) 626, 1041 Vancouver, City of, v. Bailey (xxv. 62) 218, 1344 Vancouver, City of, v. Can. Pac. Ry. Co. (xxiii. 1) 284, 614, 889 VanDulken v. DeKuyper (xxiv. 114) 1453 VanDulken, DeKuyper v. (xxiv. 114) 1453 VanNorman Co. v. McNaught (xxxii. 690) 833, 1318 Vanvert, The " Santanderino " v. (xxiii. 145) 98, 608 Vanwart, N". B. Ry. Co. v. (xvii. 35) 960, 1215 Varennes Village, Co. of Vercheres v. (xix. 365) 53 Vassal, Salvas v. (xxvii. 68) 1064, 1386 Vaudreuil Election Case (xxii. 1) 79, 106, 504, 533, 1082 Vaughan v. Richardson (xvii. 703) 121, 124, 1115, 1116 Vaughan v. Richardson (xxi. 359) 981 Vaughan, Roberts v. (xi. 273) 200 Vaughan, Weldon v. (v. 35) 363 Vaughan v. Wood (xviii. 703) 575, 1447 Vaughan Eoad Co., Atty.-Gen. of Ontario v. (xxi. 631) 111, 1441 Veilleux & Price v. Ordway (15th May, 1903) 108 Venasse v. Bruneau (xxxii. 118) 130, 505 Venner v. Sun Life Ins. Co. (xvii. 394) 119, 700, 1005, 1129 Venning v. Steadman, Hanson & Spurr (ix. 206) 611 Vercheres, Co. of v. Village of Varennes (xix. 365) 53 Vermont Central Ry. Co., Senesac v. (xxvi. 641) . . . .562, 965, 1207 Vermont Central Ry. Co. v. Town of St. Johns (xiv. 288) . .158, 291, 655, 1269 Vernon v. Oliver (xi. 156) 144, 1100 Veronneau, Lefeuntum v. (xxii. 203) 90, 106, 1098 Vezina v. New York Life Ins. Co. (vi. 30) '5;02 Vezina, Quebec N. S. Turnpike Trustees v. (Cass. Dig. 758) . . ' ^ 646, 1180 Vezina v. The Queen (xvii. 1) 11^^ Viau V. The Queen (xxix. 90) '^4, 123, 404, 1351 Victor Hudon Cotton Co. v. Canada Shipping Co. (xiii. 401) . 27, 1146 Victoria County v. County of Peterborough (Cass. Dig. 558) 905 Victoria Harbour Lumber Co. v. Irwin (xxiv. 607) .367, 148J Victoria Lumber & Mfg. Co., Wm. Hamilton Mfg. Co. J. (xxvi. 96). .563, 563, 578 Vigeon,' Korthcote v. (xxii. 470) 1335, 1500 Vineberg v. Hampson (27th Feb., 1896) 491 Vineberg, Schwersenski v. (xix. 243) 94, 587, bU8 Vipond, Bell v. (xxxi. 175) *' ^^ 1666 l^DEX TO NAMES OF CASES. PAGE. Vipond, Bell v. (29tli.Oet., 1901) 102 Virgo V. City of Toronto (xxii. 447) 874 Virtue v. Hayes (xvi. 721) 83 Vogel, Grand Trunk Ey. Co. v. (xi. 612) 1185 Vroom, Connor v. (xxiv. 701) 1471 Vye, Alexander v. (xvi. 601) 553 W. Waddington v. Esquimault & Nanaimo Ey. Co. (xxiii. 235) . . 421 Wadsworth v. McCord (xii. 466) 476 Wagler, McNab v. (Cass. Dig. 699) 1126 Wait, Cameron v. (Cass. Dig. 332) 645 Waldie, Lush v. (xix. 557) 78, 106, 515, 1111, 1113 Waldie, Lush v. (15th March, 1903) 516, 1111, 1113 Walkem, Higgins v. (xvii. 225) 774, 990 Walker, Bank of British North Am. v. (Cass. Dig. 214, 425, 670, 671, 673, 697, 701, 706).. 88, 111, 112, 1048, 1101, 1103, 1115, 1125 Walker, Black v. (Cass. Dig. 768) 96, 1277 Walker v. Cornell (Cass. Dig. 595) 1018 Walker v. Poster (xxx. 299) 470, 479 Walker, Halifax v. (Cass. Dig. 175) 954, 978 Walker v. McMillan (vi. 241) 917, 1052 Walker, Niagara Dist. F. G. S. Co. (xxvi. 629) 632, 1162 Walker, Spears v. (xi. 113) 356 Walkerton, Town of, Erdman v. (xxiii. 352) 556 Wallace, Ayr Am. Plough Co. v. (xxi. 256) 201 Wallace v. Bossom (ii. 488) 80, 659, 1051 Wallace v. Burkner (2nd May, 1883; Cass. Dig. 669) 1105, 1106 Wallace v. Fraser (ii. 522) 753 Wallace v. Hesslein (xxix. 171) 375, 1335, 1435, 1499, 1505 Wallace v. Lea (xxviii. 595) 816, 1359 Wallace v. O'Toole (Cass. Dig. 713) 1167 Wallace v. Souther (ii. 598) 551 Wallace v. Souther (Cass. Dig. 672, 682) 1102 Wallace v. Souther (xvi. 717) ,. 194, 199, 201, 201 Wallbridge v. Farwell (xviii. 1) 781, 1491 Wallbridge, Palmer v. (xv. 650) 828 Wallbridge, Taylor v. (ii. 616) 1464 Walmsley v. Griffith (xiii. 434) 131 Walmsley v. Griffith (Cass. Dig. 670, 697, 699) 113, 113 Walsh V. HefEerman (xiv. 738) 128, 1184 Walsh V. Montague (xv. 495) 507, 514, 521 Walsh, North-West Electric Co. v. (xxix. 33) 256, 264 Walsh V. Trebilcock (xxiii. 695) 191, 403, 1351 Ward V. Green (xxix. 572) .457, 1406 Ward V. Tp. of Grenville (xxxii. 510) 945, 1266, 1305, 1504 Warin v. London & Can. Loan & Agency Co. (xiv. 233) . .496, 912, 1138 Warmington v. Palmer (xxxii. 126) 440, 830, 929 Warner v. Don (xxvi. 388) 854, 1237, 1356 Warner v. Murray (xvi. 720) 93 INDEX TO NAMES OF CASES. 1667 PAGE. Warnock, Klcepfcr v. (xviii. 701) 622 Warren, Bank of B. N. America v. (12th Nov., 1900) 1560 Washington v. Grand Trunk Ey. Co. (xxviii. 184) . .965, 1193, 1358 Water Commissioners of Windsor, MacDougall v. (xxxi. 326) . . 364, 877 Waterbury, Dewe v. (vi. 143) 568, 1170, 1328 Waterloo County, Village of New Hamburg v. (xxii. 296) .889, 1368 Waterous v. Morrowi (Cass. Dig. 138) ' 323 Waterous Engine Works Co., Hochelaga Bank v. (xxvii. 406) . 653, 863, 1279, 1490 Waterous Engine Works Co. v. Town of Palmerston (xxi. 556) . 888 Waters v. Manigault (xxx. 304) 67, 1578 Waterworks of Three Elvers v. Dostaler (18 L. C. Jur. 196) ... 391 Watson, Alexander v. (xxiii. 670) 631 Watson, Burnham v. (Cass. Dig. 681) 1107, 1111 Watson, Municipality of, Colchester v. (Cass. Dig. 175) . . .954, 978 Watt, City of London v. (xxii. 300) '.154, 865, 1368 Watters, Powell v. (xxviii. 133) .467, 468, 469, 801, 1397, 1430, ' 1514 Wealleans, Michigan Central Ey. Co. v. (xxiv. 309) ... .1223, 1369 Webb V. Marsh (xxii. 437) . . .' 544, 1342, 1419 Webber v. Cogswell (ii. 15) 780 Webster v. Foley (xxi. 580) 824, 942 Webster, Mut. Belief Soc. of N. S. v. (xvi. 718) 701 Webster v. City of Sherbrooke (xxiv. 52) 60, 865 Webster v. City of Sherbrooke (xxiv. 268) 865, 1368 Weegar, Grand Trunk Ey. Co. v. (xxiii. 422) 98, 964 Weir V. Claude (xvi. 575) 1006, 1519 Weldon v. Vaughan (v. 35) 363 Welland Election Case (xx. 376) 522 West V. Benjamin (xxix. 282) 4, 1021 West Assiniboia Election Case (xxvii. 215) 79, 504 West Durham Election Case (xxxi. 314) 527 West Huron Election Case (viii. 126) 526 West Prince Election Case (xxvii, 241) 501, 514, 515 West Northumberland Election Case (x. 635) 500, 507 West, Murdoch v. (xxiv. 305) 354 West V. Parkdale (xii. 250) 1446 West V. Seaman (Cass. Dig. 388) 723 Western Ass. Co. v. Doull (xii. 446) 674 Western. Ass. Co. v. Harrison (xxxiii. 473) 697 Western Ass. Co. v. Johnston (iv. 21. i) 685 Western Ass. Co. v. McLeod (xxix. 449) 708 Western Ass. Co. v. Ontario Coal Co. (xxi. 383) 709 Western Ass. Co. v. Scanlan (xiii. 207; Cass. Dig. 681) . . .718, 1111 Western Ass. Co. v. Temple (xxxi. 373) 329, 548, 677, 678, 849, 1050 Western Bank of Canada v. McGill (xxxii. 581) 194, 489, 747 Western Counties Ey. Co., Windsor & Annapolis Ey. Co. v. (Cass. Dig. 683) 1139 Western Union Telegraph Co., Can. Pac. Ey. Co. v. (xvii. 151) 248, 251, 365 Westmount, Town of, Murray v. (xxvii. 579) 64, 534 Westmount, Town of, Citv of Cunegonde v. (xxxn. 135) . .433, 485 Wheeler v. Black (xiv. 242) 1301 Wheeler v. Gibbs (iii. 374) • -78, 502 1668 iNbEX TO NAMES O't' CAsES. PAGfi. Wheeler v. Gibbs (iv. 430) 509, 520 Whelan v. Eyan (xx. G5) 163 Whidden, Merchants Bank of Plalifax v. (xix. 53) 176, 1152 White, In re Patrick (xxxi. 383) 638, 738, 1117 White, Clarke v. (iii. 309) 373 White V. Currie (Cass. Dig. 811) '. 1330 White V. Greenwood (xx. 169) 529 White, McCrae v. (ix. 22) 843 White, Miller v. (xvi. 445) 552 White V. Citv of Montreal (xxix. 677) 161, 895, 1360 White V. Neiles (xi. 587) 756, 1424 White V. Parker (xvi. 699) 45 White, Re, Stevenson v. Montreal (xxvii. 187) 63, 894 White, Re, Stevenson v. Montreal (xxvii. 593) 1247 Whitfield, Knight v. (Cass. Dig. 186) 263 Whitfield, Maedonald v. (xxvii. 94) 33, 1162, 1514 Whitfield V. Merchants Bank (Cass. Dig. 681) 1103, 1110 Whitfield V. Merchants Bank (xxvii. 94) 33, 1162, 1514 Whiting, Hovev v. (xiv. 515) 168, 255 Whitman, Union Bank of Halifax v. (xvi. 410) . .45, 165, 206, 1125 Wigle, Eobertson v. (xv. 214) 124 Wigle, Eobertson v. (xvi. 720) '. . 1320 Wigle V. Williams (xxiv. 713) 1028 Wiley V. Smith (ii. 1) 1378 Wilkie, Jellett v. (xxvi. 282) 592, 1238 Wilkins v. Geddes (iii. 203) 80, 1080 Wilkins, McLean v. (xiv. 22) '. 858 William Hamilton Mfg. Co. v. Victoria Lumber & Mfg. Co. (xxvi. 96) 563, 563, 578 Williams v. Balfour (xviii. 472) 1468 Williams v. Bartling (xxix. 548) 742, 940 Williams, Corby v. (vii. 470) '. 366 Williams v. Irvine (xxii. 108) 46, 1355 Williams v. Leonard & Sons (xxvi. 406) 77, 205, 236, 237, 1133 Williams v. City of Portland (xix. 159) 903, 953 Williams, Township of Ealeigh v. (xxi. 103) 482 Williams v. Stephenson (xxxiii. 323) 102, 433, 988 Williams, Wigle v. (xxiv. 713) 1028 Williston V. Lawson (xix. 673) 1288 Willoughby, Eyan v. (xxxi. 33) 329, 875 Wilson, Burns & Lewis v. (xxvii. 207) 451, 625 Wilson v. Canadian Development Co. (xxxiii. 432). .226, 318, 381, 919, 980, 985, 1150 Wilson V. Co. of Elgin (xxiv. 706) 1297 Wilson, Grand Trunk Ey. Co. v. (Cass. Dig. 722) 1216 Wilson, Lacoste v. (xx. 218) 442, 1234 Wilson V. Land Securities Co. (xxvi. 149) 1161, 1489 Wilson, Lewin v. (ix. 637) 786 Wilson V. Meldrum (7th Oct., 1902) 1039 Wilson, Milbum v. (xxxi. 481) 259, 1156, 1309 Wilson V. Windsor Foundry Co. (xxxi. 381).. 351, 361, 558, 590, 1276 Winchester v. Busby (xvi. 336) 332 Windsor & Annapolis Ey. Co. v. The Queen d ah. (x. 335) .... 1445 INDEX TO NAMES OF CASES. 1669 PAOE. Windsor & Annapolis Ey. Co., Western Counties By. Co. y. (Cass. Dig. fiS3) ■ 1129 Windsor Foundry Co., Wilson v. (xxxi. 381) .351, 361, 558, 590, 1376 Windsor Hotel Co. v. Cross (xii. 624) 1513 Wineberg v. Hanipson (xix. 369) 53 Winnipeg Election Case (xxvii. 201) 524 Winnipeg, City of, Barrett v. (xix. 374) 296 Winnipeg, City of, Can. Pae. Ey. Co. v. (xxx. 558) 219, 867 Winnipeg, City of, v. Wright (xiii. 441) 1110 Wisner v. Coulthard (xxii. 178) 1037 Wolff, McCall V. (xiii. 130) 836 Wolff, MeCall v. (Cass. Dig. 673) 1099 Wolff V. Sparks (xxix. 585) 1346, 1540 Wolley, Lowenburg v. (xxv. 51) 950, 1158 Wood V. Can. Pae. Ey. Co. (xxx. 110) 967, 1193 Wood V. Esson (ix. 239) 913, 1437 Wood, Lynch v. (Cass. Dig. 783) 374 Wood V. The Queen (vii. 631) 390 Wood V. The Queen (vii. 634) .• . . . 335 Wood, Schultz V. (vi. 585) 1124, 1493 Wood, Vaughan v. (xviii. 703) 575, 1447 Woodburn, The Queen v. (xxix. 112) 114, 343, 1174 Woodstock Woollen Mills Co., Moore v. (xxix. 627) 582, 642 Woodworth, Dickie v. (viii. 192) 502 Woodworth v. Dickie (xiv. 734) 119, 206 Woodworth, Landers v. (ii. 158) 212, 1014 Wbog & Tweed, The King v. (xxxii. 586) . .288, 418, 779, 831, 1004, 1042, 1169 Worrall, Peters & Co. v. (xxxii. 52) 4, 838 Worswick, Bank of Montreal v. (Cass. Dig. 526) 783 Worthington v. McDonald (ix. 327) 1017 Wrayton v. Naylor (xxiv. 295) 1495 Wright, Armstrong v. (xxv. 363) 1499, 1552 Wright V. Bell (xxiv. 656) 740, 1331 Wright, Collier v. (xxiv. 714) 38, 811 Wright, Hawley v. (xxxii. 40) 929 Wright V. Huron, Synod, Diocese of (xi. 95; Cass. Dig. 673) . . 247, 1101 Wright V. Kane (Cass. Dig. 596) 1019 Wright V. London Life Ass. Co. (y. 466) 259 Wright V. The Queen (15th March, 1895) - 1119 Wright V. Winnipeg, City of (xiii. 441) 1110 Wyld, Liverpool & London & Globe Ins. Co. v. (i. 604) . 387, 689, 1108 Wylie V. City of Montreal (xii. 384) 158 Wyman v. Imperial Ins. Co. (xiv. 715) 693 Y. Yon V. Cassidy (xviii. 713) 194 York V. Canada Atlantic S. S. Co. (xxii. 167) 930, 937, 979 York, Township of, Osgoode v. (xxiv. 383) 881, 1356 York, Toronto Eoad Co. v. (xii. 517) 304 Young, Accident Ins. Co. of N. A. v. (xx, 380) 668 1670 INDEX TO MAMES OF CASES. PAGE. Young, Campbell v. (xxxii. 547) 558 Young V. MacNider (xxv. 272) 540, 973, 1064, 1153 Young, Midland Ey. Co. v. (xxii. 190) 12.37, 1368, 1438 Young, Eattray v. (Cass. Dig. 149, 693) 595, 1123 Young V. Smith (iv. 494) 510, '513 Young V. Tracey (Cass. Dig. 147) 315 Young, Tucker v. (xxx. 185) 73, 1126 Yule, The Queen v. (xxx. 24) 379, 1375, 1445 z. Zwicker, Ernst v. (xxvii. 594) 1344, 1531 Zwicker v. Feindel (xxix. 516) 543, 1496 Zwicker v. Zwicker (xxix. 537) 463, 582, 1493 THE END. j \ I