The Ontario Law Reports : Cases Determined in the Court of Appeal and in the High Court of Justice for Ontario, 1908

"Reported under the authority of the Law Society of Upper Canada." Subtitle varies: 1931: cases determined in the Supreme Court of Ontario (Appellate...

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The Ontario law reports : cases determined in the Court of Appeal and in the High Court of Justice for Ontario
Book digitized by Google and uploaded to the Internet Archive by user tpb. Vols. for 1913-1931 are cases determined in the High Court and Appellate Divisions of the Supreme Court Published under the authority of the Law Society of Upper Canada SER

The Ontario law reports : cases determined in the Court of Appeal and in the High Court of Justice for Ontario
Book digitized by Google from the library of Harvard University and uploaded to the Internet Archive by user tpb. Vols. for 1913-1931 are cases determined in the High Court and Appellate Divisions of the Supreme Court Published under the authority

The Ontario Law Reports : Cases Determined in the Court of Appeal and in the High Court of Justice for Ontario, 1906
"Reported under the authority of the Law Society of Upper Canada." Subtitle varies: 1931: cases determined in the Supreme Court of Ontario (Appellate and High Court Divisions) Editors vary: v. 1 (1901)-v. 18 (1909): James F. Smith ; v. 19 (1909)-v.

The Ontario Law Reports : Cases Determined in the Court of Appeal and in the High Court of Justice for Ontario, 1904
"Reported under the authority of the Law Society of Upper Canada." Subtitle varies: 1931: cases determined in the Supreme Court of Ontario (Appellate and High Court Divisions) Editors vary: v. 1 (1901)-v. 18 (1909): James F. Smith ; v. 19 (1909)-v.

The Ontario Law Reports : Cases Determined in the Court of Appeal and in the High Court of Justice for Ontario, 1904
"Reported under the authority of the Law Society of Upper Canada." Subtitle varies: 1931: cases determined in the Supreme Court of Ontario (Appellate and High Court Divisions) Editors vary: v. 1 (1901)-v. 18 (1909): James F. Smith ; v. 19 (1909)-v.

The Ontario Law Reports : Cases Determined in the Court of Appeal and in the High Court of Justice for Ontario, 1902
"Reported under the authority of the Law Society of Upper Canada." Subtitle varies: 1931: cases determined in the Supreme Court of Ontario (Appellate and High Court Divisions) Editors vary: v. 1 (1901)-v. 18 (1909): James F. Smith ; v. 19 (1909)-v.

The Ontario Law Reports : Cases Determined in the Court of Appeal and in the High Court of Justice for Ontario, 1911
"Reported under the authority of the Law Society of Upper Canada." Subtitle varies: 1931: cases determined in the Supreme Court of Ontario (Appellate and High Court Divisions) Editors vary: v. 1 (1901)-v. 18 (1909): James F. Smith ; v. 19 (1909)-v.

The Ontario Law Reports : Cases Determined in the Court of Appeal and in the High Court of Justice for Ontario, 1907
"Reported under the authority of the Law Society of Upper Canada." Subtitle varies: 1931: cases determined in the Supreme Court of Ontario (Appellate and High Court Divisions) Editors vary: v. 1 (1901)-v. 18 (1909): James F. Smith ; v. 19 (1909)-v.

The Ontario Law Reports : Cases Determined in the Court of Appeal and in the High Court of Justice for Ontario, 1911
"Reported under the authority of the Law Society of Upper Canada." Subtitle varies: 1931: cases determined in the Supreme Court of Ontario (Appellate and High Court Divisions) Editors vary: v. 1 (1901)-v. 18 (1909): James F. Smith ; v. 19 (1909)-v.

The Ontario Law Reports : Cases Determined in the Court of Appeal and in the High Court of Justice for Ontario, 1903
"Reported under the authority of the Law Society of Upper Canada." Subtitle varies: 1931: cases determined in the Supreme Court of Ontario (Appellate and High Court Divisions) Editors vary: v. 1 (1901)-v. 18 (1909): James F. Smith ; v. 19 (1909)-v.

ARSWELL Co.,u^ BoolitoinderSf Pbintbbs,

1

TORON

Digitized by the Internet Archive in

2016

https://archive.org/details/v16ontariolawreports1908

:

THE

Ontakio Law Eeports. CASES DETERMINED IN THE COURT OF APPEAL

AND

IN

THE HIGH COURT OF JUSTICE FOR ONTARIO.

1908. REPORTED UNDER THE AUTHORITY OF THE

LAW

SOCIETY OF UPPER CANADA.

VOL. XVI. EDITOR

JAMES

F.

:

SMITH,

REPORTERS G. F.

HARMAN,

A. H. F. E. B.

G.

K.C. K.C.

LEFROY,

BROWN,

K.C.

t

BARRISTERS-AT-LAW.

K.C.

GIBSON.

TORONTO CANADA LAW BOOK COMPANY, Law Book Publishers, 32-34

Toronto 1908.

St.

Limited,

:

JUDGES OF THE

COURT OF APPEAL DURING THE PERIOD OF THESE REPORTS.

Hon. Sir Charles Moss, C.J.O. “ Featherston Osler, J.A. James Thompson Garrow, J.A. John James Maclaren, J.A. “ Richard Martin Meredith, J.A. ‘‘

Attorney-General

Hon. James Joseph Foy, K.C.

: ::

JUDGES OF THE

HIGH COURT OF JUSTICE DURING THE PERIOD OF THESE REPORTS.

King’s Bench Division

Hon. Sir Glenholme Falconbridge, C.J. “ ‘‘

Byron Moffatt Britton, J. William Renwick Riddell,

J.

Chancery Division

Hon. Sir John Alexander Boyd, C., K.C.M.G. “ James Magee, J. “ James Pitt Mabee, J. ‘‘ Francis Robert Latchford, J. Common

Pleas Division:

Hon. Sir William Ralph Meredith, “

Hugh MacMahon,

‘‘

James Vernall Teetzel,

,



J.

Exchequer Division

Hon. Sir William Mulock, “

C.J.

J.

C.J.,

Francis Alexander Anglin, Roger Conger Clute, J.

K.C.M.G. J.

t

.

']

'I-



MEMORANDA On

the 5th of May, 1908, the Honourable Francis

Latchford, one

of

Robert

His Majesty’s Counsel, was appointed

one of the Justices of the Chancery Division, in the place of the

Honourable James Pitt Mabee, appointed Chief

Commissioner

of the

Board

of

Railway Commissioners

for

Canada.

On

the 26th of June, 1908, the King was pleased to confer

the honour of Knighthood upon the Honourable '

holme Falconbridge,

Glen-

Chief Justice of the King’s Bench.

During Easter Term, 1908, the following were called to the

Bar

:

Wallace John McKay, John Carscallen Sherry, William Farouhar McRae, William Edward Williams, Angus C oMPSTON Heighington, Mola'neux Lockhart Gordon, Henra^ Ho WITT, Edwin Wilbur Kearney, Miss Grace Ellen Hewson, Frederic Watt, Richard Ruddock Waddell, Neil Douglas Maclean, George Arthur Cruise, Alexander Malcolm Manson, Fred Holmes Hopkins, Arno Lindner Bitzer, Frederick Spenser Sidney Dunlevie, Harold Arthur Clement Machin, Donald James Cowan, John Noble Black, Oscar Frederick Taylor.

During Trinity Term, 1908, the following gentlemen were called to the Bar:



,

Charles Michael Garvey, Stuart Cameron Kirkland, Eugene Coleman Spereman, Robert John Valentine McGowan, Edward Warner Wright, James Edgar Parsons, Henry Porter Cooke, Hugh Calais Macdonald, John Francis Boland, William Balfour Mudie, Lynn Bristol Spencer, Hugh John Macdonald, Wesley Ashton Gordon, James Henry Cooke, James Hugh Gillmor Wallace, Harry Ussher Thomson.

ERRATA ET CORRIGENDA Page

132,

head note, line head note, last

20, for “two-thirds”

read “three-fifths.”



172,



202, line 16, for “proportion” read “proposition.”



259, nead note,



301, line 25, for “by” read “to.”



314, head note, line

8,

for “personality” read “personalty.”



350, head note, line

7,

for “plaintiff”



372, head note, line 2, for “without” read “with.”



392, line



444, line

6,

8,

line, for

“does” read “do.”

line 7, for “or”

read “are.”

read “deceased.”

from bottom, for “delegate” read “derogate.” from bottom, for “plaintiff’s” read “defendant’s.”

.

.

CASES REPORTED. Cochrane, In re. ..... (D.C.) 328 Collingwood, Corporation of Aaron Erb, In re (No. 1).. the Town of, Rowland v. 272 (Ch.) 594 Collingwood Shipbuilding Co., Aaron Erb, In re (No. 2) Longhead v 64 (D.C.) (Ch.) 597 Co., (C.A.) 565 Copeland - Chatterson Anderson, Foster v Ltd., et al. v. Business Atkinson v. Dominion of Systems Co., Ltd. (C.A.) 481 Canada Guarantee and (D.C.) 619 Corporation of the City of ToAccident Co ronto, In re Hassard and (D.C.) 500 B. Corporation of the City of Ballentine v. Ontario Pipe Toronto v. Toronto R.W. Line Co 654 Co (C.A.) 205 Bank of Montreal, Ryan v. Corporation of the Town of (C A ) 75 Campbellford, In re MitBarker V. Ferguson (D.C.) 252 chell and 578 Barrington v. Martin. (D.C.) 635 Bechtel v. Zinkann 72 Corporation, of the Town of Collingwood, Rowland v. 272 Beck Manufacturing Co. v.

A.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

Valin and Ontario

Lumber

Co Beck,

(C.A.)

Rex ex

rel.

v.

Corporation of the Town of Kenora, Hudson’s Bay Co. 21

V

Sharp

(C.A.) 184

267 Corporation of the Town of Bo vie et al. v. Rothschild et Kenora, Keewatin Power al (Ch.) 424 (C.A.) 184 Co. V Business Systems Co., Ltd., Corporation of the Town of Copeland, Chatterson Co., Prescott, Nettleton v. Ltd., et al. V (C.A.) 481 (D.C.) 538 (Ch.)

Corporation of the Township of Pittsburg, In re Joyce

C.

380 and Corporation of the Township of Saltfleet, In re Local and 578 (D.C.) 293 Option By-law of Canadian Fire Insurance Co., the Township of Corporation London and Western of Sandwich East, In re, Trusts Co. V (C.A.) 217

Campbellford, Corporation of the Town of. In re Mitchell

,

Canadian Pacific R.W. Co., Sheppard v (D.C.) 259 Chambers, In re, Chambers v.

Wood

.

and Windsor and Tecumseth

Electric

R.W.

Co.

(C.A.) 641

Steel Co., Ltd., In re. 230 Crawford Tug Co., Limited, Varnish Co 338 and J. T. Crawford, A. R. Clergue, H. H. Vivian Co., Williams Machinery Co., .^D.C.) 245 Ltd., V (C.A.) 372 Ltd., V Clare’s Claim, In re

62

Victor

Cramp



.

CASES REPORTED.

X

[vOL.

Hopper V. Willison Hudson, In re

Crown Bank, Toronto Cream and Butter Co., Ltd., v (C.A.) 400

Hudson’s Bay Co. tion of the

.

.

(D.C.) 452

165

v.

Town

.

Corpora-

of

Kenora (C.A.)

D.

184

(D.C.) 459 Dolan, Simpson v I. Dominion of Canada GuaranIrving V. Grimsbv Park Co., and Accident Co., tee .‘ Ltd (C.A.) 386 (D.C.) 619 Atkinson v Irwin, Rex v (D.C.) 454 Duncan and Town of Mid.

(C.A.)

land, In re

.

132 J.

E.

Joyce, In re, and Corporation of the Township of Pitts-

Construction Co.,

Electrical

Kelly et al. V Erb, Aaron, In re

232 (No.

(Ch.)

Erb. Aaron, In re .

.

380

burg

1)

K.

594

(No. 2) Kelly et al. v. Electrical Con..(Ch.) 597 232 struction Co Kenora, Corporation of the

F.

Town

Faulkner v. Greer Ferguson, Barker v. Fleming, Whitling v Foster v. Anderson.

.

.

.

.

.

Keewatin Power

of,

V

_....(C.A.) 184 Kenora, Corporation of the Town of, Hudson’s Bav Co. 263 (C.A.) 184 V (C.A.) 565

(C.A.) 123 (D.C.) 252

Co.

Keewatin Power Co. poration of the

G.

Graham, McGuire Gillies,

Kenora (D.C.) 558

R.W.

Trunk Lamond v

Grimsby

Co.,

365

Greer, Faulkner

v

Park

Co.,

Irving V

of (C.A.) 184

(C.A.) 123 Ltd., (C.A.) 386

L.

Lamond v. R.W. Co Lawson Co.,

v.

V

H.

Grand

Trunk 365

Packard Electric

Ltd

Letherby,

Hamilton

Cor-

v. ... (C.A.) 431

Mattei v

Grand

v.

Town

(D.C.)

Rex ex

rel.

1

O’Shea (Ch.) 581

Lewis Brothers, Ltd., McNeil

652 V Local Option By-law of the Harrison et ah, Rex ex rel., Corporation of the TownMilligan v (Ch.) 475 ship of Salt fleet. In re ... Hassard, In re, and Corpora(D.C.) 293 tion of the City of Toronto London and Western Trusts (D.C.) 500 Co. V. Canadian Fire InsurHenderson, McFarlane v. (C.A.) 217 ance Co (Ch.) 172 London and Western Trusts Hinsley v. London Street Co. V. Traders Bank of R.W. Co (C.A.) 350 382 Canada Steel

Whiteman v

and Iron

Co.,

(Ch.) 257

.

.

.

.

CASES REPORTED.

XVI.]

London

R.W.

Street

Hinsley v

Longhead

P.

Co., (C.A.) 350

Packard Electric

Collingwood

v.

Shipbuilding Co

(D.C.)

64

Lawson Pettit,

Co.,

V.*.

Rex v

Township

of.

In re Joyce

380 and (D.C.) 314 535 (D.C.) 635 Potter V. McCann (D.C.) 558 Prescott, Corporation of the

Madill V. McConnell. Martin, Barrington v. Mattei v. Gillies Mersea, School Section .

.

.

No.

Town

3,

of,

Nettleton v (D.C.) 538

617

Town

Ltd., 1 (D.C.) (D.C.) 454

Pittsburg, Corporation of the

M.

In re Midland,

XI

Provincial Construction Co., (D.C.) 241 Mullin V (C.A.) 132

In

of.

Duncan and

re

Milligan, Rex ex rel. v. Harrison et al (Ch.) 475 Mitchell, In re, and the Cor-

R.

588 Reeves v. Reeves 578 Reith et al. v. Reith et ah, (Ch.) 168 In re Montgomery v. Ryan. (C.A.) 75 Rex ex rel. Beck v. Sharp Montreal, Bank of, Ryan v. (Ch.) 267 (C.A.) 75 Rex ex rel. Milligan v. Mullin V. Provincial Con(Ch.) 475 Harrison et al struction Co. ....... (D.C.) 241 Rex ex rel. O’Shea v. (Ch ) 581 Letherby Me. (D.C.) 454 Rex V. Irwin. (D.C.) 522 McCann, Potter v 535 Rex V. McGuire (D.C.) 454 McConnell, Madill v. (D.C.) 314 Rex V. Pettit (D.C.) 279 Roberts, Webb v McFarlane v. Henderson. (Ch.) 172 Robertson V. Robertson. (Ch.) 170 McGuire, Rex v (D.C.) 522 Rothschild et ah, Boyle et .(Ch.) 424 al. V McGuire v. Graham. (C.A.) 431 Rowland v. Corporation of McNeil V. Lewis Brothers, 272 the Town of Collingwood. Ltd... 652 Ryan, Montgomery v. (C.A.) 75 Rvan V. Bank of Montreal. N. (C.A.) 75 National Trust Co. v. Shore. 177 Nelles V. Windsor, Essex and S. Lake Shore Rapid R.W. Co (D.C.) 359 Saltfleet Local Option Bylaw of the Corporation of Nettleton v. Corporation of the Township of. In re the Town of Prescott (D.C.) 538 (D.C.) 293 Sandwich East, Corporation O. of the Township of. In re, Ontario Pipe Line Co., Ballenand Windsor and Tecumtine V seh Electric R.W. Co. (C.A.) 641 654 O’Shea, Rex ex rel. v. LetherSavereux v. Tourangeau. by (D.C.) 600 (Ch.) 581 poration of the

Town

of

Campbellford

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

CASES REPORTED.

Xll

School Section No. 3, Mersea, V. In re 617 Valin and Ontario Lumber Sharp, Rex ex rel. Beck v. Co., Beck Manufacturing (Ch.) 267 .

.

Co. V Sheppard v. Canadian Pacific Victor Varnish R.W. Co (D.C.) 259 Clare’s Claim Shore, National Trust Co. v. 177

(C.A.)

In

Co.,

21

re,

338 Vivian Company, H. H., Ltd., Dolan (D.C.) 459 V. Clergue (C.A.) 372 v. Toronto and York 31 Radial R.W. Co (C.A.) W. Standard Bank of Canada v.

Simpson Simpson

v.

Stephens Stephens, Standard

Canada v

(D.C.) 115 Wattie, Whalen v. of Webb V. Roberts (D.C.) 115 Whalen v. Wattie

T.

Toronto

R.W.

(D.C.) (D.C.) (D.C.) Whiteman v. Hamilton Steel and Iron Co (Ch.)

Bank

and York Radial Simpson v.(C.A.)

Co.,

.

.

.

249 279 249

257 Whitling V. Fleming 263 Williams Machinery Co., 31 Limited, A. R,., v. Craw-

Toronto, Corporation of the City of, V. Toronto R.W.

ford Tug Co., Ltd., and J. T. Crawford (D.C.) 245 (C.A.) 205 Willison, Hopper V Co (D.C.) 452 Toronto, Corporation of the Windsor and Tecumseh ElecCity of. In re Hassard, and tric R.W. Co. and Corpora(D.C.) 500 tion of the Township of Toronto Cream and Butter Sandwich East, In re. (C.A.) 641 Co., Ltd., V.

Crown Bank (C.A.)

Toronto R.W. Co., Corporation of the City of Toronto V....

(C.A.)

400

Windsor, Essex and Lake Shore Rapid R.W. Co.,

Nelles V Wood, Chambers 205 Chambers

Tourangeau, Savereux v

v..

(D.C.) 359 In re

62 (D.C.) 348

Woodruff, In re

(D.C.) 600

Bank of Canada, London and Western Trust

Traders Co.

V

Z.

382 Zinkann, Bechtel v

72

CASES CITED A.

Name of

Where Reported.

Case.

Adam

v. Newbigging Adams v. McBeath Agar V. Escott Aldrich v. Aldrich Alexander v. Owen

Allen V. Sharp

Anderson v. Duckworth. Andrews v. Barnes Anthony Falls Water Power Co. v. St. Paul Water Commissioners Armitage v. Baldwin. .7 Armour and the Township of Onondaga, In re .

Page

13 App. Cas. 308 27S.C.R. 13 8 0.L.R. 177 24 O.R. 124; 23 O.R. 374. 1 T.R. 225. 17 L.J.N.S. Ex. 209 162 Mass. 251

566 317 264 171

39Ch.D. 133

88 99 68 317

168U.S.R. 349 5Beav. 278

187 344

14 O.L.R. 606 132, 142, 144, 147, 148, 293,

Armstrong v. Auger Armstrong v. Farr Armstrong v. Forg Armstrong v. Nason Armstrong and Township

298,301,312,381,513. 580 373 615 5 566

21 O.R. 98 11 A.R. 186 162 Mass. 544 25 S.C.R. 263..... of Toronto,

Re

17 O.R. 766 Arnold v. Cheque Bank 1 C.P.D. 578 Arthur Case, The 2 0.W.R. 930 Asphodel and Humphries, Re Trustees of School Section No. 5 of the Township of 24 O.R. 682 Attorney-General v. Fraser 37 S.C.R. 577 Attorney-General v. Lockwood 9 M. & W. 378 Attorney - General v. North - Eastern R.W. Co [1906]! Ch. 310 .

Attorney-General for Tobago V. Eriche Attwood V. Small

Trinidad

143 126 618

502 186 510

247

and [1893] A.C. 518 & F. 232

6 Cl.

27 282

B.

Bailey v. Bailey

13 Q.B.D. 855

Bain v. McKay Baker v. Hedgecock

5P.R. 471

Crompton Corset Co Bank of British North America

39 Ch.D. 520 IIP.R. 256

Ball V.

v.

Bossuyt

15 Man. L.R. 266

Bank Bank Bank

of Hamilton v. Isaacs 16 O.R. 450 of Montreal v. Ashcroft 16 O.R. 94 of Toronto v. Perkins 8S.C.R. 603 Barclay and Township of Darlington,

Re

12U.C.R. 86

Barnard v. Riendeau Barnardo v. Ford, Gossage’s Case Barnett, Hoares & Co. v. South London Tramways Co Barnum v. Turnbull Barrett,

Re

171

637 92,96 425

31 S.C.R. 234 [1892] A.C. 323

18 Q.B.D. 815 13 U.C.R. 277 10 O.L.R. 337

96 69 94 408

276 .283,285 492 247 89,102 318

.

XIV

CASES CITED.

Name of

Where Reported.

Case.

Barrett v. Bonham Oil and Cotton Co. Barthel v. Scotten Bartonshill Coal Co. v. McGuire

Batson

.

68 191 10

3 Macq. 300 4 H. & N. 739

'

Battershall,

Page

57 S.W. Rep. 602 24 S.C.R. 367

.

King

v.

[vOL.

Re

10

462, 467

O.W.R. 933

318 317 465 187

Richardson [1906] A.C. 169 Beattie v. Dinnick 27 O.R, 285 Beatty v. Davis 20 O.R. 373 Beck Manufacturing Co. and Ontario

Baudains

v.

Lumber

Co.,

Re

3

O.W.R. 333; 12 O.L.R.

163.

.

23 24 25 28 Belbin v. Skeats Benallack v. Bank of

1

British

America Benedict

v. v.

12 P.D. 58 21 A.R. 14 194 U.S. 324

Donovan v. W. B. Conkey Co

Betcher

38 N.S.R. 517 15 C.P. 450 9 Ves. 223 [1894] A.C. 48 33 S.C.R. 65 34N.B. 88

v. Hagell Bettes V. Farewell Be van. Ex p

Black V. Christ Church Finance Co Blackburn v. McCallum Blanc, Ex p Bloomfield v. Johnson ri867]I.R. 8 C.L. 68 Blount V. Layard [1891] 2 Ch. 678 (note) Bombay-Burmah Trading Corporation V. Dorabiji, etc [1905] A.C. 213 Book V. Book 15 O.R. 119 Bott V. Ackroyd 28 L.J.N.S M.C. 207 Boulton V. Hugel 35 U.C.R. 402 Boulton V. Town of Peterborough 16TT.C.R. 380 Bowerman v. Fraser 10 O.W.R. 229 Boylan and the City of Toronto, Re 15 O.R. 13 Boyne, Ex p 22 N.B. 228 Bradburn v. G.W.R. Co L.R. lOEx. 1 Bradley v. Elliott 11 O.L.R. 398 Bray v. Ford [1896] A.C. 44 .

Breay

v.

.

.

38 371 87

353,357 483 483 255 102

88,94 662 173,175 312 193 191

233 384 457 566 152 567,569 505 309 66 566 68

Royal British Nurses’ Associav.

Brettell v.

247 353 248

[1897] 2 Ch. 272 15 O.L.R. 195 4 Ex. 623

tion

Brenner

94

90 N.W.R. 360; 86 Minn. 224. 3 O.R. 446 5 B. & Aid. 335

Grand Trunk R.W. Co

v.

Bessett

323

Tr. 148

36 S.C.R. 120

v. Bignold Bernina, The

Berry

&

Minneapolis and St. I^ouis

R.W. Co Bennett Bensley

Sw,

North

Toronto R.W. Co Williams

Breuner v. Liverpool and London and 218 Globe Insurance Co 51 Cal. 101 Brewer v. Sparrow 125 7 B. & C. 310 Bridges v. Jackson Electric Railway, Light and Power Co 38 So. Rep. 788; 39 Am. & Eng. 37 R.R. Cas. (N.S.) 512 Bridgewater Cheese Factory Co. v. Murphy 123 23 A.R. 66 Brodie and Town of Bowmanville, Re.. 38 U.C.R. 580 278,505 566 Brooke v. Garrod 3 K. & J. 608; 2 De G. & J. 62. 143 Brophy and Village of Gananoque, Re. 26 C.P. 290 Brown v. London Street R.W. Co 353,356 31 S.C.R. 642 353 Brown v. Northern Ohio Traction Co, ... 10 L.R.A. N.S. 421 Brown v. Shaw 595 , 1 Ex. D. 425 Brown v. Trustees of the Toronto 253 General Hospital 23 O.R, 599 125 Bryce_Bros. v. Kinnee 14 P.R. 509 .

.

.

.

..

CASES CITED.

xvlJ

Name of

Where Reported.

Case.

Brydges v. King Buck Stove Co. v. Guelph Foundry Co. Bullion Mining Co. v. Cartwright Burdett, Re, Ex p. Byrne Burnett v. Lynch Burns v. Boyd Burns v. Poulsom

Bush Bush

V.

McCormack

V.

Steinman

XV

-

1 .

.

Page

Hagg. Eccl. 256

320 483

6 O.W.R. 116 10 O.L.R. 438 20 Q.B.D. 310. 5 B. & C. 589 19 U.C.R. 547 L.R. 8 C.P. 563

121

92 24 566 563 266 20 O.R. 497 657 1 B. & P. 407 482 67 L.J.N.S.P. 42 546 10 O.W.R. 878 [1907] 2 Ir. R. 134, 150 C.A.. .353, 357 1 All. 83 (Mass.) 172 546, 550

Butler V. Butler Butler V. City of Toronto Butterly v. Mayor of Drogheda Buttricic V. City of Lowell C. C. V.

D

8 O.L.R. 308; 12 O.L.R. 24.. 69 9 App. Cas. 392 191,200 282 1 Ad. & E. 40 .

Caldwell v. McLaren

.

v. Fleming Canada Atlantic R.W. Co. v. City of Ottawa 8 O.R. 217 Canada Atlantic R.W. Co. v. Township of Cambridge 15 S.C.R. 219 Canada Temperance Act and St. Thomas, Re 9 O.R. 154; 12A.R. 677.

Campbell

Canadian Colored Cotton Mills Co.

152

307 309

v.

Kervm 29S.C.R. 478 540 Canadian Pacific R.W. Co. v. Boisseau.. 32 S.C.R. 424 365,369,371 Canadian Pacific R.W. Co. v. Rat Portage Lumber Co 127 10 O.L.R. 273 Cantley v. Powell 574 Ir. R. 10 C.L. 200.... Carlyon v. Truscott L.R. 20 Eq. 348 180 Carne’s Settled Estates, Re 180 [1898] 1 Ch. 324 Carstairs v. Taylor 254 L.R. 6 Ex. 217 Castioni, Re 505 [1891] 1 Q.B. 149 Catawissa R.R. Co. v. Armstrong 49 Penn. 186 39 Cavanagh v. Park 537 23 A.R. 716 Centaur Cycle v. Hill 4 O.L.R. 92 244,245 Central Bank of Canada v. Garland 20 O.R. 142; 18 A.R. 438 93 Central

R.W.

Co. of A^enezuela, Direc-

tors of, V.

L.R. 2 H.L. 99 11 S.C.R. 312

Kisch

Chapman v. Rand Chatham Banner

Co.,

Re,

Bank

of

MontreaTs Claim Cheeseborough, Re Cherry v. Colonial Bank of Australasia Cheshire v. Bailey

Chetwynd Chiles,

v.

.

.

Morgan

Re

Christensen v. Metropolitan Street

282 299,304

2 O.L.R. 672 30 O.R. 639 L.R. 3P.C. 24 [1905] 1 K.B. 237 31 Ch.D. 596 22 Wall. 157

86, 92, 94, 97, 105

329,331,332 468 559 614 483

R.W.

Co

137 Fed. Rep. 708, 41

Am. &

Eng. R.R. Cas. (N.S.) 250. 40 Church V. Abell I S.C.R. 442 285 Churchill and Township of Hullett, Re II O.L.R. 284 617, 618 Churchill, Lord, Re, Manisty v. Churchill 39 Ch.D. 174 347 Clancarty^ Lord, v. Latouche 1 Ball & B. 420 89,94,102 Cleary and the Township of Nepean, Re 14 O.L.R. 392 578,580 Clements and the Republic of Costa Rica V. Erlanger, Re 46 L.J.N.S. Ch. 375 482,498 Clough V. London and North-Western R.W. Co 282 L.R. 7 Ex. 26 Cloves V. Awdry 335 12 Beav. 604 .

.

B

^VOL.

XVI. O.L.R.

.

.

CASES CITED.

XVI

Name of

[vOL.

Where Reported.

Case.

Page

Russ. & M. 418 283 Coe V. Lawrance 1 E. & B. 516.... 505, 510 143 Coe and Township of Pickering, Re 24U.C.R. 439 Coley V. City of Statesville 121N.C. 301 548 Colonial Bank of Australia v. Willan. L.R. 5C.P. 417 598 Commissioner for Railways v. Brown 13 App. Cas. 133 619,622 Confederation Life Association v. Labatt 35 C.L.J.N.S. 443 245 344 Copis V. Middleton Turner & Russ 224 Corbett v. Corbett 14 P.D. 7 173 Cornell, Re 180 9 O.L.R. 128 Cosmopolitan Life Association, Re 15P.R. 185 596 596 Cote V. Halliday 33 C.L.J.N.S. 159 Courtauld v. Legh L.R. 4 Ex. 126 503 Couturier v. Hastie 8 Ex. 40 464,466 Coventry v. McLean 22 O.R. 1 566 Co wen V. Truefitt 577 [1899] 2 Ch. 309 Cox V. Hakes 15 App. Cas. 506 523 Crabbe v. Little 14 O.L.R. 631 567, 569 611 Crabtree v. Poole L.R. 12 Eq. 13 Crawford v. Beattie 39 U.C.R. 13 541,552 Crawford v. Provincial Ins. Co 363 8 C.P. 263 Cree v. St. Pancras Vestry 317 [1899] 1 Q.B. 693 Crerar v. Canadian Pacific R.W. Co 5 O.L.R. 383 636 Cribb V. Kynock, Limited [1907] 2 K.B. 548 3, 4, 5, 7, 16 Crocker v. Banks 4 Times L.R. 324 10, 20 144 Cross V. Township of Gladstone 15 M.L.R. 528 Crossfield v. Gould 9A.R. 218 566 Crosskill v. Bower 32 Beav. 86 90, 94 Crown Bank of Canada v. Brash 8 O.W.R. 400; 9 O.W.R. 789. 552, 557 Crowther v. Boult 595 33 W.R. 150 Cummings v. Worcester, Leicester and Spencer Street R.W. Co. (Mass.). 166 Mass. 220 38 Cockerell v. Cholmeley

1

.

.

.

.

.

D. Dahlberg v. Minneapolis Street R.W. Co. Dalrymple v. Scott Dalton V. Angus Daniels v. Davison Darnley, Earl of, v. London, Chatham

32 Minn. 404 19 A.R. 477 6 App. Cas. 740 16 Ves. 249, 17 Ves. 433

38 566 659,661 ... 602 .

.

.

...

.

and Dover R.W. Co 36 L.J.N.S. Ch. 404 Davey v. London and South-Western R.W. Co 12 Q.B.D. 70

...

283

Davidson Davidson

...

5 232

Davies,

v. v.

Grange Walker

4 Gr. 377 1

Re

Davies v. Gregory Davies v. Sovereign Bank Davis V. Galmoye Dawes v. Pinner Degg V. Midland R.W. Co Dempster v. Lewis

Denny v. Hancock De Rutzen v. Lefrancois Dewar and Township of East Re Dickinson v. Dodds Dickey v. McCaul Dickson v. McMurray

Dixon

Doe

V.

V. Bell

Bird

N.S.W. 196

21 Q.B.D. 236 3 P. & M. 28 12 O.L.R. 557

39 Ch.D. 322 2 Camp. 486 26 L.J.N.S. Ex. 171 33 S.C.R. 292 L.R. 6 Ch. 1 4 A. &E. 53

483, 498

321 652 ... 483 88 5 ... 568 ... 566 68 ... ...

.

.

.

.

.

.

Williams,

,.

.

10 O.L.R. 463 2 Ch.D. 463 14 A.R. 166 28 Gr. 533 5 M. & S. 198 11 East 49

152 601 128 232, 233 ... 559 ... 336 ... ... .

.

.

..

,

CASES CITED,

XVI.]

Name of

Where Reported.

Case.

Doe d. Doe d. Hubbard v. Hubbard Doe d. Lempriere v. Martin Doe d. Smith v. Galloway Doe d. Spafford v. Breakenr^dge Doe ex dem. Spafford v. Brown Clements

Donaldson

XVll

2 T.R. 498 15 Q.B. 227, 241. 2 W. Bl. 1148 5 B. & Ad. 43. 1 C.P. 492 3 O.S. 90 12 Gr. 431

v. Collins

.

Donaldson. Dorst V. City of Toronto Dougherty v. Williams Douglas V. Simpson v.

.

...

.

...

... ... ...

.

167 577 167 577 602 181

317 ... 662 ... 43 ... 317 ... 344 ... 632 ... 566 44 283, 285 ... 483 ... 492 ... 172 381,382 .. 331 ...

11 O.W.R. 738 32 U.C.R. 215 [1905] 1 Ch. 279 Dowbiggen v. Bourne 2 Y. & C. Ex. 462. Doyle V. Kaufman 3 Q.B.D. 340. ...... Drysdale v. Mace 5 DeG.M. & G. 103 Dun V. Seaboard and Roanoke R.R. Co.. 78 Virg. 645 Dunbar v. Tredennick 2 Ball & B. 304. Duncan v. Trott 2 Ch.Ch. 487 Dudley, Re 12 Q.B.D. 44 Dugdale,.Re, Dugdale v. Dugdale 38 Ch.D. 176 Duncan and Town of Midland, Re 16 O.L.R. 132 Duncombe, Re 3 O.L.R. 510 Dundas v. Hamilton and Milton Road Co 19 Gr. 455 ‘‘Dundee,” The 1 Hagg. Adm. R. 109, 126 Dunne v. English L.R. 18 Eq. 524 Dwyer v. Rich. [1870] 4 Ir. R.C.L. 424 .

Page ...

.

.

.

.

.

484 167 435,451 201 ...

....

.

.

.

.

E.

East

London Union R.W. Co

v.

Metropolitan

372 93 336 540, 555 468

L.R. 4 Ex. 309 Eastern Counties, etc., Co. v. Marriage.. 9 H.L.C. 32 Easum v. Appleford 5 My. & Cr. 59 Eddy V. Village of Ellicottville 35 N.Y. App. Div. 256 Edge V. Frost 4 D. & R. 243

Edinburgh Street Tramways Co. v. Lord Provost, etc., of Edinburgh Edwards v. Town of Pocahontas Edwards v. Corporation of Liverpool. Ellis V. The Queen England v. Cowley Erlanger v. New Sombrero Phosphate Co Esquimalt Waterworks Co. v. Victoria. .

.

523

[1894] A.C. 456 47 Fed. 268 86 L.T.N.S. 627 22 S.C.R. 7 L.R. 8 Ex. 126

541, 549, 555

598 481,482,489 637 .

282 186 335 493

3 App. Cas. 1218 4 W.L.R. 59 Esther Williams, Re, Foulkes v.Williams 42 Ch.D. 93 Evans, Re, Evans v. Noton [1893] 1 Ch. 252 .

F.

Fahner v. Brooklyn Heights R.R. Co.. Falkner

Farmer

v.

.

.

Butler

v. Grand Trunk R.W. Co Farquharson v Imperial Oil Co Farwell v. Boston and Worcester Railroad Corporation Favre v. Louisville and Nashville RR. Co Fenna v. Clare & Co Ferguson, Re, and Township of Howick.. Fernandez, Ex p Fewster v. Turner First Natches Bank v. Coleman Fischer v. Borland Carriage Co

86 App. Div. (N.Y.) 488 Ambler 514

45 336 45, 66 200

21 O.R. 299

29 O.R. 206 4 Met. 49, 3 Macq. 316 16 S.W. Rep. 370, 91 [1895] 1 Q.B. 199

Ky. 541

17 ..

.

.

.

44 U.C.R. 41 10 C.B.N.S. 3 6 Jur. 144 2 O.W.R. 358 8 O.W.R. 579, 9 O.W.R. 193.

.

37 45 160 495 602 122 122

.

xvm

CASES CITED.

Name of

[vOL.

Where Reported.

Case.

Fitzgerald v. Dressier Fitzpatrick v. Casselman

Fleming v. City of Toronto Fletcher v. Baker Fletcher v. Rylands Flower v. Gardner Flower v. Bright Flynn v. Industrial Exhibition Associa.....; tion of Toronto Foreman v. Mayor of Canterbury Forman v. Bank of England

7 C.B. N.S. 374 29 U.C.R. 5 29 O.R. 549.

464

^43 l52 537 ........ 559

.

"

.

L.R. 9 Q.B. 370 L.R. 1 Ex. 265 3 C.B.N.S. 185 2 J. & H. 590 6 O.L.R. 635 L.R. 6Q.B. 214 18 Times L.R. 339 3 F. & F. 214

Page

427 632 .

65

.

541 91

Bank of London .86,91,93,97 Forsyth v. Canniff and the City of 478.. O.R. Toronto 20 .546,547,555 Foss V. Harbottle 2 Ha. 461 235 Francis v. New York Steam Co 1 N.Y. State Reporter. 33 24 A.R. 441 Fraser v. Ryan 372 19 O.R. 141. .... Freeman v. Freeman 317 Freston, Re 483,492 11 Q.B.D. 545 Frye v. Milligan 10 O.R. 509 285 Fulton V. Andrew L.R. 7 H.L. 448 317 Foster v.

G.

Gamble

v.

Howland

3 Gr. 281

Gaskell v. The King Gautret v. Egerton Germantown Passenger

11 East 165

L.R. 2 C.P. 371

R.W.

Co.

v. V.

Barton

105 Pa. 38 L.R. 10 Q.B. 329

Young

21 N.S.W.L.R. 7

Giles V. Giles Gilhula, Re

Glasgow, Earl

1

Keen 685

10 O.L.R. 469 of, v.

... .

.

.

497 92

.

.

.

.

19

v.

Brophy Gibson Gibson

.

.

38 .502,505 ... 551 ... 591 ... 514

.

.

.

.

.

.

Hurlet and Campsie

Alum Co Glasscock v. Balls Glengarry Controverted Election Case.

.

v. Smith Goodson V. Ellisson Gordon v. Harper

Goodacre

3 H.L.C. 25 24 Q.B.D. 13 14 S.C.R. 453 1 P. & M. 359 3 Russ. 594 7 T.R. 9

Goulden and the Corporation of the City Ottawa, Re 28 O.R. 387 Graham v. Graham, Re 11 O.W.R. 700 Graham v. McArthur 25 U.C.R. 478 Grant v. Howard Insurance Co. of New

York Gray v. Coucher Gray v. Pullen Gray v. Smith Great Northern and London and NorthWestern Joint Committee v. Inett..

5 Hill (N.Y.) 11 15 Gr. 419 5 B. & S. 970 43 Ch.D. 208.

2 Q.B.D. 284 Green v. Stevenson 9 O.L.R. 671 Greene County, Board of Commissioners of, V. Boswell 4 Ind. App. 133 Greystock v. Otonabee 12 U.C.R. 458 Griffiths V. Earl of Dudley 9 Q.B.D. 357 Grizzel v. Frost Guild Co. V. Conrad Gulliver v. Jeffereys and Poyntz. Gunther v. Liverpool, London

Globe Insurance Co

...

.

.

.

.

.

...

.

.

.

.

.

.

.

.

.

...

.

,

... .

..

.

..

.

..

.

..

... .

..

599 94 634 321 74 125 502 169 455

218 602 658 566

...

595 568

... ...

540 278

...

5

3 F. & F. 623 [1894] 2 Q.B. 885 3 Wils. 141

463, 465 ...

167

20 Blatchf. 362. .....

...

218

.

.

.8,20

and

..

CASES CITED.

XVI.]

H.

Name

of Case.

Hadden v. Hadden Haldimand (Dom.)

Election Case

Hall V. Hawk Hall and Township of Walsingham, Re. Hall & Co. V. Trigg Halsted v. Bank of Hamilton

R.W.

of, v.

Where Reported.

Page

6 B.C.R. 340 1 Elec. Cas. 529 S.C.R. 505 20 O.R. 13 9 U.C.R. 310 [1897] 2 Ch. 219 27 O.R. 435, 24 A.R. 152, 28 S.C.R. 235 346, 401, 406, 407, 409, 413, 414,

Halifax, City of, v. Lordly

Hamilton, City

20

XIX

171

310 659 637 152 483

423

Hamilton Street 4

Co. (Ticket Case)

O.W.R. 207, 311, 411; 6 O.W.R. 207, 8 O.L.R. 642, 10 O.L.R. 524, 39 S.C.R. 673

650,651 93 93,95,97 233 463,466 [1896] 1 Q.B. 335 658,660,663 2 O.R. 529 152 L.R. 3 Ex. 107 87,93,97 [1905] 1 K.B. 472 253 8 O.L.R. 720 329,331,333 21 S.C.R. 390 566 26 Ch.D. 644 483,494 10 W.R. 881, 31 L.J.N.S. Ch. 873 232 7 O.W.R. 799, 8 O.W.R. 528. ... 560

Hammersmith, etc., R.W. Co. v. Brand.. L.R. 4H.L. 171 18 P.R. 185 Hannum v. McRae. 23 Ch.D. 14 Harben v. Phillips Harburg India Rubber Co. v. Martin. [1902] 1 K.B. 778 .

.

.

.

.

.

.

.

Hardaker v. Idle District Council Harding and Township of Cardiff, Re Hardy v. Veasey Hargroves, Aronson & Co. v. Hartopp. Harkness, Re Harris v. Robinson

Harvey

v.

.

.

Harvey

Hattersley v. Earl of Shelburne

Haverstock

Hayward

v.

v.

Emory

Canadian Northern R.W.

4W.L.R. 299

Co Helby v. Matthews

261 601,602 592

[1895] A.C. 471

Hellings v. Jones 10 Moore 360 Heneker v. British America Assurance 14 C.P. 57 Co Hesketh v. City of Toronto 25 A.R. 449.

Hewett

V. Barr V. Newport, etc.,

Hicks R.W. Co Higginbotham’s Case Hill V. East and West India Dock Co. Hill V. Wilson Hindson v. Kersey

.

.

.

.

Hipwell V. Knight Hite V. Whitley County Court

Hodgson

V.

218,219,221,225 541,557 Q.B. 98 632 [1890] 1 4 B. & S. 403a 66 12 O.L.R. 112. 121 22 Ch.D. 14, 9^App. Cas. 448.. 523 L.R. 8 Ch. 888 Ill 4 Brown’s Eccl. Law, 9th ed., 120 p. 321 1 Y. & C. Ex. 401 566 91 Ky. 168 540 3 My. & K. 183 344 6 A. & E. 56 502

Shaw

.

.

Holborn Union, Re Holbrook v. Utica and Schenectady 12 N.Y. 236 R.R. Co Hole V. Sittingbourne and Sheerness R.W. Co 6 H. & N. 488 Hollins V. Fowler L.R. 7 H.L. 757

Holmes

Home

v.

8 DeG.M.

Powell

Life Association of

Canada

Hopkins v. Prescott House V. Brown Howe V. Synge Co

V. v.

33,45 659,661 130 602

G. 572

v.

Randall Hopkins, Ex p

Howes Huber

&

.

Barber Cedar Rapids and M.C. R.W.

30 S.C.R. 97

66L.T.N.S. 53 4C.B. 578 14 O.L.R. 500 15 East 440 21 L.J.N.S.Q.B. 254

35

619,626, 628 531 88 601 92

427

Am. & Eng. R.R. 768, 100

N.W.

Cas. (N.S.) Rep. 478. .. .

37

. .

XX

. ,

CASES CITED.

Name of Hudson

V.

Where Reported.

Case.

Temple

29 Beav. 536 [1896] A.C. 470 8App. Cas. 443 22 C.P. 580 5 0.L.R. 635

Hulbert. v. Cathcart Hughes V. Percival

Humphrey

v. v.

[vOL.

Wait

Kratz Hunt V. Berkley Mosley (Ca. 32) 47 Huson and Township of South Norwich, Re 19A.R. 343 Huyck, Re lOO.L.R. 480

Hunsberry

Page 566 495,498 662 253 173 167

160 317

I.

5 Times L.R. 739 Imperial Bank v. Farmers’ Trading Co 13 Man. L.R. 412 Indianapolis and Cincinnati R.R. Co. v. Rutherford 29 Ind. 82 International Wrecking Co. v. Lobb 12 P.R. 207 Interurban Railway and Terminal Co. v. Hancock 78 N.E.R. 964. Ilchester, Earl of, v. Rashleigh

.

.



.

Isaac,

Re

1

My.

&

Cr. 11.

,

... 186 118,122

.

.

.

...

38 140

.

44

...

595

.

.

J.

Jarmain v. Chatterton Jegon V. Vivian

20 Ch.D. 493. L.R. 6 Ch. 742 15 A.R. 477.

.

Jennings v. Grand Trunk

R.W. Co

.

Joel V. Morison Johnstone v. Milling

Jones

Joy

Davids

V.

V.

Birch

.

6 C. & P. 501. 16 Q.B.D. 460. 4 Russ. 277 4 Cl. & F. 57. 16 O.L.R. 380 .

Joyce and Township of Pittsburg,

Re

.

.

.

493 125 384 559, 563 ... 566 ... 344 ... 602 ... 580 ...

... ...

K.

Temple 1 B. & P. 158, Keen v. Henry [1894] 1 Q.B. 292 Keith V. Ottawa and New York R.W. Co. 5 O.L.R. 116 Kekewich v. Manning 1 DeG.M. & G. 176

Keate

Kelly Kelly

Kent Kent

v.

V.

Barton

V. Electrical

26 O.R. 608 10 O.W.R. 704 31 S.C.R. 110

Construction Co

V. Ellis V. La Communaute des Sceurs

.

.

468 564 40 601 546 122 125

de

408 [1903] A.C. 220 24 O.R. 473 171 Kilner, Ex p.. Re Barker 13 Ch.D. 245 419 4 Ch.D. 435, 5 Ch.D. 367 167 King V. George Kinny, Re 6 O.L.R. 459 317,318 Kirkstall Brewery Co., Re 5 Ch.D. 535 503 Kistler v. Tettmar 483 [1905] 1 K.B. 39 Kite V. Millman 2 M. & Sc. 616 593 24 Klokke V. Stanley 101 111., 192 Knapp V. Carley 566 3 O.W.R. 940 Knight V. Fox 5 Ex. 721 656 Kuntz V. Niagara District Fire Ins. Co.. 16 C.P. 573 218, 221, 225 Kruse v. Johnson [1898] 2 Q.B. 91, 14 Times L.R. Charite

Kerr

v.

Smith

.

416,508,512,514

Kyte V. Commercial Union Assurance Co 149 Mass. 116

2l8

L.

Ladford

v.

Council Laird v. Pirn

Billericay

Rural District [1903]

7 M.

1

K.B. 772

& W.

474

247 373,377^378,379

CASES CITED.

XVI.]

Name of Lakeman Lamare

v.

v.

Where Reported.

Case.

Mountstephen

Dixon

Lamb

v. Kincaid Lamine v. Dorrell

Laming

v. Gee Cox V. Kerr Larios v. Bonany y Gurety Latouche v. Dunsany Lented v. Congdon

Lane Lang

XXI

v.

!

Levin v. Town of Burlington Lewis V. City of Raleigh Linton v. Linton Lindley v. Polk County Liverpool and London Insurance Co. v. Gunther Livingstone v. Rawyards. Lloyd V. Collett Lloyd V. Freshfield Local Option By-law of Township of .

116U.S.R. 113 5 App. Cas. 25 4Bro. C.C. 469 2 C. & P. 325

218 125 566 94

16 O.L.R. 293 Salt fleet, Re Locke V. Colman M. & Cr. 42..: Lockhart v. Wilson 39 S.C.R. 541 London and Canadian Loan and Agency

London and Canadian Loan and Agency 10 O.R. V. Morphy London Assurance Corporation v. Great Northern Transit Co

London and South-Western R.W. Co.

29 S.C.R. 577

483 218

20 Ch.D. 562

.601,614

v.

13 O.L.R. 540 2Str. 693

217 592

5 Bush.

37 128

v.

Sickings v.

A.R. 577

v.

Gomm London and Western Trust Co. Canada Fire Ins. Co Lorymer v. Hollister Louisville and Nashville R.R. Co. Lythgoe

86, 14

381 321 122

483

32 C.P. 375

V. Merritt

Page

1 L.R. 5 Q.B. 613, L.R. 7 Q.B. 196, L.R. 7 H.L. 17.467, 473, 474 L.R. 6 H.L. 414 567 38 S.C.R. 516 125 2 Ld. Raym. 1216 125 lOCh.D. 715 634 256 2[1897] 1 Q.B. 415 3 App. Cas. 529 523 L.R. 5 C.P. 346 91 Sch. & Lef. 137 602 1 O.L.R. 1 452,453 129 N. Car. 184 540 77 N.C. 229 555 15Q.B.D. 239 171 84 lo. 308 540

5H. &

Vernon

1

N. 180

M.

Mace and County of Frontenac, Re Mahony v. Donovan Mains v. Inhabitants of Fort Fairfield. Manchester Bonded Warehouse Co.

42 U.C.R. 70 (1863) 14 Ir. Ch. 262 .

.

v.

Carr

Manes Tailoring Co. v. Willson Manley v. Palache Manuel v. Board of Commissioners Cumberland County Marpessa, The

v.

5C.P.D. 507

255

14 O.L.R. 89

121

73L.T.N.S. 98

69

of

Marrin v. Graver Martin and Dagneau, Re Mason v. Great Western R.W. Co Mason v. Seeney

Matthew Co

99 Me. 177

143,299 167 549

98 N. Car. 9 [1891] P.403 8 O.R. 39 11 O.L.R. 349 31 U.C.R. 73 2 Ch. Ch. 220

541

66 253 173, 175 345 483

West London Waterworks

Mattingley’s Trusts Mellor V. Denham Meluish v. Milton Mersey Docks Trustees v. Gibbs Meredith v. City of Toronto

3 Camp. 403 2 J. & H. 426

5Q.B.D. 467..... 3 Ch.D. 27 L.R. 1 H.L. 93 22 A.R. 207

657 331,334 488 592 556 506

.

CASES CITED.

XXll

Name of Merrill

Where Reported.

Case.

Insurance

v.

Co.

America

Michell V. Brown Miles and Township of Richmond, Miller v. Hancock Miller v, St. Louis R.R. Co Milloy and Village of Onondaga, Mills, Re, Mills V. Mills Mollett V. Robinson

Re

.

.

.

Re

Montreal, Corporation of, v. Doolan Montreal Rolling Mills Co. v. Corcoran. Mooney v. Prevost

.

Moorcock, The

Moore v. Moore Moore v. Phcenix Fire Insurance Co Morgan v. Alexander Morgan’s Settled Estate, Re Morrell v. Fisher Morris v, Richards Morris v. Thrale Morrison v. Universal Marine Ins. Co..

.

.

Moses V. Little Mosse V. Salt Mountstephen v. Lakeman

Mozley

Payne

V, v.

.

Alston Mullens v. Miller Mullin V. Kettzleb Mullins V. Howell

Mumby, Re Murphy v. Smith Murphy v. O’Shea Murray v. Jenkins Murray v. Palmer Myers v. The Financial News

.

.

'.

'.

Moxon

23 Fed. R. 245 219 22 A.R. 205 512 43 Ch.D. 633, [1891] 3 Ch. 1 172 4 21 Gr. 214 482 1 E. & E. 267 455 28U.C.R. 333 143 253 [1893] 2 Q.B. 177 5 Mo. App. 471 38 6 O.R. 573 160 34 Ch.D. 186 335,336 L.R. 5C.P. 646 435,448 19 Math. R.R. 125 546 26 S.C.R. 595 540 20Gr. 418 566 14 P.D. 64 17 O.L.R. 167 10, 19 64 N.H. 140 219 L.R. 10 C.P. 184 537 L.R. 9 Eq. 587 180 4 Ex. 591 577 45 L.T.N.S. 210 632 24 O.R. 159 637 L.R. 8 Ex. 197 282 14 O.L.R. 631 567, 569 88,94,102 632 Beav. 269 L.R. 7 Q.B. 203 469 L.R. 8 Ch. 881 283 1 Ph. 790 232, 235 22 Ch.D. 194 566 7 Bush. (Kentucky) 253 437 11 Ch.D. 763 593 8 O.L.R. 283 177 19 C.B.N.S. 361 9 2 J. & L. 422 436 28 S.C.R. 565 567 2 Sch. & Lef. 474 283 5 Times L.R. 42 317 .

Meyers

v.

Page

North

of

Merritt v. City of Toronto Metcalfe v. Metcalfe

Meyers

[vOL.

.

Me. Macdougall

Mackey

v.

Maclaren

v.

Gardiner

1

Sherman

v.

232 25 331 172

Ch.D. 13.

8 O.R. 28 15 O.L.R. 142

Maclaren

MacLeay, Re L.R. 20 Eq. 186 Macleod v. Attorney-General for New South Wales [1891] A.C. 455 508, 512, 513 McArthur v. Dominion Cartridge Co [1905]A.C. 72 45 McCabe v. Middleton 27 O.R. 170 452,453 McCarthy v. Cooper 8 O.R. 316, 12 A.R. 284 566, 568 McCartee and Township of Mulmer, Re. 32 O.R. 69 145 McCleave v. City of Moncton 32 S.C.R. 106, 35 N.B. 296. 541,545,546,553,557 McClennan v. Foucault 616 11 O.W.R. 659 McClung V. McCracken 566 2 O.R. 609, 3 O.R. 596 McCreesh v. McGeough 71 (1873) I.R. 7C.L.236 .

McCreight

v.

McDermott Guiana

Foster v.

The Judges

L.R. 5 Ch. 604 of

.

.

614

British

L.R. 2 C.P. 341 McDonald v. Murray. 11 A.R. 101 McGarvey v. Corporation of Strathroy.. O.R. 138 McGregor v. Gaulin 4U.C.R. 378

495 373,377, 570 484 102

.

CASES CITED.

XVI.

Name of

XXlll

Where Reported.

Case.

3 H.L.C. 132 McGregor v. Topham McIntyre v. East Williams Mutual Fire 18 O.R. 79 Insurance Co McKinnon v. Village of Caledonia, Re. 33U.C.R. 502 7 A.R. 490 McLean v. Pinkerton 29 Gr. 438 McLaren v. Caldwell 18 Gr. 502 McLennan v. McDonald .

McPherson McPherson

v. Irvine

McQuay

Eastwood

v.

v.

McRae and

320

219,230 .. 160 632 497 .602, 605 482

.

McLeod V. St. Aubyn McManus v. Inhabitants of Weston M’Myn, Re, Light bo wn v. M’Myn

Page

[1899] A.C. 549 164 Mass. 263...

551 343 33 Ch.D. 575 26 O.R. 438 384 3 App. Cas. 254 435,448 12 O.R. 402, in App. 7 C.L.T. 540 (Occ. N.) 47 8 0.L.R. 156 169 .

Watt

Village of Brussels

The Mayor, etc., of the City John 6S.C.R. 531 McWilliams v. Dickson Co. (No. 2) 6 O.W.R. 706 McSorley

v.

545 124

of St.

N.

Nason

v. Armstrong 21 A.R. 183 National Malleable Castings Co. v. Smith’s Falls Malleable Castings Co. 14 O.L.R. 22 Naughter v. Ottawa Agricultural Insurance Co 43 U.C.R. 121. Neale v. Winter 9 Gr. 261 Neate v. Harding 6 Ex. 349 Nebraska and Iowa Insurance Co. v. Christ iensen 45 N.W. Rep. 924 Nell V. Longbottom [1894] 1 Q.B. 767. Nelson v. Nelson 6 P.R. 194 New Gold Coast Exploration Co., Re. ... [1901] 1 Ch. 860. New Orleans v. Steamship Co 20 Wall. 387 Nixon V. Phillips 7 Ex. 192 North American Fire Insurance Co. v. Zaenger 63 111. 464 North British Mercantile Insurance Co. V. Steiger 124 111. 81. North British Mercantile Insurance Co. .

of

London and Edinburgh

v.

.

.

...

566

...

247

...

219 317 128

... ...

219,225 581,586 ... 498 ... 482 ... 483 ... 510 ...

218

...

219

Union

Stock Yards Co Northcote, Re

87 S.W. Rep. 285. 18 O.R. 107

219,225 ...

172

O.

Oakden

v.

O’Byrne

Burn Bank v. O’Reilly

Pike

v.

34 L.J. Ch. 620 16 Dunlop 1025 12 O.L.R. 420

Orr-Ewmg

2 App. Cas. 839

Ontario

566 10

407,409,410,414,422 v. Colquhoun Osborne v. Jackson O’Shea v. O’Shea and Parnell, Ex.

Tuohy

11 Q.B.D. 619

200 5

p.

15 P.D. 59

..481,482,483,489,491,492,493

Ostrom and Township O’Sullivan v.

of

Sydney, Re

Donovan

Ottawa Dairy Co. Owen V. Knight Owen V. Sprung

v.

Sorley

15 O.R. 43, 16 A.R. 372 8 O.W.R. 319 34 S.C.R. 508 5 Scott 307 28 O.R. 607

144, 160

122 121, 122

125 251

.

CASES CITED.

XXIV

[vOL,

P.

Name of

Where Reported.

Case.

Padelford v. Providence Mutual Fire Insurance Co 3 R.I. 102 Page V. Linwood 4 Cl. & F. 399 Pakenham Pork Packing Co., Re, Galloway’s Case 12 O.L.R. 100 Paquette, Re 11 P.R. 463 Parkin v. Thorold 16 Beav. 59 Pearson and Son v. Dublin Corporation.. [1907] A.C. 351 Peart v. Bushell 2 Sim. 38 45 U.C.R. 620 Peck V. Phoenix Mutual Insurance Co Peer v. Humphrey 2 A. & E. 495 Pellatt’s Case L.R. 2 Ch. 527 Pender v. Lushington. 6Ch.D. 70....: Penfold V. Giles 6 L.J.N.S. Ch. 4 .

Penny

v.

Wimbledon Urban

.

Pollard,

Re

Pordage

v. Cole

v.

218

88 121 .

.

.

.

.

.

.

.

.

.

.

.

597, 598

.566,567 284 593 .219,229 125 .121, 122

233 591

District

Council [1898] 2 Q.B. 212 People ex. rel. Waters v. Commissioners of Emigration 22 Howe Pr. N.Y. 291 Perrins, Limited, v. Algoma Tube Works, Limited 8 O.L.R. 634 Peruvian Guano Co. v. Dreyfus Bros. & Co [1892] A.C. 166 Pett’s Will, Re. 27 Beav. 576 Peuchen v. Imperial Bank 20 O.R. 325 Pfefferle v. Board of Commissioners of Lyon County 39 Kan. 432 Phillips V. City of Belleville 10 O.L.R. 178 Pickard v. Smith 10 C.B.N.S. 470 Pickering v. Ilfracombe R.W. Co L.R. 3 C.P. 235 Pigot V. Cubley 15 C.B.N.S. 701 Pilgram v. Southampton, etc., R.W. Co.. 8 C.B. 25 Pittsburg and Connells ville R.R. Co. v. Andrews 39 Md.329 Pittsburg and Connells ville R.R. Co. v. McClurg 56 Penn. 294 Plant V. Bourne [1897] 2 Ch. 281 Platt V. City of Toronto, Re 33 U.C.R. 53 Plenderleith v. Parsons 6 O.W.R. 145

Plumstead Board of Works Land Co

Page

662 24

.

652 125 591

343

540 140 659 92 91,95 125 39

44 .

.

.

.

567, 576

160 270

British ... 200, 204 L.R. 10 Q.B. 16 495 L.R. 2 P.C. 106 Wm. Saund., ed. 1871, vol. 1, p. 548; vol. 2, p. 742 (note) 372, 378

Port Arthur and Rainy River Provincial Election Case, Re 14 O.L.R. 345 Porter, Re 13 O.L.R. 399 Potter V. Faulkner 31 L.J.Q.B. 30 Potter V. Sanders 6 Hare 1 Powell V. Rees 7 A. & E. 426 Power V. Hoey 19 W.R. 916 Powley V. Whitehead 16 U.C.R. 589 Prentice v. Consolidated Bank 13 A.R. 69 Pretty v. Solly 26 Beav. 606 Price V. Williams 1 M. & W. 6' Pure Colour Co. v. O’Sullivan 10 O.W.R. 313 Pyne v. Dor 1 T.R. 55

.

.

.

,

.

.

.

.

.

.

.

.

.299,580 17^, 175

.

5 .601,604

125

.

...

122 596 95 299 566, 574 122 125

Q.

Quarman

v.

Burnett

6M.

&W.

499

650

XXV

CASES CITED.

XVI.]

R. Railton v.

Name of Wood

Railway Co. Rand, Ex p

Ranney

v.

Rashleigh Ratcliffe Co.,

Rauch

V.

Rayne

v.

v.

Where Reported.

Case.

15 App. Cas. 363 732 Ohio 571 24 N.B. 374 78 Mich. 318 16 Sim. 390

Hutchins

Donovan Mount

v.

Mill

and Timber

Millers’

Mutual Fire

and Crescent

Re

1

Michigan Insurance Co

91

Baker Regina ex rel. Davis v. Wilson Regina ex rel. Harding v. Bennett Regina ex rel. Mackenzie v. Martin Regina ex rel. Macnamara v. Heffernan. Regina ex rel. McManus v. Ferguson. Regina ex rel. Piddington v. Riddell. Regina ex rel. Whyte v. McClay Regina v. Applebe Regina v. Barnardo (Tye’s Case) Regina v. Bunting Regina v. Clark Regina v. Coursey Regina v. Crandall Regina v. Fick Regina v. Fisher Regina v. Governors of Darlington .

.

.

.

Hutchings v. Judge of Southampton County Court Regina v. O’Bryan Regina v. Payne and Cooper Regina v. Plowman Regina V. Poor Law Commissioners, In re Holborn Union Regina v. Pringle Regina v. Prittie Regina v. Registrar, etc., of Leeds Regina v. Rose Regina v. Saddlers’ Co Regina v. Smith Rex ex rel. Beck v. Sharp Rex ex rel. Cavers v. Kelly Rex ex rel. Jamieson v. Cook Rex ex rel. Milligan v. Harrison Rex ex rel. Ross v. Taylor Rex V. Audley Rex V. Bank of Montreal v.

.

Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex

N.W. Rep. 160

241 3 C.L.J. 165 27 O.R. 314 28 O.R. 523 O.L.R. 289 2 C.L.J. 19 4 P.R. 80 13 P.R. 96 30 O.R. 623 23 Q.B.D. 305 7 O.R. 118 5Q.B. 886 27 O.R. 181 27 O.R. 63 16 C.P. 379 lEx. C.R. 121 1 Giff.

6Q.B. 682

School

Regina Regina

O.L.R. 331

V. Barham V. Bateman V. Boomer V. Davies V. De Mierre V. Dungey V. Elliott V. Goodfellow V. Hayes V. James V. Jukes V. Justices of Sunderland .

6 Q.B.D. 300

Page 523 125 312 437 595

27 219 615 240 581,583 311,580 581,584 240 269 582,587 505 492,493 245 457 298,299 534 43 186

505 27

65 L.T.N.S. 320 7 Ex. C.R. 19 [1896] 1 Q.B. 577 25 O.R. 656

344 483 514

6 A. & E. 56 6 J.P. 249

502 457

42U.C.R. 612

455

16 Q.B.D. 691 27 O.R. 195 32 L.J.N.S.Q.B. 337 31 O.R. 224 16 O.L.R. 267 7 O.W.R. 600 9 O.L.R. 466 11 O.W.R. 554

537 523 514

27

505,523,534 582.587 476,477 582 582, 583 269 1 O.W.R. 265 523 23 Times L.R. 211 10 O.L.R. 117, 11 O.L.R. 595, 90,94, 100 510 8 B. & C. 99 26 4B. &Ad. 552 15 O.L.R. 321 523,534 482,489 [1896] 1 K.B. 32 551 5 Burr. 2788 349 2 O.L.R. 223 96 9 O.L.R. 648 531 11 O.L.R. 359 533 5 O.L.R. 198 [1902] 1 K.B. 540. .455,457,523,531 531 8T.R. 536 598 [1901] 2 K.B. 357

.

CASES CITED.

XXVI

Name of Rex Rex Rex

Where Reported.

Case.

V. V.

Leconte

V.

Master Plumbers’,

London Improved Cab Co etc.,

Meikleham

V.

Westwood

Reynolds Rice

Associa.

.

v. Tilling

Richmond and

Danville R.R. Co. v.

Rickey v. Township of Marlborough Robertson v. City of Marion Robertson v. Day Robertson v. Watson Robins v. Robins Robinson v. Harris Robinson v. W. H. Smith & Son

[1907] 2

2Addams54 15 M. & W. 444

Brookman

Royal British Bank v. T.urquand Royal Canadian Bank v. Shaw Russell, Re, Russell v. Shoolbred

Russell V. Lefrancois

Rupp

V.

K.B. 13

19A.R. 134.. 17 Times L.R. 235

Robson V. Rocke Rodgers v. Maer Rogers v. Sorrell Rolin V. Steward Rose V. Toledo Rose V. Watson Ross V. Harvey Ross V. Robertson v.

45 144 540 523 186 171 566 8,20 317 128

88 Virg. 958 9 O.W.R. 930 97 Til. App. 332 5 App. Cas. 63 27C.P. 579

Scott

Rothschild

96 534 238 353, 357 245

IIO.L.R. 366 7 Bing. 1 19 Times L.R. 539 35 C.L.J. N.S. 535

Rice

V.

455 564

14 O.L.R. 295

V.

Page

11 Can. Crim. Cas. 41 23 Q.B.D. 281

tion

Rex Rex

[vOL.

Sampson

^

14 Man. R. 450 14 C.B. 595

253,257

24 Cir. Ct. 540 10 H.L.C. 672 3 Gr. 649 7 O.L.R. 464 5 Bligh N.R. 197 6 E. & B. 327 21 C.P. 455 29Ch.D. 254 8 S.C.R. 335 16 Gray 398

549 379 602 251 442,446 118 90 346 588,590 437

91

S.

Sadgrove v. Bryden Salter and Township of Beckwith, Re. .Saltfleet Local Option By-law, Re fBandeman v. MacKenzie Sanderson v. Collins Sandford v. Porter Savery v. King Sawyer v. Arnold Schloss

V.

Schmidt

Stiebel

v.

Town

of Berlin

Scott V. Surman Scougall V. Stapleton ,

Seaward

v.

Paterson

Seigel V. Eisen

Sellwood

Seymore .Shaffers

V. v. v.

Mount Township of Maidstone General Steam Navigation :

V.

Durham

Rochester R.W. Co..

5H.L. Cas. 627 90 Me. 369 6 Sim. 1 26 O.R. 54 Wills 400 12 O.R. 206 [1897] 1 Ch. 545 41 Cal. 109 1 Q.B. 726 24 A.R. 370

591 546 125 43

483,493 38 457 554

L.R. 5 H.L. 321, 1 Sm. & Giff. 537 3 A.R. 549. 22 A.R. 242. Saville Rep., 40 116 N.C. 394 68 111. 292 12 O.L.R. 54,

Shepley v. Hurd Sherk v. Evans Sherrington’s Case

.Sias V.

K.B. 628

16 A.R. 565

57W.Va. 433

Thackray

Shields V. Town of Short V. Millard Shurie v. White

[1904] 1

232 299 580 283 559 317 451 68

10 Q.B.D. 356

Co.... Shaw V. City of Charleston Shaw V. Foster

.Shaw

[1907] 1 Ch. 318 4 O.L.R. 51 16 O.L.R. 293 30 L.J. N.S. Ch. 838

.

18 App. Div. (N.Y.) 506.

4 548 614 602,605 94 596 128 555 437,438 282 .... 45 .

.

.

CASES CITED.

XVI. ]

Name of

Where Reported.

Case.

Gould Thornton Simpson and Clafferty, Re Simpson v. Penton Sinclair and Town of Owen Sound, Re. Sly V. Edgley Small V. Smith Smith V. Andrews Smith V. Baechler Smith V. Baker Siegal V. Sillem V;

.

.

.

.

.

.

.

.

.

.

177. 437

224 597 468 144,298 657 247 191,193 125 354 128,354 503 505 125 523 468 253 45 311

L.R. 6 Q.B. 729 [1901] A.C. 297 1 T.R. 475

.

V. Moody V. Rudhall Snarr v. Beard Snell V. Toronto R.W.

Co South Wentworth (Ont.) Case Special Reference from the Bahama .

Islands,

Page

7 Lansing (N.Y. Sup. Court) 5 E. & B. 868 18 P.R. 402 2 C. & M. 430 12 O.L.R. 488 6 Esp. 6 10 App. Cas. 119 [1891] 2 Ch. 678 18 0.R. 293 L.R. 8 C.P. 350, [1891] A.C. ‘

V. Brown V. Callander V. Milles

Smith Smith Smith Smith Smith

XXYll

Re

Spencer v. Metropolitan Board of Works Spencer v. Milwaukee and Prairie du Chien R.R. Co Spiers v. English Stamford, Corporation of, v. Pawlett Stanbury v. Exeter Corporation Stavers v. Curling. Stephenson v. Yokes Stevens v. Fisk Stevens v. Hurlbut Bank Stevens v. Metropolitan District R.W. .

.

.

[1903] 1 K.B. 56. 3 F. & F. 143 21 C.P. 473 27 A.R. 151 H.E.C. 531

.

.

.

495

[1893] A.C. 138 22 Ch.D. 142

.

..503, 505, 519

32,39,45

17 Wis. 503

321

[1907] P. 122 1 Cr.

&

J.

399 547, 555 378 233 588 95

57

[1905] 2 K.B. 838. 3 Bing. N.C. 355..

.

.

.

.

27 O.R. 691 Cassels’ Dig., p. 235.

31 Conn. 146

Co

29 Ch.D. 60 23 S.C.R. 629 93 N.Y. Supp. 161 State Rep.) Storey v. Ashton L.R. 4 Q.B. 476 Stretton v. City of Toronto 13 O.R. 139 Stuart V. Grough 15 A.R. 299 Stuckeley v. Butler Hob. R. 168 Summers v. Circuit City R.R. Co 34 La. Ann. 139 Suter V. Merchants Bank 24 Gr. 365 Sutherland v. Township of East Nissouri 10 U.C.R. 626 Sutton & Co. V. Grey [1894] 1 Q.B. 285 Swaizie v. Swaizie 31 O.R. 324 Sweeney v. Coote [1906] 1 I.R. 51, 101 Swinfen v. Swinfen 29 Beav. 207 Sydenham School Sections, Re 7 O.L.R. 49

Stevenson v. Davis Stewart v. Baruch

494 .

566, 570, 574 (127 N.Y. .

.

559 559 559 173 166 38 408 152 459, 463 170, 172 567 167 617, 618

T. Tait V. Beggs Talbot and City of Peterborough, Re.

Tamplin Tarry

v.

K.B. 529

[1905] Ir. R. 2 .

.

.

James Ashton v.

12 O.L.R. 358 15 Ch.D. 215 1

Tassell v. Cooper

.

.

.67, 69, 71

278

.

Q.B.D. 314

9 C.B. 509

566, 567

659 86,93,96

Tatham

1

Taylor Taylor

3 Bing. N.C. 235, 3 Scott 614. 2 Yes. Jr. 437 9 Sim. 150 [1894] A.C. 31 8 O.W.R. 93

v. Parker v. Blacklow v. Stibbert

Tench v. Cheese Tennant v. Union Bank.

.

.

.

!

Thomas v. Canadian Pacific R.W.

Co..

.

,

Sm.

&

G. 506

4:82 ...

93 612 595 344 541

.

CASES CITED.

XXVlll

Name of Thomas Thomas Thomas

v. v.

Where Reported.

Case.

Quartermaine Ross

18 Q.B.D. 685 19 U.C.R. 370 [1900] ICh. 10 3 E. & B. 868

v. Sutters

Thornton

[vOL.

v. Sillem

Thorold Manufacturing Co.

v.

Page 5,

18

372,374 512 217

Imperial

Bank

13 O.R. 330 Thuresson v. Thuresson 18 P.R. 414 Tindley v. Salem 137 Mass. 171 Todd V. Old Colony and Fall River R.R.

Co Tomlin V. Luce Tomlinson v. Morris

118,123 258 550 32, 36, 38, 40, 45

3 Allen 18 43 Ch.D. 191 12 O.R. 311 [1907] A.C. 315 [1896] A.C. 88

286 285 93 93

Toronto, City of, v. Toronto R.W. Co Toronto, City of, v. Virgo Toronto General Trusts Corporation v. 95 Central Ontario R.W. Co 7 O.L.R. 660 Toronto General Trusts Corporation v. 318 Wilson 26 O.R. 671 Toronto Public Library Board v. City of 363 Toronto 19 P.R. 329 Toronto Public School Board and City 584 of Toronto, Re 2 O.L.R. 727, 4 O.L.R. 468 Tozeland v. Guardians of West Ham 548,555 Union [1907] 1 K.B. 920 122 Traders Bank v. White [Not reported] Nov. 11, 1907 177 Tredwell, Re, Jeffray v. Tredwell [1891] 2 Ch. 640 269 Trethewey v. Trethewey 10 O.W.R. 684, 893 125 Trotter v. Maclean 13 Ch.D. 574 562 Troughton v. Manning 69 J.P. 207 537 Tunnicliffe v. Tedd 5 C.B. 553 322 Tyrrell v. Painton [1894] P. 151 .*

U.

Union Bank v. Rideau Lumber Co Union Fire Insurance Co., Re

124 4 O.L.R. 721 14 O.R. 618, 16 A.R. 161, 17 231 S.C.R. 265 125 United Merthyr Collieries Company, Re. L.R. 15 Eq. 46 Upper Canada College v. Jackson 441,446,448 3 Gr. 171 Upperton v. Nickolson 566 L.R. 6 Ch. 436 V.

Vandyke and Village of Grimsby, Re. Van Praagh v. Everidge Vaughan, ex dem. Atkins Venables v. Smith

Venn

v.

.

.

.

12 O.L.R. 211

.

.

[1902] 2 Ch. 266 5 Burr. 2764 2 Q.B.D. 279 27 L.T.N.S. 469.

Atkins

.

v. Cattell

.

133, 144 ... ...

567

...

566

181 563, 564

W. Wagstaff, Re, Wagstaff

Wakelin

v.

v.

Jalland

[1908]

R.W. Co v. Bradford Old Bank v. McMillan v. Stretton Walker-Parker Co. v. Thompson

Walker Walker Walker

Wallace

v.

1

Ch. 162.

592

London and South-Western

Hesslein

Wallman v. Canadian Walton V. Simpson

Pacific

R.W. Co.

.

12 App. Cas. 41 12 Q.B.D. 511 6 S.C.R. 241 12 Times L.R. 663 7 O.W.R. 125 29 S.C.R. 171 6 Can. R.W. Cases 229 6 O.R. 213.

353 99 657 514 567 566 369 282

CASES CITED.

XVI. ]

Name of Ward Ward

V.

Audland

V.

Sharp

Washburn

v.

Waterhouse

Webb Webb Weir

8 Sim. 571, C.P. Cooper 50 L.T.N.S. 557 2 Allen (Mass.) 474 10 Gr. 176

;

Lee

1 Jac. & W. 352 L.R. 10 Eq. 281 11 O.R. 700 16 O.R. 318 11 H.L.C. 375 9 0.W.R. 250 L.R. 3 C.P. 422 14 C.B.N.S. 248 13M. &W. 603 8 Rep. 69b 19 Gr. 512

Honnor Hughes

V.

V.

V.

Where Reported.

Case.

Pond

v.

Niagara Grape Co

Re West V. Lawday

Weller,

Weston Local Option By-law, Re

Whatman Whistler

v. Pearson v. Forster

White

Spettigue

V.

Whitlock’s Case

Wigle

V. Setterington.

Wilby

V.

;

Carman

Wilson V. Bassil Wilson V. Lockhart Wilson V. McIntosh Wilson V. Merry Wilson V. Owen Sound Cement Co Wilson V. Postle Wilson V. Wilson Winnipeg, City of, v. C.P.R Wintemute v. Brotherhood of Railway Trainmen Wood V. More wood Woodhall, Ex p Woodmeston v. Walker Worswick v. Canada Fire and Marine Insurance Co Wright V. Plowden Wright V. Tat ham

V.

[1903]

614 451 95 317

331,334 567 601 172 166 299 563 119 125 177 602 627 169 566

90,94 559 266

P.239

10 O.W.R. 148 [1894] A.C. 129

L.R. 1 H.L. (Sc.) 332 27 A.R. 328 2 O.L.R. 203 22 Gr 39 12 Man. R.' 58l”, ’30 s!c.R. 558

19P.R. 6 3 Q.B. 440 20 Q.B.D. 832 2 Russ. & M. 197.'

’ .

!

321 122 152 4 536 453 317 584

245 125 488 172, 175

3 A.R. 496 1 Burr. 282

7A. &E. 313

219 177 68

L.R. 2 H.L. 296.

602

X.

'

Xenos

Page

146. ...

2 Cr. & M. 658. 7 O.W.R. 65 1 H.L.C. 604, 632 L.R. 7 Eq. 542 12 0.L.R. 526 14 A.R. 656

Hemann

Wilcox V. Stetter, Re Wilde V. Gibson Williamson v. Williamson Wills V. Belle Ewart Ice Co Wills V.

XXIX

Wickham Y.

Yates

Gardiner Yearsley v. Yearsley V.

Young, Re Young V. Hoffman Manufacturing Co Young V. Owen Sound Dredge Co

.

.

.

20 L.J. N.S. Ex. 327 19 Beav. 1 14 P.R. 303 [1907] 2 K.B. 646 <27 A.R. 649

378 595 597 .4, 5, 16,

17

540

— —

EEPORTS OF CASES DETERMINED IN THE

COUET OF APPEAL AND

THE

IN

HIGH COUET OF JUSTICE FOE ONTAEIO. [DIVISIONAL COURT.]

Lawson

v.

Packard Electric

N egligence—Infant—Dangerous Workman's Compensation

Machine

Co., Limited.

—Duty—





Warn Superintendence R.S.O. 1897, ch. 160, sec. 3,

to

for Injuries Act

D.C.

sub-sec. 2.

a boy under fifteen, was engaged by the foreman of the defenany one who needed help on a certain floor, except one man who was doing piecework. He had been helping a man who was operating a stamping machine, to put plates through the machine, and the former leaving for a few minutes, he took hold of the press and endeavoured to get a plate out, and, apparently through his inadvertently touching the foot press, the die came down upon his hand, and he lost three fingers. It was admitted that the machine was a dangerous

The

plaintiff,

dants’ factory to help

machine Held (Clute, :

J., dissenting), that the defendants were liable under sec. 3, sub-sec. 2, of the Workmen’s Compensation for Injuries Act, R.S.O. 1897, ch. 160, inasmuch as the foreman, whilst exercising superintendence, was negligent in not pointing out to the plaintiff which of the machines were dangerous, and cautioning and instructing him as to them, and, if it was intended that he should not attempt to operate any of them, expressly forbidding him to do so.

This was an appeal by the defendants from the following

judgment

of

Mabee,

J.,

delivered after the trial of this action at

the non-jury sittings at St. Catharines, on September 30th, 1907. J

H. H.

Collier, K.C., for

the plaintiff.

E. D. Armour, K.C., and G. B. Burson, for the defendant.

October

employ

in

1.

May

Mabee, last,

J.:

—The

plaintiff entered

the defendants’

and on June 19th met with an accident while

attempting to take a tin plate out of a stamping machine. the ends of three fingers.

lost

fifteen years of age, 1

VOL. XVI. O.L.E.

He was between

had no knowledge

of

machinery

He

fourteen and of

any kind.

1907 Oct. 1. Dec. 30.

ONTARIO

2

LAW

REPORTS.

[vOL.

D. C.

and was engaged by Mr. Pope, the defendants’ foreman upon

1907

the floor in question, to help anyone there

Lawson

one Gallagher, who was doing piecework.

V,

Packard Electric Co., Ltd,

Mabee,

J.

how

who needed

He was

— —

help, except

given no in-

any of the machines ^the foreman said it was not intended that he was to operate any ^nor was he given warning any as to any of them being dangerous. In other words, he was just turned loose upon this floor, with general instructions to help anyone and everyone (except Gallagher), with no word of caution or warning of any description. On June 19th he was helping George Hill to put the plates through the stamping machine structions

in question;

and

Hill;

to operate

they were carried to the machine by the

plaintiff

the latter was to operate the press, then, after they

were stamped, the

was to carry them away.

plaintiff

had out and

Hill

the machine for a few moments, and Pope called

left

the two were going to be

asked, in effect,

if

plates through,

whereupon the

plaintiff,

all

day

in getting the

in the absence of Hill,

took hold of the press, and endeavoured to get a plate out, the die came

and

down upon

this the plaintiff

his

hand.

It is tripped

by a

must have inadvertently touched,

when

foot press,

as

it

appears

had never been known to fall without pressure upon that part. Hill had been accustomed to use a stick to take the plates out,

it

but this had been misplaced.

by reason

of the plaintiff’s

The accident

plainly

occurred

endeavour to get the plates put through

without delay, and his attempting to remove one from a machine

about which he had never been instructed nor warned as to danger.

Pope had authority to employ the

Was

acting under such authority.

plaintiff,

was no way to guard

is

it.

It is

Was

it

him, or give some instructions as to if it

admitted

dangerous, and the foreman said there

not the duty of the foreman

to point out to the plaintiff the dangerous machines,

and

and was

he negligent in not cautioning

the plaintiff as to the danger of the machines? the machine in question

its

how he

and caution

should approach them,

was intended he should not attempt to operate any

of

them, forbid him from so doing? I

able

have no hesitation in holding

and

his

omission to take this reason-

sensible course to be the grossest kind of negligence.

The dangers surrounding the work the boy was put at were apparent to the foreman. They were by no means appreciated by this inexperienced boy, and I

am

of opinion that the plain

duty of

ONTARIO

XVI.]

LAW

REPORTS.

3 D. C.

any foreman, under the like circumstances, is to point out, to The caution, and to warn, and omission to do so is negligence. evidence does not disclose that the foreman made any examina-

Lawson

and so he was

Packard

care being taken to ascertain

Electric

tion of the boy’s capacity for appreciating danger,

allowed to

commence without any

his ability to.

perform the work he was being set

ance would, sooner or

take him to assist someone in working

a dangerous machine, just

He

is,

to help those requiring his assist-

as, in

the result, he was called upon

what may be

directed to perform

then,

hazardous work, and of which he has had no experience, and, as I understand the liability

cumstances,

it

is

and duty

bound

that they are

of masters

imder such

cir-

to point out the dangers

connected with that work, thus enabling the infant employee

comprehend and avoid them, and omission so to do is carelessness that makes the employer liable for the consequences that to

follow. I

was prepared to deal with the case and make the foregoing

findings at the trial, but Mr.

dants were not liable even

Armour contended

if

that the defen-

the foreman had been guilty of

upon the recent case it was held that the doctrine of common employment applied, and that, although there was a duty on an employer to give instructions to a young and inexperienced person employed by him in dangerous work, that duty was one that could be delegated to a foreman, and that the negligence of the foreman was a risk which a fellow servant, even though an infant, takes upon himself. The negligence in omitting to caution, and relied of Crihh v.

Kynock, Limited, [1907] 2 K. B. 548, where

upon was some reason

report of this case states that the action was based solely

common law liability, and so, why the plaintiff was not able

the

I presume, there

to invoke the assistance of the

Employers’ Liability Act.

The

plaintiff here is entitled to rely

1897, ch. 160, sec. 3, sub-sec. 2,

upon the provisions

of R.S.O.

which provides for personal

injuries

caused by the negligence of any person in the service of the employer ‘'who has any superintendence” entrusted to him, whilst exercising such superintendence,

swept away the defence of

Co., Ltd.

Mabee,

him

to help Hill.

V.

It is clear

at.

that the instructions given later,

1907

and

in such cases the statute has

common emplo 5Tnent.

So here the

foreman. Pope, was in the service of the defendants, and was

J.

LAW

ONTARIO

REPORTS.

men to work on this and while he was so exercising such superintendence he was guilty of an omission of duty towards the plaintiff which I

D. C.

entrusted with the superintendence of hiring

1907

floor,

Lawson V.

Packard Electric Co., Ltd.

Mabee,

J.

[vOL.

think was plainly negligence. in

I do not read the Crihh case as any way cutting down or limiting the provisions of the Em-

ployers^ Liability Act, and, therefore, I do not regard

ing in the solution of

any

case here based

our Workman's Compensation

for

it

as assist-

upon the provisions of R.

Act,

Injuries

S. O.

1897,

160.

ch.

I think the plaintiffs case

of sec. 3 of the Act, and,

The

plaintiff

if

can also be based upon sub-sec. 3

desired, the pleadings

was bound

conform to the directions of Pope,

to

at the time of his injury he

and

—and

it

was so conforming

—namely, help-

injury resulted from his having so conformed.

ing Hill

think

may be so amended.

was negligence

foreman in so directing the

in the

I

plaintiff

to assist at the working of a dangerous machine, without himself

giving

of the I

some

machine

instructions, or warning, or seeing that the operator did.

do not think the

plaintiff

has any redress under the pro-

visions of the Factories Act, R.S.O. 1897, ch. 256, as

appear that the machine in

itself

it

does not

could have been rendered less

dangerous by any sort of guard or protection. I think the plaintiff is entitled to recover,

damages

and

I assess the

at $600.

Judgment

for plaintiff for

$600 damages and

costs.

The appeal was argued before Mulock, C.J.Ex.D., and Britton JJ., on November 26th, 1907.

and Clute,

E. D. Armour, K.C., and G. B. Burson, for the defendants,

contended that the boy was not hired for the purpose of working the machine which caused the accident, and brought the trouble on himself; at

common law it was

Kynoch Limited, L.R.

1

H.L.

[1907] 2

(Sc.) 332,

clear he could not recover: Cribb v.

K.B. 548, following Wilson

and followed in

Young

v.

there

is

Merry

(1868),

Hoffman Manufac-

turing Co., [1907] 2 K.B. 646; that the defence of

ment was only swept away by the Employers’

v.

common employ-

Liability Act,

where

a person entrusted with superintendence, and the acci-

dent occurs while he 1897, ch.

160, sec. 3

is

engaged in such superintendence: R.S.O.

(2);

Shaffers v. General

Steam Navigation

ONTARIO

XVI.]

Co.

(1883),

LAW

5

Earl of Dudley (1882),

D. C.

Roberts and Wallace on Employers'

1907

10 Q.B.D. 356;

9 Q.B.D. 357, at p. 362;

REPORTS.

Griffiths

v.

Liability Act, 3rd ed., at pp. 22, 252; that there

was no duty

in

Lawson V.

the defendants to instruct the plaintiff not to use a machine which

Packard

he was not hired to use: Labatt on Master and Servant,

Electric Co., Ltd.

Young v. Hoffman Manufacturing 659; Degg v. Midland R.W. Co. (1857), 26

Co., supra, at pp. 656,

p. 1851;

V.

he was not hired to do;

that

if

Exch. 171; Potter

L.J.

Faulkner (1861), 31 L.J.Q.B. 30; that the

enlarge the liability of his employer

vol. 2,

plaintiff could

not

by doing something which

the plaintiff had used the stick

would not have happened, and

to take the tins out, the accident

he must have seen the other boy use the stick in this way; that to take a case out of the

common law

while the superintendent

is

rule the accident

must occur

superintending, for the Act says ‘‘while

They

in the exercise of such superintendence."

also cited

Davey

V. London and South-Western R.W. Co. (1883), 12 Q.B.D. 70; Thomas v. Quartermaine (1887), 18 Q.B.D. 685; Osborne v. Jackson

(1883), 11 Q.B.D. 619.

H. H.

Collier, K.C., for

the

plaintiff,

contended that the

acci-

dent arose from the negligence of the defendants, and consisted in the failure of their foreman to

warn the

plaintiff,

negligence occurred at the time of the hiring,

was exercising

his superintendence: Cribh v.

548; Labatt on Master and Servant, vol.

1,

and that

this

when the foreman

Kynoch, [1907] 2 K.B.

pp. 558-61, 567-9; that

the plaintiff was hired to help everybody on that floor except one

man, who was doing piecework: Armstrong

v.

Forg (1895), 162

Mass. 544; that there was also negligence in that Pope saw that the stick was not there, and did not warn the plaintiff that the

machine was not to be worked without it; that if the plaintiff was a volunteer and outside the scope of his duty, the machine

was a dangerous machine and not properly guarded, inasmuch as the stick was not there, and thus there was liability under the Factories Act.

Armour, in reply, contended that the machine here was one which could not be guarded without its working being stopped: Roberts and Wallace, ibid. p. 242.

December

30.

the plaintiff for

Mulock, C. J. damages because

:

— This of

action

injuries

is

brought by

sustained

by him

LAW

ONTARIO

6

D. C.

when working a stamping machine

1907

whereby three

Lawson V.

Packard Electric Co., Ltd.

Mulock, C.J.

of his fingers

REPORTS.

[vOL.

in the defendants’ factory,

were cut

off.

He

statement of claim specifically rest his right of

by his action upon the did not

Workmen’s Compensation for Injuries Act, but the learned trial He is, Judge gave him leave to amend by claiming under it. therefore, entitled to make such amendments as will give him the benefit of the Act, and I deal with the case as if the amendments had been made. During the argument before us Mr. Armour observed that if such amendments were allowed, he would have the right to plead the omission of the plaintiff to give the statutory notice of the injury.

This right he should have, and,

amendment,

in consequence of the plaintiff’s

dealt with is

by the

it

if

any

may

Divisional Court, before judgment

issue arises

be tried and

on

this appeal

entered.

Dealing, then, with the merits of the case, plaintiff,

it

seems that the

a schoolboy fourteen years old in the previous February,

was, about the 29th of May, 1907, engaged by Mr. Pope, the defendants’ foreman of the their factory,

down

and upon the 19th

stairs

of

department, to work in

June following he met with

the accident in question.

On

the floor where the plaintiff worked were different machines,

amongst them a varnishing machine, a drill, and a stamping machine, the latter being used for punching out tin plates.

which drove

this

machine was communicated to

it

by a

The power belt,

which

passed over the driving shaft, and the stamping machine was set in

motion by the operator pressing

his foot

upon the

treadle;

thereupon the stamp descended on the metal and punched out the metal plate.

was stamped, and,

This had to be removed before another plate in the

meantime, the machine was stopped

by the operator taking his foot off the treadle. The custom was to remove the stamped plate by means of a stick, but on the occasion in question the stick had been mislaid, and the plaintiff, who was operating the machine, endeavoured to remove the plate with his hand, when the punch descended and caused the injury The machine was in order, and the inference complained of. is that the plaintiff inadvertently pressed his foot upon the treadle, causing the punch to descend whilst his hand was underneath it removing the stamped

plate.

ONTARIO

XVI.]

LAW

The defendants say that the

REPORTS.

plaintiff

had no

7 right to operate

the machine, and that, therefore, they are not responsible for the

From

accident. plaintiff

him the The run the machine.

the nature of Pope’s instructions to

supposed

duty to

to be his

it

defendants, however, say that his instructions were not open to

such construction.

If

Pope’s instructions were such that, no

matter what he intended by them, they did in fact receive from the plaintiff the construction he placed upon them, then

question

who

the defendants’ duty towards this plaintiff in a

is

a

This question involves general consideration of

understanding.

work

it

responsible for the consequences of such mis-

is

room

when engaging him

in the vicinity of dangerous machinery,

to

and to

who were engaged on that floor, and who were employed in running this machinery. more or less also The defendants’ counsel, relying upon Crihh v. Kynoch, Limited, [1907] 2 K.B. 548, argued that, though the plaintiff was a young and inexperienced person, still he must be held to have assumed the risk of the negligence of Pope, a fellow workman, but here that defence is cut away by the Act in question, which makes the master assist generally all

responsible for the negligence of his superintendent.

by Lord Watson,

in

Smith

main, although not the

v.

Baker

sole,

et

al.,

As stated

[1891] A.C. 354: ‘‘The

object of the Act of 1880

was to

who do not, upon the same footing of responsibility with those who do, personally superintend their works and workmen, by making them answerable for the negligence of those place masters

persons to if it

whom

they entrust the duty of superintendence, as

were their own.”

Workmen’s Compensation for Injuries Act, R.S.O. 1897, ch. 160, enacts that “where personal injury is caused to a workman ... by reason of the negligence of any person in the service of the employer, who has any superintendence Sub-section 2 of sec. 3 of the

entrusted to him, whilst in the exercise of such superintendence, the tion

workman

shall have the same right of compensaand remedies against the employer as if the workman had .

.

not been a

workman

engaged in

his

.

work.”

of,

nor in the service of the employer, nor

Here Pope was

fendants as foreman, engaged the instructions, cise

of

and

in the service of the de-

and gave him certain Pope was in the exerthen, the accident happened

plaintiff,

at the time of the accident

such superintendence.

If,

D. C. 1907

Lawson V.

Packard Electric

C o., Ltd, Mulock, C.J.

ONTAKIO

LAW

REPORTS.

[vol.

D.C.

because of Pope’s negligence, the principle enunciated in Cribb v.

1907

Kynoch, Limited, would have no application.

Lawson V.

Packard

The question to determine is what duty, if any, did the defendants owe to the plaintiff, the breach of which caused the injury.

Electric

It is

the master’s duty to exercise reasonable care for the safety

Co., Ltd.

of his servant, Mulock, C.J.

by making known

to

him the

when operating dangerous machinery, and it)

by giving him

definite not to

risks

(if

he

which he incurs

is

not to operate

instructions to that effect in language sufficiently

be reasonably open to the opposite conclusion.

Obviously, no arbitrary standard of such dut)^ can be set up, but it

must vary according to circumstances.

is

to

of

he

The

object to be served

make reasonably clear to the servant the services required him and the risks which he incurs in order that, realizing them,

may

be on his guard to prevent injurious

Thus,

results.

if

the employee be an expert, knowing and fully appreciating the risks

of his

employment, the master would thereby be relieved

of the superfluous task of pointing

them out

to him, but

if

the

employee be inexperienced or with but a limited knowledge the risks,

duty

mand

is

of

or does not fully appreciate them, then the master’s

to exercise such degree of care as the circumstances de-

in

realize the

order that the employee

may know and

intelligently

dangers which accompany his employment.

In discussing this subject in Grizzel v. Frost (1863), 3 F.

“I

623, Cockburh, C.J., at Nisi Prius, says:

the owners of dangerous machinery,

young person about

it

by

am

of opinion that

their foreman,

quite inexperienced in

&

its use,

F. if

employ a

either with-

out proper directions as to its use or with directions

which are

improper and which are likely to lead to danger, of which the

young person is not aware, and of which they are aware, as it is duty to take reasonable care to avert such danger, they are responsible for any injury which may ensue from the use of such their

machinery.” Again, in Robinson v.

W. H. Smith

&

Son

(1900), 17

Times.

L.R. 235, which was the case of a boy twelve years of age, employed

by the defendants

to deliver newspapers

from

their bookstall at

the railway station to customers in the town, the plaintiff was

not warned not to cross the railway.

It

was held that the em-

ployment being a dangerous one, in regard to which a duty was

thrown on the defendants

of taking special care, there

was

evi-

— ONTARIO

XVI.]

LAW

REPORTS. D. C.

Mr. Justice Wills says:

dence of negligence to go to the jury. ‘‘It is all

9

very well to say that delivering newspapers was not in

1907

done under circumstances such as these,

Lawson

namely, that the newspapers were brought from the railway station,

Packard

and the persons delivering them had to

Electric

dangerous, but

itself

if

cross the line,

and these

persons were boys, and a class of persons anxious to be insubordinate,

was, in his opinion, a dangerous employment, and

it

one in regard to which a duty was thrown upon the employer to take special care.

He was

far

from assuming that the de-

fendants had not done everything that was right, but the question

was merely whether the matter ought to be investigated, and he thought that it was a matter for investigation. Everyone knew that

boys were not well watched, they would get themselves

if

into danger

did look as

when if

there was an opportunity of doing so, and

things were done in a hap-hazard

way

it

in this case.

plaintiff was allowed to be shewn his duties by As the evidence stood he was given' no instructions or warnings not to go on the line, and one knew that boys were certain, in some cases, to be ambitious to try and get a It

seemed that the

another boy.

A

reputation for smartness.

would have been

reasonable

for the defendants to

precaution,

make

it

therefore,

known among

boys that to get a reputation for smartness by risking their

the

lives

was not the way to get promotion.’’ v. Smith (1865), 19 C.B.N.S. 361, the plaintiff, a boy sixteen years of age, was employed in a match factory, of which the foreman was one Simlack, who had engaged the plainon the

line

Murphy

In

tiff.

A

portion of the process of manufacturing matches con-

sisted in

mixing a

stances, which,

to explode.

plaintiff,

fluid,

stirred

of a number of chemical subby an inexperienced person, was liable

composed

was no part

of the plaintiff’s

duty to touch

this

How^ever, on the occasion in question he stirred

mixture.

with a

It

if

stick,

it

thereby causing the explosion which injured the

and an action was brought against the master because

of such injury.

It

appears that at the time of the accident Sim-

was absent from the room, and another employee. Debar, was standing by, but did not instruct the plaintiff not to stir the lack

The jury found that Debar was guilty of negligence by while the plaintiff stirred the mixture, and a verwas returned for the plaintiff. On a motion for non suit

mixture.

in standing dict

V.

Co,, Ltd.

Mulock, C.J.

LAW

ONTARIO

10

REPORTS.

[vOL.

D. C.

on the ground that there was no evidence to shew that Debar was

1907

the manager,

Lawson V.

Packard Electric Co., Ltd.

Mulock, C.J.

in delivering the

p]rle, C.J.,

which directed a non

suit, said, at p.

367

:

judgment

“There

of the Court',

w^as evidence for

the jury that Simlack was placed by the defendant in the position of a vice-principal.

the case had rested there, I would have been

If

The

inclined to think that the verdict ought to stand.’'

verdict,

however, was set aside because the accident was the result of the

workman.

negligence of Debar, a fellow

it

had been Sim-

would have been sustained, although

lack’s negligence the verdict

by reason

the accident occurred

If

of the plaintiff doing

something

which he was not instructed to do, and which was wholly unauthorized

by the defendants.

This case, in fact, suggests that

the duty of the employers not to employ inexperienced persons

it is

and to leave them

in connection with dangerous works,

may

position that they

of their

own

volition

nection with such dangerous works which

In Crocker

Banks

v.

years old was injured

(1888), 4

may

cause the injury.

Times L.R. 324, a

by the bursting

of a

in such

do something in con-

girl

seventeen

soda water bottle whilst

she was, in the course of her duty, engaged in

The

filling it.

evi-

dence shewed that she was an expert hand, but had omitted to use a

mask provided

for her at a certain stage in the operations.

She swore that she did not know against which the

“It was not negligence for a

says:

put on the mask

if

of the

danger for protection

mask was provided, and Lord Esher, M.R., girl of

her years to omit to

know

she was bound to do so at

McGuire

(1858), 3 Macq., 300, at p.

she did not

that period of the operation.”

In Bartonshill Coal Co. 311, the

Burn

v.

Lord Chancellor, in commenting on the case

Dunlop

(1854), 16

experienced

1025, says:

employed

girl

under the control, and,

it

“She

of O’ Byrne v.

(the servant)

was an

in a hazardous manufactory,

may

in-

placed

be added, the protection, of an

who was appointed by the defender, and entrusted with duty. And it might well be considered that by employing

overseer, this

such a helpless and ignorant child, the master contracted to keep her out of harm’s

way

in assigning to her

any work

to be per-

formed.” In Moore in the

v.

Moore

judgment

of

(1901),

4 O.L.R. 167, the facts as

Armour, C.J.O., were that the

set forth

plaintiff,

a lad

fourteen or fifteen years of age, was employed in the defendants’

ONTARIO LAW REPORTS.

XVI.]

11

factory in putting pieces of board cuttings into boxes, shovelling

D. C.

and on one occasion cleaning the At the time machinery by which he was afterwards injured. of his injury Ward, who was in charge of the machine, ordered him to bring up some boards to put through the machine, and

1907

shavings, cleaning the

floor,

he brought up an armful, and was going back for more

when Ward

At this time Ward The plainwas not at the machine, but looking out of the window. tiff went back to straighten the boards, passing the machine, and, not observing that it was running, put his hand out to brush some dust off the machine, when his arm was cut off by the knives. the It was not his duty on this occasion to have brushed The machine was not guarded as required by the machine. Factories Act. Armour, C.J., saying that the object of the procalled

him back

to straighten the boards.

Act in requiring dangerous parts of machinery, as

vision of the

far as practical, to be

guarded ‘‘was for the protection not only

of those operating such machinery, but also those whose business

them

brings

into

proximity to such machinery,’’ and dealing

“A

with the act of the plaintiff in putting out his hand, says:

may

person

be exercising reasonable care, and in a

thoughtlessness, forgetfulness, or inattention

injury caused

by the

moment

may meet

deliberate negligence of another,

of

with an

and

it

can-

not be said that such momentary thoughtlessness, forgetfulness, or inattention will, as a matter of law, deprive for his injury caused

but

it

must

by the

him

of his

remedy

deliberate negligence of the other,

in all such cases be a question of fact for the jury to

determine.”

These cases shew that

it

is

the master’s duty towards young

and inexperienced persons to exercise reasonable care by the giving of instructions and warnings, and the adoption of other precautions, with a view to preventing injury happening to them,

both when their duties require them to operate dangerous machinery

and

also

when, on duty, though not in the discharge of their duties,

they might, by reason of thoughtlessness or inadvertence, be

exposed to danger brought by the master within their reach, and suffer injury

which would in

all

reasonable probability have been

avoided had the master exercised such reasonable care.

The

plaintiff’s

evidence

is

that on his engagement

by Pope

he “was told to help every person that was needing help,

all

Lawson V.

Packard ELECfTRIC Co., Ltd.

Mulock, C.J.

ONTARIO

12

LAW

D.C.

except one man, Mr. Coleman,

1907

says he told

Lawson

At

Packard Co,, Ltd.

Mulock, C.J.

first

Pope and to help anybody that

floor.

the plaintiff worked at picking

varnished and putting

[vOL.

who was on piecework.”

to sweep the floor

needed him around the

V.

Electric

him

REPORTS.

them

up

tins that

working on the varnishing machine, then on the

drill,

by

his

and, lastly,

Pope knew he was working the

on the stamping machine. varnishing machine and

had been

This was followed

in piles.

drill.

At the time of the plaintiff^s engagement a boy named Hill was working the stamping machine, and his duties were to sweep the floor, clean up around the machine, carry plates to the machine, punch them, remove stamped plates, and carry them away and pile them up. It does not appear at whose instance the plaintiff came to assist Hill, but Pope knew he was doing so. At times the plaintiff and Hill together swept the floor and carried plates to and from the stamping machine, but, until the occasion of the accident, the plaintiff did not work it. On that day Hill and the plaintiff were together at the machine, when Pope appeared,

according to the uncontradicted evidence of the

and,

in a temper, and, after relieving

it was going to take them The work which he was urging with the machine. Pope was himself by an outburst of pro-

fanity at the boys, went away.

Thereupon

plaintiff, all

swore at them, asking whether

day to get

them

to do

ance of the

their

work done.

was stamping plates

plaintiff,

Hill,

with the

assist-

put on the belt, and then went upstairs for

a drink, leaving the plaintiff alone at the machine.

He

started

work when the accident happened. No one had informed him that it was a dangerous machine, or had, in express language, instructed him either to work or not to work it; but when he it

to

found himself alone that day, he assumed it.

it was his duty to work The moment before Pope had been swearing at the boys

for not

getting on with the work.

When

the plaintiff found

had the belt thrown on doubtless,* remembering Pope’s

himself alone at the machine. Hill having before leaving, and the plaintiff,

language because of their supposed dilatoriness in not getting

on with the stamping, was that during HilTs absence

the machine? sion, as

would

it

it

unreasonable for him to have assumed

was

his

duty not to be

idle,

but to work

Pope’s remonstrance would lead to that conclualso HilTs

throwing on the

belt,

and then

leaving.

ONTARIO

XVI.]

LAW

REPORTS.

13

engagement

D. C.

forbidding his working the machine, but, on the contrary, they

1907

There

nothing in the terms of the

w^as

are sufficiently loose to include

it

plaintiff's

Those instructions were his

duty to

did not

but

sufficiently

work

of the floor.

comprehensive to make^

by doing any part of Hill's work. the plaintiff who was to instruct him in his

at large to assist generally

any person from

whom

on the

floor,

it

Pope

assist Hill

tell

him

left

He was

as part of his duties.

told in general words to assist everyone in the

duties,

without naming

he was to take orders, or that he was to

take instructions from anyone.

Whether on

ment or that

this point

of others

own

he was to be governed by his

is left

judg-

The defendants,

an open question.

room where dangerous machinery

in thus sending a lad into a

was being operated, with instructions open to the construction that he should assist in

its

him

operation, not warning

as to the

dangerous nature of the machinery, and not placing him under the direction of any one person to direct him, but, as the defen-

dants

now

in fact suggest, subject to the directions of all those

working in that room, did not, him.

It

from each and

him

able for

I think, discharge their

would have been impracticable

for

him

duty towards

to take directions

fellow workmen, and it was not unreasonassumed under the circumstances that he

all of his

to have

was to endeavour, according to

his

own judgment,

to

make him-

self useful.

In his judgment his instructions were open to this interpretation,

and he was injured when doing what he deemed to be

We

duty.

have not the exact words in which

his

his instructions

were clothed, but they were such as to cause him to assume that operating the machine was part of his duties. to do so,

it

If

he was not

was, under the circumstances, the duty of the defen-

dants to have

made

that point clear to him.

Perhaps Pope's instructions would have sufficed in the case of a

person of mature mind, or one familiar with the methods

adopted in factories for the guidance of workmen, but more care should have been exercised in the case of a schoolboy, the if

first

time entering a factory, and

it

now

for

was the defendants' duty, how he might

he was to operate the machine, to instruct him

do so with safety, and

if he was not to operate duty to have pointed out to him the danger to

it,

then

arise

it

from

was

their

his

med-

Lawson V.

Packard Electric Co., Ltd.

Mulock, C. J.

LAW

ONTARIO

14

REPORTS.

D.C.

dling with

1907

to adopt reasonable care for his safety,

Lawson

plaintiff’s injury,

V.

Packard

They did

it.

,

neither,

and thus

which was the direct

[vOL.

failed in their

and are

duty

liable for the

result of the defendants’

negligence.

The maxim

Electric Co., Ltd.

volenti

the facts shew that Mulock, C.J. tiff

non

it is

injuria

fit

was urged as a defence, but Whether the plain-

not here applicable.

took the risk of working the stamping machine Before the

of fact.

maxim can

serve as a defence

it

a question

is

must appear

that the plaintiff not only knew, but also appreciated, the risk.

He

know

has sworn that he did not

The learned

the machine.

trial

it

to be dangerous to operate

Judge, seeing the plaintiff in

the box, had the advantage of judging whether, from his apparent

notwithstanding his youth and inexperience, he was

intelligence,

likely to

have appreciated the danger, and has foimd in

and an appellate court

his

favour

not entitled to disregard his finding of

is

fact.

In

my

opinion, the appeal

Britton,

J.,

Clute,

J.;

must be dismissed with

costs.

concurred.

—The

plaintiff,

a boy of

fifteen,

was engaged by

the defendants as helper, and had been in their employment about three weeks

when he was

injured

by a punch machine,

resulting

in the loss of three fingers.

The

case, in the

scope of the

^dew

plaintiff’s

I

take of

in fact, in the discharge of his

The

it,

turns upon the nature and

employment, and as to whether he was,

plaintiff states that

duty at the time

of the accident.

he was ‘‘told to help every person

man who was on piecework;” work on a machine by Pope, the man who engaged him for the defendants; that he had never worked on the machine before the day he was hurt; that he was hired as a helper, and on the day in question he was helping Hill, who He, with Hill, was engaged was funning the punch machine. Hill went to get in getting the plates to the punch machine. a drink, and while he was away the plaintiff started the machine by putting his foot on the press; the machine came down and that was needing help except one that he was never asked to

cut the plate, he removed his foot from the press and reached

forward to remove the plate, when he must have inadvertently

put his foot on the press, when the machine again came down,

ONTARIO

XVI.]

LAW

REPORTS.

15

occurred in the absence of

D.C.

when asked if the plaintiff was to help run the machine, said “Not as I know of.” “Q. Were you told to let him use the machine? A. No, sir. “Q. Did you tell him not to work the machine when you went

1907

cutting off three fingers.

This

all

Hill,

Hill.

Lawson V

Packard Electric Co., Ltd.

A. No,

upstairs?

sir.

“Q. Did he ever work the machine while you were there before A. Not as I know of.” The manager of the company swore that it was Pope’s duty to have charge of the floor and to give the men their instructions as to what they were to do, and to give all necessary warnings; that Pope was a man who had had twenty years’ experience in that day?

the work.





Pope says: “Q. Tell me what he was employed to do that is, what you told him to do? A. I told him to sweep the floor and to help anybody that needed help around the floor. “Q. Then do I understand you to say that anyone that called the

boy

for help, the

boy was to go and do

A. Yes, and for

it?

the handling of stuff.

“Q. Was he ever told by you that he was to work any machine? A. No,

sir.

“Q. Would helping include operating a machine? A. No, “Q. What were Hill’s duties? A. To run the punch.” So that the result of the evidence

is

sir.

boy was not en-

that the

gaged to run this machine; that he was not asked, either by the

foreman or until the

Hill, to

day

run the machine; that he never had run

in question,

and then he started

it

it

during the tem-

porary absence of Hill for a drink.

Upon tiff

this evidence I find it impossible to

was authorized to run

this

say that the plain-

machine, or that

it

was within the

scope of his employment.

But it was strongly urged that, owing to what had taken place on two other occasions, he was impliedly authorized to do so. The two previous occasions were,

first,

when he was asked by Clark

to assist in putting the plates through the varnishing machine.

With

reference to this action

Pope says that he never knew

of

the boy working on any of the machines in the shop, and that Clark would have the right to put the

boy on the machine he was

working at because the machine was harmless.

On

the other

Clute, J

ONTAEIO

16

LAW

EEPORTS.

D. C.

occasion he seems to have worked on a

1908

man’s knowledge.

The boy admits that on the occasion

Lawson V.

Packard Electric Co., Ltd. Clute, J.

drill,

[vol.

but without the fore-

in question he

was not

asked by Hill to work the machine, but he supposed he had to

work the machine while

Hill

Even

was away.

his

if

story

to be accepted, which I find great difficulty in accepting, I

do not think

this offers

any shadow

is

still

ground for holding that

of

the plaintiff was impliedly authorized to work the machine, or that in doing so he acted within the scope of his employment.

He was

a mere volunteer, and any obligation of the defendants

plaintiff must arise out of their contractual relation. became the duty of the employer to warn him in respect of any danger in the course of his employment. At common law

towards the It

duty would be

this

sufficiently

performed by employing a com-

petent person to give such warning, even although he might neglect to do so,

In Crihb the

v.

plaintiff,

and

this

even in the case of an infant.

Kynoch, [1907] 2 K.B. 548,

cartridge factory in the cartridges,

it

was held that where

a girl fifteen years old, was employed in the defendants'

work

of

testing

the gauge of loaded

under a forewoman, whose duty

it

was

to give her

proper instructions and warnings, and in consequence of whose negligent failure to do so, the plaintiff caused a cartridge to explode, thereby sustaining personal injuries, the doctrine of

mon employment

applied,

and the defendants

were not

because the duty to give instructions and warning

may man

is

comliable

one which

be delegated to a foreman, and the negligence of the foreis

a risk which a fellow servant, even though an infant, takes

upon himself. This case was approved by the Court of Appeal, In the in Young v. Hoffman Manufacturing Co., [1907] 2 K.B. 646. was held that where the master employs an inexit is his duty to inand caution him, but the master may delegate that duty

latter case

perienced struct

it

workman upon dangerous work,

to a competent person,

and if he does so, he will not be liable for an injury to a workman resulting from the negligence of the dele-

gate in not properly instructing or cautioning him, and there

no difference in

man.

Both

this respect

of these cases are decisions

under the

It is clear, therefore, I think, that at tiff

cannot succeed.

is

between an adult and an infant work-

The statement

common

common law

of claim,

law.

the plain-

although inaccu-

ONTARIO

XVI.]

LAW

REPORTS.

17

under

D.C.

Workman’s Compensation Act, and an amendment was allowed the trial making that intention clear.

1907

rately worded, gave indication of

an intention to claim

also

the at

The

question, then,

is

whether the facts in

the plaintiff to recover under sec.

V.

this case enable

Packard

by

Electric

sub-sec. 2, of the Act,

3,

Lawson

C o., Ltd.

reason of the neglect of the foreman to give the plaintiff notice.

was not disputed that the machine was a dangerous machine, and if the plaintiff was acting within the scope of his employment while working the machine, I would entertain no doubt of his right It

But, as

to recover.

is

above

clearly pointed out in the

obligation can only arise from the duty of the employer,

duty, again, arises out of the contractual relation

by

is

and

this

governed

obvious there can be no duty cast upon the defen-

It is

it.

and

case, the

dants to give warning in regard to the working of a machine which the plaintiff was not expected to work, and in meddling with

which the

plaintiff

Gorell Barnes,

was a mere volunteer, if not a trespasser. Sir in Young v. Hoffman Manufacturing

President,

a servant enters into the employment of a must depend upon the terms of the contract between them, and, as in most cases nothing is said but to fix the wages and work to be done, the rest of the terms must be implied terms,” and, after referring to Lord Bowen’s judgment observes:

Co.,

‘‘If

master, his rights

in

The Moorcock (1889), 14 P.D. 64, at

p. 68, as to

the principle

upon which the implied terms in a contract are to be gathered, he quotes a passage from the judgment of Shaw, C.J., in Farwell V. Boston and Worcester Railroad Corporation (1842), 4 Met. 49 (also to

tion of

be found in 3 Macq. 316), as the most complete exposiwhat constitutes common employment, and seems to be

the source of the later decisions, and proceeds to quote as follows:

“The

claim,

therefore,

maintained at

all,

is

placed,

on the ground

and must of contract.

maintained,

be^.

As there

is

if

no

express contract between the parties applicable to this point, it

placed on the footing of an implied contract of indemnity,

is

arising out of the relation of in the case

supposed,

is

master and servant.”

The master,

not exempt from liability because the

servant has better means for providing for his safety, is

employed

in

when he

immediate connection with those from whose

negli-

gence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the 2

VOL. XVI. O.L.R.

Clute, J.

LAW

ONTARIO

18

REPORTS.

D. C.

negligence of anyone but himself, and he

1907

for the negligence of his servant,

Lawson V.

Packard Electric Co,, Ltd, Clute, J.

[vOL.

not liable in tort, as

is

because the person suffering

does not stand towards him in the relation of a stranger, but

is

one whose rights are regulated by contract, express or implied,’ ”

was held by the Court

It

Q,B,D,

maine,

18

maxim

volenti

non

685,

injuria

fit

of Appeal, in

Thomas

defence

arising

the

that

had not been

ployers’ Liability Act, 1880, the section of

v,

Quarter-

from

the

by the Em-

affected

which corresponds to

the section under consideration.

In that case the

was employed

plaintiff

in a cooling

room

in

In the room were a boiling vat and

the defendant’s brewery.

them ran a passage, which was in part The cooling vat had a rim raised sixteen of the passage, but it was not fenced or

a cooling vat, and between

only three feet wide. inches above the level railed in.

The

plaintiff

from under the boiling

went along

this passage to pull a

board

This board stuck fast and then

vat.

came away suddenly, so that he fell back into the cooling vat It was held that there was no evidence arising and was scalded. from a breach

duty on the part

of

and that the

plaintiff,

plaintiff

of the defendants

was not

answer the

L.J., at p. 694, says: ‘‘In order to

first

that

it is

is

as negligence in the

step to be

the duty towards the plaintiff

we

abstract;

negligence

is

no such thing

is

simply neglect of

bound by law to exercise towards someThe common law imposes on the occupier of premises

care which

body.

first

alleged the defendant has broken, for the ideas of negli-

gence and duty are strictly correlative, and there

some

Bowen,

inquiry, whether

the defendant had been guilty of negligence, the

taken must be to consider what

towards the

entitled to recover.

are

no abstract obligation at

all

as to the state in

which he

is

to keep

them, provided kthat he carries on no unlawful business and guilty of no nuisance.

element of danger, a duty arises as soon as there that people will go upon them, but

it is

It is

The occupier

is

a probability

is

a duty towards such people

not a duty in the

as actually do go.

particular people.

air,

bound

but a duty towards

to use

care to prevent such persons from being hurt. this

is

In the case of premises that contain an

all

It is

duty must vary according to the character

reasonable

obvious that

of the

danger

and the circumstances under which the premises are to be visited.” The plaintiff, in short, must shew the existence of a duty on

ONTARIO LAW REPORTS.

XVI.

19

the part of the defendants, and that the plaintiff suffered as a

D. C.

direct consequence of the breach of such duty: Roberts and Wallace

1907

ed., p. 22, and cases there cited. The Act does not give a new cause of action;

Lawson

on Employers, 3rd

V.

simply pro-

Packard

vides that, where the section applies, the person injured shall

Electric

it

Co., Ltd.

have the same right of compensation and redress against the employer as

if

he had not been a

workman

He

tiff’s

nor in the service of

What, then,

the employer, nor engaged in his work. position?

of

not entitled to recover at

is

is

the plain-

common law

because the injury arose from the negligence of a fellow work-

The Act removes the defence of common employment. has to shew that, having regard to what he was called upon to do, the defendants were guilty of some breach of If he was not called upon to work this machine, I can duty. find no duty cast upo*n the defendants to warn him against the He saw fit to meddle with that with which danger in working it. The machine was perfectly safe, unless it he had no concern. The plaintiff, in my view, had no business was set in motion. to set it in motion, and has no right to look to the defendants man.

The

plaintiff still

for

recovery which resulted from his

was a volunteer, in so

far as

in running the machine,

and

own wrongful

at his

license to enter

to have

them

own

risk.

was in no better upon the premises,

in that respect he

but out of sheer curiosity, might see it

He

he assumed to act without authority

position than a stranger, who, having business

would do

act.

fit

to start the machine.

One who

avails himself of a

He mere

upon premises imposes upon the owner no duty Broom’s Legal Maxims, p. 270;

in a safe condition:

Gautret v. Egerton (1867), L.R. 2 C.P. 371.

In the present case there was not even a

was wholly unauthorized, and, cerned, he was a mere volunteer. In Moore v. Moore, 4 O.L.R.

act

license.

The

plaintiff’s

so far as this

machine

167, the jury

found that the

is

con-

cause of the accident was the negligence of the defendants in not

having the machinery properly guarded, and

it

was there held

that the provision in the Factories Act was for the protection not

only of those operating such machinery, but also those whose business

brings

them

in

proximity to such

machinery.

The

Factories Act having no application to the present case, that decision does not, in

my

judgment, apply.

Clute, J.

LAW

ONTARIO

20 D. C. 1907

Lawson V.

Packard Edectric Co., Ltd. Clute, J.

In Grizzle

&

v. Frost, 3 F.

REPORTS.

[vOL.

pointed out

F. 622, as

by Cock-

burn, C.J., there was evidence both of negative and positive negli-

gence on the part of the foreman.

Negative in not giving the

girl

proper instructions as to the use of the machine positive in expressly ;

and which

directing her to do the very thing which she did,

it

was admitted was dangerous, so dangerous, indeed, that the case for the defence

was that she had been told not to do

Chief Justice then proceeds:

‘‘Now,

if

either of those grounds

of negligence are sustained, the defendants

In the present case

me

that leads

it is

would be

liable.”

the absence of evidence of that kind

to the conclusion that I have reached.

The observations

of Mr.

Son, 17 Times L.R. 235,


The

it.

than any other case

I

Justice is

Wills, in

more

have read.

in

Robinson

favour

of the

But he pointed out

v.

Smith

plaintiff

in that case

that there was evidence that the defendants’ business was not car-

on

ried their

in a proper

way, having regard to the

employment, and

go to

class of persons in

thought the case ought to

he, therefore,

trial.

was injured while discharging his which he was employed. The bookstall was on the

In that case the

duty for

platform, surrounded

plaintiff

by

He was

across the line.

lines of railway, there

received the injury complained

above case

is

being foot-bridges

not warned not to cross the track, and so It

of.

clearly distinguishable

appears to

from the

me

that the

present,* in that

the plaintiff in that case received the injury while discharging his

duty within the

direct

line

of

employment.

his

True, he

should have taken the overhead bridge, but he was not told to

do

so.

There was evidence, therefore, on the part of the em-

ployer to go to the jury, the employment being a dangerous one, in regard to

which a duty was thrown upon the defendants of

taking special care.

In

Crocker v. Banks, 4

also doing the

work

for

Times L.R. 324, the

plaintiff

which she was employed, namely,

was filling

As pointed out by the Master of the Rolls, was danger of the bottle bursting; the fact that the defendant provided masks was strong evidence that he knew of the danger, and, “having regard to the soda water bottles. it

was

clear that during the process there

tender age of the person employed, the jury were justified in thinking that

it

was not

sufficient for

defendant to provide the

ONTARIO LAW REPORTS.

XVI.

21 such young

D. C.

people the existence of the danger and to insist on their wearing

1908

masks, but that

the mask.

it

was

his

duty

also to point out to

Since he had failed to do this, the jury might well

Packard

In the present case I can find no neglect of duty which the defendants owed

to the plaintiff, and, with deference,

that the plaintiff has wholly failed to establish

The appeal,

in

my

Lawson V.

say that he had been guilty of negligence.’^

any

am of

opinion

right of action.

Electric Co., Ltd. Clute, J.

judgment, should be allowed, and the action

dismissed with costs. A. H. F. L.

[IN

THE COURT OF

APPEAL.]

Beck Manufacturing Company v. Valin and the Ontario Lumber Company.



— —



Water and Water Courses Rivers and Streams Act District Judge Order Fixing Tolls on Logs Floated Prior to Order Mandamus Res Judicata.



An

application was made by the owners of certain constructions and improvements on a river to the district Judge, under R.S.O. 1897, ch. 142, sec. 13, for an appointment to fix a rate to be paid for tolls in respect of logs driven some three or four years previously, at which time no rate had been fixed. The district Judge refused to make the appointment. The applicant then applied to a Judge of the High Court for an order of mandamus requiring the district Judge to hear evidence and make an order fixing such tolls, which was refused, on the ground that the matter was

under a former decision of a Divisional Court. (See 3 O.W.R. 333 and 10 O.L.R. 193.) The applicants then appealed to a Divisional Court, who dismissed the appeal granting leave to appeal to the Court of Appeal, who also dismissed the appeal, Garrow, J.A., dissenting. res judicata

This was an appeal from the judgment of the Divisional Court.

The applicants, the Beck Manufacturing Co., applied to Mabee, J., Chambers, on January 8th, 1907, for an order of mandamus requiring Judge Valin, the district Judge of the district of Nipissing,

in

to hear evidence for the purpose of fixing tolls

which might be

charged by the applicants in respect of logs driven on Post Creek in the township of Nipissing in the year 1903, and to fixing such tolls.

make an

order

The applicants also applied for an order callupon the Ontario Lumber Co. to shew cause against such order and for the payment by them of the costs of the application. The plaintiffs, the Beck Manufacturing Co., had, in 1903,

ing

C. A.

1907 Jan. 25.

Nov.

2.

— LAW

ONTARIO

22

REPORTS.

[vOL.

C. A.

applied to the said district Judge, and obtained an order fixing

1907

the

be paid for logs floated down a stream, called Post

tolls to

Beck Manu- Creek, without specifying whether it was to be applicable to logs facturing floated down in the past as well as in the future, or in the future Company

Lumber

On

only.

V.

Valin and THE Ontario Co.

appeal to a Divisional Court, the order was set aside,

the Court being of the opinion that to logs to be floated

down

should have been limited

it

after the

making

of the order;

but

that the district Judge had not had the necessary evidence before

him on which he could make a proper

finding,

and that he had

not taken into consideration certain matters required by the

and the order was

statute;

further application being fix

the

tolls to

without prejudice to a

aside

set

made by

either party to the

Judge to

be taken for the future by the plaintiffs upon the

further necessary evidence.

The

plaintiffs

then applied to the

further evidence, and obtained a

district

new

Judge, putting in

order fixing the

tolls,

as

the defendants claimed, to logs to be subsequently floated down.

The

claimed that under this order they were en-

plaintiffs

titled to

be paid for logs floated down prior to the making thereof,

and, on the defendants’ refusal to pay therefor, brought an action

was

to recover the amount, which

on March

who

tried before

MacMahon,

J.,

bound by the previous judgment of the Divisional Court, which he was of the opinion limited the recovery to tolls for logs floated down after the making 6th, 1905,

held that he was

An appeal was then and he dismissed the action. had to a Divisional Court, and on June 1st, 1905, judgment was delivered, reported in 10 O.L.R. 193, affirming the judgment of the order,

of the trial Judge.

An

appeal was then had to the Court of

Appeal, and on June 16th, 1906, judgment was delivered, reported in 12 O.L.R. 163, dismissing the appeal.

The

application for the further order

proceedings for a

mandamus were

was then made and the

taken.

A. B. Morine, for the applicants. A. G. F. Lawrence, for the Ontario Lumber Co., respondents.

The judgment January

25.

of the learned

Mabee,

form the applicants

J.:



If

may amend

Judge was as follows: the proceedings are not in proper

the same as they

may

be advised,

if

this

LAW

ONTARIO

XVI.]

REPORTS.

23

The respondents’ counsel did not

becomes necessary.

C. A.

object

1907

to this. If

the construction of the section of the Act in question, R.S.O. Beck Manufacturing

1897, ch. 73, sec. 13,

was open

to me, I should have no hesitation in

holding that the district court Judge’s finding or

Company

order fixing the

V. '

tolls

need not be limited to future

once the amount future

is

fixed, for

however, I

I think,

tolls.

I think it is perfectly open,

tolls.

recovery to be had for past as well as

am

clearly bound, as

Judge,

333.

Mr. Morine argued with

by the Court

overruled

of

much

had been

force that this decision

Appeal in Beck Manufacturing Co.

v.

The question decided

Ontario Lumber Co. (1906), 12 O.L.R. 163.

by the Divisional Court was not expressly before the Court of Appeal, and, notwithstanding that the judgment of the former has been greatly shattered,

it still

stands.

In this view, I have no alternative but to refuse the asked

mandamus

for.

The respondents

are entitled to their costs of opposing the

motion.

From

this

judgment the applicants appealed to the Divisional

Court.

On January

25th, 1907, the appeal

was heard before Falcon-

bridge, C.J.K.B., Teetzel, and Riddell, JJ., the same counsel appearing,

when the appeal was dismissed with

was given to appeal to the Court

An

appeal was then

made

costs;

to the Court of Appeal;

was heard before Moss, LAREN, and Meredith, JJ.A.

C.J.O.,

A. B. Morine, for the appellants.

and on

now

In dealing with this matter,

etc.,

&

48 Viet,

R.S.O. 1897, ch. 142, and the effect of that Act

must be considered. streams,

May

Osler, Garrow, Mac-

the rights enjoyed prior, to the passing of the Act 47 ch. 17 (0.),

but leave

of Appeal.

8th, 1907,

Prior thereto the right to float logs

was common

to

all

improvements made on streams. ject to provisions of the Act,

Section

one of which

down

1

The Act deals with makes the user sub-

is

that where improve-

persons.

Lumber

Co.

was the

by the judgment of a Divisional Court in Re Beck Manufacturing Co. and Ontario Lumber Co. (1904), 3 O.W.R. district court

Valin and THE Ontario Mabee,

J,

:

LAW

ONTARIO

24 C. A.

ments have been made, the user

1907

of reasonable tolls

—that

Company V.

Valin and THE Ontario

Lumber

Co.

mode per

The fixing amount to be

log.

at the

payment

and by sec. 19 the proper by charging a reasonable toll merely the method of arriving

is

of the tolls is

paid.

subject to the

sec. 11;

amount

of ascertaining the

made

is

[vOL.

a liability to payment, to the persons

is,

Beck Manu- who made the improvements: facturing

REPORTS.

does not create the

It

and

liability,

is

not, therefore, a condition precedent to liability, but merely to

recovery in an action.

have the

It is

ments; but the respondents had such to have

had them

pay the

tolls

and

right,

it

was

when

right to

&

in using

they impliedly agreed

tolls fixed,

and are estopped from denying

fixed,

Burnett v. Lynch (1826), 5 B.

duty

their

and

fixed before they used the stream,

the stream without having the to

The

an alternative remedy.

not limited to the owner of the improve-

tolls fixed is

liability

In the position they are

C. 589.

The

district Judge, by his first what transactions in point This was beyond his jurisdiction,

taking they are guilty of fraud.

order, attempted to adjudicate as to of time the tolls should apply.

as

was a matter to be decided

it

action,

This

Court properly set the order aside. Court could go;

an

in

is

and the Divisional

as far as the Divisional

anything beyond that was

The

obiter dictum.

applicants have a perfect right to have the tolls fixed for 1903:

Lumber Co.

see Beck Manufacturing Co. v. Ontario

and the judgments

163,

therefore, entitled to a

(1906), 12 O.L.R.

They

and Garrow, J.A.

of Osier

mandamus

to compel the district

are,

Judge

to do so.

and A. G. F. Lawrence,

G. F. Shepley, K.C.,

the Ontario

Lumber Company.

The

statute does not deprive the

respondents of their right to use the stream; applicants might, if

they thought

if

they decided to do

duty 111.

is

so,

People ex

(1861), 22

Howe

Pr.

remedy, namely, a right of action.

rel.

The

so:

Waters

N.Y. 291.

lien

on the

tolls

charge

v.

Klokke

The

be for

all

tolls

of

that the

no

fixed;

Emigration

down, and there

is

no

fixed prior to the logs being lien.

The

time, subject to variation.

Judge, by his order of January 25, 1904, attempted to for a time anterior to the date

is

such use; but

statute imposes a specific

logs floated

must be

says

v. Stanley (1884), 101

Commissioners

driven down, otherwise there could be no fixed, are to

all it

tolls for

they must have the

imposed on them to do

192;

fit,

for the respondents,

on which they were

tolls,

The fix

when

district

the

fixed.

tolls

The

ONTARIO LAW REPORTS.

XVI.]

Divisional Court, on appeal, held that this

and

diction,

set aside the order.

25

was beyond

The applicants acquiesced

and applied for an order in the terms of the judgment,

down subsequently

logs to be driven

The applicants

order on this basis.

judgment

Divisional Court.

of the

A mandamus

only

lies

thereto,

The matter

where the object

is

his

is

to admit or restore a

Here at the most the

acted properly in

therefore,

refusing

and the mandamus was properly refused:

Re Beck Manufacturing

(1885), 8 O.R. 28; Co., 3

O.W.R.

November

to

right

fix

Mackey

the

tolls,

Sherman

v.

Co. and Ontario

Lumber

333.

proceedings to obtain a



From whatever point of view the mandamus herein and this appeal may be

Moss, C.J.O.

2.

:

regarded, they virtually resolve themselves into an attempt to substitute this

Court as an appellate tribunal in the place of a Divisional

Court of the High Court; and that too in a matter which as between the substantial litigants should be regarded as res judicata. It is

object

very apparent

is

to obtain

—indeed,

it is

—that the applicants’

not denied

an opinion from

this Court whether the

Judge upon being applied to to give an appointment to

fix

district

a rate

to be paid for tolls in respect of logs driven in the years 1902

and

1903 should have disregarded the decision and order of the Divisional

Court pronounced in respect of the same logs and reported in 10

O.L.R. 193, or whether he should have held, as he did, that he was

bound by that

decision to take no further steps.

The same question

between the same parties came before another Divisional Court,

and

it

was held that the former decision was

ably no appeal

lies

to this Court

final.

And unquestion-

from a decision

of a Divisional

Court on an appeal from a county or district Judge under the Rivers

and Streams Act, R.S.O. 1897,

ch. 142.

The later decision of the Divisional Court having been given in an action in the High Court did come before this Court by way of appeal and was affirmed, but for reasons appearing in the report, 12 O.L.R. 163,

it

was not necessary to deal with the question now

sought to be raised.

^cSpany^ v.

res judicata.

was a doubtful one. Where the object is to enforce an alleged duty under a statute the duty must be clear and unequivocal. The Judge,

Beck Manu-

bound by the

.

person to an admitted right.

1907

in this,

viz., as to

and he made

are, therefore,

C. A.

his juris-

^

Ontario

Lumber

Co.

LAW

ONTARIO

26 C. A.

In the present case

1907

if

[vOL.

the learned district

Judge, instead of refusing an appointment had issued one, and on

facturing

Company

The

Co.

fix a rate, this

Court would have no

juris-

diction in appeal.

.

Valin and THE Ontario

Lumber

was conceded that

it

Beck Manu- a hearing had refused to V.

REPORTS.

appeal,

any, from his order or judgment must have been

if

to a Divisional Court.

What good reason can there be for supposing

that a third Divisional Court would take a view contrary to that

already taken? Moss, C.J.O.

That being so cui hono? in

Rex

v.

Bateman



Ought we,” asked Lord Denman,

(1833), 4 B.

& Ad.

mandamus if we see that the party a mandamus ought not to go merely to even

if

will

final result

ultimately fail?”

correct

one has been committed, which

when the

C.J.,

552, at p. 553, “to grant the

is

And

an error in procedure,

by no means apparent,

on proper procedure would be the same.

As between the real litigants in this matter the question has been twice dealt with and determined, and the matter should be allowed to rest there.

The appeal should be dismissed. OsLER, J.A.: reasons given



by

I agree in the result

my learned

and substantially

for the

brother Mabee in the court below.



Garrow, J.A.: I expressed at some length my opinion upon what I conceived to be the proper construction of the statute in question, R.S.O. 1897, ch. 142, when the case of this plaintiff against the Ontario Lumber Co. was before us some time ago: see 12 O.L.R. To the opinion then expressed I adhere. 163. Acting apparently upon, or at

all

events in accordance with, a

suggestion contained in one of the judgments of

and with a view

to

making

my learned brethren,

this application, the plaintiff since

applied to the learned county Judge for an appointment to fix a rate of toll

which would be applicable to the years 1902 and 1903.

This the learned county Judge refused in these terms: “In view of the decision of the Divisional Court overruling of

January 25th, 1904, for

in granting

tolls

on Post Creek,

I

my

previous order

do not

feel justified

an appointment to the Beck Manufacturing Company

Limited, contrary to such decision of the Divisional Court.”

From this at

all

it is

apparent that he did not deal with the application

on the merits, but simply deferred to that part

of the

judgment

e

ONTARIO

XVI.]

LAW

fix a rate except as to the future.

and had refused

it

If

no jurisdiction to

C. A.

1907

judgment

all

But

solely in deference

appears to

it

have had Beck Manu-

jurisdiction.

me

that this

facturing

Company V.

Valin and THE Ontario

and should succeed. Lumber Co. To put the simplest case, if there had been no order or judgment Garrow, J.A. all by the Divisional Court and the learned county Judge had of

application

at

of the Divisional Court,

of course

no

this, or otherwise,

having refused to enter upon the application at to the

is

on the merits, we would

on an application such as

27

he had entertained the applica-

which held that there

of the Divisional Court

tion,

REPORTS.

well founded

is

own motion taken

his

the same position,

refused to entertain

i.e.,

the application on the ground of want of jurisdiction



his course

could certainly have been questioned on an application such as this

mandamus and

for V.

The Judge

Re

Ratcliff

How

of

a writ would have been granted.

See Regina

Southampton, County Court (1891), 65 L.T.N.S. 320.

and Crescent Mill and Timber Co.

(1901), 1 O.L.R. 331;

then does the order or judgment of the Divisional Court

affect the

matter

if

was

I

my

right in

former judgment that that

Court acted without jurisdiction in limiting or attempting to limit

any order the county Judge might make to the future? Ever}rthing, of course, depends

statute being accepted, for

if it is

upon

not,

my

if it is

construction of the

the proper conclusion

that the Divisional Court had jurisdiction to so limit the order, that

is

But assuming

an end of the matter.

ional Court acted without jurisdiction,

no answer.

order

is

is res

judicata

But

and

It could it

was

if

think clear that the

put on the argument before us.

Court must have had jurisdiction to in question:

I

anything can safely be called so in

become

law, that in order that a matter should

judgment

as I do that the Divis-

only be, on the footing that the matter

really so

surely elementary,

it is

it is

Regina

v.

make

res judicata the

the order or give the

Hutchings (1881), 6 Q.B.D. 300;

Attorney-General for Trinidad and Tobago v. Eriche, [1893] A.C. 518.

The

Divisional Court had, as I have said before, simply the

in appeal to alter,

Judge.

vary or

No one but him

set aside the toll fixed

could in the

first

instance fix a toll at

applicable either to the past, the present or the future. neither he nor the Divisional Court

had anything

question of the liability of anyone to pay such

anything to him,

else

if it

than the mere does, he

may

rate.

When

power

by the county

toll,

all,

And

to do with the

or indeed with

the application goes back

after hearing the

matter on the merits,

LAW

ONTARIO

28 C.A.

refuse the application altogether, or

1907

low.

And an

REPORTS.

may fix

appeal will of course

[vOL.

the rate too high or too

from what he does

lie

to the

Beck Manu- Divisional Court. facturing V.

Valin and THE Ontario

Lumber

appeal should be allowed and the application granted,

I think the

Company

the whole with costs.

Meredith,

J.A.:

Co.

—No new

light has

been thrown upon the main

question involved in this case, and I have nothing to add to Meredith, C.J. is

in

any sense new, but

confers

a

is

a

and that

toll,

a day after the

toll

is

toll in

a

and that a

it;

:

question

see

a

fair toll is

paid to the owner of land for the use of

toll

is

a

toll

thorough only, that

is

improvements made on a highway, and so a right

make and

surely too late to

Beck

that

enforce

not to speak of a week, a month, a year,

fair,

or years unlimited, after

that

it is

it

which the statute

desire to repeat that that

Manufacturing

Co.

a

it,

whilst the

toll in

respect of

toll

against

common

Lumber

Ontario

v.

toll traverse,

Co.,

12 O.L.R. 163.

say that the proper answer to the main

It is of course right to

«

question depends upon a proper interpretation of the enactment.

But that

is

merely taking a step backward, which must be immed-

iately retraced, for the

enactment confers a

least give the Legislature credit for

“toll,’’

and we must

knowing the meaning

at

of the

word and for meaning what it said in using it, just as we should if they had used the word compensation instead, which word the appellants desire us to substitute for it, without any sort of reason or excuse, for the whole provisions of the Act are consistent only

with the creation and enforcement of a

toll,

and entirely inconsistent

with the creation and enforcement of a right of compensation in the

And

ordinary sense.

the

thorough and not a

toll

toll

which the Act confers

toll traverse.

Of

all tolls

is

obviously a

which were ever



by Act of Parliament innumerable though they have been has any one ever heard of such a claim as is made in this case having been made in regard to it, to give it force and effect before it was fixed ^before it existed? granted, or created





Does not

this

very claim prove

itself

without the mean-

ing of a toll such as the enactment covers?

was as

to

to

fix

tolls

subsequent

for

the year

years.

1903 only: a

The application tariff

is

The Act contemplates the

in

force

logs,

in

respect of which the tolls are claimed, being seizable to enforce

— LAW

ONTARIO

XVI.]

REPORTS.

29

payment and makes elaborate provisions accordingly. Here they are not, but have long since ceased to exist; and indeed if such a claim as the plaintiffs

prevent

it

make be given

being enforced, that

is

the

effect to there is

maintained, not only after the logs have passed away, but even after they

and the improvements

in respect of

which the

tolls are

claimed had long since rotted away, and the means of fixing the

become obscured. It is true that the Act gives a lumberman a right to have the tolls fixed, but it does not require him to thus disturb sleeping dogs. tolls

have been

may

to a toll

is

is

for his benefit, not to

impose a duty on him.

be hundreds or thousands of instances in which no claim intended to be made, or has been even thought

rightly so.

Is

he to

the taking of a

toll,

stir

up

all

such and in

effect insist

of,

and

upon them

or else remain liable to belated action to both

and enforce it? It the provision would be fix

is

not

difficult to

beneficial,

if

suggest a case in which

not indeed, necessary to him.

Take, for instance, a costly improvement in which

it

was known

might be necessary to know in the

that tolls would be claimed;

it

autumn

tolls

The lumberman’s whole prospects might depend upon that. The maker of the improvements might purposely delay having them fixed either to prevent others, by reason of the uncertainty, competing in the purchase of logs in the district, or to encourage the purchase by appearat latest

what the

would

be.

ing to have no desire to exact tolls in order to be able to exact the

more, and then, before the freshets of the following year, have them fixed

and exacted

at the highest rate, to the upsetting of the lumber-

man’s calculations and to

In such a case he could

his great loss.

apply early or abandon the then come down upon him

To let him go on for years and make something like a trap of the

field.

to

is

enactment.

The

appellant’s position

is

improvements on a highway a right to a to enforce

toll

sort of notice of

precisely the

same

as

of the ordinary kind,

What would

thorough.

by action “tolls ”

—the

tolls

if

he had made

which gave him

be thought of an attempt

for the use of that

not to mention years before

improvement before

were fixed and without any

any intention ever to demand a

toll

or have a toll

fixed? I

Company V.

Valin and THE Ontario

Lumber

Co.

lost or

That provision There

1907

nothing to Beck Manufacturing

and the actions

tolls fixed

C. A.

need not again refer to the language and provisions of the Act

Meredith, J.A.

LAW

ONTARIO

30

REPORTS.

C. A.

directly indicating the future character of the toll

1907

tence only

Beck Manufacturing

Company

It

when to

make

THE Ontario

Lumber

Co.

Meredith,

J. A.

is its

exis-

if

the district Judge

a tariff of tolls having an ex post facto or

upon the application to him) he will not be compelled by mandamus to do so; and I have preferred to deal with this case upon its substantial grounds, namely, whether the Divisional Court was right in holding that he had no such power; and so of giving no excuse for future litigaretrospective effect

V.

Valin and

—that

fixed.

ought not to be necessary to add that,

had no power

[vol.

(the one thing sought

tion over that question;

my

but

it

may

be necessary to say that,

must necessarily consider any question as to his jurisdiction, properly raised on the application to him, and may be obliged by the circumstances of some cases to in

opinion, such a judge

fix different tolls in respect of different

periods of the use of the

improvement; and that, upon an appeal from him, the Divisional Court has power to reconsider any question considered by, or It does not, of course, upon the application to, him. follow that either can, by a misconstruction of the Act, acquire or avoid jurisdiction; and so an application for a mandamus or prohibition might be quite a proper proceeding; and so too any such question might properly be brought to this court and taken further;' unless, indeed, the effect of the Act is that the rights and remedies conferred by it are to be sought and obtained only by the special means provided in it, for in such a case the interpretation of the Divisional Court, as the tribunal of last resort, must be considered

arising

the true one, unless and until the Legislature enacts otherwise;

and there of the

is,

perhaps, a good deal to be said in favour of that view

enactment;

matter can be a fixing of the

enactment:

I

but otherwise

res judicata tolls in

if

I

cannot understand

how

the

the Divisional Court have prevented

question upon a misinterpretation of the

have, therefore, preferred to deal with the case

upon the substantial question

raised in

it,

and would dismiss the

appeal accordingly. G. F. H.

— ONTARIO LAW REPORTS.

XVI.]

[IN

Simpson Street

Railways

v.

31

THE COURT OF APPEAL.] C. A.

Toronto and York Radial R.W. Co.

— Accident—Negligence—Evidence—Leaning

1907 Over

to

Expecto-

May

rate.

plaintiff, as a passenger, was, about midnight, standing on the back platform of one of the defendants’ cars, smoking a cigar and leaning upon the railway gate or grating at the side, over which he leaned, from time to time, a distance from five to seven inches, and expectorated. Apparently, while doing so, he was struck by something and received the injuries complained of. The plaintiff alleged, in his statement of claim, that he was struck by a post belonging to the defendants and used by them for their As a matter of fact, there trolley wire, but gave no evidence as to this. were trolley poles along the line of the defendant railway on the side where the plaintiff was struck, but there was no evidence given by the plaintiff of their position, and the evidence for the defendants placed them about two feet from the overhang of the car; Held (reversing the judgment of the Divisional Court), that the plaintiff’s action should be dismissed, as there was no evidence of what caused the

The

injury; Meredith, J.A., dissenting. Per Riddell, J. (in the Divisional Court): While it is impossible to lay down any specific rule for the guidance of railways or street railways generally, a railway operating in a country in which tobacco chewing or gum chewing is not uncommon must expect its patrons, or some of them, to be tobacco and gum chewers, and if it be the custom of such passengers to put their heads past the lines of the car to expectorate, the railway should be held to know of such custom, and should either remove all obstructions from the side of the track a sufficient distance to avoid the probability of an accident, or prevent the passengers from projecting their heads over the side, or at least give proper warning as to the danger. And in every case the railway must take all reasonable precautions against an accident happening to one who is acting as in the ordinary course of affairs ‘Tn the vicinage” it may be expected that some will act. The Massachusetts rule that it is necessarily negligence for one riding in a



railway car to project any portion of his person out of the followed by the Divisional Court.

window not

This was an appeal by the defendants from the judgment of the Divisional Court affirming a judgment of

Mabee,

J.,

entered

at the trial of the action.

The

facts are fully stated in the judgments.

The appeal 1907, before

was argued on April

16,

Falconbridge, C.J.K.B., Britton and Riddell,

JJ.

to the Divisional Court

T. C. Robinette, K.C.,

and C. A. Moss,

for the defendants.

J. T. Loftus, for the plaintiff.

May

20th.

Britton,

J.:

—^The

plaintiff^s allegation is

that on

September 4th, 1905, he boarded a car of the defendants at Long Branch for Toronto, and, as the car was crowded and as

20,

1908 Jan. 22.

LAW

ONTARIO

32

REPORTS.

[vOL.

He

C. A.

he wished to smoke, he stood on the rear platform of the

1907

leaned back over the wire gate of said car, which was quite low,

Simpson V.

Toronto AND

York Radial R.W. Co. Britton, J.

and

in so doing

was struck

and used by them

car.

a post belonging to the defendants,

The action was

for their trolley wire.

by Mabee, J., with a jury, and and for $500 damages.

tried

resulted in a verdict for the plaintiff

have reached the conclusion that upon the whole case there

I

was evidence

of negligence

on the part

of defendants proper to

be submitted to the jury, and that the nonsuit asked for was properly refused.

Upon

the evidence the jury could find that the plaintiff’s injury

was sustained by

A

pole placed

upon

his

head coming in contact with a trolley

by defendants

pole.

in such close proximity to the rails

their line of railway that a person standing

upon the rear

platform and projecting his head, as would naturally be done,

and

as plaintiff says he did, for the purpose of spitting, could

be injured by that pole,

dangerous, and so placing

is

it is

evidence

of negligence.

The

evidence

plaintiff’s

that the car was not crowded, nor

is

The

was the rear platform crowded. platform because he wished to do

so.

plaintiff

stood upon the

Defendants permitted

this,

and permitted smoking by passengers when there; and the deby passengers on some seats in the car, and they prohibited spitting upon the floor of the car. fendants did not permit smoking

That being the

case,

if

the poles are so near to the cars as to

be dangerous, the defendants should by a wire netting or in some

way

so protect or

warn passengers

as to

prevent such an acci-

dent as happened in this case.

The

case

was wholly

matter of law that what gence.

I

do not think

plaintiff did it

was.

was

may

it

per se

can be held as a

contributory negli-

Leaning over the

hand or arm or any part

out, extending one’s

the car in motion,

for the jury, unless

and looking body beyond

rail

of the

be evidence of contributory negligence,

and under certain circumstances would be contributory negligence. I can not go so far as to agree with the decision in Todd v. Old Colony and Fall River R. R. Co. (1861), 3 Allen

we were

In Spencer (1863),

18, to

which

referred. v.

The Milwaukee and Prairie du Chien R.R. Co.

17 Wis. 503

(Vilas

and Bryant’s

notes),

it

was

held

ONTARIO

xvL]

LAW

REPORTS.

33

not error for the circuit court to refuse to “ instruct the jury

C. A.

with his elbow or arm pro-

1907

that

if

the

it

sitting

window, and sustained the injury complained

jecting out of the of

was

plaintiff

by reason of that fact, he could not recover.” was held “that it was properly left to the jury

under

all

In that case to determine,

the circumstances of the case, whether the plaintiff was

guilty of negligence in respect to the position of his arm.”

In Francis

v.

porter, p. 261,

it

New York Steam Co. (1886), 1 N.Y. State Rewas held by the New York Common Pleas (Allen, arm out

that to have the

J.)

negligence per

window

of the

of a street car

not

is

and whether negligence or not depends upon

se,

the circumstances of the case.

In Holbrook

and Schenectady R.R. Co.

v. Utica

Judge charged the jury that

236, 244, the

whether the

plaintiff’s

of the injury,

and

if it

arm was out

it

of the

was

(1855), 12 for

window

them

at the time

was that was a circumstance from which they

might infer negligence or want of ordinary care on her part.

Judge was requested to charge that plaintiff’s

an act

arm

or elbow

negligence,

of

refused to so charge,

N.Y.

to say

if

was outside the window and she could not

and the Judges

trial

that he had properly directed the jury.

it was The Judge

of the car,

recover.

of the Court of

unanimously of the opinion that the

The

the jury found that the

Appeal were

Judge was

and

right,



The defendants were, no doubt, taken

at a disadvantage

by

the plaintiff having changed the location of the accident from

by him upon

that given

his

examination for discovery, but that

was rather a ground for postponement for a

as

new

of the trial

than ground

trial.

As to damages, no doubt the jury estimated them very liberally against these defendants, but the amount can not be considered

so unreasonable or so excessive as to afford

ground for a new

trial

as of right.

In view of the fact of the place of accident not having been correctly stated

amount

the

by

of the

plaintiff in his

damages being

examination for discovery and large for the injury actually

sustained, I think the appeal should be dismissed without costs.

Falconbridge,

C.J.:

—^There

whether a passenger

viz.,

is

is

only one point in the case,

disentitled to recover

by reason

of

contributory negligence for an injury received through having any 3

VOL. XVI. O.L.R.

Simpson V.

Toronto AND

York Radial R.W. Co. Britton, J.

ONTARIO

34

LAW

REPORTS.

[vol.

C. A.

part of his body projected beyond the outside edge of the struc-

1907

ture of the car in which he

The point has not

Simpson V.

Toronto AND

Falconbridge,

The

England or in Ontario.

authorities in the United States are in conflict.

My brother Riddell has

York Radial R.W. Co.

being conveyed.

is

arisen in

carefully exploited the leading

American

After collating and considering these, the only matter

cases.

my mind

which has weighed on

Beven

of Mr.

2nd

(Negligence,

to ‘‘give us pause’' ed., vol. 2, p. 1204),

was the dictum that “in Eng-

C.J.

land rule

.

.

there

.

is

no reason to doubt that the Massachusetts

would be adopted.” with great diffidence that one ventures to dissent from

It is

the opinion of so eminent an authority.

But we have rule

all

come

to the conclusion that the Massachusetts

ought not to be adopted here, and that the question

is

one

for the jury.

The appeal given by

my

Riddell, ber

4th,

will

be dismissed but without

costs, for the

reason

brother Britton.

J.:

1905,

—The

plaintiff

was about midnight

upon a

riding

car of

Septem-

coming

He was

from Long Branch to Sunnyside.

upon the platform, smoking a

of

the defendants

cigar,

standing at the back,

and leaning upon the grating

with his elbow, the grating being of convenient height.

He

leaned over the side from time to time, and expectorated on the

While doing

street.

this,

he was struck by something, rendered

imconscious, remaining so for about three days, and, in conse-

quence of the blow, suffered considerably for about six weeks,

and

still feels

before

my

in February, 1907. tiff,

He

the effects.

brought an action, which was tried

brother Mabee, with a jury, at the assizes in Toronto

A

general verdict was rendered for the plain-

with damages S500.

The defendants now

Upon

appeal.

the motion before us

it

was argued that there was no

evidence of the cause of the accident; that there was no evidence of negligence

on the part

of the plaintiff

was

itself

of the defendants;

that the Judge’s charge was erroneous. for, also,

Had

on the ground

that the conduct

contributory negligence in law;

A new

trial

and

was asked

of surprise.

the defendants rested with the case as presented

by the

XVI.

ONTARIO LAW REPORTS.

I

35

think the motion for a nonsuit should have been granted.

plaintiff, I

by the

I do not think the facts as established

shewed even a 'primd

facie case of negligence.

on a car

that,' riding

a short distance

a blow from

some

his

head

side of the car, the plaintiff received

There was no evidence that

source.

evidence

That simply shewed

and projecting

of the defendants,

beyond the

plaintiff’s

this

blow

No came from a pole or that there was any pole near the track. doubt, if anything happened to the car itself, such as running off the track, the principle of res ipsa loquitur would apply, but there

was nothing

of that

kind here, and

I

do not think that principle

could be extended here so as to throw upon the defendants the onus of proving non-negligence

But

on their

part.

not necessary to pursue that inquiry further, as the

it is

by the defendants takes the

evidence adduced

case very

much

was proved that some months after the accident the defendants, upon trying a snow plough, which projected over further.

the it

rails

It

one

necessary to

foot,

‘‘pretty near,” further than this car, foimd

move back some

of the poles to allow for the over-

hang, that this was done on the north side of the track (the acci-

dent occurred on the north side), and that about twenty poles

had to be moved in the

west of Nurse’s Hotel;

five miles

as the witness says, however, nearer the

Humber than The

half a mile or three-quarters of a mile.”

outside of

what

his

plaintiff says

he

Humber, but says where the accident happened are very hazy witnesses told him. Thompson says that

was injured about one hundred yards west that his ideas as to

none,

“possibly

of the

the accident took place about half a mile the other side of the

Humber, Hotel

so far as he could judge

—and

a mile west of Nurse’s

both Thompson and Miss Farrell say the accident

There was ample evidence upon which

took place on a curve. a jury might find

—and had

—that the accident curve—that at that point

found

foot,

—half

and perhaps much

been trying the case

I

I should

took place upon this curve

have

—Hick’s

there was a post certainly within one

less, of

struck the plaintiff’s head.

the car, and that this

The

plaintiff’s

it

evidence

was which is

that his

head was protruding three or four inches, though he thinks not five or six or

seven inches;

and no other cause can reasonably

be suggested which would occasion the accident. thisAs a

mere guess or conjecture.

I

do not think

C. A.

1907

Simpson r.

Toronto AND

York Radial R.W. Co. Riddell, J

LAW

ONTARIO

36

The question

C. A.

1907

Simpson V.

Toronto AND

REPORTS.

[vOL.

of negligence of the defendants

and contributory

By

on the argument, be taken together. urged that or

York

of his body beyond the side company cannot be held bound

any part

Radial R.W. Co. Riddell, J.

to hurt him.

brother Britton

the defendants

it

was

negligence per se for a passenger to put his head

it is

railway

my

by

negligence of the plaintiff must, as stated

of the car,

and that the

to provide that, in case

he acts thus negligently, there shall be no obstruction near enough

No doubt

there

some

courts of

a considerable body of authority in the

is

of the

United States going the

length claimed

full

by the defendants. And, while we are not bound by such deciwe welcome the assistance they afford in arriving at principles of law which may well be considered equally applicable to two peoples living in a similar state of society and material advancement, and under systems of government and law not in their essence sions,

dissimilar.

Most of

the cases will be found collected in Elliott on

of

Railroads,

1897

ed., sec.

much-improved edition Several

of

others were cited

upon the argument.

It

1907, to us

may

See

1633.

now

the second

and

and elsewhere.

1906, C.Z.

s.

by counsel

Law

for the defendants

be of advantage to quote from a

few of these.

was held

It

in a case in Massachusetts,

and Fall River R.R.

riding on the car with his elbow or

of

due

of

care,

Todd

Am.

v.

Old Colony

Dec. 49 (Supreme

‘Mf he (the plaintiff) was then

Judicial Court of Massachusetts):

by reason

80

Co., 3 Allen 18,

arm projecting out

of the

which he sustained an injury, he was guilty which would prevent him from maintaining

window,

of a

want

his action.

Looking at the mode in which railroads are constructed, with posts and barriers, which are placed very near to the track on

which the cars are to pass, the rapid rate at which trains move, the manner in which cars are made, with seats to accommodate passengers so as to avoid any exposure of the

outward objects

we can

body or limbs

to

no ground on which

it

can be contended that a person, in travelling on a railroad,

is

in passing,

see

exercising reasonable care in placing his

that

it

protrudes from a window, and

external obstructions.

Certainly,

if

attempt to leave a car when a train

arm

in such a position

may come

in contact with

a want of due care to

it

is

is

in motion, although going

xN

ONTARIO LAW REPORTS.

VI.]

37

by

C: A.

a want of proper care to ride in a car with

1907

at a slow rate of speed, as has been heretofore determined this Court,

it is

an arm or

leg

no

less

exposed to

necessar}^ obstructions is

collision against passing trains or the

on the

sides of the track” (pp. 51-2).

It

in referring to this case that Mr. Beven, in his admirable

work

“The

point

on Negligence in Law, 2nd

ed., vol. 2, p. 1204, says:

has not arisen in England, where there

should

it,

no reason to doubt

is

that,

the Massachusetts rule would be adopted.”

Am. & Eng. R.R.

(1905), 38 So. Rep., 788, 39 left his

Cas. (N.S.), 512,

and went and stood on the car platform,

seat

and then, when the car was running, he attempted to regain seat

by way

of the

his

running board, and this was held to be con-

tributory negligence.

was

It

also

duty imposed on street railways

considered that there

is

no

of preventing their passengers

running unnecessary danger. In Favre

v. Louisville

Rep. 370, 91 Ky. 541,

moving railway

window

it

and Nashville R.R. Co.

was held that

of the car in which, he

is

sitting is

striking

R.R. Co.

some object

S.W.

Bush.

that such an act, even though the

1,

received

.for injuries

outside, following Louisville

V. tickings (1868), 5

a

such contributory negli-

gence as to prevent his recovering damages

by its

(1891), 16

for a person in a rapidly

permit his hand to protrude from

train to

in the

same

and Nashville

court, holding

arm was but a very

short dis-

tance beyond the window, was gross negligence.

Huher

v.

Cedar Rapids and M.C. R.W. Co. (1904), 35 Am.

&

Eng. R.R. Cas. (N.S.) 768, 100 N.W. Rep. 478, decides that where a passenger on a street car, while standing on the platform, leaned

over a railing for the purpose of seeing where certain smoke came

from to such an extent that he was struck by a

trolley pole located

from fourteen to seventeen inches from the

side of the car,

from nineteen to twenty-four inches from the

railing,

of contributory negligence as

The Court, speaking

and

he was guilty

matter of law.

of the usual

and obvious

one on the platform of a car must look out, says

perils for (p.

which

—“Pro770) :

bably the danger from too close proximity of the trolley pole not to be included right to

among

is

these perils, for passengers have the

assume that the road has been go constructed as to obviate

collisions

V.

Toronto AND

York Radial R.W. Co. Riddell, J.

In Bridges v. Jackson Electric Railway Light and Power Co.

a passenger

Simpson

therewith in the ordinary course of travel, and are not

LAW

ONTARIO

38

REPORTS. But

[vOL.

C. A.

required to keep a look-out for such poles.

1907

that these poles must be placed beyond the reach of passengers.

Simpson V.

Toronto AND

York Radial R.W. Co. Riddell, J.

A

passenger

is

.

it

does not follow

held not to be negligent, as a matter of law, in

allowing his hand or part of his

arm

to protrude

from a

Dahlberg v. Minneapolis Street R.W.

window:

Minn. 404; Seigel

v.

Co.

street car

32

(1884),

Eisen (1871), 41 Cal. 109; Summers

City R.R. Co. (1882), 34 La. Ann. 139;

v. Circuit

Miller v. St. Louis R.R.

Germantown Passenger R.W. Co.

Co. (1878), 5 Mo. App. 471;

Brophy

.

But

(1884), 105 Pa. 38.

it is

only

when

v.

this is incident

and we have discovered no case in which

to his position in the car,

voluntarily extending the

arm any

considerable distance beyond

the surface of the car, or protruding the head through the window,

has been treated otherwise than as negligence per appreciates the danger of exposing

beyond the

sides of a rapidly

done, the current of authority

moving is

any portion car,

and,

se.

when

to the effect that

it is

gence as to preclude recovery for the injury received:

Minneapolis

The

&, St.

distinction

Spencer Street

is

person

voluntarily

such negliBenedict v.

N.W. 360, 86 Minn. 224. Cummings y. Worcester, Leicester and

Louis Ry. Co. (1902), 90

illustrated in

R.W

Everyone

of the

.

Co. {Mass.) (1896), 166 Mass. 220, where a pas-

senger was riding on the front platform or steps of a closed car.

He

claimed that he had one foot on the step and the other on the plat-

and that he happened to turn his head in the direction the car was moving, when he was struck on the face by a post; while the evidence of the defendants tended to shew that he was facing the street, with both feet on the lower step, his left hand on the dasher rail, and his right hand on the body rail, intentionally form facing

it,

leaning out beyond the car, direction

that

^

from which

a casual or

it

and looking back

was going.

momentary

in the opposite

Instructions to the effect

leaning out, such as would be incident

to securing a more comfortable or safer position, would not necessarily preclude him from recovery,’ but that, if he was in the posi-

tion described

by the defendants’

witnesses, deliberately leaning

out beyond the car line and looking back

when

struck, he

was

negligent as a matter of law.”

Indianapolis and Cincinnati R.R. Co. v. Rutherford (1867), 29 Ind. 82.

A

passenger put his

and

it

came

arm

several inches outside of the window,

in contact with a water tank.

Held, contributory

negligence as matter of law, following Todd v. Old Colony and Fall

LAW

ONTAEIO

XVI.]

River R.R. Co., 3 Allen 18;

Catawissa R.R. Co.

1633;

REPORTS. on Railroads, 1897

ed., sec.

C. A.

Armstrong (1865), 49 Penn. 186,

1907

Elliott v.

39

%



the decision in the latter case not being in point in this discussion. Pittsburg

329.

and

Andrews

Connellsville R.R. Co. v.

(1873), 39 Md.

a passenger of mature years voluntarily or inattentively

If

arm out

window of a railroad car in which he is travelling, and it is injured by coming in contact with a freight car standing on a siding near the main track of the railThe road, he is not entitled to recover damages for such injury. placing of his arm out of the window is an act of contributory negligence, and the Court should so instruct the jury as matter projects his elbow or

of the

of law.

This case discusses

many

of the cases theretofore decided in

the State courts, and mentions one in which the contrary doc-

was

trine

R.R.

In Spencer

held.

Co., 17 Wis.

488 (503),

it

v.

Milwaukee and Prairie du Chien

was held

(p.

493) that

‘‘it is

a matter

whether a person riding in a railroad car and placing his

of fact

arm upon

the

window

base, even

if

it

extends slightly outside,

does so in a manner hazardous and dangerous under the circumstances, or whether he exercises all proper

and attention

to his personal safety.

It is

and reasonable care incumbent upon him,

of course, so to conduct himself as not to expose his limbs to col-

from obstacles outside.

The party must be entirely free from negligence which contributes to the injury, and it was for

lision

the jury to say, under

all

the circumstances, whether the plaintiff

was wanting in care and attention or 494) goes on to consider that a passenger

arm

or

says

hand

(p.

is

if it

not.’’

The Court

chargeable with negligence

in the slightest degree out of the

494):

“There

is

(pp. 493,

could be laid down as matter of law

always more or

less

who extends

his

window; and then space between the

and any structure erected by the side of the and must necessarily be so, to accommodate the motion of

outside of the car track,

the car. ingly.

Passengers know this, and regulate their conduct accordThey do not suppose that the agents and managers of

the road suffer obstacles to be so placed as barely to miss the car

...

while

passing. Of course, a case might be supposed where carelessness would be clearly apparent from the circumstances.

If

a passenger should ride with his body half out of

the car or with his arms or feet so protruded that they would

Simpson V.

Toronto AND

York Radial R.W. Co. Riddell, J.

LAW

ONTARIO

40

him

REPORTS.

C. A.

inevitably expose

1907

no hesitation in saying that he was utterly

V.

Toronto AND

and Fall River R.R.

Riddell. J.

collision,

in the case of

Co., 3 Allen 18, is

we should have The Court

reckless.’^

.

.

Todd .

v.

Old Colony

contrary to the

weight of authority and unsound in principle.”

York Radial R.W. Co.

down

also holds “that the rule laid

Simpson

and

to danger

fvOL.

Christensen v. Metropolitan Street Ry. Co. (1905), 137 Fed. Rep.

Am. & Eng. R.R.

41

708;

meshes,

*

fastened

a

wires, are

sufficient

the windows of

of

and a

poles,

sufficient

the danger of such injury to absolve the railway

And

the charge of negligence in that regard.

a

street car

a

trolley

protection against the accidental injury

passengers from such

to

lower half

on the side next the poles supporting the

car

street

Screens with large

Cas. (N.S.) 250.

the

across

who, on account of sudden

illness,

warning

of

company from

a passenger in

extended her head

through a window above a screen which covered the lower half of the window,

and was injured by

striking against a trolley pole

beside the track, being obliged, in order to so reach the window,

to stand up or kneel upon a seat, was chargeable with contributory negligence as matter of

law.

At 41 Am.

company was not required

p. 254:

‘^The

plaintiff

might become

the window, when

it

ill

&

Eng. R.R. Cases, at

to anticipate that the

and attempt to put her head out of for her to do so with-

would be impossible

out turning about and either kneeling or standing on the seat.” be seen that the decisions are not uniform;

It will

appear that

many

Todd

That case and many other cases

case.

of the

are decisions of Courts in it is

which the law

is

in the

also laid

will also

it

decisions derive ultimately

from the

same sense

down

negligence per se for a passenger to attempt to leave a

train.

Our Courts have refused

decision:

see Keith v. Ottawa

Many and many more,

to follow these Courts in that

and

New York R.W.

Co.

(1902),

of the cases will be found on p. 119 of that

5 O.L.R. 116. report,

that

moving

And

I think, in the printed appeal book.

while I feel very great regard for the opinion of Mr. Beven, as well as profound gratitude to I do not think

it

him

for his excellent text-books,

would be wise to act upon the conjecture

of

any

text writer, however eminent, as to what the Courts in England

would probably decide. ^ The case seems to be without authority by which we would and it must, therefore, be decided up0n principle. The bound, be :

ONTARIO LAW REPORTS.

XVI.

recommends

decision in the Wisconsin case cited above

my

judgment.

rule for the

It

impossible to lay

to

C. A.

specific

1907

itself

down any

guidance of railways or street railways generally.

In some railways

whose

me

seems to

41

objects,



those whose object, or one of

for example,

to take passengers

is

through scenery



must

it

be expected that passengers will lean out to look back or forward;

some railways which permit, if they do not invite, overcrowding, which compels some to stand on the steps and project part at least of their frame beyond the line of the car, must expect this to

A

happen, and guard accordingly..

gum

which tobacco chewing or

in

expect

and

its

if it

patrons, or

some

railway operating in a country

chewing

is

not

uncommon must

the line of the car in order to expectorate

—whether

remains of



common decency the And in every

of such custom. all

one who

is

due

lingering

know company must

railway should be held to case a railway

reasonable precautions against an accident happening to acting as, in the ordinary course of affairs “in the

is

vicinage,’’ it I

chewers,

this

some

to the prohibition against spitting in the car or

take

gum

them, to be tobacco or

of

be the custom of such passengers to put their heads past

may

be expected that some

will act.

By

“ordinary”

—or every minute, or every hour, every week — but as to occur

do not mean happening always

or every day, perhaps not

likely

from time to time. It

is

a matter of

are to be found

them

common knowledge

from time to time upon enough to get

at least are decent

saliva over the side of the car,

and

that tobacco chewers

street cars, that

some

of

rid of their superfluous

that, in doing so, they

may

sometimes be expected to project the head some distance beyond the line of the car.

common

If

we

are not judicially to say that this

knowledge, at least

This being

so, it

seems to

it

me

would be a question

that the

is

for the jury.

company must take means

to prevent the occurrence of an accident to a person thus acting. If,

for

no reason that can be suggested, posts are allowed so near

to the rail as that one acting in this

head, they should be the argument,

it

moved

be the case of

either the railway

must

itself

way may be

struck on the

was suggested during a building which cannot be moved,

back.

If,

as

be moved further away

or, if this

be impracticable, a screen should be placed so as to prevent the

head being protruded, or at

least

some warning should be

given.

Simpson V.

Toronto AND

York Radial R.W. Co. Riddell, J.

LAW

ONTARIO

42

REPORTS.

[vOL.

C. A.

A

1907

form, so far from being a warning, seems to me, using

Simpson V.

Toronto AND

York Radial

R.W.

Co.

Riddell, J.

screen reaching

up

to the elbow of a

man

standing on the plat-

common

knowledge of human nature and human practices, rather to hold out an invitation to lean over

from

At

it.

all

events, that

than a warning to keep away

it

And what

for the jury.

is

I

have

said about the tobacco chewer applies to the tobacco smoker.

Many, no doubt, would but, so long as

it

companies consider (if

not,

is

it

like to see

tobacco smoking abolished,

lawful and usual, so long

is

as

If,

it.

I

is,

think,

must the railway

common knowledge

smokers sometimes and ordinarily ex-

for the jury),

pectorate and that over the line of the side of the car, the railway

companies should either remove

all

obstructions from the side

of the track a sufficient distance so as to avoid the probability of

an accident, or they should prevent the passengers from pro-

jecting their heads over the side, or at the least give proper warning

as to the danger.

There was ample evidence upon which the jury could, as they did, find the cause of the accident to

tiff

se,

be the negligence of the de-

In this case the extent to which the head of the plain-

fendants.

was projected was not such as to make and

it

was

the circumstances, was negligence at

was argued that the

It

by a

his act negligence per

rightly left to the jury to say whether his act,

post, as a post that

To

the top of the car.

plaintiff

would

this the

under

all.

could not have been struck

head would

strike his

answer

is

apparent.

also strike

Supposing

that the post were vertical, the car would not be struck at while

if

all,

the post was close to the car any projection from the side

of the car

would be

struck.

If,

as contended, the posts were

planted eighteen inches from the line of

rail, it is

apparent that

the head being seven feet and the top of the car ten feet from the rail, if

the post at the bottom was on the same horizontal plane

as the

rail,

head—to touch the top —the post need not be within and

at the height of the plaintiff’s

of the car three feet higher

five

a half inches of the side of the car.

And

if,

as

is

indicated in

the plan, the post was planted two feet below that plane, the track

being elevated above the ground, this would be a distance of four

and a

half inches.

This argument,

it

seems to me, proves nothing

except, perhaps, that the plaintiff could not or did not distin-

guish accurately the distance his head projected; and, perhaps,

was

really

“four or

five inches,” instead of

it

“three or four inches.”

ONTARIO LAW REPORTS.

XVI.]

cannot find anything in the charge of the learned Judge

I

that

(fairly read)

the V.

43

objectionable,

is

and no objection was taken

Of course, the

Fick (1866), 16 C.P. 379.

tion was taken at the trial

the application, but

it is

not in

is

all

fact that

at

Regina

Simpson

no objec-

Toronto AND

Fitzpatrick v. Casselman (1869), 29 U.C.R. 5;

trial:

cases conclusive against

Judge plainly shewed, in

remarks

his

to the jury, that he thought the plaintiff entitled to their verdict.

A

trial

judge has the right to do this

Williams

(1872),

32 U..C.R. 215;

12 O.R. 206; see per Galt,

sometimes

It

seeing

how

his

is

J.,

jur}^

if

he sees

Scougall v.

fit:

Dougherty

Stapleton

duty to give the jury the advantage it is

of

not

found necessary to impress upon the

the merits of an action against a railway All that, however,

with negligence.

v.

(1886)

at pp. 208, 209.

the evidence has affected his mind, although

in practice very frequently

is

company charged

for the trial Judge.

by surprise, upon the examination for discovery, the plaintiff said the accident had happened a short distance west of the Humber, and therefore the defendants had caused their engineer. Green, to examine as to the position of the posts for only about Then

it

because, as

is

is

said that the defendants were taken

alleged,

Humber. the trial, and

This same evidence

one-third of a mile west of the

was given by the till

plaintiff at

it

was not apparently

near the close of the evidence that the witness

Thompson

said that the accident took place about half a mile west of the

Humber.

No

application was

all.

chances of a verdict.

We

are told that they did not see the full

significance of the evidence his charge I

am

—at

all

an adjournment.

complained of

may

investigate, and,

if

till

the learned Judge was delivering

events, nothing

of opinion that

it is

claims he has been taken for

to the learned trial Judge

and nothing was said about the alleged surThe defendants went on and took their

for a postponement, prise at the trial at

made

It

was said as to any

surprise.

the duty of any party to an action

by

who

surprise to apply to the trial Judge

may

often happen that the evidence

be withdrawn, or a reasonable time given to possible,

meet

it.

Where a party deliberately by surprise, and takes

stands by, says nothing about being taken his

chances of a verdict, I think

to be

made out

it

V.

York Radial

so ordinarily.

It is true that the trial

C. A.

1907

would require a very strong case

to induce a Court to grant the application

when he

R.W.

Co.

Riddell J.

LAW

ONTARIO

44 C. A.

comes afterwards to ask

1907

any case

Simpson V.

Toronto AND

York

is

made out

for a

at

REPORTS.

new

Here

trial.

All that

all.

[vOL.

do not think

I

Green did was to examine

the position of the poles as they stand now, and that is

is

all

that

it

suggested he would have done had the information of the de-

fendants been more accurate.

He

same

know anything

does not

Radial R.W. Co.

to whether the poles are the

Riddell, J.

the matter of removal of the poles, and he was, at the

Wilson

who knows anything about

the only one apparently

is

and cross-examined.

as

as at the time of the accident.

trial,

examined

any question was omitted that ought

If

to have been asked, that

is

the misfortune of the defendants,

but no ground of surprise or for a new before the close of the evidence at

tended the accident took place, and

if

was apparent

It

trial.

what point

it

would be con-

Wilson could have given

any evidence which would

assist the defendants,

been asked.

apparent that he could not; his recol-

lection

The

is

It

is,

I think,

too indistinct.

verdict

not large, and, so far as I can

is

the case are not with the defendants. that

if,

he should have

It

must,

after the evidence already given,

the defendants to

make out

it

see, also,

the merits of

be apparent

were attempted by

that no change was in reality

and no poles taken out at about the attempt would be practically

half a mile

made

from the Humber,

hopeless.

The appeal should be dismissed, but without reason given by brother Britton.

costs,

for the

The defendants appealed from the above judgment, and November 15th and 18th, 1907, before Moss, C.J.O., and Osler, Garrow, Maclaren, and Meredith, the appeal was argued on

JJ.A.

I.

F. Hellmuth, K.C., and C. A. Moss, for the appellants, con-

tended that there had been no legal negligence on the part of the defendants;

company was under no obligation away than was necessary to give a fair

that a railway

to place its poles further

plaintiff had been guilty of contributory Beven on Negligence, 2nd ed., p. 1204; Pittsburg and Connellsville R.R. Co. v. McClurg (1867), 56 Penn. 294; Interurban Railway and Terminal Co. v. Hancock (1906), 78 N.E.R. 964; Dun v. Seaboard and Roanoke R.R. Co. (1884),

clearance;

negligence.

and that the

He

cited

ONTARIO LAW REPORTS.

XVI.]

Utica and Schenectady R.R. Co.,

Holbrook v.

78 Virg. 645;

Richmond and Danville R.R. Co.

N.Y. (Kernan) 236;

Fahner

(1892), 88 Virg. 958;

v.

a

new

C. A.

Scott

1907

R.W.

Co. (1891),

R.W. Co. (1897), 18 App. Div. any event, there should be

Sias v. Rochester

and contended

(N.Y.) 506;

v.

12

Brooklyn Heights R.R. Co. (1903),

86 App. Div. (N.Y.) 488; Farmer v. Grand Trunk 21 O.R. 299;

45

that, in

contended that the

for the plaintiff,

had a

plaintiff

reasonable excuse for leaning out and acted at the time of the accident in a reasonable

and orderly manner, and was

entitled

to damages vdthout being bound to shew the exact cause of the

McArthur

accident:

Fenna

v. Clare

&

v.

Dominion Cartridge

Co., [1895] 1

(1900), 27 A.R. 151.

Co.

Railways, sec. 360;

He

Spencer

R.R. Co., 17 Wis. 488 (503);

R.W.

Co.,

v.

Co.,

Q.B. 199; Snell

[1905] A.C. 72;

Toronto

v.

R.W.

Booth on Street Milwaukee and Prairie du Chien

also referred to

Todd

v.

Old Colony and Fall River

3 Allen 18.

Hellmuth, in reply.

January

22.

Garrow,

J.A.:

—Appeal by the defendants from

the judgment of a Divisional Court affirming the judgment at the trial in

favour of the plaintiff before Mabee,

The plaintiff

J.,

and a

jury.

was brought to recover damages caused to the while a passenger on the defendants’ electric street rail-

action

way.

Two

acts of negligence are alleged in the statement of claim,

one that the grate or grating, as car

it

is

called,

on the rear

was so low as to induce passengers to lean on

it;

of the

the other

that the defendants had placed and maintained a trolley post or pole so near the car that a passenger so leaning on the gate would

be struck by

it.

As

will appear, the first

quence unless the second

is

also

were examined on behalf of the himself, one

ground

established. plaintiff,

is

of

no conse-

Three witnesses

namely, the

Harry Thompson, and Miss Mabel

plaintiff

Farrell.

The accident occurred some time after midnight on Septem1905. The plaintiff had been conducting a dancing class that day at Long Branch, a resort some miles to the west of the city of Toronto. The witness Harry Thompson supplied the music for the dancing, and Miss Farrell had apparently been ber 4th,

V.

Toronto AND

York Radial

R.W.

trial.

Loftus,

Simpson

Co.

LAW

ONTARIO

46 C. A.

1908

Simpson V.

Touonto AND

York Radial R.W. Co. Garrow, J.A,

REPORTS.

[vOL.

company all day, and they were all returning by the last car to Toronto. The car was not crowded. It was Harry Thompson and Miss what is known as an open car. Farrell, with one or two others, were seated on the rear seat, and the plaintiff was standing near them on the north side of the car, leaning on the grate and smoking a cigar, and, as he says, occa-

in the plaintiff's

sionally expectorating over the side of the car, for

he protruded his head beyond the

which purpose

line of the car a distance

not

five or six or seven inches, and while doing so was struck by what he supposed was a trolley pole, knocked senseless, and fell back among those who were sitting down.

exceeding

The

The night was dark.

saw no

plaintiff

knew

not looking out for them, although he

had

He

travelled over

many

it

stood because he desired to do

When

wise necessary.

he

No

times.

last

trolley poles,

one

else

not because

so,

was

the track well, and

was standing. it

was other-

remembers they were near the

Humber. When examined for discovery he had been more specific. At that time he said he was struck ‘‘down near the Humber," “very near the end of the run, two posts away from the store at

—a

Humber

the

his deposition

Harry Thompson It

way from

little

was put

was too dark to

was

said he

This portion of

the hotel."

in at the trial

by the defendants.

sitting at the rear of the car.

see the posts.

“Q. Do you know what

was that struck Simpson?

it

never seen what struck him but I should judge post.

He

fell

back on us

—that

all

is

I

it

A. I

would be the

know; the only thing

that could strike him."

In cross-examination he was asked:

“Q. You were not paying any particular attention at the A. No, we never dreamed of time to anything that occurred? anything happening. •“Q.

The

first

|We were

thing you

just talking

and laughing

knew was when Simpson

there.

fell

over?

A. Yes.

“Q. You did not feel any jolt or any swing, or anything A. No; just fell right back.

of

that sort?

“Q. Your way swing or a he

fell

jolt?

back on us

of accounting for

it is

A. I do not know;



that

is all

I

to suppose there was a

we were

know."

sitting there,

and

ONTARIO LAW REPORTS.

XVI.]

He

47

time they were passing over a curve

also said that at the

but he could not or did not identify the locality of the curve or otherwise in any

way

define the locality of the accident.

Mabel Farrell said she was

sitting at the

sitting at the

back of the

A. I do not remember. I

car.

do not know what struck him. him;

was kind

it

No one was

I

I saw Mr. Simpson fall back. I do not remember what struck

called to prove the position of the trolley poles

along the track, and, indeed, except inferentially, and as

from the questions as from the answers, there was

any kind

of

And

really

much

no

evi-

was a evidence to prove or from which it

dence that there were such poles. total absence of

was

my back was kind of turned to him.’’

dark and

of

there certainly

might reasonably be inferred that there was a trolley pole so near the track as to have caused the injury.

Under these circumstances,

at the close of the plaintiff’s case,

which consisted of the evidence to which

moved

for the defendants

for a

I

judgment

have

referred, counsel

of nonsuit,

when^

this

took place: “ Mr.' Moss:

I

move

for nonsuit.

I

submit there

is

no

evi-

dence of any negligence of any kind.

Why

‘‘His Lordship:

not?

“Mr. Moss: In what way?

A man

“His Lordship:

by something. gence of some sort. hit

riding

I should think

along on a street car gets it

was a

clear case of negli-

“Mr. Moss: In for

this case, if he was struck by a trolley pole, the knows the poles are there. He has ridden over there weeks and years, and he knows it is a dangerous thing to stick

his

head over.

plaintiff

“His Lordship: That would be contributory negligence, and that would have to go to the jury. “Mr. Moss:

If

“His Lordship: aU.

Is a

puts

it

man

that I

is

your Lordship’s view.

should not think the thing was arguable at

liable to get his

head knocked

off

every time he

outside of a street car?

“Mr. Moss:

If

he puts

“His Lordship: Either

it

out the wrong side.

side he puts his

head out?

A.

1908

Simpson

back of the car where

the plaintiff was; the fourth from where he was standing.

“Q. Then what happened?

C.

V.

Toronto AND

York Radial

R.W.

Co.

Garrovv, J.A.

LAW

ONTARIO

48

He might

C. A.

‘^Mr. Moss:

1908

“His Lordship:

V.

Garrow, J.A,

waggon.

If

he struck a pole?

“His Lordship: I know,

York Radial R.W. Co.

[vOL.

you shew he struck a waggon? “Mr. Moss: There is no evidence before your Lordship to shew

Simpson

Toronto AND

strike a

REPORTS.

“Mr. Moss: strike him,

hut he struck something.

There might be any obstacle there that might

and we cannot guarantee that he won’t be struck by

either passing objects or falling objects, or anything of that sort.

The

plaintiff

home

has to shew some negligence to bring the accident

to us in

some way.

“His Lordship: You

And thereupon

will

among

of the defendants, and,

and a Mr. Wilson, an

have to go farther witnesses

several

officer of

thafi this court.”

were examined on behalf

others, a civil engineer, Mr. Green,

Mr. Green, appa-

the defendants.

rently acting on the definition of the locality of the accident given

by the

examination for discovery, deposed that

plaintiff in his

made an examination and measurement of each trolley from the store at the Humber westerly for about one-third

he had post

and he produced^ and proved a plan shewing the exact

of a mile,

situation as he found

From

plan

it

appears that the

nearest post to the track on the north side

is

distant three feet

six inches,

hang

it.

and that the

this

clearance, after allowing for the over-

would be two feet. was placed both at the trial and in the Divisional

of the car over the rail,

As

reliance

Court upon Mr. Wilson’s evidence as having eked out the meagre case of the plaintiff, said

may

it

upon the question

be useful to set out exactly what he

of the posts, the only real point in the

Mr. Wilson said:

case.

“Q. Have you examined systems in other districts? A. Yes. “Q. What do you say as to the distance of three feet six inches A. That is for the trolley pole from the outside of the track? standard construction.

“Q. What about one car?

A. That

on that

is

less

in

foot six overhang for the

most

line at the present

—up to

cases.

We

body

of the

have new cars out

time which have a greater overhang



and our snow and a half inches overhang. “Q. Has there been any change in the location of the poles

than that plough

in

this

is

two

region

one foot nine and a half inches

feet three

since

the accident?

A. No,

sir.

Some

of the

ONTARIO

XVI.]

REPORTS.

49

—when we purchased our snow plough a year ago, in making

curves,

a

LAW

we found

trial,

it

necessary to

move back some

of the poles to

allow for the overhang.

A. I cannot pick out the

it was along; there were some between Sunnyside Humber, two or three there; there were twenty-four poles moved in the six miles; there were two or three by the Humber. Which side of the Humber? A. Between Sunnyside and the Humber; the east side of the Humber. “Q. I am speaking of the west side? A. There was nothing there inside of what we call Mr. Hicks’ reverse curve going up the hill possibly half a mile or three-quarters of a mile from this

exact pole, but

and the



point.

What

point?

A.

From

the point of the

Humber.”

Cross-examined by Mr. Loftus:

“Q. What caused you to move those poles?

we purchased

the rotary plough

and

interfered, in going

it

had a

is

A. The fact that

wider than any car we have,

around the curve, with the

large hood, a hopper

on the front

for taking

pole, as it

up the snow,

which is very wide. ‘‘Q.

How much

wider than a car

is

this

plough?

A. It

is

a

foot wider. ‘‘Q.

And

“Q.

It

You

am

that interfered with the post?

A.

On

certain curves.

extends six inches out on each side further than the

A. No, on one side.

car?

said

it

was a

foot wider?

A. Yes, on one side.

speaking of the cross-section of the car.

It is

I

over ten feet

wide, the whole plough.

You say this is two feet wider than the car? A. I do know the exact measurement, but it is pretty near that.”

‘‘Q.

not

In reply, the witness Thompson was recalled, and was allowed, in

answer to counsel for the

plaintiff, to state

that the accident

took place half a mile west of the Humber, thus, for a very obvious purpose, materially shifting to the west the locus in quo as defined

by the plaintiff. This was not properly evidence in reply at all, and should not, if objected to, have been received. The place of accident was a necessary part of the plaintiff’s case, and all his

evidence on the subject should have been given in the

instance. 4

—VOL.

The

plaintiff

XVI. O.L.R.

.

1908

Simpson

“Q. Whereabouts would that be?

‘‘Q.

C. A.

first

himself had, as before pointed out, in

V.

Toronto AND

York Radial R.W. Co. Garrow, J.A.

— LAW

ONTARIO

50

REPORTS.

examination for discovery, defined the

[vol.

and the de-

C. A.

his

1908

fendant’s evidence was quite naturally and properly directed to

Simpson V.

Toronto AND

meet and cover the ground thus defined.

had been asked and answered: ‘^Mr. Moss:

Radial R.W. Co. J.

Objection of a kind

was taken to the evidence, but only after the improper question

York

Garrow,

locality,

I think this witness

“His Lordship: “Mr. Moss:

A.

the

I

was

all

over

thought he said that in

I

do not understand he said half a mile west of

Humber—it was west of the Humber.” He had not, in fact, so far as the printed

word

in his former evidence as to

whether east or west definition having

of the

been

his

case shews, said a

where the accident occurred,

Humber; the

nearest attempt at

statement that at the time the car was

At the

going round a curve. counsel renewed

this.

chief.

close of the

whole case defendants’

motion for a nonsuit, which was again

his

re-

and the case submitted to the jury without questions. A general verdict was rendered for $500 damages in favour of the plaintiff, for which he has judgment.

fused,

The view Judge

of the facts in evidence

will best

“What was

it

that the plaintiff hit his head against?

produced shews that

all

It

that the plaintiff was standing it

trial

The plan

the trolley poles west of Nurse’s are on

the north side of the track.

fendants say

taken by the learned

appear from the following extract from his charge:

was on the north

when he was

could not have been,

side of this car

The

de-

or, in all likelihood, it

was

and such

dis-

struck.

not, one of our trolley poles, because they are such

You heard

by the engineer, and you may take the plan with you when you retire; the distances are marked upon it. The exact location of the acci-

tance from the track.

dent

is

in doubt.

cepted, the east.

If

man was

If the

the evidence of the conductor

not hurt

till

after

they

left

is

to be ac-

Nurse’s,

coming

who saw the man fall is to be accepted west of the Humber stopping place

evidence of those

he was hurt some distance at Nurse’s.

the figures given

You may

consider that

it is

not at

all

unreasonable

who were sitting near him could not Doubtless, accident with much certainty.

that the plaintiff and those locate the point of

when he tion

received this injury and fell upon would be directed to him and to his

way they

could form a judgment as to

their laps, their atteninjuries,

how

and the only

far west of Nurse’s

ONTARIO

XVI.]

—that

Humber

LAW

REPORTS.

51

the injury occurred would be,

to be

C. A.

some estimate of the length of time that the car took to reach Nurse’s from the point of injury and the speed at which With their attention directed upon this the car was travelling.

1908

of the

first,

able to form

man and

the injury he had received, would they be in a position

any exactness at all either the length of time that It may be elapsed or the speed at which the car was running? that this accident took place at a point farther west than shewn to tell with

upon

this diagram.

It is

a matter of uncertainty as to where

Whether the

the accident did occur.

poles farther west than

this plan are located entirely or principally

of the track, or

upon the north

side

whether they are near or farther from the track,

we have no positive statement except the statement of Mr. Wilson as to the number of poles west of the point in question that they had to remove last winter, when they found they could not work Was their snow plough by reason of the poles being too close. with? The danger attendant it a pole his head came in contact upon the proximity of the pole does not rest entirely upon the statement that a pole

is

three feet six, or three feet ten, or four

away from the track, and you may have noticed that the engineer who prepared this plan and who spoke of the distances feet,

north of the track, was not asked whether these poles in a vertical position or not,

from the track, and if it

if it

and a pole might be

all

stood

five feet

away

did not stand exactly perpendicular, and

bent or leaned in the direction of the track,

it

might be much

more dangerous and come much nearer to the body than

if

perpendicular

exactly

of the car

stood only three feet from the track, and stood in an

it

So

position.

that

the

statement

that

these poles stood three feet six or three feet eight, without the

additional statement that they stood in a perpendicular position, is

not of

much

assistance in deciding the fact whether the poles

were, in fact, too close to this trolley car or not.

‘‘Then,

occasioned

if

by

you come his

to the conclusion that this injury

head coming in contact with the

the next question to consider of this

company operating

with a pole so close that a it

with his head.

tances,

is

whether that was a negligent act

these cars at varying rates of speed,

man

leaning over might strike against

It is said that

whatever that

was

trolley pole,

may mean.

they are put at standard I

dis-

do not know that there

is



Simpson V.

Toronto AND

York Radial R.W. Co. Garrow, J.A.

— LAW

ONTARIO

52 C. A.

any

1908

or far from their

Simpson

if

V.

positive rule that requires a rails,

but

REPORTS.

company

[vOL.

to put their poles near

take the responsibility of saying that

I

a railway company operating electric cars or a railway company

operating steam cars place their poles or other obstructions so

Toronto AND

near to their travelling cars that

York

in the

Radial R.W. Co.

minds

it

might reasonably be expected,

reasonable men, that passengers would strike

of

their heads against the poles or other obstructions, that that

Garrow, J.A.

would

be negligence.

People getting upon these cars are entitled to

some reasonable

protection.

that

if

man

this

take the responsibility of saying

I

were not negligent, as to which

moment, and he struck to this running car that

his it

I will deal in a

head against a pole that was so

close

might have reasonably been expected

that a passenger would do what he did in standing in his position, that would be negligence of the railway company.”

In the Divisional Court each of the learned Judges gave reasons. Falconbridge, C.J., in his brief judgment, does not deal with the facts,

his

but with the law only.

Britton,

J.,

.dealt briefly

with the

some length with the law. Upon the facts, he said, opinion was that upon the whole case there was evidence of

facts

and

at

negligence on the part of the defendants proper to be submitted

and that the nonsuit was properly refused; that upon the evidence the jury could find that, the plaintiff's injury was sustained by his head coming in contact with a trolley pole, and that to place a pole in such close proximity to the rails that to the jury,

a person projecting his head in the in contact with ‘

it

was evidence

one wholly for the jury, unless

manner described would come that the case was

of negligence;

could be held as matter of law

it

that what the plaintiff did was per se contributory negligence,

which he did not think

it

was.

of cases as to that question in J.,

was

And

he then referred to a number

support of that view.

Riddell,

of the opinion that at the close of the plaintiff's case the

defendants' motion of nonsuit should have been granted,

but

that the evidence given on behalf of the defendants had supplied

the deficiency.

The learned Judge's remarks upon

this subject

were as follows:

“Had

the defendants rested with the case as presented

by

the plaintiff, I think the motion for a nonsuit should have been granted.

I

do not think the facts as established by the

plaintiff's

evidence shewed even a primd facie case of negligence.

They

ONTARIO LAW REPORTS.

XVI.]

53

simply shewed that riding on a car of the defendants, and projecting his

head a short distance beyond the side of the a blow from some source.

plaintiff received

car, the

There was no evi-

dence that this blow came from a pole or that there was any pole near the track.

No

doubt,

such as running

off

the track, the principle of res ipsa loquitur

if

anything happened to the car

would apply, but there was nothing of that kind here, and

itself,

I

do

not think that principle could be extended here so as to throw

upon the defendants the means

of

proving non-negligence on

their part.

‘‘But

it is

not necessary to pursue that inquiry further, as the

by the defendants takes the

evidence adduced

case very

much

was proved that some months after the accident the defendants, upon trying a snow plough, which projected over It

further.

the rails one foot, ‘pretty near,’ further than the car, found

necessary to that this

move back some

it

of the poles to allow for the overhang,

was done on the north

side of the track (the accident

occurred on the north side), and that about twenty poles had

moved

to be

in the five miles west of Nurse’s Hotel;

the witness says, however, nearer the

Humber than

half a mile or three-quarters of a mile.”

was injured about one hundred yards west

The

none, as

“possibly

plaintiff sa}^s

of the

he

Humber, but

says that his ideas as to where the accident happened are very hazy outside of

what

witnesses told him.

his

Thompson

says that

the accident took place about half a mile the other side of the so far as he could judge— half a mile west of Nurse’s —and both Thompson and Miss Farrell say the accident took

Humber, Hotel

There was ample evidence upon which the

place on a curve.

—and, had been trying the should have —that the accident took place upon the curve, Hicks’ curve;

jury ought to find

found

I

that at that point there

much tiff’s

less, of

head.

case, I

was a post within one foot, and perhaps it was which struck the plain-

the car, and that this

The

plaintiff’s

jecting three or four inches,

evidence

is

that his head was pro-

though he thinks not

five or six or

seven inches, and no other cause can reasonably be suggested

which would occasion the accident.

I

do not think

this

is

a mere

guess or conjecture.”

The learned Judge then proceeded to an elaborate considerawhether it was negligence per se on the part

tion of the cases as to

C. A.

1908

Simpson V.

Toronto AND

York Radial

R.W.

Co.

Garrow, J.A.

ONTARIO

54

LAW

C. A.

of the plaintiff to protrude his

1908

as he described,

Simpson

My

Toronto AND

York Radial

R.W. Co. Garrow, J.A.

It is

was

it

not so

difficulty is

[vOL.

head beyond the

and agreed with the conclusion

bers of the court that

V.

REPORTS.

line of the car

of the other

mem-

not.

much with

conceded apparently that

is

it

the law as with the facts.

not one for the application

was bound to giye some reasonable evidence to support the case of negligence which he alleged. He says he was struck by a post placed and maintained top near

The

of res ipsa loquitur.

plaintiff

,

the track for safety, and yet from beginning to end there

is

abso-

lutely no evidence of such a post having been in existence.

If

was there on the night of September 4th, it was there next mornand also for months afterwards, for no post was removed In two weeks the plaintiff; until long after the action began. it

ing.,

had recovered from the action

is

The post was

obvious thing to do,

if

still

did the mischief. all

And

and

He was not Humber to

near the

could have been discovered

in daylight.

standing then.

if

Surely the most

an action was to be brought, was as soon

as possible to go over the track

it

he resolved to bring an

not stated, but on November 30th following he issued;

his writ.

post at

When

injury.

locate the post or a post which

Any

then limited as to space.

the west would have done, and

by merely

riding over the track

this did not occur to the plaintiff,

comprehensible that he was not so advised by his out some reasonable evidence upon this point,

it

With-

solicitor.

how

is in-

could the

hope to succeed? Unless upon the conjecture that must have been a post because he was struck by something on the forehead. Even the plaintiff himself does not, except inferentially, say the blow was from a post. He saw no post nor did any of his witnesses, nor do they know what struck him. The line was not a new one. It had been in operation for years, and many thousands of passengers had, doubtless, passed over plaintiff

there

it

in that time,

and no

This negative fact

may

similar accident

prove

little,

but

had ever happened it

certainly

made

before. it

none

the less the duty of the plaintiff to come into court with the neces-

sary evidence to prove the whereabouts and position of the post

which he

alleges injured him.

In the course of the learned Judge’s charge, a juryman very pertinently asked

how

the plaintiff could from his position be

struck in the forehead instead of on the side of the head, to which

ONTARIO LAW REPORTS.

XVI. ] his

his

would depend on the angle at which

he,

C. A.

head as to where he came into contact with what-

1908

Lordship replied

was holding

it

With

ever he was struck by. I

suppose, satisfied, for there

then,

one

if

55

may

is

no word

Now,

of a dissenting juror.

why may

conjecture,

juryman was,

this explanation the

The blow

not another?

on the forehead was certainly, under the circumstances, very Why may not one conjecture that it was caused by peculiar.

The only thing that

his fall?

is

clear

is

that he

from some

fell

among

probable that in falling

Is it not quite as

cause.

the un-

cushioned seats he struck his forehead, as that he was struck by a post, which no one has found or apparently tried to identify?

The blow, wherever

came from, rendered him unconscious, and

it

would be no extraordinary thing that the plaintiff would not, on recovering consciousness, be aware of exactly what had hit

it

He

him.

had, he admits himself, had some beer and some whiskey

and he was also smoking a cigar, to which he was any more than to the drinking, accustomed, according to The car was proceeding rapidly, and a lurch around his evidence. a curve, with one in the plaintiff’s condition and position, might very reasonably account for his fall, without a blow at all, and out of a

flask,

not,

the

fall itself

might very well account for the bruised forehead.

But, in truth, conjecture, at least on the side of the plaintiff,

The exact

out of the question.

been proved with very

fact, if it is

care.

little

is

a fact, could have

The defendants cannot be

upon reasonable evidence of some definite thing which caused the injury, an element wholly lacking in the case.

held liable except

Mabee,

J.,

in his charge, suggests that the place of the accident

indistinct, that the accident

is

may have

taken place further west

than the evidence shews, or that some post, although far enough

may have

distant at the base,

enough to cause the injury. ence, pure conjectures.

and the

J.,

There

plaintiff is surely

own statement

as to

inclined towards the track far

These suppositions is

no evidence

bound within reasonable

where the accident took

evidently proceeding

are,

upon the evidence

with defer-

of a slanting pole,,

of

limits

place.

by

his

Riddell,

Wilson, reached

the conclusion, not of a slanting post, but the more positive one of

an actual post in Hicks’ curve, placed within one

less, of

I

the car, and that this

can say, and

I

say

it

it

foot, and

was which caused the

with the greatest deference,

is

probably

injury.

All

that a most

Simpson V.

Toronto AND

York Radial

R.W. Co, Garrow,

J.A..

ONTARIO

56

LAW

and re-perusal

REPORTS.

C.A.

careful perusal

1908

printed case has utterly failed to shew

Simpson V.

Toronto AND

York Radial R.W. Co. Garrow, J.A.

bility of

of the evidence contained in the

Waiving

justify such a conclusion.

[vOL.

me

all

word

a

of evidence to

objection to the admissi-

Mr. Thompson’s evidence in reply, accepting his guess

in the dark as implicitly as

if

he had measured the distance with

a surveyor’s chain, but also taking, as in fairness must be done, the evidence given J.,

by Mr. Wilson, which,

it is

helped the case of the plaintiff over the

clear that

thought by Riddell, stile, it

no post whatever was removed for over

perfectly

is

half a mile

west of the Humber, the distance covered by Thompson, in his evidence in reply, which completely seems to dispose of the theory pf Riddell,

J.,

that the post in question was one of those removed

by Wilson. There was no lished, either by

case proper for the jury until the plaintiff estabdirect evidence or

by reasonable

inference, the

existence of a post which could have caused the injury. direct evidence there

is

not a particle, nor

is

there, in

my

Of

opinion,

unless upon the application of the principle of res ipsa loquitur, any evidence from which the necessary inference could reasonably be drawn, with the result that the plaintiff’s action fails, and

should be dismissed with

And

costs.

the plaintiff should pay

the costs of this appeal.

Moss, C.J.O., and Osler and Maclaren, JJ.A., concurred. J.A.: — I am unable, by any fair process of reasonmy mind to the conclusion that this case might properly

Meredith, ing, to bring

have been withdrawn from the jury; indeed, the more sidered, the firmer

had been

tried

becomes

by me,

I

my

first

if

it

is

con-

the case

would have reached the same conclusions

as those reached by the jury upon

ing the defendant’s

impression that,

liability,

all

the questions of fact affect-

except, perhaps, that of contributory

negligence.

That the defendants were guilty

of actionable negligence, in

the placing of some of the poles along their track, seems to not only obvious, but to be fully admitted by two of their

me

officers,



trial. One of such witnesses James McDougall—testified for the defendants that he was quite familiar with the mode of construction of such roads on this continent; and that the common distance of the poles from the nearest rail

in their evidence at the

— ONTARIO LAW REPORTS.

XVI.]

The other

three feet six or three feet seven.

is

—Charles L. Wilson—likewise

testified that,

construction,” such distance

is

seem

poles generally

rule or standard;

of such witnesses

C. A.

according to “standard

1908

The defendants’

three feet six.

to have been placed in accordance with this

but

was, after the plaintiff’s injury, discovered

it

about twenty-five of them had been misplaced at a

that

distance,

and they were then removed

The negligent placing

home

to the proper distance.

to the defendants,

brought effectually

or, at all events,

by one

of their cars

coming so violently in contact with one

—the snow plough such poles that the

of

was thrown from the track and the pole snapped in twain.

car

but one foot wider on each side than the car in which

this car is

the plaintiff

was when

injured,

it

is

obvious that this particular

pole was an offender against the rule as to distance to a considerable extent, for, to bring about the results which followed the collision,

the car must have overlapped the pole at least several

inches, or there

such

averted

among other from some

means

would have been “give” enough consequences.

violent

things, that the only

of the defendants’ cars

of passing

from one part

fendants’ servants, or

is

When

way

of

board at the

some standard or

safe

is

have

remembered,

boarding or alighting

at the side,

and that the only

by the deis by means

of the car to another

by passengers when

of the stage or foot

it

in each to

necessary,

side, it will

be very obvious that

distance for placing poles

is

necessary.

This part of the case presents no sort of difficulty. I

But

it is

said that there

was the cause

was no evidence that such negligence

of the plaintiff’s injury;

that the plaintiff testified

that he was struck “about one hundred yards the other side of

Humber,” and that the evidence for the defence proved that there was no such misplaced pole within a quarter, or a third, of a mile of that side of the Humber. That, however, is very inconclusive; that was not all that the plaintiff said on the subject; and if it had been, it would not prevent a finding to the contrary; a plaintiff is not estopped by any such statement as that; it may have been a mistake; and it is quite open to a jury to give the

-credit to

or to discredit such a statement, there being other evi-

dence which might fairly lead them to a different conclusion.

But

that was, as I have said,

by no means

all

Simpson V.

Toronto AND

York less

of these poles within the standard distance

seems to have been discovered,

As

57

that the plaintiff

Radial

R.W.

Co.

Meredith,

J. A.

LAW

ONTARIO

58

on the subject.

C. A.

said

1908

this addition to

Toronto AND

York Radial R.W. Co. Meredith, J. A.

[vol.

In his cross-examination, Mr. Moss elicited

it:

“Q. Your ideas about where the accident occurred are very A. Outside of my witnesses, what they told me.

Simpson V.

REPORTS.

hazy now? ‘^Q.

You

could not

tell

within a quarter of a mile, of your

knew we were near

A. I

recollection?

the

Humber, the

own

last I

remembered.” *

*

^ ‘‘Q.

On your

examination you did not

*

tell

:{c

us about the drink

A. I had just two drinks out of two bottles.

whiskey?

of

*

*

“Q. Your memory

is

very elusive?

Anybody

A.

memory would be bad.” Everyone knows how very difficult it

got a crack,

like I did their

night, to

tell just

where he

is,

for anyone,

is

even in familiar

on a dark on looking

streets,

out of a car, unless he has been looking out for some length of time,

and has grasped or kept track of the “bearings.” The my mind would be, as that of the jury, no doubt,

inclination of

was, that

it

would be safer to depend upon the

probabilities of

the case, and the testimony of others, than upon the plaintiff's testi-

mony his

in this respect,

and none the

testimony,

uncontradicted

because, according to

less so

unconsciousness

for

three

days

was the immediate effect of the blow he received.

The other two witnesses for the plaintiff, each of whom was when he was struck, testified that the injury was caused when the car was running on one of the curves west of the Humber, the witness Thompson saying that it was about a half a mile the other side of the Humber, as far as he could judge; and when present

asked

“I

why he said

just passed

half a mile

my

and not quarter

opinion about

it.”

of a mile, he answered,

“It took some

little

from the time he was hurt to go to the Humber, and that I

judge

it

naturally,

would be

half a mile.”

The other

was unable to throw any great

but was, indeed,

less definite.

She

said,

light

“We

is

time

how

witness, not un-

on the question,, saw him fall, and

a couple of the boys picked him up, and the car did not stop for quite a while after.”

statement of the I

Upon such

plaintiff that

evidence, including the positive

he was struck by one of the poles,

can find no sort of fault with the jury in “putting two and two

together” and easily reaching the conclusion that the proximate cause of the plaintiff's injury was one of the twenty-five poles-

ONTARIO

XVI.

LAW

REPORTS.

59



by the defendants too near to the track within I would have had no difficulty in reaching the standard distance. that conclusion if the case had been tried by me without a jury. The suggestion that the plaintiff was struck by some missile hurled Such a weapon would probably at the car is quite too far-fetched. have caused a cut or wound, not a mere abrasion and bruise, and would probably have fallen in the car and have been heard or seen. Its impetus would hardly be completely spent by the impact with Nor can I at all agree with Mr. Hellthe side of the man’s head. negligently placed

muth

in his contention that the blovr could not

where

it

was by coming

testified that it

was.

All of these things I

would

It

pened to have turned

have been struck

in contact with the pole, as the plaintiff all

depend upon the way he hap-

moment

head at the

his

before the impact.

were essentially questions for the jury;

have not the conceit to imagine that they were not at

and

least quite

competent to understand them, and to find the very truth of

as

the matter, as I am, having the great advantage, as they had, of

hearing and seeing the witnesses, and a

trial,

which

it

is

all,

also,

that transpires at

impossible and impracticable to convey to a

Court of Appeal. So, too, the question of contributory negligence

seems to

me

to have been one for the jury, in the circumstances of this case. I

am

unable to say that there

is

no reasonable evidence to support

upon it. The case of a railway such as this is so obviously different from that of what a short time ago might have been called the ordinary railway, and is now very often called a steam railway, that I would not have mentioned it had not the Divisional Court, failed to make any remark upon the difference in giving their reasons for the conclusion which they reached. For the purposes of the subject their finding in the plaintiff’s favour

under discussion there railway in this

quite as

much

difference

question and a steam railway as there

railway and a horse car

Being upon the the

is

plaintiff

back

was when

between the is

between

railway or even a stage coach.

platform injured,

of

the

defendants’ car, where

was not only not prohibited,

but was invited by the defendants, there being a seat there for passengers, sitting in

and passengers almost invariably both standing and

such platform, or vestibule, as

it is

now commonly

There was nothing to prevent leaning over the

rail at

called.

the back

C. A.

1908

Simpson V.

Toronto AND

York Radial R.W. Co. Meredith, J. A.

— ONTARIO

60

LAW

REPORTS.

the wire guard at the side was placed so low

C. A.

or at the side;

1908

three feet seven inches from the floor

—as to almost indicate that

Simpson V.

Toronto AND

York Radial R.W. Co. Meredith,

[vOL.

J. A,

unobjectionable to look out, or to lean over, for any such or

it is

and there was no warning of any kind any danger from it; and it was a thing of the commonest occurrence, no wise objected to so far as the evidence shews. There was, therefore, evidence upon which the other ordinary purposes;

against so doing, or of

my

jury might, in

opinion, have found that

what the

plaintiff says

Why

he did was a thing permitted to be done by the defendants.

might not a passenger extend

his

head over the

railing

from the

rear vestibule of such a car?

There were no windows nor any-

thing else whatever to prevent

it;

cinder, ever seeking a

there

was not the ubiquitous

lodgment in a human eye; there were none

upon a protrusion of the a fast moving train of an

of the other obvious dangers attendant

head through the window

of a car in

ordinary railway, or of standing upon the platform of

such

car contrary to the invariable warning against doing so.

I

a

am,

therefore, quite in accord with the conclusions of the Divisional

on

Couri,

But

down It

I

this question also.

am

not in accord with their attack upon the law as laid

in the Massachusetts case,

seems to

me

which they saw

mination of this case to discuss at in that it

case

seems to

upon

me

I

them

But, as they have done

of

am

in the possession of ordinary

his

head or

his heels

of self-preservation

for

that the law

would have prevented even those

ordinary intelligence or prudence doing

made

through

a swift moving railway train, which might be

running at twenty, forty, or sixty miles an hour;

plainly

so,

at present quite un-

in the views they expressed regarding

would protrude either

window

to dissent from.

the conclusions of the Court

all

question.

would have thought that no one

intelligence

the

this

to be proper to say that I

able to agree with it.

fit

to have been quite unnecessary for the proper deter-

no such purpose;

a right to assume that those

so.

of less

than

Car windows are

and railway companies have to travel upon their

who undertake

roads are neither imbeciles nor lunatics with suicidal tendencies. If

one has a right to poke his or her head out of the window, or

to stand

upon the platform,

she

suppose, entitled to damages for the almost inevitable

is,

I

of the cars of

cinder in the eye consequences;

and

if

such a railway, he or

entitled to

do so with the

ONTARIO LAW REPORTS.

XVI.]

why

head,

not with the

a bit of fresh air too,

feet,

which

may

and so have damages,

61

be tired and long for

C. A.

too, for the stockings,

1908

which might lose their lustre through the smuts from the engine or the mist

No

from

its

Toronto

defence was raised on the ground that the plaintiff was

doing an unlawful act

upon the highway, and that that his injury; and so any such ques-

in spitting

unlawful act was the cause of tion cannot be considered. I

this appeal should

be

and, indeed, in view of the unanimous findings of the

jury, entirely

approved of by the

trial

Judge, and unanimously

confirmed in the Divisional Court, and in view of the fact that

amount involved is small, that the costs permitted to be incurred must now largely exceed that amount, and of the other evils of protracted litigation in such a case as this, that no appeal the

to this Court should ever

have been brought.

It

cannot be

satis-

factory that the costs of an action such as this should be per-

mitted to exceed the amount involved in over

it

it,

nor that litigation

should be protracted, nor that either party should even-

tually succeed

upon the opinions

opinions of the five other Judges

AN1>

York Radial R.W. Co. Meredith, J.A

am, therefore, firmly of opinion that

dismissed;

Simpson V.

steam.

of four

Judges against the firm

who have heard and

considered

the case. A. H. F. L.

——

ONTARIO

LAW

REPORTS.

[ANGLIN,

— Construction—

Gift of

Income

VOL

.

J.]

Re Chambers, Chambers Will

I

Wood.

v.



Corpus

Vesting of trary Intention.

—General Rule— Con-

The

rule that a gift of income without limitation of time operates as a gift of the corpus, in the absence of other disposition thereof, does not apply to a case in which the testator has expressed an intention that the corpus should not be vested in the donee. Therefore, where a testator directed by his will that a sum of money should be invested by his executors upon trust to pay the interest to the A. W. hospital in the city of S., for the benefit of poor patients, so long as said A. W. hospital should be used for hospital purposes, and that, in the event of said hospital ceasing at any time to be so used for. one year, the interest

should be devoted to other charitable purposes: Held, that the testator’s intention that the corpus should not be vested in or paid to the hospital was sufficiently expressed, and precluded the application of the general rule.

This was a motion for the construction

of the will of Nelson

Chambers, which was argued in the Weekly Court, on the 7th

November, 1907, before Anglin,

of

J.,

whose judgment the

in

clauses of the will to be construed are set out.

A. E. Haines, for the executors.

W. J.

B. Doherty, for the

M.

Amasa Wood

December 18. Anglin, J.: Chambers contains the following “Fourth: five

Hospital.

Glenn, K.C., for the corporation of the county of Elgin.

I

hereby further

—^The

of

will

the

late

Nelson

provisions:

will

and

direct that the

sum

of

thousand dollars be put out at interest in some good and

approved security or executors hereinafter

securities,

named

and kept

in this

my

will,

the interest thereof from year to year to the of St.

Thomas,

so

by

my

trust, to

pay

invested

upon

Amasa Wood

for the benefit of poor patients

Hospital

from the county

who may from time to time become inmates of the said hospital, so long as the said Amasa Wood Hospital shall be used And in the event of the said Amasa Wood Hosfor an hospital. of Elgin,

pital ceasing at

any time

an

hospital,

thousand dollars

shall be

for one year to be used for

then that the interest of the said

five

paid over yearly to the poor house of the county of Elgin, to be

expended therein for the benefit

from the county

of the

poor and infirm therein,

of Elgin, until the establishment of

some other

ONTARIO LAW REPORTS.

XVI.]

63

when the said interest the said hospital, in the same way and for the it was formerly paid to the Amasa Wood Hos-

public hospital in the city of St. Thomas, shall

be paid to

same purpose as

Sixth:

*

*

*

Hs

:1c

*

*

I further direct that all the above' legacies

shall

be

by my executors within one year after my decease.’^ The rule is incontrovertible that a gift of income without limitation of time is tantamount to and operates as a gift of the capital But this rule is in the absence of other disposition thereof. paid

subject to the qualification that a testator has the power of giving interest without vesting the corpus in the donee of the interest

by expressing such an

intention:

Jarman on

Wills, 5th ed., p. 805.

In the foregoing bequest the testator clearly manifests an intention to provide for the event of the ceasing to carry on

its

Amasa Wood

Hospital

He

work temporarily or permanently.

plainly intends that, should such a contingency occur, the

income

theretofore paid to the hospital shall be available for other charit-

This involves the perpetuation of the trust of

able purposes.

the fund, and sufficiently expresses an intention that the corpus

fund

shall

not vest in or be paid over to the hospital trustees.

Mr. Doherty urges that the covenant of the municipality of the county of Elgin for the perpetual maintenance of the hospital,

given as a term of

its

acquisition of the

Amasa Wood

ensures the perpetuity of that institution, and that

never be interrupted.

may have been

While

this covenant, of

fully apprised,

its

property,

work

will

which the testator

no doubt renders

it

highly im-

probable that the work of the hospital shall cease at any time in the future, that contingency cannot, in

my

opinion, even with

such a covenant, be deemed beyond the realm of possibilities. If

the gift over were to the municipal corporation for

its

own

use and benefit, this fact would certainly afford a very strong

argument in support that event,

of

Mr. Doherty's contention, because, in

the municipal corporation would certainly not be

allowed to benefit as a result of failure to observe to maintain the hospital.

corporation

The the

J,

1907

Re Chambers,

pital.

of the

Anglin,

is

But the

gift

its

covenant

over to the municipal

in trust for defined charitable purposes.

testator's manifest intention that the gift of

Amasa Wood

Hospital shall not carry with

it

income to

the corpus, and

Chambers Wood.

v.



'ONTARIO

64 Anglin,

REPORTS.

the provision that in a certain contingency

J.

to arise

1907

—the

purposes, in

Re Chambers,

Chambers Wood.

LAW

v.

income

my

shall

itself



[vOL.

—however

unlikely

be diverted to other charitable

opinion, preclude the application of the rule above

An order / accordance with this view.

stated as to the effect of unlimited gifts of income. ...

.

.

.

.

will issue containing

Costs of

all

.

.

a declaration

m .

.....

parties of this application will be paid out of the estate. G. G.

[DIVISIONAL COURT.]

LoUGHEAD

D. C.

V.

1908 Negligence, Action for

Jan. 31.

COLLINGWOOD SHIPBUILDING COMPANY.

—Imby Defendants—Evidence as —Indemnity Held —New Trial— ^‘Substantial Wrong or Miscarriage to

^’

proper Admission of Con. Rule 785,

la an action by a workman under the Workmen’s Compensation for Injuries Act, the plaintiff’s counsel was allowed, against the strong objection of counsel for the defendants, to prove the fact that the defendants were indemnified against any verdict that might be given in favour of the plaintiff by a policy of insurance with an accident and guarantee company. The trial Judge warned the plaintiff that he must be prepared to take the risk of submitting the evidence, and, in charging the jury, told them that it should form no element whatever in their decision: Held, that the evidence was improperly admitted. Held, also (Anglin, J., dissenting), that, by reason of the admission of the substantial wrong or miscarriage” had been occasioned evidence, a within the meaning of Con. Rule 785, and that the defendants were entitled to a new trial.

Appeal by the defendants from the judgment of Mabee, J., upon questions submitted to the jury, in an action under the Workmen’s Compensation for Injuries Act, tried at Barrie. The facts and arguments are stated in

in favour of the plaintiff,

the judgments.

The appeal was heard by a Divisional Court composed of FalconJJ., on 20th November,

bridge, C.J.K.B., Anglin and Riddell, 1907.

John

Birnie, K.C., for defendants.

A. E. H. Creswicke, for

January trial.

Upon

31.

plaintiff.

Falconbridge,

the argument

C.J.:

—A

we disposed

of

motion all

for

a

new

grounds except

and

one,

LAW

ONTARIO

XVI.]

though

that,

The action

is

had

at least,

I,

reserved on account of

REPORTS.

65

doubt about

little

it,

we

D.C. 1908

great practical importance.

its

by a workman under the Workmen’s Compensa-

Loughead V.

manager

During the

Act.

Injuries

for

tion

cross-examination

the defendant company,

of

counsel for the

and objection

against the strong opposition

of

the

plaintiff,

COLLING-

wooD

Ship-

building Co.

of counsel for the Falconbridgo,

defendants, and

warned by the

after being

must be prepared to take the

risk,

Judge that he

trial

was allowed to prove the

fact

company was insured against accidents, and that the guarantee company to which the defendants paid their premium had to stand between them and loss. that the defendant

That Flynn

not proper evidence

this is

v.

from such cases as

The Industrial Exhibition Association

and

6 O.L.R. 635;

however,

Toronto (1903),

of

has been so ruled by myself (and probably

it

by other Judges) over and over again If,

clear

is

at nisi prius.

were the ordinary case of improper admission

it

of evidence, the Con.

Rule 785 might be considered to be an answer

But

to the application.

would be absurd,

it

know what

for us to affect not to

I

humbly

think,

notorious, namely, that de-

is

by or on behalf of insurance companies are not favoured, If it came to the knowledge of a jury but the reverse, by juries. that the defence is not by or on behalf of one of their neighbours,

fences

but of an insurance company, which

bour against just such

them

A

defendant, whose

must have a strong

business

whose fortnightly

pay-lists find their

town and

and luxuries

life, is

the

of

stranger

possibly

who employs dozens

of people in the

is

paid to protect the neigheffect

upon

in arriving at a conclusion.

industry of the town, tives,

risks, this

is

in the

constitutes

the

main

or hundreds of opera-

way

into the pockets

county who deal in the necessities

looked on with a more favouring eye than

insurance

company.

practice of trying to inform the jury

Therefore,

who

the

improper

the real defendant

is

The mere putting of the question The jury will draw their own inferences taken by defendants’ counsel and the ruling of

ought to be stamped out. does

all

the mischief.

from the objection the Court.

The

real

defendant

and incurable disadvantage. in such a case 5

—VOL.

is

placed in a position of manifest

The proper course for the Judge jury, and put off the trial

would be to discharge the

XVI. O.L.R.

C.J.

LAW

ONTARIO

66

REPORTS.

[vol.

D.C.

to the next ensuing sittings or, preferably, to discharge the jury

1908

and try out the case himself. While there is evidence to support the

Loughead V.

COLLING-

evidence the other way, and I

wooD

to take

Falconbridge, C.J.

fellow

am

money out

is

unable to say that the same

would have been arrived at

Ship- finding building Co.

verdict, yet there

if

the result would have been

of the pockets of the jury’s neighbours

and

townsmen.

my

In

judgment, therefore, such evidence prevents a fair

trial.

Upon

counsel being asked

his only excuse

was that

it

why he put

all,

upon the cross-examination

as the defendants’ counsel had,

the

such a question at

was, as he says, “tit for tat,” inasmuch of

asked him as to accident insurance which he had re-

plaintiff,

ceived.

But

matter.

All that appears

this is

“Mr. Bimie:

on a

different footing, is

Q. Did the

you? A. Yes. “Q. How much was

and quite another

the following:

company carry any insurance A. That the insurance paid to

it?

for

me?

$250.

“Mr. Creswicke: That has nothing to do with it. I suppose I had to pay it.” you paid the premiums? A. I did. No objection was taken, unless the remark of counsel for the plaintiff prefacing his

would probably be

It

hurn

own

G.W.R. Co.

V.

question can be considered such. held, in

(1874), L.R.

view of cases such as Brad-

10 Ex.

1,

and the Marpessa

(1891), P. 403,' at p. 407, that, notwithstanding cases like V.

G.T.R. (1891), 21 O.R. 299, see p. 306, and Hicks

etc.,

R.W.

Co. (1857), 4 B.

&

S. 403a,

v.

Farmer

Newport,

the fact of such insurance

could not be taken into consideration by the jury.

But, even two wrongs could make a right, the effect and the whole effect of such evidence would be upon the question of damages; and

if

by counsel for the defendant, as by the learned Judge, that it could not affect the damages, need be no fear of this evidence having had any effect. The

as the jury w'ere expressly told well as

there case

is

different

where the jury

are, in effect, told that

the real

defendants are not their neighbours, but an insurance or guarantee

company. There

is

inherent power in the Court to prevent an unfair

advantage on the part of

plaintiff or defendant,

and an unfair

LAW

ONTARIO

XVI.]

REPORTS.

67

Moreover, this advan-

D.C.

tage tended not simply to increase the damages, but also to cause

1908

advantage was taken in this instance. a finding that any damages at I

Loughead

should be paid.

all

have read with interest and deference the two

my

V.

Irish cases

COLLING-

wooD

ShipAs Walker, L.J., says, in Tait v. building Co. “Every in which case the Beggs (1905), Falconbridge, general order is sought to be applied must depend on its own circumstances,” and if anything which I have above set forth would cited

by

brother Anglin.

R. 2 K.B., at p. 536:

Ir.

seem to be

in conflict with dicta of so high authority, I

can only

know

the con-

say that I have the presumption to think that I

human and

ditions of life in,

and the

of the people of,

mine own province.

I think that there

course taken at the trial

entirely

new

should be a

trial,

trial,

natural tendencies

and, in view of the

the costs of this appeal and of the former

should be costs to the defendants in any event.

Riddell,

J.,

concurred in the result of the judgment of Falcon-

bridge, C.J.

Anglin,

J.

:

—^The defendants appeal from the judgment entered

in favour of the plaintiff

by Mabee,

J.,

submitted to them.

versal of this judgment,

and

for the entry of a

ing the action or in the alternative for a

The action eye, sustained ligent use

is

plaintiff, as

by the defendants

of

he

The Court expressed

its

must, vdth one exception,

the

defendants,

judgment dismisstrial.

alleges,

loss of

an

because of the neg-

an improper or defective die in

works at Collingwood. view upon the argument that the

several grounds of objection urged

The learned

new

brought for injuries resulting in the

by the

their shipbuilding

upon answers They ask for a re-

at the trial,

of the jury to questions

trial

on behalf

of the defendants

fail.

Judge, against the objection of counsel for

permitted

counsel

for

the

plaintiff,

in cross-

examining the defendants’ manager, to adduce evidence that

company was indemnified, at least partially, against any verdict that might be given in favour of the plaintiff, by a

the defendant

policy of insurance with

For the defendants

an accident and guarantee company.

it is

now urged

that the admission of this

evidence was improper, and that they are on that ground entitled to a

new

trial.

LAW

ONTARIO

68

That the evidence was

D. C. 1908

Loughead V.

COLLING-

wooD

Shipbuilding Co.

unquestionable.

is

sought to justify

[vOL.

irrelevant to the issues

upon the record

The only pretence upon which it can be introduction would be for the purpose of

wRom

impeaching the credibility of the witness to

the question

But an irrelevant question may not be put to a witness the mere purpose of impeaching his credit by subsequently

was put. for

Anglin, J.

its

REPORTS.

Taylor on Evidence, 10th

contradicting his answer:

No

1435.

ed.,

by counsel for the plaintiff in support of his contention that this evidence was properly received; neither The impropriety of have I been able to find such authority. authority was cited

admitting the evidence

is,

my

in

That

opinion, quite clear.

it

might in some cases unfairly

affect the jury to the prejudice of

the defendants admits of

doubt: see Sawyer

90 Me. 369; Anderson

Bonham

Barrett v.

Oil

little

v.

v.

Arnold (1897),

Duckworth (1894), 162 Mass. 251; and (1900), 57 S.W. Rep. 602.

and Cotton Co.

Formerly an appellant establishing these propositions would have made out a case clearly V.

4

Tatham

A & E.

(1837), 7 A.

&

him

new

to a

trial:

Wright

E. 313, 330; DeRutzen v. Farr (1835),

53.

But Con. Rule 785 because of the stantial

entitling

the

forbids

granting

of

a

new

trial

improper reception of evidence ‘‘unless some sub-

wrong or miscarriage has been thereby

occasioned.’’

Of

the purview and effect of this provision, which in the House of Lords

has been spoken of as very beneficial and useful. Lord Watson said, in

Bray

v. Ford, [1896]

A.C. 44, at p. 50: “I have purposely

abstained from suggesting any general rule applicable to the struction of Order xxxix., lating

any

rule

r. 6.

which would be

I

doubt the possibility

useful,

inexpediency of making the attempt.

upon

its

own

In Bray

and

I

Each

of

com

formu-

do not doubt the case

must depend

circumstances.”

v.

Ford the jury had been misdirected in a matter

which, in the opinion of the members of the House of Lords, prob-

ably affected their assessment of damages. Their Lordships de“ clined to speculate what might have been the result if the Judge

had

rightly directed the

jury.”

The action was

for libel, in

which, as their Lordships point out, “the damages cannot be

measured by any standard known to the law,” and the

ment

“is the peculiar function of a jury.”

assess-

These features of

the case account for the reversal of the judgment of the Court

ONTARIO

XVI.]

LAW

REPORTS.

69

which had refused a new trial because a case of subwrong or miscarriage occasioned by the misdirection had

of Appeal,

stantial

been made out.

not, in its opinion,

On

the Judicial Committee, applying the

in which

was

it

same

provision, which

Civil Code, refused the plaintiff a

new

is

trial

which admissible evidence had been rejected, but

in a case in

clear to their Lordships that the result

would not

have been different had the rejected evidence been received.

Watson, giving the judgment

Lord

Board, analyzes the verdict

of the

and the charge, and reaches the conclusion that, having regard which the charge of the learned Judge had

to the questions to

directed the attention of the jury, their verdict involved a finding

upon a point

against the plaintiff

necessarily fatal to his case,

and upon which the rejected evidence had no^ bearing. In Bank

Hamilton

of

sional Court ordered a

In

sion of evidence.

v. Isaacs

new

its

trial

(1888),

16 O.R. 450, a Divi-

because of the improper admis-

opinion ‘Hhe charge of the learned Judge,

adverting to this evidence so improperly received and to

made

portance,’’

it

clear,

its

im-

“having regard to the whole case,”

that “substantial wrong and miscarriage was thereby occasioned.” The evidence improperly received was in contradiction of an irrelevant statement made by one of the defendants, and it was

used to discredit his entire testimony.

D. (1904), 8 O.L.R. 308, 318, 12 O.L.R. 24, 27, improper reception of evidence is one of the reasons given for orderIn C.

ing a

V.

new

trial,

notvfithstanding an explicit direction to the jury

they must disregard such and that they could base no finding upon it. But

in the charge of the trial Judge, that

evidence,

connection the Appellate Court alludes to other efforts

in this

and prejudice against the appellant by which

to create suspicion

the Court appears to have been

much

influenced in granting

relief.

The last reported case that I have found, in which the scope and effect of this limitation, placed by the judicature rules upon the right to a

new

trial

because of the improper reception of evi-

Ir. R. 2 K.B. 525. This was an action against a husband and wife for slander spoken by

dence,

is

considered,

is

Tail v. Beggs (1905),

the wife impugning the chastity of the plaintiff.

signed

1908

Loughead

the other hand, in Manley v. Palache (1895), 73 L.T. 98,

found in the Jamaica

D.C.

by the female defendant, addressed one

Two

apologies,

to the person with

V.

COLLING-

wooD

Ship-

building Co. Anglin, J.

ONTARIO

70 D. C.

whom

1908

duct,

Loughead V.

COLLING-

wooD

Shipbuilding Co.

LAW

REPORTS.

[vOL.

the plaintiff was said to have been guilty of improper conand the other to the gentleman at whose house the impro-

were said to have occurred, were received in evidence

prieties

for the plaintiff.

was

It

also

sworn to by her and not denied

that the male defendant had offered to compromise the action

accompan 3dng his offer with a threat if it were refused. The King’s Bench Divisional Court ordered a new trial on the for £10,

Anglin, J.

ground that the apologies signed by the wife alone were improperly received in evidence against the husband, Palles, C.B., saying

that this evidence ‘‘was undoubtedly of weight in proving the

may have

innuendo, and

Upon

materially increased the damages.”

appeal from this judgment, the Court of Appeal held

that the apologies were not admissible in evidence, but also held that there was, without them, evidence sufficient to sustain the that no substantial wrong or miscarriage had been occa-

verdict;

sioned at the

trial;

and that the verdict should stand.

Lords Justices take the view that the husband’s the

taken with the uncontradicted evidence

claim,

plaintiff’s

The

offer to settle

given of the publication of the slander, accounted for his being

found

and that

liable;

his threat to the plaintiff fully explained

the substantial damages awarded

Examining rities, I

The

—£100.

the present case in the light of the foregoing autho-

find the following features

verdict

questions.

which seem to be noteworthy:

not general, but consists of answers to specific

The jury

was negligence tive to the

is

find that the cause of the plaintiff’s injuries

of the defendants in

having an improper

die, defec-

knowledge of their foreman or superintendent, which

broke, and thus injured the plaintiff,

no contributory negligence.

There

to support each of these findings,

is

who was

himself guilty of

some reasonable evidence

and they are

precisely the find-

would expect an average jury to make upon such

ings which I

evidence, whosoever the defendant might be.

Then the damages awarded are $1,500 for the loss of an eye. The plaintiff was a blacksmith, earning $2 a day. After being injured he was under medical care for nine or ten weeks, and suffered

much

pain.

He

his trade as a blacksmith,

has been obliged to relinquish entirely

and now earns a somewhat precarious and selling milk and tea

livelihood, keeping a couple of cows,

and tobacco

in a small shop.

Having regard to

all

the circum-

^

ONTARIO

XVI.]

stances,

REPORTS.

impossible to say that $1,500

is

it

LAW

contrary, I think I

it

falls

is

by the

compensation for the injury sustained

71

more than a

fair

D. C.

On

the

1908

plaintiff.

short of adequate compensation, and

cannot assume that the jury would have given

believed that fellow

townsmen would sustain the

less

had they jury or

damages to indicate that the admission

evidence that the defendants were protected in

the

degree the verdict

slightest

of

by insurance

the

jury:

of

affected

McCreesh

v.

McGeough (1873), I.R. 7 C.L. 236, 240. Towards the conclusion of his charge, the learned Judge very pointedly and emphatically told the jury that the evidence that the defendants were insured should ‘‘form no element whatever in the

decision.’'

He

questions without in

insurance

We

them “to

further urged

are

dispose of the

any way considering whether there

company behind the defence

now asked

any

is

or not.”

to assume that the jury disobeyed these

and allowed themselves to be influenced by this evidence, which they were expressly told to disregard; that, notwithstanding the learned Judge’s directions, because an insurance company might have to pay it, they were induced to give a verdict different from that which they ought to have rendered and would have given if they had not been informed that the defeninstructions,

dants had an indemnity.

In the absence of any indication of impropriety in the verdict I

itself,

must decline to ascribe

a yielding to

unfair

to the jury such injustice, such

considerations

and improper motives, as

a judgment in favour of the defendants, necessarily based upon

an opinion that there had been a substantial wrong or miscarriage at the trial,

would imply.

to justify such

I find nothing in the present case

On

an opinion.

the contrary, everything here

tends to the conclusion that the verdict

is

just

and

fair.

In these

circumstances I cannot think that the defendants are entitled to a

new

trial

because they

may have

lost

some

benefit of such

adventitious circumstances as their local importance and influence, to

which the jury could only give consideration and

effect

if

pared to disregard their oaths and to award to the plaintiff

than

fair

as put

compensation.

by Holmes,

The

preless

object of the Judicature Rule

L.J., in Tait v. Beggs,

V.

COLLING-

wooD

loss.

I discover nothing, therefore, in the findings of the

in the assessment of

Loughead

is,

“to prevent one of the

Ship-

building Co. Anglin,

J.

— ONTARIO

72

LAW

REPORTS.

I

VOL.

D.C.

greatest hardships in legal proceedings—an unnecessary second

1908

trial.”

Loughead V.

COLLING-

wooD

Ship-

conclusion, order,

J.

it

of

Walker,

have another

to both parties to

building Co, Anglin,

To quote the language

L.J., “it

and when

trial,

would be unjust I

come

to that

just the case for the application of the general

is

and serves

its

am

But, while I

object.” satisfied that the present

appeal should not

succeed for the reasons which I have indicated, to call for this observation.

it

appears to

Where, in cases not within

sec.

me 102

of the Judicature Act, counsel has improperly taken a position

apt to unfairly prejudice the interests of the party to is

whom

he

opposed, and especially where, notwithstanding objection, he

deliberately persists in such a course,

if

the trial Judge should

summarily dismiss the jury and try out the case himself, would, in

my

opinion, be not only warranted but most

his action

commend-

able. G. G.

1[TEETZEL,

1907 Dec. 16.

Bechtel

v.

J.]

Zinkann.

— Trustee



Trusts and Trustees Shares in Company Right of One Beneficiary

to



for Several Beneficiaries

Apportionment.

trustee held a number of shares in the capital stock of a company was entitled to a certain proin trust for several persons, each of portion of the face value of the same, but no provision was made for sale or division of the stock, and no time was fixed during which the trustee was to hold, and one of the cestuis que trust brought an action to compel the trustee to transfer to him a portion of the shares equivalent to his interest, but the other cestuis que trust were not made parties to the action

Where a

whom

and objected to the transfer being made: Held, that, independently of the question of the interests of the unrepresented cestuis que trust, the trustee could not be compelled to discharge his trust piecemeal.

This was an action non-jury

sittings,

tried before

Teetzel,

J.,

at the Berlin

on 5th November, 1907.

A. Millar, K.C., for the

plaintiff.

Dunbar, for the defendant.

The learned Judge reserved

his

decision,

and subsequently

delivered the following judgment, in which the facts are fully set forth.

LAW

ONTARIO

XVI.]

REPORTS.

73



December 16. Teetzel, J,: The defendant is trustee for plaintiff and six others (one of them being himself) of fifteen shares of the two hundred shares of the capital stock of the Silver Spring These shares were issued in part payment of Creamery Co. the purchase money for the assets of another company, in which The the cestuis que trust held stock amounting in all to $1,060. holding amounted to $430, so that his interest in the

plaintiff’s

fifteen shares is a trifle

The action

to compel the defendant to transfer to the plain-

is

damages

six shares,

tiff

over six shares.

for refusal,

by the defendant

received

and an account

of

moneys

as such trustee for the plaintiff’s use

and not paid over. For the defendant

was contended that one

it

of several cestuis

que trust could not compel a trustee to be relieved of his trust in

piecemeal or to apportion a part of the trust property and transfer it to the plaintiff.

Smith and Snow

v.

Snow

(1818), 3

Mad.

the proposition that where the trust fund

sum he

of

money

of

which the

may maintain an

is

10, is

authority for

a certain ascertained

plaintiff is entitled to

an aliquot part,

action against the trustee to recover his aliquot

share without making the other beneficiaries parties. I

am unable to

apply the principle of that decision to the present

case, because, while it is plain that is

an ascertained sum

of

where the subject

money, the payment to one

of the trust

of the cestuis

que trust of his share could not affect the rights of the others or the values of their shares, ject of

the trust

interested

may

it

does not follow that where the sub-

stock, the rights

is

and

interests of the others

not be affected by transferring a portion to one

of the beneficiaries.

The defendant, power in respect

as holder of the fifteen shares, has a voting

of

them, and circumstances might easily arise

where he would hold the balance of power between rival factions,

and thus be able to control the election

of the directors

and the

business policy of the company, while he might not be able to

Then

do so without the six shares. of the cestuis que trust

be entitled to

less

is

the fact that four

than one share each, which would leave them

without a voice in the vision in

there

would, upon a sub-division of the shares,

affairs of

law for a holder of

the company, for there

less

is

no pro-

than one share being entitled to

Teetzel, J.

1907

Bechiel V.

ZiNKANN.

t

LAW

ONTARIO

74 Teetzel, J.

1908

Bechtel V.

ZiNKANN.

vote at meetings of the company.

REPORTS. Under the

[vol.

trust arrangement

each beneficiary has an interest in the franchise that cised

by the

should be

may

trustee with reference to the fifteen shares,

made

in their absence

be exer-

and no

order'

which might in any way impair

or prejudice the value of their holdings.

Evidence was given at the trust object to

trial

the transfer being

that

made

all

the other cestuis que

to the plaintiff.

Independently of the question of the interests of the unrepresented cestuis que

trust, I

am

of the opinion that,

under the circum-

stances of this trust, the defendant cannot be compelled to dis-

The defendant

charge his trust in detail.

is

simply a trustee

and and no time

for convenience, holding the shares in trust for the plaintiff

others,

no provision being made for

being fixed during which he property, he

must hold the

of the several parties are

6th

is

sale or division,

to hold.

scales evenly,

As stakeholder and

of the

see that the rights

mutually respected: Underhill on Trusts,

ed., p. 296.

In Goodson cellor

v. Ellisson (1826), 3 Russ., at p. 594,

Lord Chan-

Eldon expressed the view that a trustee could not be called

on from time to time to divest himself

of different parcels of the

trust estate so as to involve himself as a party to a conveyance

to

many

different persons,

and he puts

this question:

you mean to divest me of my trust, divest me of it altogether, and then make your conveyances as you think proper?’ I have been accustomed to think that a trustee has a right to be delivered from his trust if ‘‘Has not a trustee a right to say,

the cestuis que trust

call for

‘If

a conveyance.”

This case is cited in Godefroi on Trusts, 3rd ed., p. 583, as an authority for the proposition that a trustee cannot be required to convey the estate piecemeal at various times: see also Lewin

on Trusts, 11th

ed., p. 860.

The action must be dismissed with

costs. G. G.



.



ONTARIO LAW REPORTS.

XVI.]

[IN

Ryan

THE COURT OF

75

APPEAL.]

Montgomery v. Ryan. Bank of Montreal and Montgomery.

v.

—Overdrawn Customer's Account—Promissory Notes— — Transfer Third Person—Inspection Customer's

C. A.

1907

March

25.

Banks and Banking

Collateral Securities

Account

—Bank Act, 1890,

to

sec.

46

of

1908

Interest— Compounding Jan. 22.

R., having had an account with a bank for many years previous to the 16th July, 1906, was on that day indebted to the bank in a large sum for moneys advanced, for which the bank held securities pledged to them by R. and a promissory note made by R., payable on demand, for a sum larger than the amount then due. M. had been negotiating with the bank for an assignment of the debt due by R., and had been permitted by the bank to see the entries in their books relating to that debt, and, on the day mentioned, the bank assigned to M. the sum due and all the securities held by them, covenanting that the sum named was due and to produce and exhibit their books of account and other evidence of indebtedness, The pledged securities were handed over to M., and afterwards the etc. demand note, upon which he sued R., who brought a cross-action against

the bank and M. for an account and damages and other relief: Held, that the bank were not prohibited by sec. 46 of the Bank Act, 1890, from allowing M., for the purposes mentioned, to inspect the account of R. with the bank; that the agreement was not invalid; that M. was entitled to succeed in his action upon the note; and that R.’s action failed. Held, also, Meredith, J.A., dissenting, that the bank were not entitled to charge R. compound interest; but where the bank had made a discount or an advance for a specified time and had reserved the interest in advance, this should be allowed; in other cases, where there had been an overdraft, and payments had been made,’ interest should be reckoned up to the date of each payment, and the sum paid applied to the discharge of the interest in the first place, and any surplus to the discharge of so much of the principal. Judgment of Clute, J., reversed.

The

action of

Montgomery

v.

Ryan was

brought to recover

$12,789.24 and interest at 6 per cent, from the 16th July, 1906,

upon a demand note dated the 16th November, 1905, for $17,240, with interest at 6 per cent, until paid, made by Peter Ryan (the

Bank of Montreal, and transferred to Montby the Bank of Montreal, with certain colpledged by Ryan to secure his account with the Bank

defendant) to the

gomery, the laterals

plaintiff,

of Montreal.

by his defence, denied indebtedness, and alleged that had been paid by collections made by the bank, of which

R}^an,

the note

only partial credits had been given; that the bank held as collateral a claim against the Ashcroft

Company

Water

Electric

and Improvement

(hereafter referred to as the Ashcroft

Company), upon

which the bank recovered judgment for $3,325.60 and costs of

LAW

OXTAEIO

76

KEPOETS.

[vOL.

aA

action,

1907

the bank received other collections from collaterals and wrongly

Montgomery

which had been paid, amounting in

V.

Ryan.

that

to 83,775.31;

(Ryan) with certain alleged

debited the defendant illegally

all

costs,

and

charged interest, discount, and compound interest against

and he counterclaimed for 812,500. The second action was brought by Peter Ryan

the defendant;

(the defen-

dant in the former action) against the Bank of Montreal and Mont-

By

gomery" in respect of the same transactions.

the statement

Ryan alleged that for many y-ears he was a customer of the Bank of 'Montreal and had his accoimt with the bank since prior to 1890; that in July^ or August, 1906, the Bank of Montreal of claim

claimed a balance of 812,789.24 as the balance due upon the

and he repeated the charges in substance wrongful debits for interest and not gning credit for collec-

said promissory" note, of

tions,

and that the bank held a large number

Ry-an as collateral to his account, of

by"

made

greater value than

Ry-an then charged that the

the balance claimed to be due.

bank, having

of securities pledged

much

these overcharges, and not giving due credit

to the plaintiff, colluded

and conspired with Montgomery against

the plaintiff (Ry"an) to maintain this dition of the account,

Illegal

and prevented the

and wrongful con-

plaintiff

from obtaining

a just and proper account-takmg with the bank, so as to enable the bank to wrongfully- recover the 812,789.24 claimed as due. It

was charged further that Montgomery- was actuated

motives, of which the

Bank

of

the bank, in order to promote their objects,

by-

mahcious

Montreal were well aware, and that

ovm wrongful

and the wrongful and mahcious purposes

of

purposes and

Montgomery,

assigned and transferred the plaintiff’s account as a customer of the bank,

and the amount

of the Indebtedness

be due, and received therefor the of enabling tiff

the said

upon

sum

then aUeged to

of 812,000, for the

purpose

Montgomery- to attempt to recover from the plain-

sum

as a pretended balance

due on the account and

said promissory- note, and, as a part of such transaction,

assigned and transferred ah the securities collateral to said account;

that the bank wrongfully- and hlegaUy- exposed to defendant Mont-

gomery- the account and dealings and transactions tiff

as a customer of the said

bank

by the

plain-

in order to effect their wrong-

and to promote the combination and coUusion between the bank and the defendant Montgomery; that the Bank

ful purpose,

of

LAW

ONTARIO

XVI.]

REPORTS.

7T

Montreal entered into a covenant of indemnity with Mont-

C.A.

that Montgomery caused

1907

gomery

at the time of such transfer;

proceedings to be taken in the High Court against

recovery of the alleged balance;

out was the agent of the bank. the

Ryan

for the

and that Montgomery throughIt

bank charged an excessive rate

was further alleged that

of interest;

that the defen-

dants intended to attempt to realize upon the said securities,

and threatened the tiff

demanded a

sale

full

and

sacrifice of the

and true statement

with the bank, which had been refused.

same; that the plain-

in detail of his account

There were also charges

of negligence in collecting the securities.

The plaintiff Ryan in his action claimed an account against the bank and to have it declared that the charges of interest and compound interest were excessive; to set aside and cancel the transfer of the account and securities and statement of all securities held by the defendants for the plaintiff; and an order enjoining the defendants from further transferring or dealing vdth the securities; and a declaration as to the wrongful, illegal, and collusive acts by and between the defendants and others as against the plaintiff; and claimed $50,000 damages. The bank denied all charges of fraud or other improper conand alleged that on the 15th November, 1905, the bank rendered a statement to Ryan shewing the balance due upon his

duct,

account at that time of $17,240, which he admitted to be correct,

and therefor gave the said note; that the bank held securities of

Ryan, which were dealt with under

collateral

his direct in-

that, among other securities, were certain promissory made by the Ashcroft Company, upon which the bank brought

structions;

notes

action at his request in British Columbia.

fended, but

chairman of

when the

That action was de-

came on for trial one John Shields, the Ashcroft Company, makers of the said note,

offered to consent to

action

judgment

in favour of the bank,

and to

take an assignment of the claim of the said defendants against the plaintiff

and

all

as collateral thereto;

the securities, including said judgment, held that the bank accepted the offer, and on

the 16th July, 1906, an agreement of

was made between the Bank

Montreal and Montgomery, as the nominee of Shields, whereby

the bank, in consideration of $12,789.24, transferred to Mont^

gomery the Ryan account, amounting then to $12,789.24, and

Montgomery V.

Ryan.

ONTARIO

78 C. A.

1907

Montgomery V.

Ryan.

LAW

REPORTS.

Montgomery the

assigned and transferred to

that the bank received the said sum, being the full con-

ties;

sideration

named

and

in the assignment

over to Montgomery the said note and ties

said collateral securi-

held

rates of

and handed

the collateral securi-

by the bank. The bank denied that they charged illegal interest, and said that it was not true that they refused

an account; that to six years;

and

ment Ryan was

sum

transfers,

all

if

an account were granted

finally alleged that at the

justly

it

should be limited

time of the assign-

and truly indebted to the bank in the said that they

of $12,789.24 in respect of said promissory note;

had demanded payment and that payment had been The defendant Montgomery denied all charges

refused. of

improper

He

conduct or that he was acting as agent of the bank.

under the assignment of the 16th July, above referred

claimed to,

and

under the said note indorsed to him, of which he claimed to be the purchaser without notice, and claimed the balance upon the note,

$465.85 collected.

less

the securities given

by the

the Metropolitan Soap

January, 1904; of the

same

He

alleged,

plaintiff

Company

among

that

was a certain mortgage

for

of

dated the 28th

$10,000,

that the plaintiff never executed the assignment

for registration,

and had refused to do

said securities were also certain debentures, inclusive, of the

further,

so;

that

among

from one to twenty

Cape Breton Exploration and Development Com-

pany Limited, for $2,500 each, registered in the name of the plaintiff, and that he had not transferred these securities so as to enable the defendant to be registered as owner thereof, and that he had refused to do so; and by way of counterclaim he asked damages for such refusal and an injunction restraining the plaintiff from incumbering or dealing with the said securities, and for a mandatory order to assign said mortgage and transfer. In reply the

plaintiff,

besides joining issue, alleged that the

promissory note was not intended to represent the actual indebtedness, and further charged that the attempted acts of the

bank shewed that their acts were wholly unauthorized, irregular, and wrongful, and fraudulent as against the plaintiff, and that they colluded with said Shields and Montgomery to ruin the plaintiff, and that their wrongful acts estopped them from alleging

The

any indebtedness to

either of

them by the

plaintiff,

actions were tried together before Clute,

f.,

Ryan.

without a

XVI.]

ONTARIO LAW REPORTS.

jury, at Toronto,

on the 4th, 5th, 6th,

C. A.

and 8th March, 1907.

1907

Montgomery.

C. Millar, for

H. Watson, K.C., and N.

G.

7th,

79

G. F. Shepley, K.C., for the

Sinclair, for

Bank

Montgomery

Ryan.

Montreal.

of.

V.

Ryan.

March above):

25,

—The

Clute,

1907.

J.

(after setting

the correspondence and documents the

Mr. Peter

clear.

since

main

Ryan had an account with

facts are sufficiently

the

Bank

of

Montreal

the account shews large transactions, the monthly

1895;

and reaching

deposits varying

monthly.

out the facts as

evidence in part was very contradictory, but from

at times

from $20,000 to over $100,000

was made

Hypothecation

various

of

securities

the end of each attorney, the

way

month Ryan

to

At

the bank as collateral to the account and future advances.

received, through his duly appointed

monthly cheques, and acknowledged in the usual

affirming the account.

examined either by himself or

I find that the his attorney,

account was not

and that he was not

aware from time to time what rate of interest was being charged.

On

the 16th July, 1905,

Ryan gave

a

demand note

of Montreal for $17,240, with interest to cent.

and

to the

Bank

until paid at 6 per

This amount represented the balance due to the bank

of various

advances,

as

appeared in Ryan’s account, and in-

cluded interest at 7 per cent, and compounded monthly.

Among

by the bank was the

the securities held as collateral

Ashcroft note, upon which I find value thereof in cash.

Ryan had advanced

The bank, pressing

for

the

full face

payment, at Ryan’s

request put this note in suit in British Columbia.

The

action

was defended, and one John Shields, who had been interested with

Ryan

in mills

and timber

limits in British Columbia,

was

exceedingly anxious to prevent judgment being recovered upon this note against the Ashcroft

Company.

A

dispute had arisen

between Ryan and Shields in respect of a certain sale made of certain timber limits

contradicted

evidence

and

mills in British

shews

that

Columbia.

The un-

Ryan had advanced some

$197,000 to the Ashcroft Company, in which he and Shields were

A sale was made of the entire inCompany for $225,000 to one Fowler and which sum $175,000 was to be paid to the ven*

interested as stockholders. terest of the Ashcroft his associates, of

.

— ONTARIO

80

and the balance

G. A.

dors,

1907

associates

Montgomery

LAW



REPORTS.

among Fowler and

of $50,000 divided

who had conducted

[vOL.

the negotiations for the

Ryan

So

The $145,000

that the actual purchase price paid was $175,000.

that

his

sale.

received was applied on payments of debts, leaving

V.

Ryan. Clute, J.

unpaid a large balance due Ryan, and the said Ashcroft notes in the hands of the

A

bank unpaid.

to another timber deal

dispute had arisen in regard

between Shields and Ryan, in which Shields

claimed that he was entitled to receive some $20,000 from Ryan,

Ryan

but

claimed that Shields was largely indebted to him.

The

merits of this dispute were not further disclosed.

When came

the transaction for the sale of the Ashcroft property

to be completed. Shields controlled the situation,

and refused

he had been paid

to convey to Fowler

and

the said $20,000.

If

judgment had been obtained and execution

sheriff’s

hands upon the Ashcroft notes, the amount

placed in the

his associates until

might have been realized by the Bank Shields

and Fowler,

Montreal of the $3,000.

of

were interested from different

therefore,

motives in preventing judgment being obtained on the Ashcroft

had not been paid the $20,000, and Fowler because he was interested in preventing an execution against property for which he had in whole or in part paid. Under

notes;

Shields because he

these conditions, negotiations

the it

Bank

of

commenced

Montreal to purchase the

was desired

to purchase only the

first

Ryan

with Shields and

securities.

upon

Shields, for

was

which was accepted,

is

part,

and

This ended in an agreement with

whom Montgomery was

acting at this stage, and

The agreement

Shields’s nominee.

sell

over the entire account and the

Shields taking

securities collateral thereto.

first

judgment to be obtained against

the Ashcroft Company, but the bank refused to insisted

At

in the

form

who

of a letter,

as follows:

“Toronto, January

18,

1906.

“J. D. Montgomery, Esq., “Barrister, etc., Toronto.

“Bank “Dear with you

Sir,

—As

of

Montreal

v. Ashcroft.

I understand, the verbal

this afternoon

on behalf

arrangement made

of the defendants herein, in

come up for trial on the 23rd instant,

respect to the action which will

at the sittings

of the Court in Vancouver, B.C.,

is

as follows:

“1.

Judgment

of their claim

“2.

LAW

ONTARIO

XVI.]

No

REPORTS.

81

to be entered for the plaintiffs for full

and

costs of action,

by

amount

execution or attachment to be issued until the expira-

tion of thirty days after the 23rd instant.

“3. I

am

to

record,

solicitor for the plaintiffs

on the

and you are to telegraph to Mr. Murphy, the defendants^

solicitor

on the record, to consent to the judgment accordingly.

“4. Provided the

bank are the holders

judgment, they will assign

on payment

it

to Mr.

John

of or control the said

Shields, or his nominee,

amount thereof at any time before the expiraand such judgment shall not be otherthe meantime except to Peter Ryan or his nominee.

of the

tion of the thirty days,

wise assigned in

“5. In the event of Mr. Shields paying off the whole of the

Ryan at any time within the bank holds the same, the bank will assign him or his nominee, and all collateral securities held

bank’s claim against Mr. Peter thirty days, while the

the

same

to

by the bank

therefor.

Yours

truly,

“Crombie, Worrell,

& Gwynne.”

There was a delay in carrying out this arrangement, and apparently Shields was not able to pay the money.

The agreement was made on the 18th January, 1906, and a few days thereafter Fowler came to Toronto, had an interview with Shields, and finally arranged an appointment with Shields at the office of Mr. Worrell, solicitor for the

Bank

of Montreal,

who was charged

with the negotiations which resulted in the transfer.

This meeton the 26th January, 1906. While no final arrangement was made, it was understood that Fowler would take the ing took place

place of Shields, advance the

money, and take over the Ryan

account with the collateral securities. denied that he was acting in

Fowler in his evidence

harmony with

Shields,

and said that

on the 26th January he did not know the extent of the negotiations between Shields and the Bank of Montreal. Fowler was evidently in error with reference to this,

and I find as a fact that he had knowledge of what had been done in reference to the agreement between Shields and the bank, that Montgomery was to be the alter ego of Shields in this transaction, 6

—VOL. XVI.

O.L.E.

Montgomery V.

telegraph instructions in accordance herewith

Henderson, the

to Mr. Stuart

A.

C.

1907

consent.

and that when

Ryan. Clute, J.

ONTARIO

82 Shields

1907

to carry out the

V.

Ryan. Clute, J.

REPORTS.

was not able to advance the money the

C. A.

Montgomery

LAW

[vOL.

parties arranged

same agreement that had existed between Shields and the bank, in the name of Montgomery acting as trustee and Although the pleadings declare that

stead of Fowler.

in the

Montgomery was

acting for Shields, as a matter of fact this was

done to prevent Fowler^s name appearing, who did not as he says, to

desire,

have Ryan know that he was acting in the premises,

but the evidence was perfectly

clear, both from Fowler and Montgomery and the documents, that Montgomery merely acted as

his trustee.

The correspondence resulting in the agreement between the The following bank and Montgomery was very voluminous. The bank held a balance against facts emerge clearly enough: Ryan, overdue, secured by collaterals, which I find were more than Shields and Fowler, from different sufficient to pay off the claim.



motives, desired to obtain these collaterals, to use as a lever or pressure on

Ryan

Shields claimed,

in a

and

way

to compel

him

to

pay the $20,000 which

in order to secure the title to the property

The Bank of Montreal at this time were pressing for payment, and some ill-feeling seems to have between Ryan and the bank manager over the existed At all events, it was said that Ryan refused to again account. The bank refused to sell the securities piecebank. visit the which Fowler had bought.

meal, and I find as a fact that they were offered payment of the

claim against the Ashcroft sisting

upon

and

ferring the whole account

was kept

Company

receiving the full

in ignorance of

all

the further notice

made

and refused

it,

in-

and trans-

I find that

Ryan

what was being done, that he received was ever

reference to this last notice

that an entry was

full,

of the account

the securities.

a notice, unsigned, sent by the bank’s that

in

amount

was

solicitors,

received.

but I do not find

The evidence in It is shewn

in effect as follows.

in the solicitor’s

notice, indicating, not that the notice

book on the date of the had been delivered, but

that the notice was to be delivered; of the office;

lection

that that was the practice and that the lad who made the entry had no recol-

whether he delivered the notice or not.

by Ryan.

I find

I find, therefore,

was never received further that the demand note was past due at

with reference to this second notice, that

the date of the alleged transfer.

it

I also find that the note

is

made

ONTARIO LAW REPORTS.

XVI. ]

up

83

and compound

C. A.

bank never stipulated with

1907

of charges ’which include interest at 7 per cent,

and

interest,

Ryan

I further find that the

payment

for the

of 7 per cent, interest.

The formal agreement dated the 16th

July,

1906,

made

in

pursuance of the letter of the proposal and acceptance above

Ryan

referred to, recites that the

bank for payment ject to

of his

were pledged to the

securities

then present and future

the terms thereof.

It refers to the

liabilities,

sub-

recovery of the judg-

bank against the Ashcroft Company, and recites: ‘‘And whereas it was agreed at the said date that proceedings in the said last mentioned action should be stayed, on the assignee ment

of the

paying to the assignors the against the said R}^an

and

of all securities

cites

that the

date

is

the

full

of the assignors’ claim of the said claim It further re-

held as collateral therefor.”

amount owing

sum

amount

and taking an assignment

in respect of the said claim at this

and that the assignors hold

of $12,789.24,

as

security therefor the securities set out in the schedule thereto:

“And whereas the said assignee has this day sum of $12,789.24, now therefore this

the

paid to the assignors indenture witnesseth

that in consideration of the premises and of the said assignors of the said

Canada

(the receipt

sum

whereof

is

and

assignee, his executors, administrators,

now

money

of

hereby acknowledged) the said

assignors do hereby assign, transfer,

sum

payment to the

of $12,789.24 of lawful

set over

and

unto the said

assigns, all the said

by the said Peter Ryan as aforesaid, moneys that may hereafter become due or owing in respect thereof, and the full benefit of all powers for the enforcement of payment thereof.” It will be noticed that the demand note is not specially menof $12,789.24

together with

tioned, nor

o’wing

all

is it

referred to in this document.

It

then proceeds

with a general assignment of the collateral securities, “to the intent that the said assignee shall take

and assume the position

of the said assignors in respect of the said

indebtedness and of

the said collateral securities,” subject to the terms and conditions set

of

out in the letters of hypothecation and the rights and equity

redemption of the said Peter Ryan.

The bank then covenant that the said sum is owing and not paid, and that the bank have done nothing whereby the said Peter

Ryan 1

has been released or discharged therefrom, and then

Montgomery V.

Ryan. Clute, J.

ONTARIO

84

LAW

proceeds as follows:

1907

times hereafter, at the request

Montgomery

[vOL.

‘‘And that they (the assignors)

C. A.

and expenses

REPORTS.

of the assignee,

of,

will at all

but at the proper charges,

costs,

produce and exhibit the books of

account and other evidence of indebtedness and entries and fur-

V.

Ryan.

nish copies thereof respecting such collateral security for the pur-

Clute, J.

pose of establishing the same and for the purpose of the enforce-

ment

of the obligations respecting

Then

be reasonably required.’’

on the part

full

original offer

limit.

follows the covenant of indemnity

and acceptance

it will

be seen that there

This was extended for thirty days, and, the

bank insisted upon payand thereupon the defendant Montgomery

transaction not being completed,, the

ment

of the judgment,

gave

his

cheque to the

the Ashcroft judgment,

was

may

of the assignee.

Under the was a time

such assigned premises as

finally carried out,

bank

solicitor of the

bank

for the

amount

of

who held the same until the transaction when Montgomery gave his cheque to the

for the full claim, including the

amount

of the

judgment;

whereupon on the 16th July the bank’s solicitor by cheque repaid Montgomery the amount received from him, $3,773.31, being the amount of the Ashcroft judgment. I find further that this

judgment was never paid by the debtor,

money was paid by Montgomery through moneys placed to his credit by Fowler, and that when the Ashcroft judgment was paid in the first instance by Montgomery, it was understood between him and the bank’s solicitor that upon the agreement being fully carried out this amount should be returned to Montgomery. that

is,

On

the Ashcroft Company, but that the

the 16th July, 1906, Montgomery gave his cheque on the

Dominion Bank

to the bank’s solicitor, Mr. Worrell, for $12,789.24.

This cheque was indorsed over to the

thereupon

it

was stamped

paid.

Bank

of Montreal,

and

Indorsements appear on the

back of the note shewing previous receipts upon the note, and $12,200 appears indorsed upon the note.

also

Afterwards, and, as

the assistant manager alleges, on the same day, the words “cancelled in error”

were indorsed on the note by the assistant manager.

The note itself does not appear to have passed into the hands Montgomery until about the time the action was brought. If one is to judge from what took place at the time, it would appear that the bank regarded the note as paid, and that neither of

ONTARIO LAW REPORTS.

XVI.]

party regarded

it

as

material to the transaction they entered

C. A.

The note not

1907

by the agreement

into

of the

16th July, 1906.

being mentioned in that agreement,

would appear that the

it

same

parties did not consider a transfer of the

am

inclined to think that

Montgomery’s venient

way

it

demanding the note

solicitor in

all

material,

and

was an afterthought on the part

of recovering the balance of the

This view reconciles

85

the evidence.

It

as the

I

of

most con-

account from Ryan.

was the

collateral securi-

that Shields and Fowler desired, and the question of the trans-

ties

do not think ever was considered, and

ferring of the note I

when the negotiations were Montgomery accepted and received

as a fact that

paid,

closed

I find

and the money

the assignment of the

account and the collateral securities, and did not ask for or receive the promissory note sued on; and I find that at the time the

bank

assumed to transfer the note there was nothing due to the bank

upon the note,

received their entire claim

the

collateral

ever, that

bank were concerned, the bank having

so far as the

securities

by the assignment

as

Montgomery

upon request

.

of, its

think,

and

how-

terms are broad enough

to call for its delivery.

clause in the agreement will

I

under the agreement, although the note was not men-

tioned and probably not thought to entitle

of the account

above mentioned.

.

I refer to the

which provides ^‘that they (the assignors) .

do, perform,

and execute every

act,

deed, and further assurance necessary to enable the said assignee, etc.,

to enforce the full performance of the obligations respecting

the

hereby assigned premises.”

In other words, that Mont-

gomery having purchased the account and

collaterals,

and

this

account being at the time covered by the the right from his position to call for the to be

demand note, he had demand note as an act

done by the assignors as a further acknowledgment and

assurance of the account, and that

it

is

by

virtue of the agree-

ment that he was entitled to such transfer and not otherwise, and that if the agreement should fail his right to a transfer of the note would necessarily fail with

it.

I find, further, as

a fact that the bank furnished copies of the and submitted the account of Mr. Ryan to the inspection the defendants and their solicitors, and that, vdth the bank’s

securities of

knowledge, the

money was attempted

the entire account

and the

by transferring the Bank of Hamilton,

to be raised

securities to

Montgomery V

Ryan C lute,

J.



LAW

ONTARIO

86

REPORTS.

[vOL.

C. A.

and

1907

account, but their covenant to allow further inspection was the

Montgomery

I find that not only did they permit inspection* of

Ryan’s

foundation of the agreement without which the assignee Mont-

gomery would probably not have

carried out the purchase.

V.

Ryan. Clute, J.

The points for decision on this branch of the case upon somewhat complicated statement of facts are: 1. Have the bank been Bank Act ?

guilty of a breach of sec. 46 of the

does such breach invalidate the whole agreement

2.

If so,

3.

Having regard

ceived, does

it

on the note

?

manner

to the

Ryan

books.)

the bank shall, at directors;

entitled to

sold

all

.

for the alleged

in permitting

?

his



times, be subject to the inspection of the is

not a director, shall be allowed

any person dealing with the bank.”

In Re Chatham Banner Co., Bank 2 O.L.R. 672, Street,

damages

Bank Act

of the

but no person, who

to inspect the account of

.

re-

Bank Act of 1890 is as follows: ‘^46. (InThe books, correspondence and funds of

Section 46 of the of

which the note was

,

wrong done him by breach account to be inspected and spection

in

?

Montgomery from recovering

preclude the plaintiff

the plaintiff

4. Is

this

J.,

of Montreal’s

Claim (1901),

suggests ^Hhat the intention of the clause

probably was to do away with the right which a share-

.

holder in the bank, as a gwasf-partner, might possibly have asserted of inspecting the accounts

banking company.”

of the

It

was

held in that case that the clause ‘^does not enable a bank to refuse to disclose

its

transactions with one of

the propriety of these transactions

is

customers,

its

when

in question in a court of law

between the bank and another customer who attacks them, and shews good cause for requiring the information he seeks.” clause

was

first

made a

part of the

Bank Act

of 1871,

This

34 Viet,

ch. 5, sec. 37. It

seems probable that the clause was introduced to put at

rest the

doubt as to the law as

In Tassell

v.

it

stood prior to this enactment.

Cooper (1850), 9 C.B. 509, Maule,

as to whether there was

while in Foster v.

Bank

of

J.,

expressed doubt

any such duty imposed on the bank, London (1862), 3 F. & F. 214, it was held

that an action lay for this breach of duty, and in

Hardy

v.

Veasey

ONTARIO LAW REPORTS.

XVI.]

(1868), L.R. 3 Ex. 107, Byles,

make such a disclosure on a

J.,

was

87

of opinion that a

bank might

In the present case inspection was allowed with a view of selling the account,

and on the

sale of the

C. A.

1907

justifiable occasion.

account the bank coven-

Montgomery V.

solves itself into this:

The question, therefore, rebank Had the a right to allow inspection

with a view of

and, having sold, to allow inspection to the

anted to allow future inspection.

selling,

And

purchaser?

is

an agreement

for sale containing such covenant

The

right of inspection

was

upon by the purchaser and granted by the bank.

If

valid so as to pass the account? insisted

the bank had no right to allow inspection,

is

that part of the

agreement valid and the clause only invalid which allows inspection ?

law that any person who

It is against the policy of the

is

not

a director should be allowed to inspect the account of any one dealing with the bank, and, this being so, carries

the

with

Bank

it

the right to inspect

is

be sold without inspection, and

if

how any account

the present case

is

could

that be so, a bank has no right

to sell a customer's account as such.

is

in direct contravention of

Indeed, I do not well see

Act.

any agreement which

The evidence shews that

unprecedented so far as the Bank of Montreal

concerned. It is difficult to

imagine anything more likely to shake public

confidence in our banks than the knowledge that customers' ac-

counts are open to inspection and

be done by exposing the private his

Great injustice might

sale.

a customer and selling

affairs of

account to an avowed enemy or one

who

desired to use his

information as a ‘Gever" for private ends, as was admitted in this

Having regard to the high standing

case. it

is

of the

Bank

of Montreal,

almost incredible that they should so disregard their duty

to their customer.

As I have pointed and note, was under other

title

out, the transfer of the account, collaterals, this illegal contract.

Montgomery had no

except that which he received under this contract

made

Bensley v. Bignold (1822), 5 B.

in direct violation of the law:

&

Aid. 335, 340. I think the

whole agreement

consideration, viz., the receive.

He

bargained

sum for

is

void because there

is

one entire

paid for what Montgomery was to

an assignment and inspection

of

Ryan. Clute, J.

ONTARIO

88

LAW

REPORTS.

[vOL.

the account, and, assuming that he was entitled to claim a delivery

C. A. '

1907

was under the agreement.

of the note, it also

Montgomery

Even supposing

that the assignment of the account was legal,

and the agreement to allow inspection

illegal,

one

sum was

paid

V.

Ryan. Clute

J.

and the whole contract

for both,

(1847),

4 C.B. 578; Alexander

now

I will deal

In Dawes

void:

is

Owen

v.

Hopkins

Prescott

v.

(1786), 1 T.R. 225, 227.

with the question of interest.

Pinner (1810), 2 Camp. 486 note, Lord Ellenborough would allow only simple interest on a bank account where v.

the defendant had at different times overdrawn, and the balance was struck at stated times, and interest then charged on the sums

found to be due.

The House

& for

Lords decided in Page

of

v.

Linwood (1837), 4

Cl.

F. 399, that the contract between the parties not providing

compound

interest

it

could not be allowed.

Mr. Shepley referred to Mosse

v. Salt

(1863), 32 Beav. 269,

The Master of the Rolls, Sir John Romilly, said in that case: “There can be no question' that when a banker and customer carry on a banking account for a series of years, upon a certain 273.

specified

system,

then

(assuming

to

it

the Court will assume that there

contain nothing

illegal)

an agreement between the

is

customer and the banker, and that the account shall be kept upon that principle.

In Lord Clancarty

B. 420, 428,

is

it

Latouche (1810),

v.

Ball

1

&

distinctly stated, that acquiescence does not

amount to a settlement on which the accounts

of account, shall

though

it

regulates the principle

be taken.”

In the present case to keep the account upon the system proposed would be to allow 7 per cent, compounded, which would be more than the legal bank rate of interest. In Lord Clancarty

made •

It

at the

end

was held

compound

v. Latouche,

above referred

to,

the rests were

of the year.

in

interest

Ex

p.

Sevan

(1803), 9 Ves. 223, that,

though

cannot be taken under an antecedent con.

tract, accounts may be settled, even half-yearly, upon that principle. Lord Eldon says: “As to the question of compound interest, it is clear, you cannot a priori agree to let a man have money for

twelve months, settling the balance at the end of six months;

and that the

interest shall carry interest for the subsequent six

months; that

is,

you cannot contract

for

more than 5 per

cent.;



— ONTARIO LAW REPORTS.

XVI. J

89 to settle

C. A.

accounts at the end of six months, that not being part of the prior

1907

agreeing to forbear for six months.

But,

and then stipulate, that you upon those terms, that is legal.”

contract,

you agree

if

will forbear for six

compound

interest,

V.

may

or such an agreement

stipulate

be implied

from the course of dealing, but in neither case can it be done so as to allow the bank to recover a rate of interest beyond what the law allows. Section 80 of the

“(No penalty incur any

Bank

Act, 1890,

as follows:

is

The bank

for usury).

any

and may

advance any such

recoverable interest

rate,

stipulate for,

rate of interest or discount not ex-

may

ceeding seven per cent, per annum, and in

not be liable to

shall

penalty or forfeiture for usury,

take, reserve or exact

and take

receive

but no higher rate of interest shall be

by the bank; and the bank may allow any

whatever upon money deposited with

rate of

R.S.C. 1886,

it.”

ch. 120, sec. 61. I find that there

was no stipulation or agreement as to

interest.

There was an entry in the discount book of the bank, under Ryan^s

name, shewing that he was to be charged 7 per cent., but it was There is not suggested that he had knowledge of such entry. a contradiction as to what took place

when

it

assistant manager,

the future.

I

right, that

who was

Ryan

was a mere nudum pactum. is

this

make

The question,

therefore,

If

for

The

is

If

the higher

and properly charged, was

interest



is .

illegally

charged,

this past overcharge.

reduced to this

compounded

monthly receipts given for the cheques? follows

says the manager

a reduction, and the promise

no evidence that Ryan agreed to pay

in fact charged 7 per cent,

knowledge

to the legal rate.

it

very material.

had been stipulated

there was no consideration to

there

reduce

to his

present, says that only referred to

do not think

rate of interest

is,

came

it

that he was being charged 7 per cent.

promised to make

—the

bank having

Ryan bound by The

slips

read

the as

:

“Toronto,

“I hereby confirm the statement

of

Montgomery Ryan.

And see Barnum v. Turnbull (1856), 13 U.C.R. 277. From these cases it would seem that a bank may for

months

my

1st

February, 1904.

account with the Bank

of Montreal, Toronto, to 30th Jan., 1904, as contained in

my

pass

Clute, J.

LAW

ONTARIO

90 C. A.

book, and acknowledge receipt of

1907

same

REPORTS.

[vOL.

cheques and vouchers to

all

date.

“Peter Ryan,

Montgomery

“per K. O’Keefe, attorney.”

V.

Ryan.

do not think

I

Clute, J.

ment that he It

may

but

it

will

amounts to an acknowledg-

this confirmation

pay any

rate of interest that

may

be charged.

be primd facie evidence of the correctness of the account, surely would not include manifest error,

charges,

if

Rex

there be such:

Bank

v.

much

less illegal

Montreal (1906), 11 0*L.R.

of

595, 599.

Here the bank seek to charge 7 per cent, compounded monthly. meaning of the statute to be that the bank may stipu-

I take the

late for 7 per cent., and, in default of

any contract express or im-

plied, the legal rate of interest for the

there

was no contract with Ryan

In Royal Canadian Bank held,

under a similar

interest

upon

Shaw

I find that

(1871), 21 C.P. 455,

on a note bearing no

section, that

face

its

v.

time applies.

for such rate. it

was

rate of

and discounted at 8 per cent., the bank Under sec. 80 the bank have a

could only charge 6 per cent. right to receive

and take

in

That

advance 7 per cent.

is

a different

thing from compounding monthly at 7 per cent, on the balance. I find

no authority for that.

Mr. Shepley argued that at

what was done, and

in

all

events

Ryan had

cited Williamson v.

acquiesced

Williamson (1869),

L.R. 7 Eq. 542, but in that case the charges were explained to his agent and no objection made.

In Crosskill

v.

Bower

(1863), 32 Beav. 86,

it

was expressly

agreed that the rate of interest should be 5 per cent, per annum,

and the custom was to compound at the end

was allowed.

I

do not think

sec.

of the year,

and

this

80 permits the bank to charge

compounded monthly.

That would in effect be chargmore than 7 per cent. This is what the bank have assumed do, and not being within the limit allowed by sec. 80, it is illegal,

7 per cent, ing to

whether agreed to or not

:

Royal Canadian Bank

v.

Shaw, supra.

Applying these findings to the respective actions, action of

Montgomery

v.

Ryan should be

and the counterclaim dismissed without In Ryan

v.

Bank

of

Montreal

it

I think the

dismissed with costs,

costs.

was agreed that

I should assess

ONTARIO LAW REPORTS.

XVI.]

91

the damages for the wrongful inspection of Ryan’s account,

if

1907

so found.

think the plaintiff suffered substantial damage.

I

by Mr. Watson that the

plaintiff

was

It

was urged

entitled to recover the full

value of the securities, $26,000, and he cited Pigot v. Cuhley (1864),

That was an action

15 C.B.N.S. 701, in support of that contention.

wrongful

of trover, for

and the finding

sale,

the jury of £20

of

was sustained upon the ground that time for payment had been extended, and has, I think, no application to the facts of this

His contention

case. I

am

right in the

could not

fall

It is said in

may

(1)

because,

if

view I take, there was no conversion, nothing

under

and

;

(2)

a claim for conversion of securi-

this claim for

Mayne on Damages,

damages.

7th ed., p.

that where there

8,

be an injury either existing at present, though unascertained,

or to arise hereafter,

and

which no fresh action could be brought,

for

damages may be given

substantial in

do not think tenable:

I

passed by the assignment ties

citing Rolin v.

his customer’s cheque,

Steward (1854), 14 C.B. 595;

Forman

Gurety (1873), L.R. 5 P.C. 346;

As, for instance,

at once.

an action against a banker for not paying

v.

Larios v.

Bank

of

Bonany y

England (1902),

18 Times L.R. 339.

In the present case there were special circumstances, already indicated,

why

disclosed,

having regard to the business relations and enmity

existing is

the plaintiff’s account ought not to have been

between the

What his pecuniary loss may be Ryan justly owed Shields the amount

parties.

Even

yet uncertain.

if

claimed by him, and the disclosure would enable Shields to obtain

payment, that V.

Bank

of

is

no excuse on the part

London, 3 F.

&

of the bank.

See Foster

F. 214.

After the best consideration I have been able to give this branch of the case, I

think $1,000 would be a reasonable sum, and I assess

the damages at that amount.

The plaintiff is entitled to judgment declaring wrongful, illegal, and void the agreement for the transfer of the account, securities, and note in question; a reference to the Master ,to take an account of the

—6 to

C. A.

amount due the Bank

of

Montreal at the legal rate of interest

or 5 per cent., as the case

be allowed.

The

plaintiff to

may

be.

No compound

have credit for

all

interest

payments made

Montgomery V.

Ryan. Clute, J.

ONTARIO LAW REPORTS. on the

[vol.

securities,

either to the bank, their solicitors, or

plaintiff to

have credit for the

Mont-

gomery.

The

judgment debt and

costs received

securities received

all

full

amount

by the bank;

by the bank from the

of the Ashcroft

an account

plaintiff

of

and pay-

ments made thereon.

Judgment to

for the plaintiff for $1,000, with costs of action

and inclusive

of this

up

Further directions and costs

judgment.

reserved.

The Bank

of

Montreal and Montgomery both appealed to

the Court of Appeal from the judgment of Clute,

J.,

and the appeals

were heard by Moss, C.J.O., Osler, Garrow, Maclaren, and

Meredith,

JJ.A.,

on the 3rd and 4th October, 1907.

G. F. Shepley, K.C., for the appellants the

There

is

no evidence

Bank

of Montreal.

bank having submitted Ryan’s account

of the

to the inspection of the purchaser except in the action in British

Columbia under the order

of

the Court there.

The covenant

in the assignment of the 16th July, 1906, does not refer to the

account of Ryan, but to the entries in the books of the bank

but even

respecting the collateral securities assigned; refer to the account,

and

is illegal,

it

King

Synge (1812), 15 East 440; Pickering Ilfracombe R.W. Co. (1868), L.R. 3 C.P. 235, 250; In re Bur-

(1809), 11 East 165; V.

does

it

Gaskell v. The

of the other provisions of the assignment:

Howe

if

does not affect the validity

dett,

Ex

p.

v.

Byrne (1888), 20 Q.B.D. 310, 314; Baker

cock (1888), 39 Ch.D. 520, 522.

Even

if

v.

Hedge-

the assignment of the

16th July, 1906, were invalid, that would not affect the agree-

ment

of the 26th January, 1906.

The 46th

section of the

Bank

Act should not be interpreted as prohibiting the disclosure of a customer’s account on a reasonable and proper occasion. correct interpretation of the section J.,

in

672.

is

as suggested

by

The

Street,

Re Chatham Banner Co., Bank of Montreal’s Claim, 2 O.L.R. The section must be read with the preceding one (45),

with which

it

is

grouped under the heading of ‘‘Annual State-

ment and Inspection.”

These sections

are

intended to

deal

with the matters to be laid before the shareholders, and to define the respective positions of the directors and shareholders in re-

gard to the inspection of books and accounts.

The Court

will

ONTARIO LAW REPORTS.

XVI.]

93

apply the 'well-known rule of construction found in such cases

R.W.

as City of Toronto v. Toronto

Counties, etc.,

etc.,

R.W.

Co., [1907] A.C. 315, 324; Eastern

Cos. v. Marriage (1860), 9 H.L.C. 32;

Co. V.

Brand

prove before an assignee

when

proceedings:

Hannum

was not, at the time

v.

McRae

An

not to disclose accounts.

the}^ are

if

it

of

The bank cannot sue or

Toronto v. Virgo, [1896] A.C. 88, 92.

account must be disclosed

Hammersmith,

H.L. 171, 190; City

(1868-9), L.R. 4

becomes necessary in

(1898),

18 P.R.

of the alleged inspection

185.

legal

Ryan

and assignment,

a person dealing with the bank, within the meaning of sec. 46,

but was a debtor of the bank, in default, and whose securities

The only information afforded the amount due on the promissory

were in course of liquidation.

by the bank was the statement

of

note assigned, which statement they covenanted to be correct.

any duty owed to Ryan under the Bank Act or otherwise, and he has suffered no damage by The bank committed no breach

of

and there

is

the acts of the bank, the assessment of V.

no e'vidence on which to found

damages awarded by the judgment:

Taylor

Blacklow (1836), 3 Bing. N.C. 235, 3 Scott 614; Tassell v. Cooper,

9 C.B. 509;

Foster v.

Veasey, L.R. 3 Ex.

Bank 107.

security for the whole of

of

&

London, 3 F.

The bank held

F. 214;

Hardy

v.

the securities as

all

Ryan^s indebtedness to them, and the

bank were not bound to permit the redemption of any one security on payment of the value thereof. The bank were entitled to the promissory note, and to indorse it to any person, who thereupon became the holder, and as such equit-

negotiate or discount

ably entitled to an assignment of

Ryan,

redeem by payment

Central

of the note:

maker of the note, to Bank of Canada v. Gar-

as

land (1890-1), 20 O.R. 142, 18 A.R. 438.

marketable.

Choses in action are

The bank

Are banks intended to be excepted?

were under no obligation to give

Ryan any

tion to indorse the note or assign the debt ties,

held as collateral

all securities

thereto, subject to the equity of

notice of their inten-

and

but the bank did give him ample notice.

ings of fact are not supported

hibition in the

Bank Act

by the

evidence.

collateral securi-

Many

of the find-

is no probank making

There

or elsewhere against a

any period, at a rate of interest not exceeding 7 per annum, payable in advance, and at the end of any such period the interest is due to the bank, and, if not then paid, the loans, for cent, per

C. A.

1907

Montgomery V.

Ryan.

LAW

ONTARIO

94 C. A.

bank may

1907

and

Montgomery

either insist

on payment

may make

interest, or

a

REPORTS.

of the

new

[vOL.

amount due

for principal

amount

loan of the whole

a rate not exceeding 7 per cent., for such other period as This

be desired.

what was done

substantially

is

at

may

in regard to

V.

Ryan.

shewn by the evidence.

this account, as

Bank Act annum payable of the

is

The

limitation of sec. 80

not 7 per cent, per annum, but 7 per cent, per

which amount would not exceed

advance,

in

a rate of 7 per cent, compounded monthly, even

adopted by the bank was a compounding of Banking, 5th

ed., pp. 4, 196, 198, 200;

L.R. 7 Eq. 542;

son,

Ryan

interest.

Reference to Grant’s

acquiesced in this course of dealing. of

the system

if

Williamson

Law

William-

v.

Mosse

Crosskill v. Bower, 32 Beav. 86;

&

v.

Salt,

32 Beav. 269; Lord Clancarty

v. Latouche, 1 Ball

Ex p.

Bevan, 9 Ves. 223; Benallack v.

Bank of British North America

(1905), 36 S.C.R. 120;

Rex

v.

Bank

B. 420;

Montreal (1905-6), 10 O.L.R.

of

117, 11 O.L.R. 595.

appellant Montgomery. After allowing moneys received from collaterals, he was still indebted in a large sum, and the note sued on was given to cover Montgomery, at the commencement of this that indebtedness. action, was a holder in due course of the note, and the equities C.

Ryan

set

Millar,

for

the

credit for all

up by Ryan

against the

Montgomery: GlassExchange Act, 1890, Montgomery was the lawful holder,

bank do not

cock V. Balls (1889), 24 Q.B.D. 13; secs. 29, 30, 38, 85, 87, 88.

and, even

if

affect

Bills of

he had no beneficial interest, he could maintain his

action as trustee for the beneficial owner, whoever he might be,

Hurd The note being payable on demand, by (1879), 3 A.R. 549. secs. 29 and 30 of the Bills of Exchange Act, Montgomery is primd and the action should not have been dismissed: Shepley

v.

a holder in due course, that is, he became a holder before was overdue, and no evidence was adduced to displace the pre-

facie it

sumption.

The note was delivered by Ryan

to the banlc as a

collateral or continuing security for his overdraft,

necessary to present

it

while

it

and

was being so held:

it

was not

sec. 85, Bills

Montgomery knew of the state of Ryan’s account with the bank was what he learned in the proceedings in Bank of Montreal v. Ashcroft, in which he was the Exchange Act.

All that

defendant’s solicitor:

Lloyd

of

329;

Re Chatham Banner

y.

Co.,

Freshfield (1826), 2 C.

Bank

of Montreal’s

&

P. 325,

Claim, 2 O.L.R.

ONTARIO LAW REPORTS.

XVI.]

Ryan was

672.

transfer to

95

not a customer of the bank at the time of the

Any

Montgomery.

sale of the bank’s

cause of action founded on the

claim with

from the claim for violation

The evidence

of sec. 46.

establishes

Such a transaction had never been known before,

Ryan.

and was, from the standpoint of the bank, unnecessary;

it

was

out of the ordinary course of business, and can be explained only

by

There was, in

reference to malicious motives.

The exposure

spiracy against Ryan.

—a

and voluntary closed in

Hannum

Bank Act Amendment

provisions of the 34, 65,

and

sales are

McRae, 18 P.R.

may

66, the bank

sell

permitted by the Act.

against the sale of other assets.

and the customer

is

ruin banking business;

Act, 1900, such as secs. 33,

There

The

is

implied a prohibition

relation

between the bank it

is

A

bank have no power to sell an individual might; that would

a rival in business might destroy a cus-

Bank Act

is

inconsistent with

The

—they stood

in the

collateral securities

Kirkland and Worrell.

and the necessity

It

that any account should be sold.

bank might have sold the

pp. 136, 137;

dis-

certain enabling

certain assets, etc., but no other

not the sale of a negotiable security.

of

By

185.

The evidence shews that the transaction was

tomer’s business.

names

from those

affairs



and deal with an account as

46 of the

a con-

not only that of debtor and creditor

a different and a higher relation.

sec.

fact,

account was wanton

of his

very different state of v.

for notice, see

Upon

the right of a bank to

Maclaren on Banking, 2nd

Prentice v. Consolidated

Bank

(1886), 13

Toronto General Trusts Corporation v. Central Ontario (1904), 7 O.L.R. 660;

sell

ed.,

A.R. 69;

R.W.

Pigot v. Cuhley, 15 C.B.N.S. 701;

Co.

Stevens

Hurlbut Bank (1862), 31 Conn. 146; Washburn

v. Pond (1861), The bank are estopped from denying that the note was satisfied. The amount paid should be credited to Ryan. The findings of the trial Judge as to interest and the

Y.

2 Allen (Mass.) 474.

rate of interest

the evidence.

and

as to

Montgomery Ryan.

in the second action.

G. H. Watson, K.C., and N. Sinclair, for Ryan, the respondent. The bank concealed from Ryan all knowledge of the negotiations The bank and dealings with Montgomery, Shields, and Fowler. had no power without proper notice to assign the securities and assets of

1907

V.

by Montgomery

the counterclaim

collaterals is entirely distinct

its

C. A.

compound

interest are supported

by

In addition to the cases cited in the judgment.

LAW

ONTARIO

96 C.

A.

1907

Montgomery V.

Ryan.

Bank

see

North America

of British

v.

[vOL.

Bossuyt (1903), 15 Man.

There never was an agreement as to the rate of

L.R. 266.

The evidence

terest.

REPORTS.

Ryan

was an agreement.

of dealing that there

in-

any inference from the course

displaces

not estopped

is

by the signing of the monthly receipts: see cases cited by Clute, The damages are not excessive and will not be reviewed.

J.

Apart from Plumbers,

a cause of action under the Criminal

sec. 46, there is

Code: see Rex

Elliott

v.

(1905),

9 O.L.R. 648;

Rex

Association (1907), 14 O.L.R. 295.

etc.,

note sued upon was past due

when

transferred to

and there was nothing then due upon There

Shepley, in reply.

is

Master

v.

The demand Montgomery,

it.

nothing in the evidence to sup-

port the charge of fraud against Mr. Worrell or the bank. is

of

There

a clause in the judgment charging the bank with the amount

The bank have passed that judg-

the Ashcroft judgment.

ment away.

As

to

compounding, Ryan assented to that for eight

years.

Even

Millar, in reply.

part that

522;

is

Sm.

if

legal will stand:

L.C.,

the contract

Baker

is

in part illegal, the

v. Hedgecock,

39 Ch.D. 520,

Although the bank

11th ed., p. 386.

may

punished in damages, the contract should not be annulled.

covenant all

is

no necessary part

of the agreement.

We

be

The

obtained

the information from the commissioU evidence taken before

the agreement.

January

22.

Maclaeen,

were tried together, the

Bank

first

J.A.:

—In

these

two

cases,

which

questions to be considered are whether

plaintiff Montgomery the state of Ryan’s account with the bank, was an unlawful act, and whether the covenant to produce and exhibit the books

the act of the

of ful

of

Montreal in disclosing to the

account and other evidence of indebtedness” was an unlawagreement, and,

The

trial

if

so,

what are the consequences.

Judge has found against the bank, and has, in con-

sequence, dismissed Montgomery’s action based upon the claim assigned to

him by the bank.

The question

as to the liability of a

bank

for such disclosure,

in the absence of a statute, as in England, has been a debatable

one, as will be seen

from the cases

of Tassell v. Cooper, 9 C.B.

Foster v.

509;

LAW

ONTARIO

XVI.]

Bank

of

London, 3 F.

REPORTS.

&

97

Hardy

F. 214;

v. Veasey,

1908

L.R. 3 Ex. 107.

In this case, hov^ever, at the time of the transaction in ques-

Bank

the

tion,

Act, 1890, was in force, sec. 46 reading as follows:

“Inspection of books:

bank

the

—The

but no person,

be subject to the inspection of the

Maclaren, J. A.

who

is

not a director, shall be allowed

This section was based upon sec. 37 of the

bank.^^

|;he

Bank Act

of 1871^

“but no shareholder not being a any person

the last clause there reading,

director shall be allowed to inspect the account of

dealing with the bank.’’

The use

of the

word “shareholder”

at p. 188,

and

made

in the

Hannum

Act of 1871 gives

McRae, 18 P.R. Re Chatham Banner Co., Bank of Montreal’s Claim, 675, that it was originally intended to prevent a

weight to the suggestion

in

v.

in

2 O.Iv.R. at p.

shareholder as a

member

a right to inspect

banking corporation from asserting

of a

and examine

at his pleasure the accounts of

persons dealing with the bank.

We

have, however, to consider the section as

the Act of 1890, with the

it

appears in

word “person” substituted

for “share-

holder.”

Whatever may have been the intention

of

Parliament in

enacting the original clause in the Act of 1871, I have no doubt that

its

intention in 1890 was to declare a policy of secrecy as

to such accounts, except

where there existed a good ground for

disclosure.

This view

is

banks, R.S.C. 1906, ch. 30,

With regard it

is

declared

by

sec.

13 that post-

name

amount deposited or withdravm, except

Postmaster General and those assisting him. law ever since 1875: 38 Viet. ch.

be

to post office savings

masters and other officers shall not disclose the depositor or the

may

strengthened by other legislation that

said to be in pari materia.

of

any

to the

This has been the

7, sec. 63.

However, as appears from the above cases of Hannum v. McRae and Re Chatham Banner Co., the rule is not an absolute one. We have to look at the Bank Act and the law to see whether the circumstances of this case furnish a justification to the the act and agreement complained of. 7

VOL, XVI. O.L.R.

V.

Ryan.

account of any person dealing with

to inspect the

Montgomery

books, correspondence and funds of

shall, at all times,

directors;

C. A.

bank

for

LAW

ONTARIO

98

Section 64 of the

C. A.

1908

Montgomery

Bank

REPORTS.

Act, 1890, in force

[vOL.

when the

bank “may deal

action took place, declared that the

trans-

discount

in,

and lend money and make advances upon the security

of,

may

bills of

made by

take as collateral security for any loan

it,

and

V.

Ryan.

exchange, promissory notes and other negotiable securities, or

Maclaren,'J.A.

the stock, bonds, debentures and obligations of municipal and

by mortgage

other corporations, whether secured

or otherwise,

or Dominion, provincial, British, foreign and other public securities,

and

may

it

engage in and carry on such business generally

as appertains to the business of banking.’’ It is to

be noted that in this case the acquisition of the trans-

by the bank is in no way attacked; the assignment to Montgomery that is complained of.

ferred securities

I quite agree

with the

trial

Judge that

the transaction between the bank

upon

as a sale or transfer of

it

is

only

immaterial whether

and Montgomery

the debt or claim against

as a sale or transfer of the note. July, 1906, treats

it is

it

is

looked

Ryan

or

The assignment of the 16th and the demand

as a transfer of the debt,

note was only handed over subsequently.

Montgomery can claim on the note

I

do not think that

as a holder in

due course, but

agree with the trial Judge that he took with notice, and has no

higher rights than he acquired

change Act, 1890,

sec.

29.

by the assignment:

He was

Bills of

well aware that the

Exbank

full amount of the face of the note was The note was for $17,240, with interest at 6 per cent, from the 16th November, 1905; the bank claimed only $12,789.24. The whole transaction shewed that he did not expect more than

did not claim that the

due.

to stand in the place of the bank. tent to rely

upon the covenant

No

of the

doubt, he was quite conbank that there was due

by Ryan the sum of $12,789.24. the bank a right to sell the claim, whether it existed simply as a debt, or whether it y^as evidenced by the promissory note? In my opinion, the language of sec. 64 of the Bank Act, above

to

it

Had

quoted,

is

quite ample to cover the transaction in question, in-

cluding the securities which were collateral to the debt or note.

The bank was authorized to “deal” in these securities. Now, “dealing” in them includes the right to sell as well as the right Indeed, the idea of selling to buy them or to lend upon them. or distributing is the primary meaning of the word rather than

LAW

ONTARIO

XVI.]

buying or lending:

And, even

212.

if

REPORTS.

99

Sharp (1848), 17 L.J. Ex. 209, special power was not given in so many

see Allen v.

C. A.

this

1908

words in the Act, I think

would

it

be covered by the con-

also

cluding words, that the bank ‘^may engage in and carry on such

Montgomery' V.

business

generally

See Halsbury’s It is

Laws

of

England,

common knowledge

accustomed to

are

appertains

as

raise

it

the

to

business

vol. 1, p. 569.

that banks,

when

by rediscounting

or

by pledging

to

do so has never been challenged.

If

money,

their negotiable paper

they

know, their right

may

do

it

for this

any other lawful purpose. It is which policy, of the bank itself of must be the question mere a I cannot see on what grounds the Courts can intersole judge. The practice is expressly fere with the exercise of such discretion. purpose, they

recognized

it

for

by the Bank Act,

to state the amount of

its

as schedule

D

bank

requires every

Loans from other banks

in

Canada

secured, including bills rediscounted.”

The bank, and the

another corporation or an individual, as assignors,

like

plaintiff as their assignee, are fully entitled to the benefit

of sec. 58, sub-sec. 5, of the Judicature Act, as to the

chose in action, and I can find nothing in the

of a

in our

Bank

(1884), 12

Any

its

advantages.

or

Q.B.D. 511, at

See Walker v. Bradford Old

p. 516.

Montgomery may have had or the agreement, no doubt had special

inspection which

he stipulated in

to the collateral securities

He

assignment

Bank Act

law to deprive them of any benefit to be derived from avail-

ing themselves of

for

which

reference

which were to go with the debt or note.

would, doubtless, be quite satisfied with the covenant of the

bank

amount that was actually due by Ryan; the facts and the amount that he would probably realize from them, was what would specially concern

as to the

relating to the collaterals,

be

a)Dle

to

him.

Counsel for the respondent argued before us that the enact-

ment

of sec.

33 and follovdng of the

of 1900, enabling a

bank

indication that banks

Bank Act Amendment Act

to sell their assets to another bank,

had not the power

is

of sale claimed here

an

by

It is well known that these sections were enacted two banks to carry out a transaction then on foot, by

the appellant. to enable

Ryan. Maclaren, J.A.

in need of

their securities, and, so far as I

may do

banking.”

of

which the smaller bank was merged in the larger, the stock of

ONTARIO

100

LAW

REPORTS.

[vOL.

C. A.

the latter being increased, and the shareholders of the former

1908

receiving the

MontGOMER-X V.

Ryan. Maclaren, J.A.

new

A

bank.

selling

stock in lieu of what they formerly held in the reference to the sections themselves shews that

was intended solely to meet the case of a bank selling out to another bank and retiring from business, and not a case like the

it

present.

The

reference

structive.

If

to be placed

a bank

is

to

upon

these

46

sec. it

to

is

sections

is,

by the respondent,

selling out to

however, somewhat in-

have the absolute meaning sought

another bank,

then, even in a case where

it

would be prohibited from

allowing the purchasing bank to inspect the account of a single

customer of the bank.

To

my

mind. Parliament, having authorized these two ways

of disposing of assets of a

as well as in the other

spection,

should be

bank, recognized the fact that in one case

no one would think

and did not consider

made

for

it

of

buying without

in-

necessaiy that special provision

it

in the Act.

The

fact that

up

to 1890 the

prohibition referred only to shareholders,

and not to ordinary

may have

been a reason for the

prospective purchasers of assets,

case not having been specially provided for.

But, even

were to have the meaning claimed by the respondent,

if

I

sec.

am

46 not

prepared to admit that the consequences would be such as laid

down by

However, in view

the trial Judge.

have formed,

it is

of the opinion I

unnecessary to pursue this farther.

The next question is that of interest. No agreement to pay any special rate of interest at the opening of the account is proved. The respondent says that nothing was said on the subject until the 9th February, 1904. From 1895 up to that time he had been regularly charged interest at the rate of 7 per cent., and this was duly entered in his pass book. Month by month he had, either personally or

by

attorney, confirmed the statements

contained in the pass book and acknowledged receipt of

and vouchers. lately

The weight to be attached been considered by this Court in the

of Montreal,

11

O.L.R. 595.

It will

circumstances of each particular case.

all

cheques

to such receipts has

case of

Rex

depend on the

The length

v.

Bank

facts

and

of time

it

has been going on, the opportunity the customer has of becoming

acquainted with the facts sought to be held proved against him, the probabilities of the case, whether the bank have altered their

ONTARIO LAW REPORTS.

XVI.]

position in consequence of his action

101

—these and other such matters

C. A.

many

1908

The question

are all elements to be taken into account.

cases will be one of acquiescence or estoppel.

we have something more.

case

in

In the present

In at least one

case, that of

a

Montgomery V.

letter of

hypothecation of the 28th July, 1903, the respondent,

on a loan of $10,000, promised to pay interest at the rate of 7 per cent., and this rate is written in both figures and letters, and the very next line below has an erasure and correction in ink, shewing that the

document was one prepared with considerable

care.

does not appear that 7 per cent, was an unusual or excessive

It

rate.

On

the 9th February, 1904, the respondent says he had a con-

manager

versation with the late Mr. Kirkland, then

Montreal at Toronto, when he said to him:

of

charging

me an

be

am

bank, for I right;

all

want to you have been charging any customer

paying up honestly.”

he would make that

word with the bank in

my

life,

all right.

it

would

never had another

I

remember.”

we have not

his

but he made an entry in the books of the bank

re-

ducing the rate of interest charged

and

‘‘He said

as far as I can

Mr. Kirkland had died before the testimony;

^‘You have been

excessive rate of interest,’’ and I said,

be put on the best terms of this

Bank

of the

in the pass

book only 6 per

trial,

so

Ryan from

cent,

7 to 6 per cent.,

was charged

after that time,

and monthly receipts were given confirming the statement; neither in the books of the

any entry reducing past for

interest

bank nor

in the pass

interest, or allowing

previously charged.

but

book was there

any rebate or

credit

This question was not raised

until the present litigation.

On is

the evidence I think the proper conclusion to be

that the

cent,

up

bank are

dravm

entitled to charge interest at the rate of 7 per

to the 9th February, 1904,

and 6 per

cent, after that

date.

The question

By

sec.

of

compound

interest

is,

however, another matter.

80 of the Bank Act, 1890, “the bank

late for, take, reserve or

not exceeding 7 per cent, per annum, and in

advance any such

recoverable I

rate,

...

may

stipu-

exact any rate of interest or discount

may

receive

and take

but no higher rate of interest

shall

be

by the bank.”

do not think under the facts of this case

it

can be said that

Ryan. Maclaren, J.A.

ONTARIO LAW REPORTS.

102 C. A.

Ryan

1908

that he

Montgomery

ratified or acquiesced in a charge of

now

is

in the

seeking to recover their assignee

it

same position back.

Montgomer}q

compound

interest, or

he had paid

if

it,

think that the bank,

I

is

as

now

seeking to recover

and was rather,

or,

from Ryan,

it

V.

Ryan. Maclaren, J.A.

and that they are precluded by

may

interest

in

this section

from so doing.

It

by counsel for the bank, that compounding the does not amount to as much as taking out the interest

be, as said

advance (that

not the question.

Ryan can be

a mere matter of computation); I

but that

do not think that on the facts of

held liable for

sufficient in the V. Salt,

is

compound

evidence to bring

it

is

this case

interest, or that there is

within the cases of Mosse

32 Beav. 269, and Lord Clancarty

v.

Latouche,

Ball

1

&

B. 420.

In this action of Montgomery fore,

Ryan, the appeal should, there-

v.

be allowed and judgment given in favour of the

with a reference to take the accounts,

if

plaintiff,

the parties cannot agree

upon the amount. As to interest, the rate should be 7 per cent, up to the 9th February, 1904, and after that 6 per cent. There should be no compound interest, but where the bank have made a discount or an advance for a specified time and have reserved the interest in

advance

this

may

be allowed.

In other cases, where there

has been an overdraft, and payments have been made, interest shall

be reckoned up to the date of each payment, and the

sum

and any surplus that may remain to the discharge of so much of the principal see McGregor v. Gaulin (1848), 4 U.C.R. 378; Barnum paid applied to the discharge of the interest in the

first place,

:

V.

Turnbull,

13 U.C.R. 277;

Bettes v. Farewell

(1865),

15 C.P.

450.

The appellant should have the costs of the action and appeal; costs of the reference and further directions reserved. Applying the principles above

Ryan

v.

Bank

set forth to the

of Montreal, the result is that, as the

second case,

Bank

were within their legal rights in assigning their claim, the

no ground

of action against

the

of

Montreal

plaintiff

has

them, inasmuch as they have not com-

mitted any actionable wrong against him.

I

do not think

it is

within

our province to inquire or pass upon whether or not the bank treated the plaintiff with the consideration due to a customer

by a bank.

Our intervention

is

shut

off

by the

fact that there'

ONTARIO LAW REPORTS.

XVI.]

is

103

no injury to him of which the Courts can take cognizance. By Montgomery obtained against Ryan no greater

the assignment

than was possessed by the bank.

right or claim

the assignment

Ryan had

could obtain

them from the bank.

for

cannot see

He has not to pay a single how he has been damnified.

I think the defendants’ appeal in this case

For these reasons also should

times since

demand and obtain from exactly the same amount as he

all his securities

I

all

the right to

Montgomery

dollar more; so that

At

be allowed and the action dismissed with costs.

way

In this second action the defendant Montgomery, by

Ryan be

of counterclaim, asks that the plaintiff

restrained from

assigning or dealing with a certain mortgage given

and

by the Metro-

with certain debentures

politan

Soap Co. to the

of the

Cape Breton Coal and Development Co. standing in the

name to

of the plaintiff,

plaintiff,

and

all of

and held by the bank as

ness,

also

which were by him handed over

collateral to the plaintiff’s indebted-

but as to which the plaintiff had not executed formal assign-

ments or transfers, and the defendant further asks that the plaintiff

be

now ordered

to execute the same.

In the argument before us, this claim, attention

matters in dispute. clared illegal

little,

if

any, stress was laid

upon

being directed chiefly to the more important

As the

and void by the

transfer to

trial

Montgomery was de-

Judge, the counterclaim, although

not specially dealt with in the formal judgment, would naturally fail

as a consequence of the general

ground taken

in the court

below.

The evidence shew§ that these

securities were handed over by Ryan to the bank, although no written assignment or transfer was made. They were subsequently handed over by the bank to Montgomery, and the assignment by the bank to him entitles him to be placed in the position of the bank

as collateral

with respect to these as well as the other securities. titled to the

assignment he asks

for,

allowed as to his counterclaim, and

assignment and transfer asked

and

his

Ryan

He

is

en-

appeal should be

should execute the

for.

Moss, C.J.O., OsLER and Garrow, JJ.A., concurred.

Meredith, result

J.A.:

—In

has been reached

v. Ryan an extraordinary by extraordinary means. The defen-

Montgomery

C.

A.

1908

Montgomery V.

Ryan. Maclaren, J.A,

— ONTARIO

104

LAW

REPORTS.

admittedly the maker of the promissory note upon which

C. A.

dant

1908

the action was brought, and admittedly

Montgomery

is

[vOL.

amount upon

it;

is

indebted to a large

and the note was, before action brought, duly

transferred to the plaintiff;

yet the action has been dismissed

V.

Ryan. Meredith, J. A.

with

It will not,

costs.

however, do to say off-hand that such

much

a result cannot have been rightly reached, however clined one

may

be to do so;

for, after

time for consideration, the learned conclusions,

a very patient,

an unduly protracted

suffering, hearing of

and has taken pains

trial

and

trial,

if

in-

not long-

after taking

Judge has reached

his

to set out, at very considerable

length, his reasons for them. It

ought hardly to be needful to say that such a result could

not have been reached except upon extraordinary legislation quiring

It

it.

has not been held, or contended, that

the judgment, and the contention for the defendant,

and

solely

upon the

effect of sec.

56 of the

ch. 29, which, at the time the note

was

Bank

re-

it

could:

rest

wholly

Act, R.S.C. 1906,

was transferred

to the plaintiff,

in these words:

‘‘The books, correspondence, and funds of the bank shall, at all times,

person,
be subject to the inspection of the directors, but no

who

is

not a director, shall be allowed to inspect the account

any person dealing with the bank.'’ Before the transfer of the note by the payees,

who

are a

bank

within the meaning of that word as used in that section of the

Bank

Act, they permitted the plaintiff to examine the account

maker of the note in the books of their branch office at These books which the maker had or had had a bank ‘account. were, of course, the proper means of ascertaining the amount due upon the note, a matter of vital importance to any purchaser of

of the

the note.

The learned ,see

an infraction read; 'Of

trial

Judge held that permitting the

plaintiff to

the defendant's account, in the books before mentioned, was

and

of the provisions of the

Bank

Act, which I have

that, as a consequence of such infraction, the transfer

the note was invalid; and he therefore directed that judgment

be entered dismissing the action.

I

am

quite unable to agree

in his premises, or in his conclusion from them.

The

section

is

collocated in a group of three, under the head-

ing '“^Annual Statement and Inspection," but the words of the

ONTARIO LAW REPORTS.

XVI.]

sub-section are not of general import; of

inspection

accounts.

particular

them their full examination and seeing^

literal

to give

they are limited to the however,

is,

“inspection” includes

if

would prevent even the manager

from

whose duty all

and

it is

oversight of all litigants

to keep the books, or

it,

and would exclude

and Judges and

who could never have been intended

others,

impossible

jurors

to be included

term “no person;” and so, too, it would exclude the cusaccount it is, and who might have no other means whose tomer of proving payments made, or other defences to an action against in the

him.

It is

obvious that It

is

not to have any such absurd effect;

must be drawn somewhere; one object of the enactment may have been, as suggested by Street, J., in Re Chatham Banner Co., Bank of Montreal's Claim, 2 O.L.R. 672, “to do away with the line

the right of a shareholder of the bank to inspect the books;”

another

may have

Assuming that both where at

is

of

is

and

Judge, to put

Obviously, I would have thought,

unjust and injurious

The

“dealing with the bank.”

result

to the person

would be that an inspec-

permitted by the bank, would give a cause of action to the

person, against the bank, ful

trial

these reasons actuated the Legislature,

the line to be drawn?

any inspection which

tion,

by the

been, as suggested

law upon the subject as between banker and customer.

at rest the

if

justification or excuse,

the disclosure were

and were

made without law-

injurious to the “person.”

it was necessary and proper, Assume that the books had not been looked and the defendant had been sued, just as he has been in this

But, in such a case as this in which

no action can at,

action, can

it

lie.

be contended that the books could not have been

used by even the defendant in his defence, or even the in so far as they

and,

if

so,

looking at

no breach

can

it

them

might be admissible in evidence

plaintiff,

in his behalf;

be that either party would be precluded from before the trial?

There was, in

my

opinion,

of the provision in question, in disclosing to the pur-

upon which the amount of the The extraordinary effect of the condemns it, for, under it, if the bank

chaser of the note the account

claim he was buying rested.

judgment

in this respect

C. A.

1908

Montgomery V.

also the bank’s inspector,

and

meaning

for that

of the branch, or the clerks

the general manager,

It

105

had dishonestly abstained from revealing the fact that the whole amount of the note was not due, and had sold it as if it were, the

Ryan. Meredith,

J. A.

ONTARIO LAW REPORTS.

106

[vOL. ^

C. A.

defendant would have been

1908

than he owed; the penalty for acting in an honest and business-

Montgomery

Meredith, J.A.

liable for

more

is the loss by the plaintiff and the costs of the action; and by the $1,000 and the costs of another action. So

manner, instead of dishonestly,

like

of all right to recover

V.

Ryan.

and

liable in this action,

bank a penalty

of

that the ways of honesty have led but to condemnation, and con-

demnation

of

a very costly character.

An

unfortunate lesson

for the Courts to impart.

And, again, there

is

very

much

to be said against the view

“a person

that the defendant was, at the time in question,

ing with the bank:’^ he w^as then rather a mere debtor, from

the bank were unable to obtain

them, and with But, true



is

whom

this

not quite

fraction of the Act,

note was



the

if

to

trial

Judge’s premises were

say that, because of such an in-

illogical to

necessarily follows that the transfer of the

it

If invalid in

invalid?

payment of the money due had ceased.

dealing as bankers

were not so

if

it

deal-

whom

the hands of the transferee,

it

should be equally so in the hands of the transferor, and so the debtor would be very easily relieved from his debt.

Nothing in

the Act gives any warrant for such an extraordinary result.

any

legal

wrong were done the defendaht

state of his account, his

the proper measure of

If

in the disclosure of the

remedy w^ould be in an action for damages, which would be the loss which the wrong

done had really caused him. I

cannot but think that the learned Judge was dealing with

the question as

if

had

it

arisen,

and was

in controversy,

the plaintiff and the bank, and one or other of

avoid

the

transaction

illegality;

but

his

to

for three reasons:

between

conclusion first,

the transaction was not

it

illegal;

them on the ground

of

my

opinion,

in fact such a case;

second,

was erroneous,

was not

between

them was seeking

and, third,

if

in

it

had been, the

Courts would not aid either party, but would leave them in the position in which they

had placed themselves.

plaintiff should have had judgment amount due upon the note, and so that this appeal should be allowed, and there should be a reference, if necessary, as to" the amount due, for which the plaintiff should have judgment when it has in due course been ascertained. I

have no doubt that the

for the

The learned

trial

Judge gave expression to the view that:

ONTARIO LAW REPORT^.

XVI.]

107

imagine anything more likely to shake public

C.A.

confidence in our banks than the knowledge that customers’ ac-

1908

difficult to

‘‘It is

counts are open to inspection and sale.

Great injustice might

be done by exposing the private affairs of a customer and selling

account to an avowed enemy or one

his

who

desired to use his

Montgomery V.

Ryan.

information as a ‘lever’ for private ends, as was admitted in this Meredith, case.”

Though quite unnecessary it

may

be as well for

me

for the consideration of this case,

to say that

I

can

no good cause for

feel

alarm in the simple assignment of a debt, whether the creditor

happens to be a banker, a wine merchant, a grocer, or any one Since the enactment giving effect to assignments of choses

else.

in action, at

law as well as in equity, they have become the com-

monest every-day sort of transaction, and

I

am unaware

of

any

sort of outcry against, or objection to, that remedial legislation,

but, to the contrary,

it

has proved useful and commendable.

Why

should the bankers, in this instance, have been deprived of a legal

which

right

accorded to every creditor?

is

Why

should they

not have been at liberty to assign the debt in order to obtain pay-

ment

of

it,

and the more

so a past

due debt

unable to obtain payment from the debtor. are not

open to

sale;

it

is

of

which they were

Customers’ accounts

customers’ debts which are, whether

they are due to tinker or tailor or banker or candlestick maker, and the assignor, whether tinker, tailor, or banker, or

not only may, but ought to, give

would be

left

of

that to be

it

is

trial

worked out

Judge

necessary that

again assuming it

I think,

also I

conclusions.

collect the

debt as

if

that question be open to

have been quite as well to have

in the Master’s office, in the taking

may

be necessary for the ascertainment

amount now due upon the note; but,

with by the

of

would,

account there, which

of the



it

else,

himself.

In regard to the rate of interest, the defendant,

any one

the information in his power

good a position to

to put the assignee in as

that in which he

all

as

it

has been dealt

—although he dismissed the action altogether it

should be considered upon this appeal,

and in respect am quite unable to agree with the trial Judge in his The question is simply, what was the agreement, it

to be

open to the defendant;

expressed or tacit, as to the rate?

Apart from any testimony upon the question, the inevitable conclusion must have been

3. A.

LAW

ONTARIO

108 C. A.

7 per cent., for during a period of

1908

there were very

Montgomery

some

of

them

many

loans

REPORTS.

upwards

made by

[vol.

of ten years, in

which

the bank to the defendant,

very considerable magnitude, that rate was

of

variably charged, and the defendant

had

his pass books,

in-

which

V.

Ryan.

made

the rate plain to any one

who took

the trouble to ascer-

and there were the usual monthly statements rendered bank shewing the balances from time to time, and the usual acknowledgments in writing from time to time of the correctness of such balances, signed by the defendant’s duly authorized

Meredith, J.A. tain it, by the

agent.

It is

not as

the defendant were an

if

banking

accustomed to

or

other

transactions in question shew

such an one. it

Under

him

tending over so

had never agreed and had paid for

many

pay

so

many

rip

up

seems to

it

all

me

that

these accounts, ex-

interest at the rate he

had been charged

years, except upon very clear evidence The acknowledgments from time so time

of fraud or mistake.

signed

The

on the ground that the defendant

years,

to

man, un-

transactions.

to have been an}dhing but

the circumstances,

all

would be a preposterous thing to

illiterate

business

by the defendant’s duly authorized

agent, appointed for

the purpose of attending to such matters, would surely be enough to put of

upon the defendant the onus of proof of the impropriety and that would be a very difficult undertaking

the charge;

in the face of the writings to

which

I

have referred, and quite

an impossible one in the face of one of the documents signed the defendant, in which the rate of interest

be 7 per centum.

how

is

by

plainly stated to

Then, upon the testimony adduced at the

The defendant, when giving had been no agreement as to the rate of interest he was to be charged, and that when he found out that he was being charged 7 per centum compound interest he said to the manager of the bank, ‘‘You have been charging me an excessive rate of interest, and I want to be put on the best terms you have been charging any customers of the bank;” and that the manager said that “it would be all right, he would make that all right,” the witness adding, “I never had another word with the bank in my life, as far as I can rememThe manager ber,” meaning, of course, on the question of interest. trial,

does the matter stand?

evidence in chief, in his

had died before the

own

trial of

behalf, testified that there

the action, and so the Court

the benefit of his testimony;

is

without

but, about the time deposed to

by

ONTARIO LAW REPORTS.

XVI.]

the defendant, he

made an

109

entry in the proper book reducing

the rate of interest from 7 to 6 per

centum from that time

On

ward, and interest was charged accordingly.

for-

the day follow-

upon which the defendant gave the testimony from which I have just quoted, he was cross-examined, and then went much further than he had gone in his examination in chief, testifying that he asked for a refund of excessive charges of interest, and ing that

adding that the manager had said what was equivalent, “it

is

But, although two years and six months elapsed be-

done.”

tween

this

agreement and the commencement of this action, no

was made, or attempted, or sought, to The monthly balances continued to be made, and the

reduction of past interest

be made.

plaintiff still

debits

and

had

his pass

books shewing from day to day the His testimony, naturally enough,

credits of his account.

was not given in a clear and convincing manner; he was relying entirely years.

and

all

upon his memory, and covering a period of about twelve To give effect to such testimony, against all the writings the circumstances and probabilities of the case, would

be unreasonable.

It

seems to

me

to be so improbable as to be

practically impossible to believe that the manager, a

making an agreement the past, and reduce it for the

man

of the

and imme-

highest integrity, would, after

to reduce

refimd the interest for

future,

diately proceed to entirely

part of

make a

false

entry of his promise, and abstain

from taking any steps to carry out 'the more important it;

and

also highly

improbable that the defendant would

have permitted, without any sort of remonstrance, the entire failure to carry

month

to

out that part of

month and from day

it,

and would have gone

to day, just as

if

on,

from

the whole trans-

actions in regard to interest were as the bank now assert they were, and as every writing bearing upon the subject shews them to have

been. as

to

Instead of satisfying the onus upon him, the evidence the transaction of February,

1904,

strengthens the case

upon this question. The trial Judge seems to have thought that it was immaterial what the facts as to this agreement were, because, in any case, any promise in respect of past interest would be without consideration. Again, I am against the defendant

unable to agree; for the transaction might be, and was, I think, evidence of an agreement in the past to pay 7 per centum. If the real transaction were, as I find it to have been, an applica-

C. A.

1908

Montgomery V.

Ryan. Meredith, J.A.

V

ONTARIO

110

LAW

REPORTS.

[vOL.

had been and carried

C. A.

tion for a reduction for the future of the rate which

1908

charged, and

Montgomery

out,

it

is

an application which was acceded to

Nor can

conclusive against the defendant.

why

I see

a compromise in good faith of a claim to the higher rate, in an

V.

Ryan. Meredith, J. A.

agreement to pay

it

up

would be wanting

after,

and a lower

to a certain date, in

any

rate there-

legally binding quality;

nor

why

a renewal of a loan at a lower rate would not be a good consideration for a promise to

pay

With-

at a higher rate for the past.

out leaving entirely the firm ground of the writings and the proba-

and building upon the shifting sands of ‘‘treacherous memory,” the judgment in this respect cannot be sustained. I

bilities,

am

clearly of opinion that

it

should be reversed.

Then, in regard to the defendant’s complaint as to compound interest,

if

that subject be open to

imable to agree with the the

Bank

trial

him

in this action, I

By

Judge.

Act, banks are restricted to a rate

ceeding 7 per centum;

any

ceeding 7 per centum per annum,” and

advance any such rate.”

upon a loan

of,

again

of-

interest not ex-

but they are expressly given power “to

stipulate for, take, reserve, or exact

in

am

the 91st section of

It

is,

rate of interest not ex-

“may

receive

for instance, $1,000 for one

and take

quite clear that

therefore,

month,

interest, after

the rate of 7 per centum per annum, for one month, might be

and the interest thus obtained at once let out at interest and equally clear that on payment of the loan at the end of the month, another loan, for another month, upon the same terms, might be made, and so on from month to month, or for

taken, again,

any other period; and

it

could surely

make no

difference

if

the

payment were not gone through, but the note was renewed from time to time, and no difference whether the interest was actually paid or only charged to the borrower in his account

form

of

with the bank.

for the at

payment

any other

and bear

no reason why either may not make a valid contract

So, too, I can perceive

a borrower from, or lender to, a bank of interest

and the addition

periods, to the account so as to

interest as such.

There

is

of it

monthly, or

become

principal

no prohibition in the Bank

by law, of such a course of dealing. It is one commonest kind in the present day, when ancient prejudices against interest upon interest have greatly lost their sway. The Act does not limit the interest which may be taken, or paid, by

Act, or otherwise of the

ONTARIO LAW REPORTS.

XVI.]

to

What power have

a bank, to simple interest.

or to

There must, of course,

do so?

the

method

agreement reached;

as there

but,

is

pay

in the

way he

under

all

has been

nothing extraordinary or unusual in

was such an

of charging, the conclusion that there

is,

the Courts

have been an agreement by

the defendant, either express or tacit, to

charged;

Ill

the

circumstances

indeed, I cannot but think that

the

of

futile to

attempt to bring any juror of ordinary experience in business

How

matters to any other conclusion. all

can one, in the face of

the documents, in the face of over ten years’ experience, with

the pass books always in hand,

and with the monthly statements

to be correct,

and

in the face of the

fact that the promissory note in question

was

deliberately given,

received

made

and acknowledged

for the balance

due from the defendant to the bank, based

upon such calculations the

of interest as well as the other items of

account of the bank against the defendant,

how can any

one but conclude that the defendant, or his duly authorized agent,

was aware

of,

and charged?

and agreed to pay, the interest thus calculated Is the mere memory of the defendant, of which

he himself naturally and voluntarily shewed doubt in the words

“as far as

I

can remember,” to outweigh everything, and to out-

weigh everything in a case where the hand of death has excluded the testimony of the other party to the transaction, who, in view of the entries

made by him

as to the rate of interest,

it

can fairly

be assumed, would have supported the propriety of the charge

by

his

oath that they were in accordance with the defendant’s

agreement with him? see Hill

v.

Wilson (1873), L.R. 8 Ch. 888,

at p. 900.

The

trial

Judge seems to have treated the case as

if

there

had

been an expressed agreerxient to pay interest merely, and so the statutable rule should be applied;

whole

The

evidence.

was no agreement as to

but that

interest,

plaint about being charged

and

another word with the bank in his

contrary to the

was

there

that

that, except as to his

an excessive rate

manager’s statement that he would

is

testimony

defendant’s

make life

it

of interest right,

com-

and the

he never had

on the subject,

-but, as I

have before mentioned, guarding that testimony with the saving

words “as far as writings

I

can remember.”

On

the other hand,

Montgomery V.

Ryan.

easily Meredith, J.A

case,

would be

it

C. A.

1908

all

and circumstances go to prove an agreement to pay

the at

ONTARIO

112

down

C. A.

the rate of 7 per centum

1908

afterwards 6 per centum.

Montgomery V.

Ryan. Meredith, J.A.

LAW

If

REPORTS.

[vOL.

to the time of that complaint,

and

the question had been raised soon

between the bank and the defendant began,

after the transactions

what would have been the proper findings on these questions even if the entries in the books, and all the other cir-

of interest,

be

cumstances,

out of consideration,

left

come

and the defendant’s

Could any other conclusion be

testimony alone be accepted?

to than that the tacit agreement of the parties

was that

the defendant should pay interest, and that the rate should be

the same as the bank usually charged upon such transactions?

The defendant knew that the bank had power to stipulate for and exact interest not exceeding the rate of 7 per centum per annum; and to take it in advance, and immediately to let it out again, to the defendant or

any other borrower,

and so

interest.

upon

to take interest

would exact

all

that

it

He knew,

could lawfully take, and

at the like rate,

too, that the

its

bank

customers would

pay; and he could not have expected any better terms than others

He must have meant, and the bank must have meant, that he should pay the usual rate charged by the bank in transactions of this kind, just as if he had bought in the like position got.

from some large dealer any commodity without any agreement

No

as to price.

made

other finding could reasonably be

in this

And the whole had arisen when and as I have stated. evidence upon the subject is that at 7 per centum, with interest added as it was to his account, the defendant was so charged; case,

if it

and that the charges were reasonable

ones, having regard to the

character of the loans.

But, assuming the his conclusions tiff,

who

sued on?

is

trial

Judge to have been quite

on these subjects, how can that

right in

affect the plain-

the lawful holder in due course of the promissory note

He had

notice that

reduced the amount of with the bank, and so

it;

that

knew

payments had been made which he had seen the maker’s account

is,

all

that

it

disclosed;

nothing so disclosed which cast any doubt upon

but there was

its validity.

appeared to be a promissory note given by a gentleman of telligence

to the

and business experience

bank

for

money

for the balance

which he owed

lent to him, the debt being secured

the several pledges which were assigned to the these circumstances,

how can

It in-

plaintiff.

the defendant escape

payment

by In of

ONTARIO LAW REPORTS.

XVI.]

upon the

the balance due

113

The actual

note, to such a holder?

transfer of the note before action, for its full value, before

ment had been demanded,

is

pay-

Mont-

proved and not denied.

my

opinion, be allowed,

and judgment

should be entered for the plaintiff for the amount

now due upon

This appeal should, in

amount

the promissory note sued on, such

the proper

upon

The

it.

of this appeal,

Ryan

the Court,

officer of

to be ascertained

by

the parties are unable to agree

if

should have his costs of the action, and

plaintiff

from the defendant.



Bank of Montkeal and Montgomery For the Montgomery v.

v.

:

reasons which I have expressed in the case of

Ryan,

appeal should, in

this

my

opinion, be

and the

allowed,

action dismissed. If

the defendants the

Bank

Montreal had, as I have no

of

doubt they had, the right to transfer the promissory note in ques-

and to assign the

tion,

and to permit

all

securities

which they had for

payment,

its

necessary and proper examinations of their

books and papers in connection with the transaction, immaterial what the motives of any of their

officers,

is

it

or

quite

what the

whom he was acting, The most malevolent motives do not prevent a legal right; nor do the most benevolent motives

motives of the transferee, or of any one for

may have

been.

the exercise of

make I

that legal which

But,

motives were material,

if

would be quite unable to agree with the

was something of

is illegal.

any

of the

sinister or

trial

Judge that there

malevolent in the acts or intentions

defendants^

officers,

or of their solicitor.

Why

impute any such motives to gentlemen of the highest standing in their business

and

profession,

and

especially so

when a very

apparent motive, not in the least reprehensible in any sense, existed.

The

plaintiff

was unable or unwilling to pay the large sum which

he owed to the defendants.

Why

and undesirable one.

His account had become an inactive should not the

officers of

the defen-

dants be anxious to procure payment, and close an unsatisfactory state of affairs, without loss, in

might?

It

seems to

me

any way

in

which they lawfully

to be but wasted energy to inveigh against

transferee or transferors because of motives or purposes,

fancied or real.

No

the transferee than those which the plaintiff 8

VOL. XVI. O.L.B.

whether

motives could confer any higher rights to

had conferred upon

Ryan. Meredith, j. a.

ONTARIO LAW REPORTS.

114 C. A.

the transferors, and conferred upon

1908

all

Montgomery

to

them with The

creditors have, of assigning the debt.

pay his

just debt,

either transferors

and retake

his securities, to

or transferee

[vOL.

and

had but be quite free from motives, whether

their

all

the right, which plaintiff

V.

Ryan. Meredith, J. A.

evil or good, so far as the things in question in this action are

One thing very much

concerned. evil

mind toward the

plaintiff

and which

at first sight

their part,

was

payment

relied

on the part

upon

of the defendants’ officers,

many seem

might to

unfair conduct on

from the

their refusal to accept

of his debt, the value of

as indicating an

plaintiff, in

part

one of the securities the de-

fendants held, and re-assign to him that security. This security had, or seemed to have,

some

extrinsic value;

both the

plaintiff

and the

proposed transferee of his indebtedness seemed to be anxious to acquire

it.

In these circumstances,

from a business point if

it

would have been simply

of view, to part with

the creditors had a right to retain

it;

it

silly,

at its face value,

and why might they not

consolidate their securities, quite apart from any agreement giving them a right to retain each for the payment of the whole debt? Not to have used this desired security as a lever for the lifting of all that

on the part

and

it

was owing to the defendants, would have been

would have been a

stained from securing fer

and assignment

merely because the of,

folly

and a dereliction of their duty: folly and dereliction to have ab-

of defendants’ officers, like

payment of

the

plaintiff

of the debt,

plaintiff’s

did not

the transfer and assignee.

by means of a transand securities,

obligation

like,

Banking

or feared the motives is

a business;

the de-

fendants were creditors, not benevolent Quixotic friends, of a

customer unable to pay the debt which he owed them. E. B. B.





T

ONTARIO LAW REPORTS.

XVI.]

115

[DIVISIONAL court.]

Standard Bank of Canada Promissory Note

—Subscription

scriber Transferred to Powers of Securities

Secretary

v.

Stephens.



D. C.



Fraud Note of Subfor Share in Company Bank Holders in Due Course Hypothecation of Company By-law Resolution Indorsement by

— —

——Sufficiency—Negotiation



— —

of Note.

to subscribe for one share of the stock of an incorporated manufacturing company and to give a promissory note for the amount of the par value thereof, by a false and fraudulent representation made by an agent of the company. The note shewed on its face that it was given for a share in the company, and it was indorsed to the order of the plaintiffs, a chartered bank, by an indorsement in the name of the company, with the name of the secretary thereof signed thereto. by-law was passed by the directors of the company, and confirmed by the shareholders at an annual meeting, authorizing the borrowing of money, following the words of sec. 49 of R.S.O. 1897, ch, 191. It was also resolved by the directors, and confirmed by the shareholders, that an account be opened with the plaintiffs; that all moneys, orders, and other securities belonging to the company and usually deposited in the ordinary course of banking be deposited in said bank account; that the same might be withdrawn therefrom by cheque, bill, or acceptance in the name of the company, over the names of any two of four specified officers (one being the secretary); and that for all purposes connected with the making of deposits in the bank account, the signature of any one of the four should be sufficient. By a memorandum over the seal of the company and the hands of three of the

A

was agreed that the plaintiffs should hold all the company’s any time in the plaintiffs’ possession as collateral security for present and future indebtedness; and it appeared that the note above referred to, upon which this action was brought, with a large number of others, was delivered to the plaintiffs as a collateral security, accordingly. The secretary was also a director of the company, and indorsed notes, as he indorsed that in question, almost daily, with the knowledge of his codirectors, for a year and a half: Held, that the by-law was sufficient to authorize the hypothecation of the company’s securities to secure the present and future indebtedness of the company to the plaintiffs; that the indorsement over the signature of the secretary was sufficient to pass the property in the note to the plaintiffs; that the plaintiffs were entitled to assume that a share had been properly allotted to the defendant, and that the note represented the debt due by him to the company for such share, and that the company had the right to negotiate it; and (upon the evidence) that the plaintiffs were holders in due course, for value, without notice of the fraud, and were entitled to officers, it

securities at

recover. of

Macbeth,

Co. C.J., affirmed.

Appeal by the defendant from the judgment of Macbeth, the plaintiffs in an action in the 1st division

Co.C.J., in favour of

court in the county of Middlesex.

The

facts

appear in the written opinion of the county court

Judge as follows: July 26.

Macbeth,

Co.C.J.:



he action

note for $20 dated the 15th January, 1906,

July 26.

1908

The defendant was induced

Judgment

1907

is

on a promissory

made by

the defendant.

March

9.

ONTARIO

116

LAW

REPORTS.

D. C.

payable to the Farmers Manufacturing and

1907

Limited, or order, 8 months after date.

[vOL.

Supply Company

On

the margin are the

Standakd

words, “Given for one share Farmers Supply Co.”

Bank of

“Pay

Canada V.

Stephens. Macbeth, Co.C.J.

&

to the order of the Standard

Bank

of

It is indorsed:

Canada. Farmers Mnf.

Supply Co. Limited, A. N. McIntosh, secretary;”

all of

the in-

dorsements, except the signature “A. N. McIntosh,” being

with a rubber stamp.

It

made

appears that the plaintiffs are or claim

to be the holders of a very large

number

of

$20 notes said to have

been transferred to them under the same circumstances as the note

now

in question, so, as I thought that there should be a right of

appeal from

my

decision, the parties accordingly consented that

there should be an appeal.

The defendant was

There

called

is

by the

no

conflict of evidence.

plaintiffs;

he admitted that he

gave the note; that he agreed to subscribe for and take one share Manufacturing and Supply

of the capital stock of the Farmers’

Company, Limited, of the par value I And that Staples, an agent note.

of $20, for of the

which he gave

this

company, induced the

defendant to subscribe for the share and give the note, by the false and fraudulent representation that the company had made arrangements with all the leading manufacturers which would enable shareholders in the

company

to procure whatever they needed at

one-third less than the ordinary retail price.

In answer to this the plaintiffs set up that they are holders in

due course, for value, without notice these points

is

stoutly contested

of

by the

any fraud.

As each

defence, I think

it

of

best to

they are disclosed by the evidence. The Farmers Manufacturing and Supply Company Limited were incorporated under R.S.O. 1897, ch. 191, the Ontario Companies Act, on the 16th November, 1904, for the purpose of manufacturing and dealing in goods and merchandise, with an authorized

set out the facts, so far as

capital of $100,000, divided into 5,000 shares of $20 each.

On

the

24th November, 1904, the directors passed a by-law for the borrowing of money, in which they followed the words of sec. 49 of ch. 191,

An

company stated by the annual meeting of shareholders. There was also passed by the directors and confirmed by the shareholders on this same 24th November,

R.S.O. 1897.

entry in the minute book of the

that this by-law was, on the same day, confirmed

1904, a resolution that an account be opened with the plaintiffs;

that

all

moneys, orders, and other securities belonging to the com-

ONTARIO LAW REPORTS.

XVI. J

117 D. C.

pany, and usually deposited in the ordinary course of banking, be

same may be withdrawn or acceptance in the name of the company,

deposited in said bank account, and the

therefrom by cheque,

bill,

over the names of any two of the following,

manager, and that, for

president, secretary,

viz.,

president, vice-

purposes connected

all

with the making of deposits in said bank account, the signature of

any one

By memorandum the it

be

of said officials

company and the hands

securities

at

security for

should hold

all

and manager,

the company’s

any time in the plaintiffs’ possession present and future indebtedness.

The defendant’s

note, indorsed as above stated,

Durham branch on

to the plaintiffs at their

as

collateral

was delivered

the 12th February,

1906.

This was shewn by the entry in the plaintiffs’ collateral

ledger,

which was produced, and from which

it

appeared that paper

amount was handed over from time to time by or on behalf of the company to the plaintiffs. In February, 1906, the company owed the plaintiffs $12,000; In June, in April, 1907, the indebtedness had increased to $39,000. at the date of the hearing, it was said to be $29,000, for which the plaintiffs held as security notes given by the company’s customers for goods and by subscribers for shares. McIntosh, who indorsed the note in question to the plaintiffs, was a director of the company to a very large

During that time he indorsed, in the

and secretary for 18 months.

name

of the

transferred

company, a very large number

by him

for the

company

if

of notes,

to the plaintiffs.

the manager, states that the secretary that,

had authority

which were Livingston, to indorse,

present, he indorsed all notes for transfer to the bank, but,

if

he happened to be absent, the manager would indorse for the com-

pany, and that

all

the directors

notes to the plaintiffs. of

This

knew

is all

that the secretary indorsed

the evidence as to the authority

McIntosh to indorse the note in question to the

held as collateral security. the 24th November, 1904, to indorse

by way

I

plaintiffs to

should infer that the resolution of

was assumed

to

empower any one

official

Notwithstanding Mr. Meredith’s forcible argument, L think

to

be

of deposit as collateral.

must hold that the by-law

of the 24th

Standard

Bank op Canada V.

Stephens. Co.C.J.

of the president, secretary,

plaintiffs

1907

Macbeth,

sufficient.

of the 20th February, 1905, over the seal of

was agreed that the

.

I

November, 1904, was sufficient company’s securities to

authorize the hypothecation of the

ONTARIO LAW REPORTS.

118 D.C.

secure the present

1907

plaintiffs.

Standard

Bank of Canada V.

Stephens. Macbeth, Co. C.J.

The

and future indebtedness

latter

[vOL.

of the

company

to the

were certainly not bound to inquire whether

the meeting of shareholders to ratify the by-law was duly convened,

whether there was a quorum, (1856), 6 E. see

why

&

B. 327;

etc.

Royal British Bank

:

Company Law,

Masten’s

the authority to pledge the property of the

secure

any indebtedness should be

ness.

There can be no doubt that under

Turquand

v.

p. 191.

I

do not

company

to

restricted to existing indebtedsec.

49 of ch. 191, R.S.O.

may be a valid pledge of assets as general nmning security for a bank account, and it seems to me that the by-law was intended to authorize the doing by the directors of whatever may lawfully 1897, there

be done by by-law under that section. hold,

Moreover, I think I might

needful, that the plaintiffs, in arranging with the company’s

if

an advance

directors for

to call for a by-law

money on

of

empowering the p. 161

See the cases cited in Hasten,

not bound

collaterals, are

directors to pledge the assets.

—although the author expresses

grave doubt on this point.

have no doubt that the indorsement over the signature

I

McIntosh was

sufficient to pass the

property in the note in question

to the plaintiffs.

^

should be inclined to hold,

I

the 24th November, 1904, to indorse, in the

pledged to the

name

if

and,

of the

company, the notes intended to be

It

would certainly empower him to

plaintiffs.

hold

them under the agreement this,

assets, there

to time. it,

There

and

the doing of

it

of

for collection,

hypothecation.

But, apart

is

to carry out such pledging

no suggestion that any other person was deputed

by McIntosh, when

it

from time

cannot be questioned that the directors sanctioned it is

shewn that he did

with their knowledge, for a year and a

fore, that the

half.

indorsement by McIntosh was valid and

v.

Imperial

Bank

almost

sufficient to

See Thor old

(1887), 13 O.R. 330;

Farmers Trading Co. (1901), 13 Man. L.R. 412; on Negotiable Instruments, 2nd ed., p. 319. v.

it

I think, there-

the plaintiffs the holders of the note in question.

Manufacturing Co.

Bank

bank

can be no doubt that the secretary was the

person put forward by them

make

in the

assuming that the directors could lawfully pledge the

company’s

daily,

them

deposited for any purpose, the bank would have the right to

from

to do

necessary, that the resolution of

sufficient to authorize the secretary

is

indorse notes in order to deposit if

of

Imperial

Daniel

— LAW

ONTARIO

XVI.]

my

REPORTS.

119

unnecessary to consider

D.C.

the company’s resolution of the 20th May, 1907, which purported

1907

It

is,

therefore, in

vie^v of the case,

to ratify all prior indorsements.

I

may

say, however, that

if

the

indorsement by McIntosh were in fact unauthorized, then I do not see

how any note

by him could be

so indorsed

said to be negotiated

N.S. 248.

The

Exchange Act; plaintiffs

that the defendant

was passed,

this resolution

and many others repudiated the notes given

by them to the company.

Durham, and Livingston, the Farmers Manufacturing and Supply Co., were

John Kelly, the

manager examined

of

manager

plaintiffs’

at

at length with the object of

shewing that the

did not take the note in question in good faith

any defect in the Prior carried

to

the company.

title of

examination appear to

me

November,

The

plaintiffs

and without notice

facts disclosed

of

by such

to be as follows: 1904,

on the manufacture

of

the

Durham Manufacturing

Co.

Livingston was

cream separators.

manager, and Kelly was a director and had $4,225 invested in it. The company were not prosperous, and a change was necessary. Accordingly, the Farmers Manufacturing and Supply Co. was formed, and purchased the assets of the Durham Company, All the terms of the purchase are not disclosed, but

it

seems that the

new company purchased the business on credit, and assumed the payment of the Durham Company’s debts to the plaintiffs. Kelly has since received $2,400 on account of his investment, apparently

from moneys paid for the Durham Company’s whether he expects to get any more.

clear

knew Co.,

management

It is

not

Kelly took 5 shares in

the Farmers Manufacturing and Supply Co.

he has any part in Ihe

assets.

It is not

of the latter

shewn that

company.

Kelly

that in 1905 and 1906 the Farmers Manufacturing and Supply

with the object of increasing their capital and extending their

business,

employed agents to

offer their shares for sale.

that for each subscription of one share the agent

He knew

would usually

take the subscriber’s note for $20.

About 600 of such notes (including the defendant’s note) were from time to time transferred by the company to the plaintiffs. Kelly knew that these notes represented subscriptions for stock.

inquire whether shares

had been

He

did not

allotted

know and

and notice

Canada V.

secs.

Whistler v. Forster (1863), 14 C.B.

knew, when

Bank of Stephens.

prior to the ratification of such unauthorized indorsement: 60, 61, Bills of

Standard

did not

of allotment

Macbeth, Co. C.J.

LAW

ONTARIO

120

REPORTS.

[vOL.

D. C.

given to the subscribers.

1907

evidence goes, had no reason to suspect, that these notes or any of

Standard

Bank of Canada V.

them were obtained by

A

Kelly did not know, and, so far as the

fraud.

minute book was produced containing a by-law or resolution

of the directors of the

company,

allotting shares to a large

number

Stephens. of subscribers, including the defendant. Macbeth, Co. C.J.

than the 12th February, 1906.

earlier

It was, I think, of

a date

Livingston says that notice

The defendant says that he never received notice. One Hodgins, who subscribed for one share, wrote to Kelly making inquiries as to the company, and in reply Kelly wrote him on the 18th January, 1906, the letter prowas sent to each subscriber.

of allotment

duced (exhibit

which was put in without objection, though

7),

written without prejudice.

On

the 20th March, 1906, Kelly gave

Livingston the paper marked exhibit

an agent

of the

6.

This was given because

company was reported

to have absconded after

disposing of notes obtained from subscribers for stock, and the report was injuring the company.

6 was intended to

There

company

assist the

no doubt that exhibit

is

in selling shares or goods.

Kelly says the statement in exhibits 6 and 7 were true, to the best of his knowledge;

untrue.

there

is

when made,

no evidence that they were

Other notes were obtained by the company’s agents by

made to the defendant. company shewed a large surplus at

the same sort of misrepresentation as was Livingston says that the their last stock taking,

though embarrassed by

and thinks they are not now insolvent, financial stringency

with their bankers, arising out

On

this evidence

it is

and by the

of the trouble over these

difficulty

$20 notes.

suggested that the Farmers Manufacturing

and Supply Co. was formed with the fraudulent design of unloading upon that company the assets of the Durham Company and getting notes from farmers under a pretended co-operative scheme to secure

the bank and pay I

off

do not adopt

the shareholders of the

Durham Company.

I think that the

this suggestion.

promoters of

the Farmers Manufacturing and Supply Co. proposed to induce a very large

number

of farmers to

become interested as sharecompany, expecting that

holders, each for a trifling sum, in the

these farmers would be customers of the company, and that in filling their

prices, there

orders for goods at a

would be a saving

trifle

over the manufacturers’

of the selling agent’s commission,

which, in some lines of farmers’ supplies,

is

very

large,

and

in

any

ONTARIO LAW REPORTS.

XVI.]

121

which a large number of shareholders should be obtained, to establish a branch store. proposed was it Whatever an experienced business man might think of the ultimate success of such a project, I do not think there was anything district in

improper or dishonest in

its

There

inception.

is

no evidence to

*

lead one to suppose that, so far as Kelly knew,

And

a legitimate business venture. slightest suspicion that the

I

it

was anything but

do not think Kelly had the

$20 notes were obtained for an improper

purpose or in an improper manner, or that there was any defect in the

company’s

title thereto,

or

any reason why the

plaintiffs

ought

not to take them as collateral for the company’s bank account.

One point taken

for the defence

is

that under the Companies

Act the Farmers Manufacturing and Supply Co. have not the right to take promissory notes for subscriptions of stock, negotiate them.

For

Ch. 527, and

urged that

Act that a

it is

liability to

liability to

pay

this

pay

is

calls

cited Pellatt’s Case it is

much

less to

(1867), L.R. 2

contrary to the principle of the

on shares should be converted into a

a note to a third party.

In Re Pakenham Pork Packing Co., Galloway^ s Case (1906), 12

O.L.R. 100, Galloway applied for

shares,,

and

it

was arranged that

he should give his promissory note for the amount of his application,

payable 12 months after date. given that,

if

his application

It

would seem from the judgments

had been properly accepted by the

directors, and if they had been in a position to give him what he had applied for, the transaction would have been valid and binding. The same may be said of Higginbotham^ s Case (1906), before the

Court at the same time, 12 O.L.R. 112.

See also Ottawa Dairy Co.

Manes Tailoring Co. v. Willson Bullion Mining Co. v. Cartwright' (1905),

w. Sorley (1904), 34 S.C.R. 508; (1907), 14 O.L.R. 89;

10 O.L.R. 438 (the last case having been on a note given for mining .shares);

I

10 Cyc. 469, 470.

have not yet found any case in which an action was brought

by the indorsee stock, but I

of a promissory note given for a subscription of

do not see any reason at present

not be negotiated. -entitled to

I

why such

a note should

think the plaintiffs in the present case were

assume that a share had been properly allotted to the

defendant, and that the note represented the debt due

by him

to

4he company for such share, and that the company had the right to negotiate

it.

This

is

the conclusion to which I have

come

at

D. C. 1907

Standard

canadT v.

Stephens

ONTARIO

122 D. C.

present,

and

1907

longer.

I

Standard

Bank of Canada V.

notice of

do not think that

should delay

[vOL.

I

my

company was not completed, and that the note in question is, But I do not think this affects

therefore, without consideration.

the plaintiffs, as, in Co. C.J.

REPORTS.

decision any would hold that the defendant never received any allotment, so that the contract between him and the I

Stephens. Macbeth,

LAW

my

became holders in due course and there should be judgment in their

opinion, they

of the note in question,

favour.

In refusing the defendant’s application for a

new

trial,

learned Judge referred to and distinguished First Natchez

the

Bank

v.

Coleman (1903), 2 O.W.R. 358 citing also Power v. Hoey (1871), Fischer v. Borland Carriage Co. (1906-7), 8 O.W.R. 19 W.R.-916 Pure Colour Co. v. 0^ Sullivan (1907), 10 579, 9 O.W.R. 193 ;

;

;

O.W.R. 313 1657-8

secs.

;

;

Thompson’s Commentaries on Corporations,

Am. & Eng. Encyc.

of

Law, 2nd

vol. 2,

ed., vol. 26, p. 841.

The appeal was heard by a Divisional Court composed coNBRiDGE, C.J.K.B., Britton and Riddell,

JJ.,

of

Fal-

on the 2nd

March, 1908.

The Judge found that the note was obtained by fraud and was made without conThe onus sideration, but that the plaintiffs were not affected. was on the plaintiffs to shew that they were holders in due course: T.

G. Meredith,

K.C., for the defendant.

Falconbridge on Banking,

454.

p.

now been

Wilson

v.

Lockhart

(1907),

by the Supreme Court of Canada: Lockhart v. Wilson (1907), 39 S.C.R. 541. The plaintiffs were put on inquiry by the circumstances, and ought to have known There if they did not know of the fraud and want of consideration. was no proper transfer of this note by the company to the plainImtiffs First Natchez Bank v. Coleman, 2 O.W.R. 358 10

O.W.R.

148, has

reversed

:

;

Bank v. Farmers Trading Co., 13 Man. L.R. 412; Masten’s Company Law, p. 161. There was no power under the by-laws of the company to hypothecate this note: Kelly v. Electrical Construction Co. (1907), 10 O.W.R. 704; Traders Bank v. White (11th perial

November, 1907), a decision right to accept a note in

Ch. 527;

0^ Sullivan v.

Dairy Co.

v. Sorley,

Court of the High The company had no

of a Divisional

Court of Justice for Ontario (not reported).

payment Donovan

of stock:

(1906), 8

34 S.C.R. 508.

Pellatfs Case, L.R. 2

O.W.R. 319;

Ottawa

— ONTARIO LAW REPORTS.

XVI.]

on Thorold Manufacturing

D.C.

Bridgewater Cheese Factory Co.

1908

some

Standard

G. S. Gibbons, for the plaintiffs, relied

Co. V. Imperial Bank, 13 O.R. 330; V.

Murphy

cases cited in the

March

9.

and referred

(1896), 23 A.R. 66;

judgment

Per Curiam:

of the

—We

123

to

of the other

Bank of

county court Judge.

all

the learned county court Judge in his

Canada

agree with the conclusions of

Stephens.

very able judgment, and have

nothing to add to 'what he has said.

The appeal

will

be dismissed with costs. E. B. B.

[IN

THE COURT OF APPEAL.] Faulkner

Damages

v.

C. A.

Greer.

Lands—Subsequent — Wrongful Removal Timber Sale— Rights Original Owner. froiyi

of

1907

Bond Fide

of

The husband

of the plaintiff conveyed certain land to his wife for valuable Previously, but without his knowledge or that of the consideration. plaintiff, certain timber was wrongfully cut and removed therefrom. The wrongdoers sold some of the timber to the defendants, who purchased bond The fide, and subsequently sold the same to another bond fide purchaser. plaintiff thereupon brought action against these two purchasers for damages, and for a declaration that as against them she was entitled to the proceeds The second purchaser obtained leave to pay the purchase of the timber. monej’^ into court, and an issue was directed to determine the rights to it as between the plaintiff and the hrst purchaser: Held (reversing the judgments of the Divisional Court and affirming the judgment of the trial Judge, reported 14 O.L.R. 360), that the plaintiff was entitled to recover the whole of the purchase money.

The timber was the plaintiff’s property where she found it, and she might have laid hold upon it in specie subject to no right or claim of lien or recoupment on the part of the v.rongdoer, and the purchaser stood in no different position.



Per Meredith, J.A.: The plaintiff had at the time of the trespass no title to the timber, but an amendment of the interpleader order and issue should have been allowed, adding the husband as co-plaintiff, and such amendment should be made now.

This was an appeal by the the defendants from the

plaintiff

judgment

and a cross-appeal by

of the Divisional

Court in this

action reported 14 O.L.R. 360.

The appeal was argued on November 15th, 1907, before Moss, and Osler, Garrow, Maclaren and Meredith, JJ.A.

C.J.O.,

G. F. Shepley, K.C.,

tended that even

if

J.

and C. A. Moss,

and

C. Greer

for the plaintiff, con-

were the purchasers in good

Dec.

23,

ONTARIO LAW REPORTS.

124

[vOL.

C. A.

faith of the logs in question, yet their title could be

1907

than that

Faulkner V.

Greer,

Union Bank

of the original trespassers:

no better

Rideau Lum-

v.

4 O.L.R. 721; that the proceeds of the sale in this

ber Co. (1902),

case stood in the place of the lumber itself for the purpose of

having the ownership determined, though, no doubt, the issue

might have been framed so as to leave the question open which

McWilliams v. Dickson Co. O.W.R. 706; that all the logs were proved to be off the plaintiff’s land, and that the only thing that remained was to award the money to the plaintiff; that under the issue here the Court could not say we will give the plaintiff so much by way of damages, and hand the balance over to the defendants; that if the money was handed over to the defendants, that would the defendants were here raising: (No. 2) (1905), 6

put the Barnett

& McQueen

the logs twice; that Clute,

an action

J.,

Co. in the position of paying for

treated the issue as though

damages against the defendants; that the

of

& McQueen

never affirmed the sale to the Barnett

Co.

it

were

plaintiff

by the

defendants, as stated in the judgments below, but, finding the logs in the former’s possession,

own account

to them;

be looked upon as the

was

and that

money

if

of the defendants, J.

the plaintiff was entitled to recover ferred to Clerk

W. H.

make a sale on her money could in any way

willing to

the

it

from them.

and Lindsell on Torts, 2nd

Blake, K.C.,

and

ed., p. 348.

trial

would give the

not only the value of the logs, but the value of into them;' that the position of J.

the logs in good faith and sold Co.;

for the plaintiff;

who had

also re-

J. T. Loftus, for the defendants, con-

tended that the judgment at the

& McQueen

C. Greer,

They

&

C. Greer

them

in

all

plaintiff

the labour put

was that they bought

good

faith to the Barnett

that the defendants were not selling as agents that no case affirmed that an innocent purchaser

sold to another the property which

had been

originally

wrongfully taken and had parted with the dominium, could be

attacked in respect to the purchase

money Barnett

& McQueen

Co. were to

the plaintiff was claiming; to

all

money

received;

in court represented only the purchase

or else to none of the

that the

money which

the

pay the defendants, and which

that the plaintiff was entitled either

money

in court; that the writ could

not have been issued in trover, yet the effect of the judgment was to

award the

plaintiff

the extreme limit of success which she could

ONTARIO LAW REPORTS.

XVI.]

an action in trover: Keener on Quasi-Contracts,

C. A.

that the defendants were only asking the purchase price,

1907

have obtained p. 159;

125

in

and had nothing to do with the logs in specie, and the only queswas whether the agreed purchase price should be paid to or to the plaintiff; that even if the plaintiff could defendants the tion

shew that she was

money to

entitled to

damages to the

in court,- she could not recover

shew that she was entitled to

this

on

amount

full

money

of the

but was bound

this issue,

as the purchase

money

by shewing that she was entitled to the logs themthat is, that she was entitled to recover against the defenselves dants in an action of trover and conversion; that when the timber in question was taken from the land the plaintiff had no right whatever to it, and the subsequent conveyance could not give her such right; that there could not be an amendment of an interof the logs,



pleader issue; that

the plaintiff could virtually

if

make

the defen-

dants her agents in respect to the sale of the logs, she was bound to reimburse

them

on such a basis

for their expenditure,

and that

it

was only

of ratification that she could claim this purchase

as distinct from common must do equity; that an owner of chattels

money; that she was invoking equity law, and, therefore,

has no claim against one of a line of innocent purchasers through

whose possession the chattels have gone. Railway Co.

v.

&

Co. V. Dreyfus Bros.

Pyne

(1796), 7 T.R. 9;

(1843), 5 Scott 307; V.

Southampton,

They

etc.,

Co., [1892] A.C. v.

Dor

166;

also referred to

Peruvian Guano

Hutchins (1877), 32 Oh. 571;

Gordon

(1785), 1 T.R. 55;

Owen

Smith

v. Milles (1786), 1

R.W.

Co. (1849), 8 C.B.* 25;

2 Ad.

Brewer

& v.

El. 495;

Lamine

&

v. Dorrell

Wood

v.

Knight

Kent

v. Ellis

& W.

603;

Peer v. Humphrey (1835),

Raym. 1216; Surman (1743),

(1706), 2 Ld.

&

C. 310;

Morewood

(1841),

Sparrow (1827), 7 B.

Willes 400;

El. 426;

v.

Harper

T.R. 475; Pilgrim

(1900), 31 S.C.R. 110; White v. Spettigue (1845), 13 M.

Powell v. Rees (1837), 7 Ad.

v.

Scott v.

3 Q.B. 440;

Jegon

v.

Vivian (1871), L.R. 6 Ch. 742; Re United Merthyr Collieries Com-

pany (1872), L.R. 15 Eq. 46 Trotter v. Maclean (1879), 13 Ch.D. 574; Livingston v. Rawyards (1880), 5 App. Gas. 25; Smith v. Baechler (1889), 18 O.R. 293; Lamb v. Kincaid (1907), 38 S.C.R. 516; Keener on Quasi-Contracts, p. 160 scg. Shepley, in reply, contended that the respondent’s

aimed at placing the

plaintiff in the position of

argument

one who was suing

Faulkner V.

Greer.

LAW

ONTARIO

126 C. A.

for damages, whereas she

1907

someone

Faulkner V.

Greer.

was

REPORTS.

[vOL.

no such position, but, finding

in

in possession of her property, she

was demanding that

property, and that the law as to trover trespass sion

was beside the

had established her

plaintiff

and conver-

point, the sole question being whether. the

proceeds of her timber:

the fund in court as being the

title to

Arnold

The Cheque Bank (1876),

v.

1

C.P.D. 578; that an interpleader issue could be amended: Bryce Bros. V. Kinnee (1892), 14 P.R. 509; this case was, did the plaintiff

own

that the sole question in

the logs, and

lished in the plaintiff’s favour, she

if that was estabmust own the proceeds.



December 23. Osler, J.A. This was an appeal by the plaintiff from the judgment of a Divisional Court varying the judgment of Magee, J., at the trial, and holding that the plaintiff was entitled to $600 only, instead of to the whole of the moneys which had been paid into court under an interpleader order. The question arose upon an interpleader issue, and the facts :

are not comphcated.

The

plaintiff

was the owner

in fee of a lot in the

township of

Mactavish, in the district of Thunder Bay, and she was also equitably entitled, on the grounds mentioned in the judgments below,

from which tamarack

I see

piles,

no reason to

to a quantity of spruce

differ,

and

which had been wrongfully cut thereon by persons

named Dunn and Evoy, for the purpose of carrying out an agreement theretofore made by them with the defendants. The piles were delivered to the defendants on the lake shore at Black Bay, at a point not far

from where they had been

cut,

and were

after-

wards rafted by them for the defendants, who towed them to Port Arthur, where they sold them to the Bamett-McQueen Co., Limited, for $3,781.11, which was not disputed to be about their

value there.

The standing

found by the learned

trial

thereabout in

He

situ.

trees

from which they were cut were

Judge to be

also

of the value of

$600 or

found that the defendants were

ignorant of the plaintiff’s ownership of the piles or where they

had been

cut,

and had dealt with Dunn and Evoy

Before the purchase

money had been

as the owners.

actually paid over to the

defendants the plaintiff discovered the theft of her property, and traced

it

to Port Arthur, and foimd

Bamett-McQueen

Co.,

from

whom

it

she

in the possession of the

demanded

possession or

.

ONTARIO LAW REPORTS.

XVI.]

payment

of its full value there,

over the purchase

money

127

warning the holders against paying

to the defendants.

Attempts to

settle

the differences between the parties having failed, the plaintiff brought an action against the Greers and Barnett-McQueen Co.,

C. A.

1907

Faulkner V.

Greer.

claiming damages for cutting and taking her property or a declaraOsier, J.A.

tion that she

was entitled to the proceeds

There-

of the sale.

upon the Barnett-McQueen Co. applied for and obtained an interpleader order, by which it was directed that the plaintiff and the defendants should proceed to the trial of an issue in the

High

Court, and that the question to be tried should be whether at

the time of the issue of the

was entitled to the proceeds

McQueen

summons

in the action the plaintiff

of the piles in question.

Co. were ordered to

pay

The Barnett-

into court to the credit of the

interpleader issue the alleged proceeds of the sale, being $3,781.11, less their costs,

and the action against them was thereupon to be

discontinued.

The trial

was framed

issue

in the terms of the order,

and upon the

the learned Judge held that the piles in question had been

cut and

removed from the

plaintiff ^s lot;

that they were her pro-

perty in the hands of the defendants and of the Barnett-McQueen Co.,

and that the money paid into court was the proceeds

of

He further held by the former to the latter. was entitled to the whole of such proceeds under the issue, and not merely to so much thereof as repre-

the sale thereof

that the plaintiff

the terms of

sented the value of the piles at the place where they were cut, or

standing in the trees, before they were cut and

manufactured

and transported to Port Arthur. The contrary view was taken by the Divisional Court, and the plaintiff^s recovery

into piles

was

restricted accordingly to $600.

As

I

have already

titled to the piles or

said, I think the plaintiff

timber in question, a

was equitably en-

title sufficient

to main-

tain her claim under the interpleader issue, so far as that depends

upon the ownership of the property. Looking at the recent case of Canadian Pacific R.W. Co. v. Rat Portage Lumber Co. (1905), 10 O.L.R. 273, 279, I doubt if we have power to amend the issue and interpleader order. But, as the case stands, I am of opinion,

with great respect to the learned Judges of the ‘Divisional Court, that the judgment of the learned Judge at the trial should be restored.

If

that judgment was not right, as I think

it

was,

it

LAW

ONTARIO

128 C.

A.

1907

REPORTS.

should have been reversed altogether, and the cross-appeal should

be allowed.

Faulkner

Whether,

under

the

an

circumstances,

V.

Greer. Osier, J.A.

[vol.

ought to have been granted we need not

interpleader

now

order

The

consider.

property, while in the defendant’s possession and in that of the

Bamett-McQueen Co., remained capable of identification as the and was the property, of the plaintiff, and might have been replevied by her, and, so far as appears, an action of detinue or conversion might have been maintained by her against either or both of them: see Dickey v. McCaul (1887), 14 A.R. 166, and property,

cases there cited.

made upon any

I

and affirming the

The

case

do not see how the order could have been

other footing than that the plaintiff was ratifying

Barnett-McQueen Co.

sale to the

now

stands upon the interpleader order, which has

not been appealed from, and the question

damages, but of the right to the proceeds goods

tiff’s

—in

is

no longer one

of

of the sale of the plain-

other words, to the purchase

money which

the

Barnett-McQueen Co. had agreed to pay the defendants thereIf

for.

that had been paid over to the defendants,

have sued them for

to the plaintiff to

and affirming the Rodgers v.

Maer

Sherrington's

sale:

(1846), 15

L.R. 8 C. P. 350; Neate

v.

Vernon (1860), 5 H.

&

V.

it,

M.

& W.

it

was open

thereby waiving the tort

Case,

Savile Rep., p.

40;

444; Smith v. Baker (1893),

Harding (1851), 6 Exch. 349; Lythgoe N. 180; and that is practically what

has been done by the order and payment into court, instead of to the defendants direct, the right to

proof of which party

owner

of the

—the

plaintiff

it

for holding that in such a case as this

than in an action of replevin the wrongdoer’s

mere matter

which to

it.

his It

of

the

I see

more

can be reduced

damages, or by deducting any increased value

wrongful act in towing

was the

liability

upon

—was

goods which the purchase money represents.

no reasonable ground to a

there depending

or the defendant

plaintiff’s

she might have laid hold

it

to Port Arthur

may have

property where she found

upon

in specie, subject to

it,

given

which

no right or

claim of lien or recoupment on the part of the wrongdoer, and I

do not see that the purchaser stands in any different

position.'

I think the appeal should be allowed, and the cross-appeal, for the

same reason, dismissed, and both with

costs.

— LAW

ONTARIO

XVI.]

Meredith, J.A.: very simple in

—This

case seems to

character,

its

REPORTS.

and

me

129

to be one which

easily to be determined

on

is

C. A.

ele-

1907

mentary principles of the law relating to personal property, and one in which no mystification can excuse for

much

litigation over

nor can there be any good

arise,

it,

if

we do not

permit' ourselves

drawn away from the simple facts into a consideration what the law would be if the facts were different. to be

A

was committed, the trespasser cutting down

trespass to lands

standing timber and carrying

He

condition. in the

same

away

it

in substantially its natural

who shipped

sold the timber to the defendants,

Port Arthur, and there sold

state, to

of

it

it,

to the Barnett-

McQueen Co. The plaintiff followed the timber, which was yet in the same state, and demanded it from the Barnett-McQueen The defendants Co., who had not yet paid the defendants for it. denying the

and

plaintiff's title,

their purchasers being yet in the

fortunate position of not having paid for the timber, an action

was brought by the

against the Barnett-McQueen Co.,

plaintiff

and on their application an interpleader order was made, directing that the price which they were to

pay the defendants

for

it

should

be paid into court, and that the plaintiff and defendants should proceed to the

trial of

an issue to determine the

money was accordingly paid tried

and found in the would have

I

into court,

title

and the

to

it.

issue has

The been

plaintiff's favour.

thought

that the trespasser acquired

it

—indeed elementary

quite plain

no

title,

against the

landowner, to

the timber, and that he did not, and could not, confer any

title

to his purchasers, nor did, or could, they to their sub-purchasers, if

the landowner chose, as he did here, to retain and exercise his

ownership and rights of such ownership.

husband, for

he was, in

my

I

speak of the

opinion, the owner,

was done was done by and through him, though name, as I imderstand the facts.

That being

so,

demand from

in

all

that

his wife's

the landowner was entitled to demand, and

did demand, his timber; he did not to

plaintiff's

and

demand nor had he any

right

the defendants, or from the purchasers from

them, damages for trespass to his lands: the timber he was entitled to,

and that he sought, and the money paid into court was

substituted for 9

—VOL.

it.

XVI. O.L.E.

Therefore the

money he became

entitled to

Faulkner V.

Greer. Meredith, J. A

ONTAKIO LAW REPORTS.

130 C. A.

in lieu of the timber,

1907

main question,

V.

Greer.

may

It

Faulkner

and so the judgment

But

own

to bring his goods back again at his

and confine the owner to

by merely making a

state,

actual value, in

its

sale of

And it would down timber at his

expense.

a worthless trespasser could cut

if

would be harder

It

were a case in which he would be obliged

it

if

caveat emptor.

Meredith, J.A.

will,

on the

be hard upon the defendants that they should lose the

upon an owner

never do

at the trial was,

right.

cost of transportation. still

[vol.

it

some one

to

severed

its

That

else.

from him because worthless;

nothing could be recovered

is,

and

nothing more from his purchaser than the actual value of the severed timber at the place where the trespass was committed.

understand how

I find it difficult to

landowner could not

the

that

recovered the timber, it

have

detinue

or

being not only yet in a state in

it

was removed from the owner’s land, and,

it

should he have purchasers, V.

can be seriously argued

wffiich

be identified, but substantially in the same state in

could

which

it

replevin

in

less

than

whom

upon

the

why

so,

if

actual value in the hands of the last

its

demand

of

was made?:

it

see Hollins

Fowler (1874), L.R. 7 H.L. 757.

There was no waiver of any

from enforcing them, in

The

rights,

nor any sort of estoppel

this case.

upon by the Divisional Court of actions against the trespasser, for damages for trespass to lands, cannot cases relied

an owner’s right to recover

affect the question of

own

his

pro-

perty in specie. I

am, however, unable to agree with the

plaintiff

had

at the time of

the trespass any

Her husband had not conveyed

him, as

it

as

well

her.

as

The

all

title

causes

of

to

the

action

respecting the trespass to the land.

a purely technical character, for

tion of

ing

to

to her,

and desirous

why

Judge that the

title to

and there

the timber.

no evid-

is

he was under any sort of binding obligation to

ence even that

convey

it

trial

to be

added

as

timber was wholly in respecting

But that

it,

is

as

well

an objec-

the husband

is

a co-plaintiff, and there

willis

no

that should not have been permitted and done at The learned Judge there, sitting in Chambers, could and should have allowed an amendment to the interpleader order and to the issue to effectuate it. The real question was not

reason

the

trial.

*

ONTARIO

XVI.]

LAW

REPORTS.

131

whether wife or husband owned the land, but was whether the

C.

timber was taken from their land or from land not the property

1907

of either of

them.

have taken place been .

.

plaintiff -

opinion, be I

Precisely the

if

or

of the action

The amendments

plaintiffs.

would

should,

in

Greer Meredith, J. A.

,

would allow the appeal, and restore the judgment directed

on the amendments being made, for

not unimportant that the husband as well as the wife should

be bound by these proceedings.

Moss, C.J.O.,

Faulkner

my

made now.

to be entered at the trial, it is

same course

the husband or husband and wife had originally

A.

Garrow and Maclaren,

JJ.A., concurred in

the result. A. H. F. L.

— ONTARIO

132

[IN

In

C. A.

1907

LAW

REPORTS.

[vOL.

THE COURT OF APPEAL.]

Re Duncan and The Town

—Local Option

of Midland.





By-law Municipal Corporations RequiMajority Obtained Two Weeks Allowed for Scrutiny Final Passing by Council Before Expiry Thereof Refusal to Quash Voters Depositing Ballots in Box Publication Irregularities in Voting Computation of Time for Council, whether Lawfully Conof Notice stituted Right to Inquire into Knowledge of Council as to Required Majority Necessity for Ballot Boxes Use of, for Voting for Other Containing More than Requisite Objects Voters’ Lists, Preparation of Number of Voters Appointment of Deputy Returning Officers and Poll

Intoxicating Liquors site

April 25. July 2.

— — ——

1908 Jan. 22.



Three-fifths







— —

— — —



Words, Meaning

— —



— —Marking —Result Useless Form — — Public Harbour, —By-law, Publication —Whether True Copy—

Clerks Illiterate Voters Vote Not Affected Oath,

Application of By-law



of

Ballots of

to

Irregularity

of

Effect of of

of.

By

sub-sec. (1) of sec. 141 of the Liquor License Act, R.S.O. 1897, ch. 245, the Municipal Council may pass a local option by-law, provided that before the final passing thereof it has been approved by the electors “in the manner provided by the sections in that behalf of the Municipal Act”; but by sec. 24 of 6 Edw. VII. ch. 47 (O.), if three-fifths of the electors voting on the by-law approve of it, the council shall within six weeks thereafter finally pass it, and that the duty so imposed may be enforced by mandamus or otherwise. A local option by-law was submitted to the electors of the town of Midland, and, on the day following the voting, the clerk of the council declared the result of the voting, which was in its favour by the requisite majority. A week after, the council purported to finally pass the by-law. Per OsLER and Garrow, JJ.A., in the Court of Appeal: The provisions of the Municipal Act, as contained in secs. 369-374 as to the ascertainment by the clerk of the result of the voting and as to the right to a scrutiny apply to a by-law of this kind; and, therefore, the by-law should not be finally passed by the council until the expiration of the two weeks next after the clerk has declared the result of the voting, but there being here the requisite two-thirds majority, and no attempt made to obtain a scrutiny, the only objection made being as to the faulty third reading, the passing of the by-law being a purely formal and ministerial act only, which the council could be compelled to do, nothing would be gained by quashing it. Per Maclaren and Meredith, JJ.A.; The by-law could properly be passed by the council at any time within the six weeks, notwithstanding the nonexpiry of the two weeks allowed for the scrutiny, so long as there was the three-fifths majority, there being nothing to prevent a scrutiny being had afterwards. Moss, C.J.O., agreed in the result. Judgment of the Divisional Court affirmed, and that of Mulock, C.J., re-





versed.

Held by the Divisional Court, Britton,

J., concurring in the result: proceedings after the polling, such as summing up the votes, or a declaration by the clerk of the result of the voting are necessary. (2) Where a voter, instead of handing the ballot paper to the deputy returning officer, puts it into the box himself, but with the officer’s approval, the vote is not invalidated. (3) In computing the three weeks required for the publication of the bylaw, the word “week” is used in its ordinary signification, and includes

(1)

No

Sundays and holidays. Re Armour and Township

of

Onondaga

(1907), 14 O.L.R. 606,

approved

of.

— ONTARIO

XVI.]

LAW

REPORTS.

133

The question whether the council, when it passed the by-law, was properly constituted or not, will not be considered on a motion to quash. Re Vandyke and Village of Grimsby (1906), 12 O.L.R. 211, followed. (5) Knowledge by the council, when finally passing the by-law, that the three-fifths majority has been obtained, is not essential. (6) The ballot-boxes used for voting on the by-law can properly be used for concurrent voting for other objects, the Act in no way restricting their use to voting on the by-law only. (7) Objections, that the voters’ lists were not properly prepared; that the list for one of the polling divisions contained more than the requisite number of voters; and that certain deputy returning officers and poll clerks were not properly appointed, were overruled. (8) The declaration of inability to read or physical incapacity to mark the ballot is a pre-requisite to open voting, and its absence invalidates the vote, even though it is done with the consent of the scrutineers for and against the by-law; but the defect was immaterial, for, even if struck off, the result here would not have been affected. (9) A voter is not to be deprived of his vote by reason of the submission to him by the deputy returning officer of a useless form of oath. (10) The fact that a public harb.our, which is subject to the legislative authority of the Dominion, was within the territorial limits of the township does not necessarily raise the presumption that the council intended the by-law to apply thereto, even assuming that the council had not power to do so. (11) The copy of the by-law as advertized was: ^^In every tavern, inn or other house of public entertainment,” omitting the words “or place” between the words “other house” and “public entertainment,” which were contained in the original by-law: Held, that the phrases “tavern, inn or house or place of public entertainment” and “houses of entertainment” were equivalent terms, and an objection that the copy published was not a true copy was overruled. (4)

This was an appeal from the judgment of the Divisional Court reversing the judgment of Mulock,

C.J.,

Ex. D., in the

Weekly Court on a motion to quash a local option by-law of the municipal corporation of the town of Midland. The voting took place on the 7th of J anuary, 1907. Upon the 8th of January the clerk of the council declared the result of the voting,

of

and upon the 14th The clerk^s

January the council purported to pass the by-law.

certificate

shewed that 477 votes were cast in favour of and 234

against the proposed by-law, the vote in its favour thus exceeding

the required three-fifths majority.

The

prohibitive part of the by-law was:

retail of spirituous,

and

shall

^‘That the sale

fermented or other manufactured liquors

is

be prohibited in every tavern, inn or other house or

place of public entertainment in the said municipality, sale

by

thereof, except

by

wholesale,

is

and

shall

and the

be prohibited in

every shop or place other than a house of public entertainment in the said municipality.”

The motion

in the

Weekly Court was heard on March

6,

1907.

C. A.

1907

In

Re

Duncan AND

The Town OF Midland.

:

ONTARIO

134

LAW

J. B.

F. E. Hodgins, K.C., for the

In

Re

AND

The Town OF Midland.

April

25.

Mulock,

C.J.:

Town

of Midland.

—Objection

had no power to pass the by-law

cil

[vOL.

MacKenzie, for the applicant.

C.A. 1907

Duncan

REPORTS.

weeks after the declaration by the

is

taken that the coun-

until the

expiry of two

The question thus

clerk.

raised

involves the consideration of the following statutory enactments Mulock, C.J.

authorizing the passing of local option by-laws, and regulating the

procedure in connection therewith. Sub-section

1 of sec.

141 of the Liquor

the by-law, before the

‘‘provided that

License Act, R.S.O.

may

1897, ch, 245, declares that every council

final

pass such a by-law,

passing thereof, has

been duly approved by the electors of the municipality in the

manner provided by the

sections in that behalf of the Municipal

Act.'’

Sub-section 4 of sec. 24 of the Act to

Laws, being of the

ch.

Amend

the Liquor License

47 of 6 Edw. VII., which repeals sub-sec. 2 of

sec.

141

Liquor License Act, declares that “in case three-fifths of the

electors voting shall within six

upon such by-law approve weeks thereafter

of the

finally pass

same the

council

such by-law, and this

sub-section shall be construed as compulsory and the duty so im-

posed upon the council municipal elector by Sub-section

1

may

be enforced at the instance of any

mandamus

or otherwise."

of sec. 141 of the

Liquor License Act being

still

in

must be had to the Consolidated Municipal Act, the purpose of ascertaining the manner necessary in order

force, reference

1903, for

to such approval.

The

sections of the last mentioned statute bearing

upon the

subject are as follows

Section 338: “ In case a by-law requires the assent of the electors of a municipality before the final passing thereof, the following

proceedings shall, except in cases otherwise provided for be taken for ascertaining such assent."

Section 369: “If within two weeks after the clerk of the council

which proposed the by-law has declared the

any

elector

who was

entitled to vote

petition to the county tion,

result of the yoting,

upon the by-law

Judge after giving such notice

and to such persons as the Judge

directs,

applies

upon

of the applica-

and shews by affidavit

to the Judge reasonable grounds for entering into a scrutiny of the

ONTARIO

XVI.]

ballot papers

.

.

LAW

may

the Judge

.

REPORTS.

135

appoint a day and place

“At

Section 370:

least one week’s notice of the day^appointed

by the

for the scrutiny, shall be given

petitioner to such persons as

“On

the day and at the hour appointed, the clerk

shall attend before the

Judge with the

and the Judge upon inspecting the evidence as he

them

such of

ballot papers in his

ballot papers,

custody

and hearing such

may deem necessary, and on hearing the parties, or may attend, or their counsel, shall in summary

as

manner determine whether the majority

of the votes given

is

for

or against the by-law, and shall forthwith certify the result to the council.”

Section 374: “ In case of a petition for a scrutiny being presented,

the by-law shall not be passed

by the

council until after the petition

has been disposed of; and the time which intervenes between the presenting of the petition and .the final disposal thereof shall not

be reckoned as part of the six weeks within which the by-law

is

to

be passed.”

The

effect of

the amending sub-sec. 4 of sec. 141 of the Liquor

License Act, above quoted,

is

to require approval of the by-law

three-fifths, instead of, as formerly,

voting upon

it,

by

by a bare majority of the electors

and to declare that the council may be compelled

by mandamus or otherwise to pass the by-law so approved within weeks after it shall have received such approval, but the amendment does not repeal the proviso to sub-sec. 1 of sec. 141, which six

declares that before the by-law

is finally

the approval of the electors in

passed

it

shall

have received

manner required by the

sections in

that behalf of the Municipal Act.

Thus 4 of

sec.

in the case of a local option by-law, the

141 of the Liquor License Act

of the Municipal Act. secs. 369, 370, is

The other

371 and 374, are

is

amending

sub-sec.

substituted for sec. 373

sections referred to, namely,

left in full force,

and the question

whether, having regard to these sections and the amending sub-

sec.

4 of

sec.

141 of the Liquor License Act, the council had

power

when they purported to do so, namely, the clerk had declared to them the result of

to pass the by-law at the time

within seven days after

the voting.

The

In

Re

Duncan AND

The Town

the Judge directs, and to the clerk of the municipality.” Section 371:

C. A.

1907

within the municipality for entering into the scrutiny.’^

intention of the Legislature was, I think, that before the

OF

Midland. Mulock, C.J.

ONTARIO

136 C.A. 1907

In

Re

Duncan AND

The Town OF Midland.

LAW

REPORTS.

[vOL.

upon the declaration of the clerk by “finally’’ passing the by-law an interval of two weeks should be allowed to the electorate within which to investigate the correctness of the declaration council acted

by applying for a scrutiny and that

in the interval the by-law should

remain in that stage which would enable the council to give

effect

to the finding of the Judge.

By

Mulock, C.J.

371 the Judge “shall in a

sec.

summary manner determine

whether the majority of the votes given

and

is

for or against the by-law,

shall forthwith certify the result to the council.”

I fail to see

what

certifying the result

useful purpose if

would be served by the Judge

the council had already finally passed the

by-law.

Whilst this section speaks of a “majority” of votes, in the case of local option by-law, be interpreted to

majority as

is

in such case required

Then the language

of sec. 374,

by the

should,

it

mean such

statute.

which declares that “in case

of

a

petition for a scrutiny being presented the by-law shall not be passed

by the

council until after the petition has been disposed of,” implies

that the by-law has not been passed at the time is

disposed

of,

and the concluding words

of sec.

which intervenes between the presenting

petition

of the petition

and the

not be reckoned as part of the six weeks

final disposal thereof shall

within which the by-law

when the

374 (“and the time

is

to be passed”) extending the time for

passing the by-law, indicate that the disposal of the petition must

precede the passing of the by-law.

Whether

in fact a petition

me

seems to

which to present

it,

must not have been effect to sec.

and

is

presented within the two weeks

electors are given that time within

until the expiry of that time the

finally passed, otherwise

it is

by-law

impossible to give

374 should a petition be presented within the two weeks,

but after the

The

The

immaterial.

final

passing of the by-law.

Legislature evidently intended to afford the electors an

opportunity for a scrutiny before the result of the voting became operative,

and

it

did not, I think, contemplate empowering the

council to defeat such intention

by

finally passing it within the

two

weeks and before a petition for a scrutiny should be presented; otherwise

it

would be a simple matter

for

any

council, favourable

to the by-law, with the assistance of a sympathetic clerk, to finally

pass

it

before the electors

had

definitely learned the result of the

voting or had been able to present a petition.

ONTARIO

XVI.]

If

LAW

REPORTS.

137

such a passing were valid, the presentation of a petition there-

C. A.

The scrutiny might take

1907

after for a scrutiny would be purposeless.

shew that the by-law had not received the required

place and

majority, but the Judge’s certificate to the council informing of the result

would not repeal the by-law.

am unable to

I

them

discover

any intention on the part of the Legislature to deprive the electors, in the case of a voting on a local option by-law, of a right to a scrutiny, or to

make

the clerk the only and final judge as to whether

the by-law has or has not received the required statutory majority,

and

I

am of opinion that

a municipal council has no power to finally

pass a local option by-law within the two weeks next after the clerk of the council has declared the result of the voting.

For these reasons the by-law quashed with

Many

is,

I think, invalid,

and should be

costs.

other objections to

its

validity were taken, but, having

reached the conclusion that the objection above dealt with it is

not necessary for

From

this

me

is fatal,

to consider the remaining objections.

judgment the town

of

Midland appealed to the

Divisional Court.

On May

30,

1907, the

appeal

was heard

bridge, C.J.K.B., Britton and Riddell,

before

Falcon-

J.J.

F. E. Hodgins, K.C., for the appellants. J. B. Mackenzie, for the respondent.

July

2.

Britton,

J.:

—The

main question upon

this appeal

whether a municipal council '‘has a power to finally pass a local option by-law within the two weeks next after the clerk is

of the council has declared the result of the voting.”

The municipal council having received a petition in writing, by at least 25 per cent, of the total number of persons appearing by the last revised voters’ list of the municipality to be

signed

qualified to vote at municipal elections,

were obliged to present

a by-law to the council,

municipal electors.

and submit the same to a vote of the This was done, and the voting upon the

by-law was pursuant to

secs.

338 to 365 inclusive and

secs.

367

to 374 inclusive of the Municipal Act.

In this case, because of 6 Edw. VII. ch. 47,

sec. 24, sub-sec.

4

In

Re

Duncan AND

The Town OF Midland. Mulock,

C. J.

ONTARIO

138 C.A.

(O.), three-fifths of

1907

is

In

Re

Duncan AND

The Town OF Midland. Britton, J.

^

LAW

REPORTS.

[vOL.

the electors voting required to approve, that

a sine qua non to the by-law going into

effect.

the by-law gets the approval of the required three-fifths

If

of the legal votes properly polled after all the preliminaries pre-

by the Municipal Act have substantially been complied is obliged, and within six weeks after the

scribed

with, then the council

voting, to finally pass the by-law.

In this case the voting took

place on the 7th January, and the clerk of the council, on the

8th January,

declared the

result.

council finally passed the by-law. six weeks,

but

it is

On

14th January the

the

That was well within the

said they should not have finally passed this

by-law until at least after the expiration of two weeks from the

any

declaration of the result of the polling, because

elector could,

during that term of two weeks, present to the county Judge a petition for a scrutiny of the ballot papers, and, in the event of

such petition being presented, the by-law should not be passed

had been disposed of, and it is expressly 374 that ^Hhe time which intervenes between

until after that petition

provided by

sec.

the presenting of the petition and the final disposal thereof shall

not be reckoned as part of the six weeks within which the by-law is

to be passed.”

perhaps, was the intention of the Legislature that the council

It,

should not in any case assume to finally pass the by-law until after the expiration of the

two weeks allowed

of the ballot papers, but,

so, it is

if

for asking for scrutiny

not so expressed by

or any other section of the Municipal Act. so expressed, because there as to

what was done, and

is

Because

sec.

it

is

373 not

no limiting or prohibiting clause

as the formal final passing of the by-

law cannot make the by-law good in substance and operative, if

the scrutiny shews that the result of the voting as declared

by the

clerk of the council

was not the true

result to the extent

of there not being three-fifths of the voters in favour of

I

think

necessary,

when

it,

the by-law must be upheld.

Why

the Legislature should have deemed

it

a petition for scrutiny has been presented before the final passing of a by-law, to stay the hands of the council until the petition

is

disposed

of,

and yet should not have said that the

final

passing should not be until after the expiration of time for petition,

I

cannot say.

It

was probably an oversight

—a

sentence

.

LAW

ONTARIO

XVI.]

139

what was

really intended.

C.A.

nothing expressly to prevent the council doing as was

1907

in sec.

373 or 374 would have

There

is

done in

made

REPORTS.

this case,

and

if

plain

the doing of

it

cannot defeat the purpose

of the Act, I cannot say that the doing of

it is

by necessary im-

In

Re

Duncan AND

The Town

plication prohibited. of opinion that passing the by-

OF Midland.

law before an elector has an opportunity to have his petition for scrutiny disposed of defeats the Act by imposing upon the people

Britton, J.

The learned Chief

Justice

a by-law not really approved electors voting.

on.

If,

by-law,

I

is

by the necessary three-fifths of the The scrutiny may go this.

do not agree in

in fact, the requisite majority it

will

have not approved

of the

be absolutely void.

I entirely agree

with the Chief Justice that there was no in-

tention on the part of the Legislature to deprive the electors of

the right to a scrutiny, and to

make

the clerk the only and final

judge as to whether the by-law has or has not received the required statutory majority, and

it

is

because, in

my

view of

it,

what was done did not and could not prevent the scrutiny, that I think the by-law must be upheld.

As to the other

objections, I agree in the result, with

Riddell, that these cannot prevail,

and

my brother

I agree also as to the dis-

position of costs.



Riddell, J.: At the opening of the argument an objection was taken that the town corporation had waived the right of appeal. It appears that the judgment appealed from having been given 25th April, 1907, the council on 29th April, as

it

is

said in deference to the opinion of the learned Chief Justice, passed

a resolution that the by-law should

now be

read the third time,

and thereupon purported to read the by-law the third time, and to

The by-law was not then before the council, the original being in Toronto; and nothing was done but the bare form of affecting to read it and then declaring it passed. No by-law was signed or sealed upon that date or thereafter. pass

I

it.

do not think

this is a

waiver of the appeal, notice of which

had been theretofore given, even

if

to waive a right of this character.' collected in

Holmested

&

Langton,

the council had the power ,

The p.

cases as to waiver are

1003;

the act done here, not being done in any

and action

I

think or

that

such

as

LAW

ONTARIO

140

REPORTS.

[vOL.

C. A.

to signify conclusive acceptance of the

judgment appealed from,

1907

does not destroy the right to appeal:

Phillips v. City of Belle-

In

Re

Duncan

ville

10

(1905),

O.L.R.

178.

Lohb

(1887),

Wrecking

Co.

v.

The Town

appellant

has

acted upon

OF Midland.

benefit from

AND

Riddell, J.

I

think

the

council

the by-law with

P.R.

12

a judgment

as

at

which the

some

derive

present

advised,

would have been wise had they passed

formality ex abundanti cauteld;

all

do not now decide,

International in

207,

so as to

As

have no application.

it,

such

Cases

—the

matter has

but that we

come before us

not

for

decision.

Upon

the merits, I It

Justice.

of each

ment

must

unable to agree with the learned Chief

municipality are vested with the right of self-govern-

and that their wishes should be given The Court should strive to do possible.

to a very large extent,

full effect to, if at all

this;

am

not, I think, be lost sight of that the voters

and should not be astute to

find

reasons

for

interfering

with the result which should follow from a voting.

The Act 6 Edw. VII.

ch. 47, sec.

24

(O.)

(amending the Liquor

License Act, R.S.O. 1897, ch. 245, sec. 142), in sub-sec.

option “by-law approve of the same the council six

weeks thereafter

shall

provides

shall

local

within

such by-law, and this sub-section

finally pass

be construed as compulsory and the duty so imposed upon

the council elector

then,

4,

upon” a

that “in case three-fifths of the electors voting

may

be enforced at the instance of any

by mandamus or otherwise.”

is

purely ministerial;

any

approve,

would,

in

defects

my

proviso in R.S.O.

in

if

be

manner of

ch. 245, sec. 141

,

municipal

of the council,

three-fifths of the electors voting

the

opinion,

The duty of

little

(1), is:

passing

the

by-law

The

consequence.

“Provided that the

by-law, before the final passing thereof, has been duly approved of

by the

electors of the municipality in the

manner provided by

the sections in that behalf of the Municipal Act.”

law be approved secs.

3

338

et

seq.

Edw. VII,

of

by the

Let the by-

manner provided by Consol. Mun. Act, 1903, by voting after such

electors in the

of the Municipal Act, (O.)

—that

ch.

19

advertisement

and

other

three-fifths

the electors, as a fact, approve in this

of

is,

proceedings

the by-law, and the duty of the council

as

are

is clear.

prescribed

I



way

let

of

do not think

that any proceedings after the polling are necessary, such as a

ONTARIO LAW REPORTS.

XVI.]

summing up

or declaration

or otherwise;

if

by the

the voting, as a

364

C.A.

has resulted in the statu-

1907

tory approval, the duty of the council

may

ings taken after the polling

provided by

clerk, as

fact,

is

may

Any

clear.

sec.

proceed-

be of assistance to the council

in determining the actual state of the poll;

council

141

but I think that the

by any other means; and passing of the by-law will depend upon the voting, and not upon the method of There may be some doubt as to the

assure themselves of this

the validity of the final the fact of the result of ascertaining such fact.

application of secs. 367-374 to a by-law of this kind at

think there need be no declaration as to the result of the voting;

might desire a scrutiny if

may

am

difficulty

under

There

is

if it

I

sec. 369.

who But

unable to accept the conclusion

of the learned Chief Justice in holding that for two

a declaration,

all.

clerk of the council

and, consequently, the elector

be in a

these sections do apply, I

by the

weeks after such

be made, the council cannot pass the by-law.

no such prohibition in terms, and

I

do not think the pro-

The whole purpose of a scrutiny would be to shew that the necessary three-fifths had not approved of the by-law; that being shewn at any time, the basis upon hibition should be implied.

which the by-law

rests, fails,

the necessary prerequisite

is

found

Edw. VII. ch. 47, sec. 24 (5) (O.) The council are have had the power to pass the by-law they have

to be wanting (6

proved not to

purported to pass; the result will follow which follows in any other case of a by-law passed without jurisdiction;

ceeding imder it would

any action or proand the by-law itself might be quashed by

There would be no necessity of any repeal.

the Court. it is

fail,

argued,

is

forbidden by sub-sec. 6;

as

at

present

That,

advised,

however, I do not think that sub-sec. 6 applies to any by-law

which has not in fact received the majority contemplated by the statute;

and

I think that there

would be nothing to prevent

a repeal of a by-law which had not received the proper majority, useless as that repeal

Even

if

would seem to

without jurisdiction,

I

cannot see that the by-law could, for

that reason, be considered of

An

be.

the council are forbidden to repeal a by-law passed

any

avail.

objection was also taken that a

number

of voters, instead

handing their ballots to the Deputy Returning Officer, for him to put them in the ballot box, themselves placed them in the of

In

Re

Duncan AND

The Town OF Midland. Riddell, J.

LAW

ONTARIO

142 C. A.

ballot

1907

^^No person

In

Re

Duncan AND

and

box;

170

sec.

who has

is

REPORTS.

appealed

[vOL.

This provides that

to.

received a ballot paper from the

Deputy

Returning Officer shall take the same out of the polling place;

and any person having

so received a ballot paper,

who

leaves the

The Town

polling

OF Midland.

Returning Officer in the manner prescribed, shall thereby

Riddell, J.

place without

same

delivering the

first

to

the

Deputy forfeit

and the Deputy Returning Officer shall make the poll book, in the column Remarks,” to the effect

his right to vote;

an entry

in

that such person received a ballot paper, but took the same out of the polling place or returned the

may

the case

Had

same

declining to vote, as

be.”

the section stopped with the words ‘‘forfeit his right

to vote,” the argument

would have had some weight;

but the

remainder of the section shews that what was being provided against to vote.

was the voter going away without voting or declining It never could have been intended that a voter who,

upon the

direction or with the approval of the

Officer, himself in

of

handing

it

good

to the

disenfranchise himself.

Deputy Returning

faith placed the ballot in the box, instead

Deputy Returning

Officer,

thereby should

Section 204 cures this defect.*

Taking, now, the other objections in the order of the notice of motion.

Objection 2:

The

statute sec. 338 (2) provides for

publishing notice of the by-law for three successive weeks, and

338

(1)

that the day “fixed for taking the votes shall not be less

than three

.

.

posed by-law.”

and the day

.

weeks after the

The

first

cluded, dealt

if

But

tion.

publication of the pro-

publication was 12th December, 1906,

of polling 7th January, 1907.

three weeks elapsed from the of polling,

first

the word

it is

first

“week” be

It will

be seen that

publication before the

argued that Sundays and holidays are to be ex-

and that 21 days must elapse excluding such days.

with this objection and overruled

Township

of

day

used in the ordinary significa-

Onondaga

it

(1907), 14 O.L.R. 606.

in

I

Re Armour and Having read and

* Section 204. ‘‘No election shall be declared invalid by reason of a non-compliance with the provisions of this Act as to the taking of the poll or the counting of the votes, or by reason of any mistake in the use of the forms contained in the schedules to this Act, or by reason of any irregularity, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in this Act, and that such non-compliance, mistake or irregularity did not affect the result of the election.’’

ONTARIO LAW REPORTS.

XVI.]

by counsel

considered again the cases cited I

see

my

no reason for changing

cases cited

ch.

Re Brophy and and County Mace Re 290;

Village of

C.P.

of

That Act provided, cause such by-law .

.

.

.

signifying that

.

.

.

.

.

the taking of a poll

.

.

.

.

.

will

.

.

12th January,

1865; polling, 7th February.

of

publication was bad, in that

was

good,

Held,

that

the

first

stated the hour of polling at ten

it

p.m., instead of ten a.m.; but

publication

Richmond: First publication, 2nd

November.

4th

polling,

First

Held,

week ended 8th February.

last

In Re Miles and Township 1868;

.

be held for

.

time too short, but that the

October,

.

after such

In Re Coe and Township of Pickering, the dates were: publication,

.

same

copies of -the

four weeks, at the hour of ten o’clock in the forenoon a meeting of the municipal electors

was further said that the

it

having

made 9th

been

first

October, the

fourth week ended 6th November.

In Re Brophy and Village

March, 1875;

polling, 1st

Gananoque: First publication, 6th

of

April.

Held, that this was

Frontenac:

First publication, 9th

and 2nd

not four weeks.

In Re Mace and County

of

October, 1876; polling, 6th November. ships in which the

first

Held, that for those town-

publication was on the 9th October the

time was sufficient; but where, as in the township of Loughboro, the

first

publication was 10th October, or, as in the township of

Oso, the 12th or 13th October, the time was too short, and the

by-law was accordingly quashed.

Then

there

Township

of

is

a case of a by-law for a loan:

Toronto (1889), 17 O.R. 766.

Re Armstrong and

First publication, 30th

November, 1888; polling, 7th January, 1889. Held, that this was three days after the expiry of the five weeks mentioned in the statute.

AND OF Midland.

shall

on some day within the week next

Re

Duncan

26

(1876),

with a notice signed by

.

1907

In

The Town

be published for four consecu-

by posting up

also

in at least four public places

him

“the clerk

to

.

Gananoque

C. A.

(1869), 28

Frontenac (1877), 42 U.C.R. 70.

sec. 5, that

and

.

Richmond

of

U.C.R. 333;

weeks

The

view there expressed.

follows,

as

24 U.C.R. 439; Re Miles and Township

tive

for the respondent,

under the Temperance Act (1864), 18: Re Coe and Township of Pickering (1865),

are

27-28 Viet.

143

Riddell, J.

LAW

ONTARIO

144

Re Ostrom and Township

C.A. 1907

In

V.

Township Rickey

Re

Duncan AND

The Town OF Midland. Riddell, J.

REPORTS.

Sydney

of

[vOL.

(1888), 15 O.R. 43; Cross

of Gladstone (1905), 15 M.L.R. 528, are not in point.

Township

v.

upon

does not assist

Marlborough

of

the attack upon the by-law.

way

930,

favourable

to

seems to have been considered

It

on the

December,

14th

that a

first

polling

day 7th January, would answer

publication

O.W.R.

9

(1907),

question in any

this

followed

by

the publication in

if

other respects were regular.

Armour

I adhere to the opinion in the

case.

Objection 3: That the council were not a lawfully constituted body when finally passing the by-law, is fully met by the case: Re Vandyke and Village of Grimsby (1906), 12 O.L.R. 211; see Re Armour and Township of Onondaga (1907), 14 O.L.R. 606. Objection 4: That the council had no knowledge of the bylaw having been carried by a majority of votes, when assuming to finally pass

where

passing

been

by the

cast,

is

it,

answered in the early part of this judgment,

considered that the validity or otherwise of the final

is

it

upon the

council depends

fact of the vote

having

even though the fact be as stated in the objection,

which cannot be said to be proved, in view

of the affidavit of the

clerk.

The same

Objection 5: lists

light commissioners

The

ballot boxes, poll

books and voters^

were made use of on the concurrent votings for water and

and public school trustees and said by-law.

statute does not forbid this.

indicated,

cannot find that

I

and the case about to be mentioned

the practice

is

No

Objection 6:

met by Re

contra-

indicates that

unexceptionable. voters’

as required

lists,

by the

prepared or supplied to the Deputy Returning is

it is

Sinclair

and Town

Owen Sound

of

statute,

were This

Officer.

(1906), 12 O.L.R.

488, which shows the very wide application of sec. 204, even

there were a defect, which I

Objection 7:

The

am

voters’

list

contained more than the lawful

The

voters’

list

far

from

for polling sub-division No. 3

number

of

names.

for this sub-division contains

but not more than 400 -names of voters, and 3 Edw. VII. ch.

19, secs. 535,

this a fatal error.

536 gets over the able:

Re

Sinclair

I

536

do not think

difficulty,

and Town

it

more than 300, is

(O.), apply, so so.

argued as

to

that

render

Sub-section (12) of sec.

and, at the worst, sec. 204 of

if

asserting.

Owen Sound,

is

applic-

12 O.L.R. 488.

LAW

ONTAEIO

XVI.]

That no deputy returning

Objection 8:

authorized to conduct

The

REPORTS.

145

officer

was

legally

resolution providing for submission to the votes of the

passed 27th November,

electors,

C. A.

1907

the polling.

1906,

appointed the clerk as

In

Re

Duncan AND

Clegg as deputy returning officer for

The Town

the west ward; James Baker as deputy returning officer for the

OP Midland.

Norman

returning officer;

and Alfred Courtemanche as deputy returning

east ward,

officer

for the south ward.

The by-law,

as advertised, provided that William Clegg should

be deputy returning officer for the west ward or public school division No. 1;

James Baker

division No. 2;

and Alfred Courtemanche

for the east

ward or public school ward or

for the south

and no objection

officer for

public school division No.

to him.

James Baker was, apparently, unable

he refused

—to

act,

and the

.

Clegg acted as deputy returning

public school division No. 3.

1,

—at

is

taken

events,

all

clerk of the town, after consultation

with the mayor, appointed William Geron to act in his stead. This

is

alleged to have been

done under

sec. 108,

but

was done

it

long before the time arrived for attending for instructions.

Con-

sequently, the provisions of this section have not been literally

complied with;

known

instead of going through the idle form of notifying for instructions

It

was

officer,

and,

but this was the merest irregularity.

that Baker would not act as deputy returning

and waiting

for

his

him

to attend

non-attendance, and then

appointing a substitute, the clerk acted at once upon the refusal.

Such an irregularity

is

As to public school pointed

Alphonse

public

this

school

healed by sec. 204. division No. 3, by-law No. 632

Courtemanche division

for

deputy the

returning

had apfor

officer

municipal elections.

This

seems to have been a mere mistake for Alfred Courtemanche,

and the resolution for submitting correct.

law as

this by-law to the electors was The name is printed Alfred Courtemanche in the bypubhshed, and Alfred Courtemanche acted as deputy re-

turning

officer.

The

case of

O.R.

69,

is

I see nothing in this objection.

Re McCartee and Township

cited

against

these

was passed, but the provisions

10

—VOL.

Supposing XVI. O.L.B.

(1900), 32

two deputy returning

Since that decision the statute of 4

plied with.

Mulmur

of

Edw. VII.

of this statute

officers.

ch. 22, sec. 8 (O.),

have not been com-

McCartee and Township

of

Mulmur

to

Riddell, J,

LAW

ONTARIO

146 C.A.

have been well decided,

1907

deputy returning

In

Re

Duncan AND

Riddell, J.

poll clerks officiating at public school divi-

and 2 were not authorized By-law No. 633, passed December

sions Nos. 1

The Town OF Midland.

that the naming of the

think

still

[vol.

officer is sufficient.

The

Objection 9:

I

REPORTS.

to do so.

appointed for the

18th,

municipal election poll clerks George Gregory for public school division No.

No.

2.

Wm.

and

1,

Geron refused to

ing officer in the place of

Geron,

for public school division

Jr.,

and was appointed deputy returnJames Baker, as has already been said. act,

George Gregory was appointed in after consultation with the

able to act as poll clerk in No.

1,

by the town

his place

clerk,

Gregory thus becoming un-

mayor. C.

H. McMahon was appointed

same way. The Consolidated Municipal Act, amended by 5 Edw. VII., ch. 22, sec. 3 (0.), and 6 Edw. VII. ch. 34, sec. 5 (0), makes it the duty of the council of every local municipality in which an election for members of in his place in the

1903, sec. 106 (1), as

such council

who

is

shall act as

to be held

by by-law,

of the poll clerk are not defined.

the deputy returning officer etc., of (if

to appoint the poll clerks

The

such at the respective polling places. Section 165

may

him

cause

persons claiming to vote; sec. 174

(2)

to record the names,

(6)

that the poll clerk

any) shall sign the statement at the close of the poll;

that the deputy returning officer

may make

duties

provides that

sec.

177

(2)

his declaration before

the poll clerk, or the clerk of the municipality, or a justice of the peace;

sec.

108

(3)

provides that, in case of

the re-

illness, etc.,

turning officer or deputy returning officer becomes unable to per-

form

his duties, the poll clerk shall act.

It

would seem

importance that poll clerks should not be appointed at ordinary case; and, in

been appointed, of this

sec.

my

view, even

if

of small

all

in the

poll clerks should

have

351 directing such proceedings in a vote

character, the facts that

none was specially appointed

and that a change was made afterwards the municipal election proper, form such

for this particular by-law,

in those appointed for

an

irregularity as

is

cured by

sec. 204.

Objection 10: That no copies, or lawful copies, of the by-law

were posted,

etc.,

was, before the Chief Justice, not insisted upon,

except to contend that they should have been put up outside.

There will

is

no substance in

be considered with

Objection 11

is

this objection,

and the extended objection

18.

abandoned, as

is

Objection 12.

,

ONTARIO

XVI.]

The

first

LAW

part of Objection 13

considered in this judgment,

is

i.e.,

REPORTS.

147

substantially the matter secondly

C. A.

and

1907

as to the effect of sec. 170,

need not be further considered.

Then

it is

In

said that in public school division No.

1

‘^some half-

a-dozen voters gave open votes; and in no such case was a declaration of inability to read or physical incapacity for the of the

ballot

made by

deputy returning scrutineers for

the voter.” as

officer

This

is

marking

explained by the

having been done by consent of

and against the by-law; and what happened was

who were unable to read had their ballot them behind the screen, in the presence of both scrutimarked for This was wrong; it is only those who make a declaration neers. that they are unable to read who are entitled to have their votes Some half-a-dozen cast in the manner mentioned: sec. 171. If the number are said to have voted in the same way in No. 3. of persons thus voting had been large, it might be necessary to consider how far this defect was cured by sec. 204, but not more The than about a dozen are claimed to have voted in this way. that several persons

vote was, in

all,

711.

For the by-law

477

Against

234 711

To destroy the statutory majority 126 votes must be struck out, thus:

For the by-law

477

Struck out

126

351 Against

234

Total valid votes

585

Three-fifths of 585

351

See Re to the

Armour and Township

of

Onondaga, 14 O.L.R. 606, as

proper method of calculating the effect of striking

off

votes.

Thus

it

appears unnecessary to consider the effect of

One William Shaw

is

sec. 204.

said to have been brought into the

room

Re

Duncan AND

The Town OP Midland. Riddell, J.

ONTARIO

148

LAW

REPORTS.

C.A.

and up to the

1907

persons said to be supporters of the by-law.

In

Re

Duncan AND

[vOL.

purpose of receiving a

table, for the

name William Shaw

that he voted, but I find a

not sworn

in the poll

book

for No. 3, which, I shall assume, shews that he did vote.

The Town

these persons acted as they are said to have acted,

OF Midland.

but the matter

Riddell, J.

by two

ballot,

It is

a

is

it is

trifling one.

Sr.,

accident and lost one leg, and the assistance was necessary; it is

If

was wrong;

was helped into the room by two persons; sworn that that was because he. had met with a -severe

William Geron,

but

it

further sworn that he went alone behind the screen to

Thomas Sharpe and

his

and

mark

it.

mother are said to have gone behind

the screen together, the son having received both the ballots;

but this

who

is

modified by the affidavit of the deputy returning

officer,

says that each received a ballot separately and went behind

the screen separately, although they were there at the same time.

This irregularity

a

is

trifling one.

Some 18 voters were sworn and stand how the objection now taken to effect to: see

voted.

I

cannot under-

these votes can be given

Objection 17 below.

William Clegg, deputy returning

officer

No.

of

1,

received

a certificate from the clerk of the town that he was entitled to vote,

and voted accordingly.

I

held in

Re Armour and Town-

ship of Onondaga, 14 O.L.R. 606, that a deputy returning officer

has no right to vote upon such a by-law, and I adhere to that opinion.

But

this does not affect the result of the voting.

Objection 14

is

A

Objection 15: voting.

not pressed.

second ballot box

Objection

No

16:

be unfounded, unless

it

declarations

used to continue

A

Objection 17: officer,

of

secrecy.

This shewn to

be considered that there must be separate

voting, etc., for the by-law,

returning

illegally

Not now urged.

and

this has already

been dealt with.

worthless form of oath furnished the deputy

but this was the statutory form before 6 Edw. VII.

ch. 34, sec. 11 (O);

and no one can be deprived

of his vote because

the proper oath has not been administered to him.

be different

if it

were shewn that the voters were

It

might

citizens or sub-

jects of a foreign power.

Passing over Objection 18 for the moment.

Objection 19:

The Court below was not asked

to deal with

ONTARIO LAW REPORTS.

XVI.]

it,

149

having been introduced that the applicant might,

take advantage of

it

upon

if

so advised,

The only matter now urged

is

that the by-law wrongly

em-

braces the public harbour, legislative authority over which per-

somewhat

and overruled

case,

even

as I

if,

am

far



I still

from

The objection fails, town cannot pass a by-law

Riddell, J.

in

think rightly.

asserting, the

“That the by-law

bad, on

is

its face,

for

not prohibiting the sale of liquor in places of public entertain-

In the written argument before the Chief Justice of the

ment.”

Exchequer Division counsel says:

“Objection 18 was shewn, on

the argument, to have been raised under a misapprehension.”

This arose in the follovdng manner: the applicant Duncan, a day or

two before he applied for a

to have been informed of the sheets of the

been published, were

certified

by the son

copy

of the

of the by-law, is said

town

clerk that a

few

“Midland Argus,” in which the by-law had left over,

and that the

certified

copy which

he would receive from the town would be certified on or from

one of these copies;

and upon applying

for a certified copy, he

received from the clerk one of these copies. faith of the

copy so furnished and

It

was upon the

certified that the

motion was

launched.

The copy reads:

“1. That the sale

fermented or other manufactured liquors,

by is

retail

of spirituous,

or shall be prohibited

in every tavern, inn or other house of public entertainment in the said municipality, shall

and the

sale thereof except, by wholesale, is

and

be prohibited in every shop or place other than a house of

public

entertainment in the said municipality.”

by-law,

when produced upon the argument

The

original

before the Chief Justice,

“In every tavern, inn or other house or place of, public and the punctuation was corrected to “sale thereof, except by wholesale, is and shall be prohibited.” The

read:

entertainment,”

original

by-law being read by the Chief Justice, counsel for the

applicant seems to have thought that the copies as published in

the “Argus,” and as posted throughout the municipality, were the same as the original, and, therefore, thought no objection

could

lie

against the form.

AND OP Midland.

raised

binding upon a public harbour.

Objection 18 reads:

Re

the Onondaga

objection was

similar

In

Duncan

The Town

tains to the Federal Parliament.

A

C. A.

1907

appeal.

Upon

discovering his error, he asks

I

ONTARIO

150

we should

LAW

now

REPORTS.

C. A.

that

1907

was not -really published or posted

In

Re

Duncan AND

The Town OF Midland.

not put out.

give effect

It

[vol.

to the objection that the by-law at

all,

an exact copy was

as

seems reasonable not to allow a mere inadvert-

ence or mistake of counsel to deprive the applicant of any rights

may

he

The

have.

(1), provides: “The town and incorporated village, may pass by-laws for prohibiting the sale by retail of spirituous, fermented or other manufactured liquors, in any tavern, inn or other house or place of public entertainment, and for prohibiting the sale thereof, except by wholesale, in shops and places other

statute R.S.O. 1897, ch. 245, sec. 141

council of every township, city,

Riddell, J.

than houses of public entertainment.”

The Legislature have used the double form, “prohibiting the in any tavern, inn or other house or place of by retail public entertainment,” and “prohibiting the sale except by wholesale, in shops and places other than houses of public enterThese are not the same thing in terms, the former being tainment.”

...

sale

.

aimed at the prohibition

.

.

.

of retail sale in places of public enter-

tainment, and the latter at the prohibition of sale by retail every-

where except in a “house

of public entertainment.”

It is plain,

I think, that the phrases “tavern, inn or other house or place of

public

and “houses

entertainment,”

public

of

entertainment”

are used as equivalent; and, therefore, the omission If

is

immaterial.

“place of public entertainment” be included in the expression

“house place”

of public

may

entertainment”

(as

I

think),



be omitted without harm

the words “or

not, the latter part of

if

the by-law, which prohibits the sale except

by wholesale

in every

place other than a house of public entertainment, prohibits the sale

by

retail

in such “place of public entertainment.”

the passing of this by-law, anyone

who kept

entertainment” and who sold liquor by in the dilemma, either this place

not



part of the by-law;

if

ment”

or

it is

The omission

is

if

it

is,

is

not, the sale

trivial,

is

retail

would be placed

house of public entertain-

a

the sale

After

a “place of public

is

by the former by the latter.

forbidden

forbidden

and should not

affect the validity of

the by-law.

Before us was raised the objection that there were two inde-

pendent subject matters voted upon at the same time, as indicated above.

But that

is

for

the Legislature.

Section

141,

LAW

ONTARIO

XVI.]

REPORTS.

151

above quoted, appears to permit this; and I can find nothing to indicate that the whole subject matter of that section may not be incorporated in one by-law, and be passed upon at the same time by the voters.

On

the by-law

upon

of opinion that the attack

and that the appeal should be allowed, with As we, at the hearcourt and in the court below.

fails,

costs in this

quashed the proceedings

ing,

of

29th April, 1907, the costs of

that order will be set off against the costs awarded under this order.

have not thought

I

numerous cases

of the

necessary to refer to more than a few

it

by

cited

have read them

I

counsel.

however, and a few others— only a few; there were very few

all,

left.

Falconbridge,

From

C.J.,

agreed with the opinion of Riddell,

J.

judgment the applicant appealed to the Court

this

of

Appeal, the appeal being confined to the objection dealt with in

Mulock,

the judgment of

On November

C.J.

22nd, 1907, the appeal was heard before Moss,

C.J.O., OsLER, Garrow, Maclaren and Meredith, JJ.A.

J.

Mackenzie,

B.

for

the

appellant.

The learned

Chief

Exchequer Division properly held that the by-law could not be confirmed until after the expiration of the two weeks Section 369 of the Con. Mun. Act, 1903, 3 for giving notice.

Justice of the

Edw. VII.

ch.

19

(O.),

made

applicable

by

sec.

141

of

the

Liquor License Act, R.S.O. 1897, ch. 245, empowers an elector to

demand a

he

may

scrutiny,

and gives him two weeks within which

exercise his right,

and

This

decision

may

is

cannot be exercised after

this right

the lapse of the prescribed time. to quash.

He

is

thus driven to a motion

clearly a disadvantage to him, for, while the

on a scrutiny

is final

and conclusive, the motion to quash

be appealed to a Divisional Court, and, by leave, to the Court

of Appeal.

The

right to a scrutiny is not taken

away by the

Act amending the Liquor License Act, 6 Edw. VII. ch. 47 There must be some person to determine sulted.

If

the duty

in the by-law

1907

In^Re

Duncan AND

am

grounds taken, I

all

C.A.

is

how

(0.).

the voting has re-

not imposed on the clerk, then the clause

which imposes that duty on him and assigns repre-

sentatives to attend

upon the scrutiny

is

bad.

This would ren-

The Town OF Midland. Riddell, J.

ONTARIO

152

LAW

REPORTS.

[vol.

C. A.

der The by-law bad, and would constitute a good ground for

1907

questioning

]tN

Re

Duncan AND

The Town OF IMidland

it.

F. E. Hodgins, K.C., for the respondents.

There

is

nothing

in the statutes dealing with this subject

which prevents the council

from acting as they have done

Notwithstanding the pass-

ing of the by-law, a scrutiny

however, has been

made

here.

may

No

be had.

still

suggestion

that one was ever desired, or any steps

is it suggested that any loss has been by the omission to get it. In fact, an inspection of the ballots would shew that a scrutiny would be useless. The objection, therefore, is of the most technical character. The passage of the 6 Edw. VII. ch. 47, sec. 24 (0.), has made a most The test now is the three-fifths majority, important change.

taken to procure one, nor sustained

and so long

as there

as a matter of fact, such majority, the

is,

council are given no discretion whatever, but law.

Every precaution

is

must pass the by-

taken to guard the rights of

all

parties

Sections 342 and 360 provide for everything being

interested.

made known. There is no difficulty in obtaining a scrutiny. The applicant, by not applying for one, and taking these proWilson

ceedings, has waived his right to one:

Hardcastle on

A.C. 129;

by-law has obtained the requisite majority

but where if

it, it

of Cardiff (1882), 2

(1890), 29

O.R. 549.

McIntosh, [1894]

Where the

cannot be repealed;

it

has failed to obtain such majority

it

the council should pass

Township

v.

Statutes, 3rd ed., p. 270.

The

will

it is

O.R. 529; Fleming

and

v. City of Toronto

principle applicable to

municipal election applies here.

invalid,

be quashed: Re Harding and

The

an ordinary

fact of the successful candi-

date taking his seat and voting does not prevent a scrutiny being afterwards had:

Con. Mun. Act, 1903,

secs.

186-7, 259-60.

applicant’s objection only applies to the third reading, is

nothing to prevent a third reading being had now, the two weeks

having elapsed: Re Dewar and Township 10

O.L.R.

East Williams (1905),

:

ship of Walsingham (1852), 9 U.C.R. 310;

Sutherland v. Township

Town of PeterR.W. Co. v. City

East Nissouri (1853), 10 U.C.R. 626; Boulton v.

borough (1858), 16 U.C.R. 380; of

of

The Court, under these circumstances, will Re Hall and Towndiscretion by refusing to quash

463.

exercise their

of

The

and there

Ottawa (1885), 8 O.R. 217.

Canada

Atlantic

ONTARIO

XVI.]

January

LAW

REPORTS.

Osler, J.A.:

22, 1908.

—Appeal

153

from the judgment

Court reversing the judgment of Mulock,

of a Divisional

C.J.,

quashing local option by-law No. 634.

The Liquor License Act, sec.

may

the council

C. A.

1908

In sub-sec.

141,

enacts that

(1),

pass a ‘‘local option” by-law, to use the

common

Re

Duncan AND

The Town

has

OF Midland.

been approved of by the electors “in the manner provided by the sections in that behalf of the Municipal Act.”

Osier, J.A.

expression, provided that before the final passing thereof

The Act 6 Edw. VII.

ch. 47, sec.

sub-section for sub-sec. 2 of sec. 141, of the electors

three-fifths it,

24

it

(0.), substituted

and enacts

(in part)

a

new

that

the council shall within six weeks thereafter finally pass

may

and that the duty “so imposed” “or otherwise.”

The proviso Act, in

now

my

if

voting upon the by-law approve of

be enforced by

it,

mandamus

'

141, sub-sec.

of sec.

(1),

makes applicable

opinion,

in question the

Liquor License

of the

to such a by-law as that

enactments found in Title

II.,

“Respecting

“Voting on by Electors,” of the Muni-

By-laws,” Division

III.,

cipal Act, so far as

they apply generally to by-laws which are to

be so voted on, such as the ballot

and

the result

its is

mode

of submission, the

time and manner, the

poll,

the

voting by

manner

in

which

to be ascertained, the secrecy of proceedings, the

scrutiny of the ballot papers, and the obligation of the council to pass the by-law

when

carried

by the votes

of the qualified elec-

tors voting thereon.

This obligation

is

found in

sec.

373 of the Municipal Act, but

that particular section has ceased to be applicable to the case of a local option

by-law by force of the amendment of the Liquor

License Act, sec. 141, introduced referred to, which,

a

new

by 6 Edw. VII.

ch.

though not in terms referring to

47

(0.),

sec. 373,

above

makes

provision in that respect with regard to such a by-law,

which must now be carried by three-fifths of the votes of the

elec-

by a bare majority, as is still the other by-laws, and when so carried it must be

tors voting thereon, instead of

case as respects

passed by the council within six weeks thereafter, though that obligation, the by-law having different

from what

of by-laws' carried

it

was and

been so carried, still is

by a majority

under

is

sec.

probably not 373 in respect

only.

This, as I understand his judgment, does not differ

from the

ONTARIO

154 C.A.

view expressed by Mulock,

1908

cipal Act,

In

Re

Duncan AND

The Town OF Midland. Osier, J.A.

and

am

I

[vOL.

C.J., of the application of

the

that

provisions

the Muni-

Act

that

of

ascertainment by the clerk of the result of

to the

and

REPORTS.

unable to agree with the suggestion in one

the judgments below,

of

LAW

as

the voting

as to the right to a scrutiny do not apply to a by-law of this

Both

kind.

methods

of these are

whether the

of ascertaining

by-law has in fact been approved by the electors.

If

the result,

in the first instance for the purpose of fixing the obligation of

the council,

not to be so ascertained, no method

is

by which that can

and

authoritatively be done,

it

inconvenient, and a course which might lead to culties, to

say nothing of frauds,

if

would be most left to

enter

to take anyone’s statement

as to the result at the different polls, or

method

provided

all sorts of diffi-

the council were

if

upon a roving inquiry or were obliged

is

there should be no

if

papers in order to ascertain,

of scrutinising the ballot

necessary, whether the requisite proportion of votes in favour

of the

by-law had or had not been given.

Then, the result having

— by the —what was the duty the council? weeks was to pass the by-law within—not at any time within—

been ascertained in the manner by law provided declaration of the clerk

viz.,

of

It

six

An

after the voting.

absolute right

apply to the “county Judge” of the

given to any elector to

is

(meaning, no doubt, the Judge

county court) within two weeks after the clerk of the council

has declared the result of the voting, for a scrutiny of the ballot papers, for which he

he has that time, at tion,

and

sec.

bound

is

all

374 shews that

between the presentation disposal thereof

to

if

is

sented, the council has

me

but,

make

his applica-

granted, the time

is

of the petition therefor

is

to be passed.

still

and the

final

reading

the

If

no petition

is

pre-

four weeks within which to perform

a very simple ministerial duty.

of the

a scrutiny

not to be reckoned as part of the six weeks

within which the by-law

extended,

shew reasonable grounds, but

events, within which to

If

two

Liquor License Act and

sec.

one

is

presented, the time

enactments— 374—together,

is

amendment

^the it

appears to

no plainer language could have been used to shew that, during the two weeks in which that, short of a prohibition in express terms,

the scrutiny

and

is

may

be applied

for,

not to pass the by-law.

case ample time

is

the council

Why

is

to hold its hand,

should they, since in any

reserved in which they can do so regularly.

XVI.

ONTARIO LAW REPORTS.

and must do so

if

there

is

no scrutiny or

Whatever

alter the result.

if

a scrutiny does not

may

individuals

risks

155

occasionally

have run in accepting by-laws thus improperly passed, we are here concerned only with the meaning of the plain words of the

third reading

its

mains whether, under

all

—too

Osier, J.A.

the circumstances, the Court ought

What

the council did

and

the by-law depended wholly upon the action

—that

to say,

is



the by-law of council

prevent

it

which derives

But

its face.

essentially different its

was ah

it

from the

let

alone

It

electors themselves,

not in their

good

a by-law

is

and not from

a third reading

it

They may be compelled

and ministerial only. “the

by-law of this kind as

from an ordinary by-law.

force

and throughout

initio

ought to be set aside as being

it

I regard a

the council, whose action in giving

lies

spoken of as the passing

is

should be of opinion that, in order to

I

from being acted upon,

bad on

plainly

if

will.”

formal

is

to do this,

and

simply the formal

It is

authentication of the action of the electors, and the recording of it

or adopting

way

in

it

for the purpose of proof or evidencing

which remedial

legislation

the carriage of the by-law is

complained

of,

by the

or, rather,

is

in the

it

Here

usually evidenced.

electors

is

not attacked, nothing

nothing could be set aside but the

faulty third reading or formal passage of the by-law, leaving the council free (and obliged) to give

tionable one.

It

it

another and

now

unobjec-

appears not only that no attempt was

made

to obtain a scrutiny of the ballot papers, but that they were, in

inspected and examined, and that only one was found to

fact,

be defective.

There

is

would have had any

no evidence, in

for one

by the improper action

set aside or

but

its

and

way

deterred from applying

and to

We

of the council.

quash the by-law simply, as there

third reading,

that a scrutiny

short,

effect in altering the result or that those

opposing the by-law were in any

set aside that

is

could not

nothing wrong

would now be a

useless

futile proceeding.

I,

therefore, think that the appeal should

Garrow,

J.A.:

—This

is

AND

soon, but the question re-

of the by-law, of the council

Re

OF Midland.

to interfere.

if

In

Duncan

is

—that

In the present case the council passed the by-law it

1908

The Town

Act, which no practice to the contrary can control.

to say, gave

C.A.

be dismissed.

an appeal by the applicant from the

ONTARIO

156 C. A.

judgment

1908

C.J.,

In

Re

Duncan AND

by

LAW

REPORTS. judgment

of

Mulock,

to quash a local option by-law.

Voting

of a Divisional Court reversing the

upon an application

the electors took place on January 7th, 1907, and seven days

later

the by-law was finally passed.

The applicant contends

The Town

that the council should have waited until the expiry of fourteen

OF Midland.

days from the declaration of the result by the clerk in order to

Garrow, J.A.

enable a scrutiny of the ballots to be had, to sec.

applied for pursuant

if

And

369 of the Consolidated Municipal Act.

to this

by Mulock, C.J., who made an order quashing the by-law, with costs. The Divisional Court reversed this order, apparently chiefly upon the ground that the statute 6 Edw. VII. ch. 47, sec. 24 (0.), had, in the opinion of that Court, materially altered the law by imposing upon council the imperacontention effect was given

tive

duty

of passing the by-law,

under pain

of the electors, within six weeks,

other proceedings.

Riddell,

J.,

by three-fifths mandamus and

duly approved

if

with

whom

of

Falconbridge, C.J.,

concurred, was of the opinion that a declaration of the result

now

the clerk was

by

unnecessary, as were also any other formal

proceedings after polling,

if

the voting, as a fact, had resulted

in the necessary statutory approval.

If

that were so in fact,

then the council was bound to pass the by-law, and could do so

upon satisfying themselves of the means, and that any defect in the manner

at once,

by any other passing would be

result

of

of little consequence.

Britton,

J.,

laid less stress

upon the statute before

to as having changed the law, and,

ceeded upon

this,

that there

tively prohibiting the

is

as*

referred

I understand, chiefly pro-

nothing in the statute affirma-

council from giving the by-law

its

final

reading without waiting for the expiry of the two weeks allowed for scrutiny.

In view of the number of such by-laws coming before the public, the point

is

one of considerable importance, justifying, I think,

a somewhat close examination of the statutory provisions in question.

R.S.O. 1897, ch. 141, sec. 141 .

.

.

(1),

provides that the council

may pass by-laws prohibiting the sale by retail of spirituous,

fermented or other manufactured liquors in any tavern, provided that the by-law, before the

final

etc.,

passing thereof, has

been duly approved of by the electors of the municipality in the

ONTARIO

XVI.]

manner provided by the

LAW

REPORTS.

157

sections in that behalf of the Municipal

1908

Act.

These latter words, in

my

introduce

opinion,

the pro-

all

visions of the Municipal

Act relating to taking the votes

upon by-laws requiring

their assent.

of electors

find “Division III.,'’

1903,

we

under the heading “Voting on by Electors,”

devoted from beginning to end to this subject.

“In case a by-law

provides:

Section 338

requires the assent of the electors

of a municipality before the final passing thereof, the following

proceedings shall, except in cases otherwise provided ascertaining such

respecting etc.,

assent.”

publication,

and providing

clerk,

follow minute

polls,

voting.

who

be taken

for,

Then

explicitly for a

by the

tion of the result

notices,

directions

Secrecy,

ballots,

summing-up and a

declara-

really acts in the

well-known

character of returning officer in such cases as he does in municipal elections.

Section 369 provides for a scrutiny of the ballot papers

upon

an order to be obtained from the county Judge within two weeks after the clerk has declared the result. relate to is

Sections 370, 371, 372,

Under

procedure on the scrutiny.

sec.

to forthwith certify the result to the council.

provides that

“A

by-law which

is

371 the Judge Section 373

duly carried by the vote of

the qualified electors shall vdthin six weeks thereafter be passed

by the

council.

Provided, however, that where a by-law which

the council has been legally required,

by

petition or otherwise,

to submit to a vote of the electors, is duly carried, it shall be the

duty of the council within six weeks thereafter to pass the said by-law.” The so-called proviso (I would not call it a proviso) was taken from the statute passed in the same year (1903), ch. 18, sec.

81.

Section 374 provides that “in case of a petition

for a scrutiny being presented, the

by the council

by-law shall not be passed

until after the petition has

been disposed

of,

and

the time which intervenes between the presenting of the petition

and the

final disposal thereof shall

not be reckoned as part of

the six weeks within which the by-law

So

far,

then, in the case of

is

to be passed.”

any ordinary by-law requiring the

assent of the electors, the procedure seems to be about as plain as language can

make

it.

In

Re

Duncan AND

The Town

Turning now to the Consolidated Municipal Act,

for

C.A.

In such cases there shall be a

summmg-

OF Midland. Garrow, J.A.

ONTARIO

158 C. A.

up and a declaration by the

1908

also be a scrutiny before a

In

Re

Duncan AND

The Town OF Midland. Garrow, J.A.

who

applies for

And

up.

LAW

REPORTS. And

clerk of the result.

Judge at the instance

there shall

any elector within two weeks from the clerk ^s summing-

it

of

And

the Judge shall report the result to the council.

my

the council then, and only then, in finally

[vOL.

may

informed of the result of the voting that they

learned Judges in the Divisional Court, there

take

by the

True, as remarked

the final step of passing the by-law.

and

opinion, are so fully

no express pro-

is

hibition against passing the by-law without waiting for the lapse of the time in

which to obtain the scrutiny, but the course

tended and pointed out by the statute to be followed otherwise that

in

it,

my

in-

so clearly

is

amounts to an implied prohibi-

opinion,

Six weeks are allowed within which to pass the by-law.

tion.

Two weeks

of this

time are allotted within which to obtain the

scrutiny, during which no action

to be taken, leaving four weeks

is

within which to prosecute the scrutiny and obtain the Judge’s

and

certificate

the time occupied If

by the

final action

council.

by the scrutiny

is

And under

otherwise, the council

not to count.

And

if it

would have no option but to pass

machinery

is

entirely devoted to obtaining in a reliable

But the namely, by secret

assent of the electors. ticular

way

balloting



elector ballot

must be checked and tested

out in the statute, methods well

must assent

—and

shews

under

way

the

in a par-

the result of the

in the

methods pointed

known and approved

municipal and parliamentary elections,

it

The whole

the very definite language of sec. 373 before quoted.

in all our

and from which there

nothing to indicate that local option by-laws were intended

Once the by-law

to be exempt. is

374

the Judge’s certificate shews less than the requisite majority,

the council have no power to pass the by-law.

is

sec.

functus

officio

as to

it;

result to the council after

control

finally passed,

is

the council

and to require the Judge to certify a the by-law had ceased to be under its

would be simply a stupid and meaningless proceeding

not to be lightly attributed to the Legislature.

Then, has the statute 6 Edw. VII.

(O.), to

License Act, altered the law as to the of the electors

is

to be obtained

and with deference,

I think

it

and

mode

amend in

verified?

the Liquor

which the assent In

my

opinion

has not; that, in fact, there

is

not

a word in the latter statute incapable of being perfectly harmonised

ONTARIO

XVI.]

LAW

REPORTS.

159

with each and every of the provisions of the Municipal Act to

which

I

have

These

Legislature.

quite as

ments.

referred, as was, I think, the plain intention of the

Duncan

to the case of every by-law requiring

The Town

are,

it

the assent of the electors, unless other provision in this case

no other provision

is

is

made, and

made.

interfering with the will of the majority, but simply of ascer-

taining the fact that there

is

result

by the

asked

clerk

And

for.

who

acts as returning officer,

then,

when the time

the result of the scrutiny, the council

by

The successive summing-up of the

such a majority.

steps in its progress are the ballotting, the

if

for

and the

it is

till

scrutiny,

passed, or wffien

there has been one,

if

the Judge, and not

is

certified to

then, final action

council to give legal effect to the result

by

by the

either passing or not

passing the by-law, as the legally ascertained result of the voting

determines. so is

much

All that 6

reliance

Edw. VII.

was placed

ch. 47, sub-sec.

4

(O.),

upon which

in the Divisional Court, really does

to declare that a three-fifths majority shall be necessary, in-

stead of an ordinary majority, and to add some words to the

already

made

peremptory language

of

sec.

373 before quoted.

It

was before to say the duty should be compulsory, and might be enforced by mandamus, etc. But even if it did, how could that have the effect of inferentially the matter no stronger than

it

dispensing with such important and outstanding provisions as

those relating to the a scrutiny.

had more So

But

it

Surely,

summing-up and report by the clerk and that had been intended, we would have

if

explicit language.

far, therefore, I

agree with the conclusions of Mulock, C.J.

does not, I think, necessarily follow that the by-law should

be quashed.

The material before us shews that the of

total vote cast

was

711,

which there were 477 for and 234 against the by-law, a majority

for of considerably over the three-fifths required

by the

statute.

So far as appears, no one applied for a scrutiny within the two weeks after the clerk declared the result. And it does appear that

upon an inspection

In

Re

AND OB’

Midland. Garrow, J.A.

not the case of retarding or of thwarting or otherwise

It is

A.

1908

must be remembered, the Liquor License Act and its amend-

provisions

much the law as And they apply

C.

of the ballots subsequently held, at the

ONTARIO

160

LAW

REPORTS.

[vol.

C. A.

instance of the applicant and in the presence of his solicitor, no

1908

irregularity of

In

Re

Duncan AND

The Town OF Midland.

any consequence was found.

The objection is thus reduced to one of an absolutely formal And upon such an objection the Court is not, in my opinion, bound to act, and usually refuses to act, even if the nature

nature.

on the face

of the objection appears

The power

Garrow, J.A.

to quash,

it

is

of the by-law.

well established,

is

discretionary,

Re Re McKinnon v. Village of Caledonia (1873), 33 U.C.R. 502; Re Milloy and Township of Onondaga (1884), 6 O.R. 573, 579. See sHi&o Re Ferguson and both where the objection

is,

and where

it

not, apparent:

is

Platt V. City of Toronto (1872), 33 U.C.R. 53;

Township

Howick

of

(1878),

44

U.C.R.

at

41,

p.

49,

where

Wilson, C.J., intimates that he would not have set aside the bylaw, which

was one imposing a tax

for a drain, for having

been

passed without allowing the five days to appeal from the court of revision to the

had

county Judge,

this case

we

Township

of

are

had appeared that no one which in

in

Re Huson and

see

South Norwich (1892), 19 A.R. 343.

dition precedent,

case in

and

on to deal;

called

Where the omission

and

if it

in fact appealed, a situation not unlike that with

it is,

is

of

something in the nature of a con-

of course, quite different, such as

Re Ostrom and Township Re McRae and Village of

For these reasons be dismissed with

Maclaren,

J.:

I

am

of

was the

Sidney (1888), 15 A.R. 372,

Brussels (1904), 8 O.L.R. 156.

of the opinion that the appeal should

costs.

—In my opinion

this appeals fails

on the simple

ground that the by-law was duly passed by the town council within the six weeks fixed

should pass

by

sec.

373 as the time within which they

it.

The Chief

Justice of the

could not pass

it

within the

Exchequer Division held that they first

two

of these six weeks, because

within that time there might be a scrutiny by the county Judge. Section 374 provides that in case there be a petition for such scrutiny, then the council shall not pass is

disposed

of.

tion, so that sec. I

An

it

until after the petition

this case, however, there

was no such

.

peti-

374 does not apply.

do not find anything in the statute preventing such a scrutiny

being held after the by-law has been given

its

third reading, or

ONTARIO LAW REPORTS.

XVI.

161

preventing the benefit and results of that scrutiny being taken

C. A.

and I am not pressed by the argument ah inconThis might be used in the Legislature in advocating

1908

advantage venienti.

of,

a change in the la\v, but I cannot see that

Even

here.

if

the learned Chief Justice 'were right in his opinion,

to see why, in

I fail

any event, the council should be restrained

during the second of the two weeks. that at least one week’s notice (that

day appointed for the scrutiny municipality.

can properly be used

it

If

during the

is,

week the

clerk has not received

such notice, then what possible ground can there be for staying the action of the council,

when a scrutiny cannot possibly be held, and down such a restriction? In the present

the statute does not lay case

was admitted that no step had been taken towards a

it

scrutiny,

and the time within which the statutory steps could had gone by before the by-law received

possibly have been taken third reading.

its

To is

my mind

the plain meaning of sec. 373

is

that the council

given six weeks within which to pass the by-law, subject to be

cut

down only by the

provision of sec. 338 requiring that

it

be

month after the first publication of the The Legislature named this time, no doubt, because

not passed in less than a by-law. it

was aware that

intervals

councils, as a rule,

—frequently

a month

—and

meet only at considerable

a time was allowed within

which a regular meeting of the council would ordinarily be held, and there 'would be no necessity for calling a special meeting. If the view of the Chief Justice

is

correct, the statute allows only four

weeks in any case, and naming six weeks that sec. 374

makes

it

six weeks, subject to If,

for instance,

is

a delusion.

be cut down only by

I think

was to have the

clear that the council

sec.

338 above

full

cited.

a petition were presented one week after the

passing of a by-law

and the scrutiny lasted two weeks, then these two weeks are not to be reckoned as part of the six weeks which the council

is

to have, so that

scrutiny, or at least five

think

it

should be.

weeks

it if

would have the

But the Judge

first

six

week

weeks after the is

counted, as I

of first instance

would only

give the council four weeks, whether a petition were presented

or not, a

meaning I find it impossible to give to the statute. The learned Chief Justice does not appear to have observed 11

—VOL.

XVI. O.L.B.

Re

AND

The Town OP Midland.

Section 370 prescribes Maclaren, J.A. seven clear days) of the

shall be given to the clerk of the

first

In

Duncan

ONTARIO

162

a A.

that

1908

month mentioned

In

Re

Duncan AND

The Town OF Midland. Maclaren.J.A*

LAW

his construction of the

if

in sec. 338

REPORTS.

Act be

[vOL.

then the delay of a

right,

above referred to

is

not only un-

The voting cannot take

necessary but misleading.

place until

first publication of the by-law. Then summing-up by the clerk and the third reading, and after that the two weeks, during which it is claimed the council cannot pass the by-law. This would require more

at least three

weeks after the

follows the time for the

weeks in every

and ordinarily

than

five

And

yet sec. 338 requires that a notice be appended to the by-

law that lication,

It

will

it

if it is

may

be

finally

case,

passed after a month from the

approved by the

first

common knowledge

that muni-

acted upon the assumption that

they might pass these by-laws during these two weeks

had no notice

in

and other by-laws coming under

many

sec. 338, I

of the six.

a

examination of money

the

am

of opinion that

of these are passed during the first

any other two

as of

they

if

From

of the intention to present a petition.

somewhat extended experience probably as

pub-

electors.

almost be said to be

councils generally have

cipal

at least six weeks.

And

two weeks

although scores,

if

not

hundreds, of such by-laws have been before the Courts subject to this defect

(if

defect

it

be),

where they were keenly contested

on almost every conceivable ground,

escaped detection for over thirty years. tion

is

If,

however, the objec-

a valid one, this would be no ground for declining to give

effect to

of

one appears to have

this

It

it.

only goes to suggest a doubt as to the soundness

an objection which the profession has ignored for so long a

time. I

am, consequently, of the opinion that the statute, as

stands, does not prohibit the third reading within the

and that to so hold would be and not a

it

two weeks,

in reality to exercise a legislative

judicial function.

Meredith,

J.A.:

—For the

like reasons

which impelled

me

to

oppose the grant of leave to appeal in this matter, this appeal should, in

The

my

single

firm opinion, be dismissed.

ground upon which

it

is

now sought

the purely technical one that

the by-law

is

two weeks

after the declaration of the poll.

it

to quash

was passed within It is

not even sug-

gested that any sort of wrong was done, or any sort of incon-

ONTARIO

XVI.

LAW

REPORTS.

163

by

C. A.

not suggested that he, or anyone

1908

venience even caused, to the petitioners, or to anyone the act complained

It is

of.

else,

desired a scrutiny, or that he, or any one else, was in any manner hampered or prejudiced by the act of the council which but the application was and is is said to have been premature; put upon the purely technical ground not even supported by else,

any expressed

legislative

requirement





^that

the other hand, the legislation required, in the clearest

compulsory manner, that the by-law should be passed within six

weeks after

its

approval by the electors

two weeks

tion of the



by mandamus

be enforced

So that,

effect

if



^not after

the expira-

and also provided that the duty imposed

upon the council to so pass

it

might, at the instance of any elector,

or otherwise.

be given to this appeal, we shall have this

extraordinary result, that, though the by-law be set aside today,

upon

elector,

any by the

this appeal, the council must, at the instance of

even the appellant, be compelled,

Courts, to enact

it

again to-morrow, as

Surely such a state of

of opera bouffe

than of the

common

if

necessary,

had been enacted within affairs would savour more

if it

the six weeks.

sense, not to

mention the

dignity, of the Courts of Justice.

This titice,

is

not a proceeding in which the appellant, ex debito jus-

has a right to the judgment of the Court upon the

tion of the validity of the by-law.

procedure adopted in this matter generally, a very convenient

is

them, for here

we have an

and proper way

interest in

cipality,

persons

of dealing with such

applicant, having

no

with

all

but merely

the other electors of the muni-

who may have such all

himself,

special interest in

it,

and

also

all

behind

other persons having a general interest in

it

the

on a purely technical and essentially imsubstantial

ground, and for no practical purpose, because, in case aside, it

must be enacted again under the mandate

lature.

A

it, if

one of

is

sort of special

seeking to set aside the by-law behind the backs of

the backs of

same as

common

of

and perhaps even

frequently,

interest in the question of the validity of the by-law,

an

ques-

The summary method

but there are obvious exceptions, and this

a question;

refusal to set it aside at his instance

invalid, against

him

or anyone else.

Re

OP Midland.

the two weeks ought Meredith, J. A*

to have elapsed before the by-law was finally passed.

On

In

Duncan AND The Town

it

is

set

of the Legis-

need not validate



ONTARIO

164 C. A.

1908

In

Re

Duncan AND

The Town OF Midland. Meredith, J.A.

But,

if

LAW

REPORTS.

my

no expressed

is

to be con-

concurrence with the Judges of

by them.

the Divisional Court in the conclusion reached is

.

[vOL.

the question of the validity of the by-law

sidered, I desire to express

^

legislation against the passing of the

There

by-law within

the two weeks, and I can find no justification for reading the enact-

ment

as

if

it

had been so expressed. If the reasons which imdo so were founded in fact, there would be

pelled Mulock, C.J., to

much

to be said in support of his conclusion;

that they are.

I

cannot but think that he

but

I

cannot think

into error in sup-

fell

posing that the passing of the by-law would prevent a scrutiny.

To reach that conclusion enactment words which is

it

it

is

again necessary to read into the

does not contain, and for which there

no need. I entirely agree

with the learned Judges of the Divisional Court

that the validity or invalidity of the by-law depends upon whether, in fact,

it

was, or was not, approved by three-fifths of the electors

who voted upon to

it,

comply with the

not upon the time when the council happened legislative

after such approval. if it

If

it

mandate

—to pass

were so approved

were not the passing of

it

Moss, C.J.O., agreed in the

it it

within six weeks

ought to stand

merely would not give

it

validity

result. G. F. H.

;

^



— ONTARIO

XVI.]

LAW

[BOYD,

REPORTS.

165

C.]

Re Hudson. Will

— Construction—Gift tenances'’ Intestacy.

A

1908

— ^‘Appur—Money —

——

Incomplete Enumeration of Whole Estate Stock and Implements “Household Goods”



Farm

testator by his will, after directing payment of debts, etc., proceeded: “I real and personal estate which I may give, devise, and bequeath all die possessed of or interested in, in the manner following, that is to say: son W. farm which is I give, devise, and bequeath to

my

my

my

.

.

my

.

and all appurtenances connected therewith, with all my household goods of which I may die possessed;” and appointed an execupresent residence, tor:

Held, that all the testator’s estate, including money, farm stock, implements, passed by the will to the son named.

and farm

Motion by Catherine A. Jacklin, a daughter and one of the heirs-at-latv and next of kin of Charles Hudson, late of the township of Grey, farmer, order,

who

died on the 23rd February, 1907, for an

under Rule 938, determining the question whether the whole

estate of the testator passed

intestacy as to

all

under the

will or

whether there was an

the personalty except the household goods.

Probate of the will was granted to William Edward Hudson as executor

on the 28th March, 1907.

The material parts “1

of the will

were as follows

just debts, funeral

:

and testamentary expenses,

my executors hereinafter named as soon conveniently may be after my decease. “I give, devise, and bequeath all my real and personal estate and

to be paid as

my

direct all

which

I

may

satisfied

by

die possessed of or interested in, in the

manner

follow-

ing, that is to say:

my of

“ I give, devise,

and bequeath to

farm, being lot

number 29

Grey

.

.

.

which

is

my

present residence, and

tenances connected therewith with I

may

my son William Charles Hudson

in the 5th concession of the township

all

all

appur-

my household goods of which

die possessed.

‘‘My son William Charles Hudson

is

granddaughter Ollie Hudson until she dition that she

to provide a

is

home

for

my

21 years of age, on con-

makes her home permanently with

my

son William

Charles Hudson.

“And

I

nominate and appoint hiy brother William Edward

April

8.

— LAW

ONTARIO

166 1908

Re

Hudson

.

.

to be co-educator

.

testament, hereby revoking

HuDSOiV.

was stated

It

REPORTS.

all

[vol.

my

(sic) of this

former

wills

last will

and

by me made.'’

in the affidavit of the applicant that the testator

personal estate other than household goods of about the value

left

of $1,000.

The motion was heard by Boyd, the 2nd April, 1908.

C., in

the

Weekly Court, on

W. E. Middleton, K.C., for the applicant. W. M. Sinclair, for William Charles Hudson. A, B. Macdonald, for the other children of the testator.

No one appeared April

who

a lawyer

the whole

The

Boyd,

3.

C.:

—The

manner

all

is

framed by one not

uses large words not very aptly, but the intention of

clause

“I

is:

personal estate which I

the

and

will is short,

apparent with reasonable certainty.

is

first

for the executor.

give, devise

may

following, that

and bequeath

my real

That clause by

itself carries

the estate of the testator at his death, but does not say to

The

clause ‘Hhat

is

particularize that that

nor diminish, for

it is

Then the son

^'a

and

.

.

not the nature of

all

household goods

it

my

it

must neither

increase

to give of itself " StuJceley :

168, 171, 172.

farm

.

.

“I give .

.

which

is

.

to

.

my

'

Herein no explicit reference

farm stock, and farm implements," and

it is

made

is

my

present

appurtenances connected therewith, with

’ .

.

and

kind of handmaid or interpreter to

before general, but

testator enumerates thus:

William

residence,

is

is

Hob. R.

V. Butler (1615),

whom.

to say," in the phrase of the old reporter

Chief Justice, Hobart,

and

die possessed of or interested in, in

to say."

is

all

all

my

to “ moneys

said there is\an in-

testacy as to these.

The modem bury,

is

1

rule of construction, as expressed

by Lord West^

that the entirety which has been expressly and definitely^

given shall not be prejudiced by an imperfect and inaccurate

enumeration of the particulars: West 375, 384. is

And by

settled, that

words “all

my

v.

Lawday

(1865), 11 H.L.C.

the application of this rule the

when a

modem

doctrine

testator gives his property generally

property,"

etc.,

when he

by

the-

uses words sufficient to

pass everything, and then proceeds to enumerate particulars

— ONTARIO

XVI.

LAW

REPORTS.

167

enumeration does not abridge or cut down the

this

general

words.

V.-C., in

King

This conclusion,

as

effect of the

thus expressed by Malins,

4 Ch.D. 435, 439, was adopted and

v. George (1876),

approved by the Court of Appeal in S. C. (1877), 5 Ch.D. 627, 629. Besides this aspect of the its

will, I

think

may

it

be inferred from

contents that the intention of the testator was to benefit his son,

who

is

sole beneficiary,

by the farm stock and farm implements.

These things the draftsman understood were comprehended in the

word “appurtenances.” flexible

has a popular meaning, and of its

and

form a subordinate part

contributory adjuncts.”

1

be applied to personalty.

and lamp,

the kettle:

Hunt

v.

of

it

all

residence with

and the whole

Jeffereys v.

(1777), 2

will carry the

498;

of the

Ir.

126.

As applied

will, I

think they

all his estate,

Swinfen

money

to a

words

“my

farm^^and se to

and implements, but, having regard to the conreal

may be eked out by the general and personal:

Doe v.

d.

d.

see Gulliver d.

Lempriere

y.

Martin

Clements v. Collins (1788), 2 T.R.

Swinfen (1860), 29 Beav. 207, which also

in the house will pass

hold goods,” and on the same point 14

109,

it

The

Berkley (1728), Mosely (Ca. 32) p. 47.

Bl. 1148;

see also

decides that

whaling ship,

stand or frame that supports

Poyntz (1770), 3 Wils. 141; Doe

W.

,a,

appurtenances connected therewith” per

all

pass the farm stock

words carrying

“things which naturally

the outfit of fishing stores:

would doubt the sufficiency

I

is,

it

One

and belong to a whole system

Hagg. Adm. R.

silver kettle

a word of large and

conveyancing sense,

Thus, as applied to

comprise harpoons and

^‘Dundee” (1823),

text

may

is

its legal

meanings in the Oxford Dictionary

fitly

will

no doubt,

This,

meaning, and, apart from

under bequest

Mahony

v.

of

Donovan

“houses (1863),

Ch. 262.

Costs out of estate. E. B. B.

Boyd, C.

1908

Re Hudson.

ONTARIO

168

[IN 1908 April

1.

Re Reith

-

—Removal

Surrogate Courts

Value

LAW

REPORTS.

[vOL.

CHAMBERS.]

et al.

Reith et

v.

al.



— Undue Influence-

Will of Cause into High Court Importance of Issues. of Estate



Upon an

application under sec. 34 of the Surrogate Courts Act to remove a cause from a surrogate court into the High Court, the importance of the case and its nature are not to be tried on counter-affidavits it is enough if it appears from the nature of the contest and the magnitude of the estate that the higher Court should be the forum of trial. Much is left to the discretion of the High Court Judge as to the disposal of each application. And where the contest was over the will of a widow, whose husband died in 1905, leaving to her an estate valued at over $27,000, which had shrunk at her death in 1907 to $5,850, and the allegation was that she had not been able to protect herself against the undue inffuence of the chief beneficiaries, her two sons, to whom it was said a large part of her husband’s an order was made for the estate had been transferred in her lifetime removal of the cause into the High Court. :



Motion by the defendant

J.

G. Reith for an order transferring

the action from the surrogate court of the county of Dufferin into the High Court.

The motion was heard by Boyd,

C., in

Chambers, on the 31st

March, 1908. A. McLean Macdonell, K.C., for the applicant. A. A. Hughson, for the F.

W.

plaintiffs.

Harcourt, K.C., for the infants.

Grayson Smith, for the other defendants. April

by

1.

Boyd,

—^The

High Court has

special jurisdiction

and to pronounce them to be fraud and undue influence and otherwise: R.S.O. 1897,

statute to try the validity of wills

void for

ch. 51, sec. 38. is

C.:

No

doubt, the surrogate courts have,

when the

will

to be proved in solemn form, concurrent jurisdiction, but in

contentious matters as to the grant of probate, or in which disputed questions of law or fact

may

be raised, the cause shall be removable

by any party into the High Court by order of a Judge, to be obtained after notice and on summary application supported by affidavit: R.S.O. 1897, ch. 59,

removal

shall

sec. 34;

importance as to render of the sec.

34

subject to this proviso, that no such

be had unless the cause it

is

of

such a nature and of such

proper to withdraw

it

for the disposal

High Court, and that the property exceeds $2,000 (2).

in value:

ONTARIO LAW REPORTS.

XVI.]

The importance

and

of the case

its

169

nature are not to be tried

on counter-affidavits: it is enough if it appears from the nature of the contest and the magnitude of the estate that the higher Court should be the forum of

trial.

Boyd, C.

1908

Re

to the dis-

Reith

as to the disposal of each applica-

Reith.

No

much

doubt,

is left

V.

cretion of the tion.

High Court Judge

In Re Wilcox v. Stetter (1906), 7 O.W.R. 65,

my

brother

Mabee was influenced by the comparatively small value of the just at the statutory limit; and that was also the guiding estate element in the case before my brother Riddell of Re Graham v.



Graham (1908), 11 O.W.R. 700. The pleadings here disclose what facts

and the

law^

—chiefly that the

to protect herself against

her two sons

— she

being

undue

is

upon the a widow, was unable

to be at issue

testatrix,

influence of the chief beneficiaries,

illiterate

and not versed

in business.

It

appears that her husband died in 1905, leaving her an estate valued at over $27,000,

was $5,850.

and that her whole

One

estate left at her death in 1907

of the sons, the executor,

is

said to

have acquired

a large part of the father’s estate by an arrangement, in which he claimed as partner, that

is

sought to be brought into question.

all, are said to have been made two sons) about twelve days before the death.

Considerable payments, $13,000 in (over one-half to the

These are some of the salient matters that appear to be involved,

and they are

of

such character and importance as to

opinion, an order for transfer to be

Costs will be disposed of

justify, in

my

made.

by the Judge

at the trial. E. B. B.

ONTAEIO

J70

[IN

23. 31.



REPORTS.

[vOL,

CHAMBERS.]

Robertson

1908

March March

LAW

Robertson.

v.







Alimony Arrears Writ of Summons Special Indorser ment Summary Judgment Rules 138, 603.

Foreign Judgment





An

action lies for arrears of alimony past due upon a foreign judgment, and the claim therefor may be the subject of a special indorsement of the writ of summons under Con. Rule 138 and of a motion for summary judgment under Con. Rule 603. Swaizie v. Swaizie (1899), 31 O.R. 324, applied and followed. Decision of the Master in Chambers affirmed.

Motion by the in

plaintiff for

summary judgment under Rule 603

an action upon a foreign judgment for alimony.

The motion was heard by Mr. James

Cartwright, K.C.,

S.

the Master in Chambers, on the 20th March, 1908.

A. R. Clute, for the

plaintiff.

A. R. Hassard, for the defendant.

March

The Master

23.

tember, 1905, the

plaintiff,

of the State of Ohio,

Chambers:

in

—On

the 25th Sep-

obtained judgment in one of the Courts

which gave her (with other

relief)

alimony

at $6 a week, commencing apparently on the 30th December^ 1905, and payable “so long as they may live.” The plaintiff commenced an action on this judgment on the 3rd March instant, claiming arrears of alimony from the 23rd

June, 1906, until the 29th February, 1908, being for 88 weeks, at

$6 a week, amounting to $528.

ment

for

future

the plaintiff has

The

plaintiff

moved

There

is

also a claim for a judg-

The defendant has appeared, and

alimony.

judgment under Rule 603.

for

makes the necessary

affidavit,

and produces a

properly certified copy of the foreign judgment.

No

affidavit is filed in

Both

The

answer to the motion.

parties apparently

case relied

31 O.R. 324,

is

now

reside in Toronto.

on by Mr. Clute, Swaizie

an authority in favour

the arrears are concerned.

But

it

is

v.

Swaizie (1899),

of the motion, so far as

not so clear that Rule 603

can be applied on the other branch, and the jurisdiction must be clear and unqualified before a judgment can be obtained except

on application to a Judge

of the

High Court.

.

XVI.]

The

plaintiff

form No. 4 in

ONTARIO

LAW

may have

judgment, therefore, for $528

of indorsements,

of part II.

may

(see

Master in Chambers.

''Foreign Judgment,’' 1908

and

the appendix to the Consolidated Rules),

for the rest of the claim as she

171

REPORTS.

will

proceed

Robertson

be advised.

V.

Robertson. decision of the Master in

The defendant appealed from the

Chambers, and the appeal was heard by Boyd,

C., in

Chambers,

on the 31st March, 1908. I.

F. Hellmuih, K.C., and A. R. Hassard, for the defendant.

A. R. Clute, for the

March

31.

Boyd,

plaintiff.

C.:

decisions in this country, I

judgment.

The

foreign

—Having

considered the effect of the

do not think

judgment

I

should disturb the Master’s

as to the arrears of alimony

they are to be paid at a given date and enforceThe cases seem to upon default by process of execution. regard that (apart from the peculiarities of the English law of

is

explicit that

able

divorce and alimony as incident thereto) as a final adjudication

by the by ordinary

judgment, becomes a

as to the past, which,

effect of the

debt enforceable

process as a legal debt.

a foreign judgment

is

enforceable

by

action, then

indorsed under our Rules as a "debt arising

If

such

may be specially

upon a

contract, ex-

Smith (1894), 24 Arrears of alimony are held to be a debt, though

press or implied:”

O.R. 473.

Rule 138 and Re Kerr

it

v.

not a debt at law, in Lin on v. Linion (1885), 15 Q.B.D. 239, 246. That, no doubt,

is

the view underlying the English decisions in

Bailey v. Bailey (1884), 13 Q.B.D. 855, 859, and Robins v. Robins, [1907] 2 V.

K.B. 13; but reasons are given by Meredith,

J.,

in Aldrich

Aldrich (1893), 24 O.R. 124, 131, for distinguishing judgments

for the

payment

of

alimony under our system.

That arrears

of

alimony under a judgment therefor are to be regarded as a finality J., in the same case as reported The Ontario law and decisions have been elaborately discussed in British Columbia, and by the judgment of the full Court it. was held that an action can be maintained for arrears of alimony past due upon a foreign judgment: Hadden v. Hadden (1899), 6 B.C.R. 340. The like view appears

is

in

evidently the view of Ferguson, (1893),

23 O.R. 374, 378.

to be involved in the decision

which the Master thought binding

— LAW

ONTARIO

172 Boyd, C.

1908

upon him,

as

it

is

upon me,

REPORTS.

of a Divisional

[vol.

Court in Swaizie

v.

Swaizie, 31 O.R. 324, 327.

Robertson V.

The judgment

is,

No

put in by the defendant, and he has no defence

affidavit is

Robertson.

therefore, affirmed with costs.

except the legal one. E. B. B.



[IN 1908

CHAMBERS.]

McFarlane

V.

Henderson.

—Personal Property—Restraint on Alienation—

Jan. 21.

Will

Invalidity.

A

testator directed that his estate should be invested and the income paid to two sons equally until they reached the age of thirty-five, when they were to receive the principal, and he further declared that “none of children shall have power to anticipate or alienate, either voluntarily or otherwise, any portion of estate to which they may be entitled previous to the time at which the same may become payable to them as herein declared.” Notwithstanding the above, one of the sons assigned his interest under the will to various creditors: Held, that the assignments were valid, and the restriction on alienation which the testator had sought to impose invalid. The reasons for the rule of equity which enables a restraint against alienation and anticipation to be imposed on the separate estate of a married woman does not apply to such a case. his

my

my

This was a motion by the

plaintiff for

an order to continue

the appointment of a receiver under the circumstances set out in

the

W.

The motion was argued before Meredith,

judgment.

C.J.C.P., in

Chambers, on December 16th, 1907.

J. Elliott, for the plaintiff,

contended that the assignments

were invalid as being in contravention of the tion on alienation

was not

will;

that the restric-

general, but restricted as to time,

and

Macleay (1875), L.R. 20 Eq. 186; In re Weller (1888), 16 O.R. 318; In re Northcote (1889), 18 O.R. 107; that the same rules of law as regards restrictions on alienation therefore good:

In

re

are applicable to a bequest of personalty as to a sale or devise of realty: re

Woodmeston

v.

Walker (1831), 2 Russ, and M. 197; In

Dugdale, Dugdale v. Dugdale (1888), 38 Ch. D. 176; Metcalfe

v.

Metcalfe (1889), 43 Ch. D. 633, [1891] 3 Ch. 1; Corbett v. Corbett

ONTARIO LAW REPORTS.

XVI. J

173

1908 and that the attaching order granted was Kratz (1903), 5 O.L.R. 635; StiLart v, Grough McFarlane

(1888), 14 P.D. 7, at p. 12; valid:

Hunsberry

v.

He

(1887), 15 A.R. 299.

Re

(1902), 33 S.C.R. 65;

also referred to

Blackburn

v.

Porter (1907), 13 O.L.R. 399;

V. McCallum Henderson. Re Martin

(1906), 11 O.L.R. 349.

andDagneau

Grayson Smith, for the Toronto General Trusts Corporation, submitted their rights to the Court. C. A. Moss, for Long, contended that the assignments were

good, as the rules against anticipation do not apply in the case of a

bequest of personalty unless there

January tiff

for

Meredith, C.J.:—This

21.

an order to continue

Co., Limited, as receiver

receive the

is

a bequest over, and in

was none.

this case there

is

a motion

by the

plain-

appointment of the Union Trust

‘‘the

without security to

moneys, property and

effects

and

collect, get in

coming to the defen-

dant (Charles A. Henderson), from or in respect of the late John B. Henderson’s estate, to which, under the will of the said B. Henderson, plaintiff’s

the

defendant

judgment and

is

costs,”

John

entitled, to the extent of the

an order appointing the Union

Trust Co., Limited, as receiver until October 29th, 1907, or until

any motion which might be made by the that date to

having been

By

plaintiff

on or before

continue the appointment should be disposed

made by my brother

of,

Britton on October 17th, 1907.

the 14th paragraph of the will of John B. Henderson he

provided as follows: “14. I direct

my

said executors to invest the balance of

my

and to keep the same invested from time to time, paying the income derived therefrom to my two sons, Charles A. Henderestate

son ” (the defendant)

“and John B. Henderson,

equally, share

and share

alike, until

they respectively reach the age of thirty-

five years,

and to pay

their respective shares of the principal then

remaining to

my

said

two sons

as they respectively attain the

age of thirty-five years, and I give such residue of

my

said

my

estate to

two sons, Charles A. Henderson and John B. Henderson,

in equal shares accordingly.”

By

the 15th paragraph of his will the testator further pro-

vided:

“15. I especially direct and declare that none of

my

children

LAW

ONTARIO

174 Meredith, C.J.

1908

McF ARLAN E V.

have power to anticipate or

shall

any portion

otherwise,

them

of

my

And

as herein declared.

may be enmay become payable

which they

estate to

ENDERSON.

[vol.

alienate, either voluntarily or

time at which the same

titled previous to the

to

REPORTS.

I declare that

no document

or instrument purporting to alienate or anticipate such payments

and no process to be

law assuming to do so

of

shall

have any force or

but that, on the contrary, the payments herein directed

effect,

made

to

my

said children shall be

made

to

them personally

my

said sons, either

at the times herein provided for.”

Paragraph 20

of the will

is

as follows:

“20. In the event of the death of either of in

my

lifetime or before he attains the age of thirty-five years,

leaving lawful issue

him

surviving, such issue shall represent the de-

ceased parent and take the parent’s share, but in the event of

my

the death of either of

said sons, either in

my

lifetime or before

he attains the age of thirty-five years, without leaving lawful issue

him

surviving, the share of

my

estate

which he would have

taken had he lived to attain thirty-five years of age, shall there-

upon descend

to

and devolve upon

the lawful issue of such of

them

as

time, leaving lawful issue, per stirpes

By an

earlier provision of the will

my

surviving children and

may have

died before that

and not per capita” (paragraph 13), the testator

bequeathed, at the death of his wife, $50,000 in equal shares to daughters,

his

Lillian

a provision that

if

his wife

attained twenty-five,

income only

by a

still

Crombie and Margaret Henderson, with that

died before his daughter Margaret

daughter should be entitled to the

of her share until she should attain that age;

earlier provision

and

(paragraph 5) he bequeathed to his

daughter Margaret the income of $25,000 until she attained twenty-

and the principal to her when she attained that age. The defendant assigned his interest under the will to William D. Long as security for payment of his then and any future indebtedness to Long, and the amount now due to Loiig is said

five,

to be $26,463.93.

The defendant subsequently assigned Bank of Canada as

will to the Sovereign

his

interest

under the

collateral security for

loan of $121,500. After these assignments Holt Renfrew

-

^

Company

^

-

a,

-

obtained an

attaching order from the 10th Division Court of the county of

XVI.

ONTARIO

York, attaching

all

LAW

REPORTS.

175

debts due from the executors to Charles A. Mer edith,

Henderson, to satisfy a judgment obtained by the attaching creditors

against Henderson

The

on November 2nd, 1906.

made by my brother

receiving order

^

made without

to be

in that court

Britton

.

.

,

prejudice to the rights of

any

prior incum-

brancers.

The applicant contends that the the will

of

effect

paragraph 15 of

made by the defenBank of Canada, and that the Holt Renfrew Company is ineffectual, because

to render invalid the assignments

is

dant to Long and to the Sovereign attaching order of

the interest of the defendant under his father’s will

not an attach-

is

able or garnishable debt.

am

I

of opinion that the contention of the plaintiff as to the

invalidity of the assignments

The

restriction sought to

is

not well founded.

be imposed by the testator,

would deprive the beneficiaries of the power

payments

by the

all

power

both the income and the corpus until the times

of alienation of

fixed

of anticipating the

income to which they are entitled and

of the

valid,

if

testator

when they

the periods

as

are to

receive

them. If,

as counsel for the

the Lord

2 Russ.

M.

contended, and was said by

(Brougham),

Chancellor

&

plaintiff

by Mr.

197, cited

Woodmeston

in

prevents a party from imposing fetters

Walker,

v.

'Hhe rule of law which

Elliott,

...

upon property

is

precisely the same, I apprehend, in personal as in real estate” (p.

Blackburn

204),

McCallum,

v.

33

S.C.R.

clusive against the validity of the restriction

is

65,

con-

which the testator

has sought to impose upon the powers of alienation of that which

he bequeathed to the defendant.

The Supreme Court

of

Canada, in that case, determined that

a restraint upon alienation general in character, though limited as to time, as

is

Re

Neither

the restraint in this case, Porter,

&

nor Re Martin

and both

of

them

modes In

upon

O.L.R.

399,

invalid.

cited

by Mr.

Dagneau, 11 O.L.R. 349, help the

are distinguishable

on a ground which restriction

13

is

is

from Blackburn

not applicable to this case,

alienation

was not

v.

Elliott, plaintiff,

McCallum

viz.,

that the

general, but limited to certain

of alienation.

Woodmeston

v.

Walker the

Lord Chancellor,

1908

McFarlane

expressed

is

.

c.J.

after the

Henderson.

Meredith, C.J.

1908

McFarlane *

LAW

ONTARIO

176

V.

Henderson.

REPORTS.

[vOL.

passage from his judgment which I have quoted, went on to say: ‘‘Thus, where the subject

a

which he

estate

life

is

a personal chattel,

up the use and enjoyment

so to tie

may

of

not alien;

it

by annexing

impossible

although the object

may

known

rules

be attained indirectly in a manner consistent with the of law,

is

as to create in the donee

it

to the gift a forfeiture or defeasance

on the

happening of a particular event, or on a particular act being done, for in that case the

of

donee takes by the limitation a certain

which the event or act

is

estate,

the measure; and upon the happening

of the event, or the doing of the act, a

accrues to a different individual.

If

new and

distinct estate

a testator be desirous to

give an annuity without the power of anticipation, he can only

do so by declaring that the act interest of the legatee,

none

of alienation shall determine the

and create a new

of the cases bearing

upon

In

interest in another.

this subject

(and they are very

numerous) can any warrant be found for the proposition that at

law an inalienable estate can be created without any

There

is

no

over in the present case, which

gift

is

naked prohibition, not guarded by any clause

gift over.

that of a mere of

forfeiture’^:

p. 204.

The reasons

for the rule of equity

which enables a restraint to

be imposed on the separate estate of a married hibiting her

from aliening

it

woman by

pro-

or depriving her of the power of

by the Lord Chancellor “an invention of equity, it followed that the same Court which invented, might mould and modify its own creation in whatever manner anticipation are, further on, pointed out

as resting

it

upon the

thought

basis that the separate estate being

fit”: pp. 205-6.

Having come to the conclusion that the restriction sought to be imposed by the testator is invalid, it would seem that no good purpose would be served by continuing the receivership subject to the rights of

Long and the Sovereign Bank,

the aggregate, as I understand

it,

as their claims, in

exceed the value of the interest

of the defendant in his father’s estate present

and

I

will,

therefore,

plaintiff desires to If

he desires

a week, and

this, if

be further heard as to this aspect of the case.

he must intimate his desire to the registrar within

he does so the case

point mentioned.

and prospective,

refuse the motion with costs, unless the

may

be spoken to again on the A. H. F. L.





LAW

ONTARIO

XVI.]

[MEREDITH,

REPORTS.

C.J.C.P.]

National Trust Co.





177

v.



1908

Shore.



Act Life Tenant Lease by Registration of Lease Death of R.S.O. 1897, ch. 71, Life Tenant before Registration Invalid Lease secs. 32, 42, 43— R.S.O. 1897, ch. 330, sec. 24.

Settled Estates

A





upon trust “to allow my wife so long as she remains and no longer the use and occupation and the rents, issues, and And he directed that upon re-marriage profits for her own use absolutely.” or death of his wife the land should be sold and the proceeds divided among He died in 1897, and in January, 1906, his widow leased the his children. land for five years with right of renewal, and died in April, 1906. The lease was registered in December, 1906. The executors of the testator received the rent monthly after the death of the widow till February, 1907, when testator devised lands

my widow

they sold the land: Held, that the land was a settled estate within the meaning of the Settled Estates Act, R.S.O. 1897, ch. 71, and the estate during widowhood was an estate for life within sec. 42 of that Act, and that the lease when registered took effect, notwithstanding the payment of rent in the meantime to the executors, the rights of a bona fide purchaser for value without notice not having intervened. Held, also, that if this were not so the lease at any rate must be considered in equity as a contract for a valid lease, by virtue of R.S.O. 1897, ch. 330, sec. 24.

This action, which was for recovery of possession of land, was tried before

Meredith,

C.J.C.P., sitting without a jury at Stratford,

on November 5th, 1907.

The circumstances

of the case are fully set out in the

judgment.

G. G. Macpherson, K.C., for the plaintiffs contended that

garet Gibson did not take a

life

Mar-

but only an estate during

estate,

widowhood, and that the estate was not a “settled estate” within the meaning of the Settled Estates Act, R.S.O. 1897, ch. 71;

that

by Margaret Gibson did not take effect until registered, and that a new monthly tenancy had been created by the executors.

the lease

He In

referred to Woodfall

on Landlord and Tenant, 14th

re Tredwell, Jeffray v. Tredwell, [1891]

(1904), 8

O.L.R. 283;

2 Ch. 640;

In

ed., p. 9; re

Mumhy

and the Settled Estates Act, R.S.O, 1897,

ch. 71, secs. 2, 32, 42.

F. H. Thompson, for the defendant, referred to Woodfall on

Landlord and Tenant, 16th ed., pp. 151, 154, 155; Co. Litt. 42a; Wright v. Plowden (1757), 1 Burr. 282; Armour’s Real Property, 1st ed., 1901, p. 107;

Encycl. of

Laws

of

England, voL

2, p.

487;

Whitlock’s Case (1609), 8 Rep. 69 b; R.S.O. 1897, ch. 330, secs. 24, 25. 12

VOL. XVI. O.L.B.

Jan. 21.

— 178 Meredith, C.J.

1908

National Trust Co. V.

Shore.

ONTARIO

LAW

Meredith,

C.J.:

January 21.

REPORTS.

—^Action tried

[vol.

before

me

sitting

without a jury at Stratford, on the 5th day of November, 1907.

The

claiming to be the owners of the land in question,

plaintiffs,

sue to recover possession of as a

it,

alleging that the defendant occupied

monthly tenant under them, and that

his

tenancy has been

determined.

The defendant sets up that he and nine months from February

is

tenant for a term of five years 1906, under a lease to

1st,

him

from Margaret Gibson, that he entered into possession under the lease immediately

upon

its

execution,

and has ever

since remained



'

in possession.

The defendant also alleges that his lessor was entitled to the possession and to the receipt of the rents and profits of the land for an estate for life of the land, and that the lease was made pursuant to the provisions of and the powers conferred by the Settled Estates Act, R.S.O. 1897, ch. 71, and was registered in the proper registry office as required by the Act; and he claims to be entitled to hold the land under his lease during the remainder of the term, notwith-

standing that the lessor has since died.

Both owner

parties claim

under the

of the land at the

cember

By

1st,

Henry Gibson, who was

1897.

his will,

devised

will of

time of his death, which occurred on De-

which bears date June 22nd, 1896, Henry Gibson

all his real estate,

except parts of

it

specifically devised,

which do not include the land in question, to

his executors

and

executrix on (among other trusts) the following: (g)

To

allow

my wife so

long as she remains

my widow and no

longer the use and occupation and the rents, issues and profits of

the remainder of

my

real estate for her

own

use absolutely.

’’

And he directed that upon his wife again intermarrying, or upon her death, whichever should first happen, the real estate devised to her during her widowhood should be sold, and the proceeds of the sale be divided

among

his children

in equal shares, with a provision that the issue of

then surviving

any

child which

should have died before the period of distribution should take the share which the deceased child

The

if

living

would have taken.

lease to the defendant bears date

January 26th, 1906, and

contains a covenant on the part of the lessor for a renewal for a

LAW

ONTARIO

XVI.]

REPORTS,

179

further term of five years from the expiration of the term granted, Meredith,

but no reference

The

lessor

is

made

in

it

to the Settled Estates Act.

1908

Margaret Gibson died on April 21st, 1906, and the

surviving executors, under the powers conferred

C. J

upon them by the

National Trust Co. V.

and on February 5th, 1907, conveyed, with other lands, the land in question to Robert Spelman Robertson; and Robertson, on March 1st, 1907, conveyed the same lands to the Canadian Bank will, sold,

of

Commerce;

and the bank on the same day conveyed them to

and the conveyances were registered on March 11th, 1907, except that to the plaintiffs, which was registered on the 23rd of that month.

the plaintiffs;

The defendant's and to

was registered on December

lease

1906,

1st,

Margaret Gibson the defendant continued

after the death of

occupy the land.

No

by the executors, but they received from the defendant the monthly rent reserved by the lease after the death of Margaret Gibson until the land was sold by them. Robertson, the Canadian Bank of Commerce, and the plaintiffs, when they respectively acquired the land, did so with actual knowledge of the lease to the defendant and of his possession under it. The land was erroneously described in the lease as being part of lot H in the Canada Company's survey, though it in fact forms confirmation of the lease was executed

part also of lot

I.

This error

is

unimportant, as the lease contains

a description sufficient to pass the land intended to be leased,

which

described as ‘‘being

is

and shoe

store, together

now

with the

and the erroneous description

occupied by the lessee as a boot cellar

may

underneath the said store,"

therefore be rejected as falsa

demonstratio.

The

validity of the lease as one having effect

visions of secs.

under the pro-

42 and 43 of the Settled Estates Act, R.S.O. 1897,

attacked by the plaintiffs on three grounds:— That the land was not a settled estate within the meaning

ch. 71, is (1)

of the Act; (2)

That Margaret Gibson was not a person who under the

provisions of sec. 42

by that

was

entitled to exercise the powers conferred

section; in other words, that she

was not “a person

to the possession or to the receipt of the rents

demised premises for an estate for any determinable with any

life

life,

or lives, or for

entitled

and profits"

of the

or for a term of years

any greater

estate;

Shore.

— ONTARIO

180 Meredith, C. J.

1908

National Trust Co.

That the

(3)

the date of

LAW

REPORTS.

lease did not take effect until

its registration,

[vOL.

December

and that the payment

rent to the executors created a

1st,

of the

1906,

monthly

new monthly tenancy between them of this new tenancy

and the defendant, and that the existence

V.

Shore.

prevented the lease from ever becoming operative so as to be binding

on the persons entitled to estates subsequent to the estate lessor

under the

will.

Settled estates are defined

any

and

tenure,

all

2

(1)

—to be “any Act

interests in

2

sec.

(2)

—to be ‘‘hereditaments of any such hereditaments,

and a settlement

of a settlement

other instrument, or any virtue of which



estates or interests in

which are the subject sec.

of the

of

such instruments, under or by

of

any tenure or any

any such hereditaments stand limited of succession, including

any one or more

affecting the estates of

That the land

is

estates or

to or in trust for

any such instruments

of such persons exclusively.”

a settled estate within the meaning of the Act

In

appears to be clear:

Eq. 587; Carlyon

defined

of Parliament, deed, agreement, will or

number

any hereditaments

any persons by way

is

re

Morgan’s

v. Truscott (1875),

Settled Estate (1870),

L.R. 9

L.R. 20 Eq. 348; In re Cornell

(1905), 9 O.L.R. 128.

That the ferred

by that

of sec.

section

during widowhood life

defendant was such a person as

lessor of the

under the provisions

until the event

is

is

is

entitled

42 to exercise the power of leasing con-

not open to serious question, for an estate

an estate for

upon which

life,

and as perfect an estate for

to terminate takes place as

it is

had been granted absolutely: Co.

Litt. 42a;

and Tenant, 16th

Armour on Real Property,

106-7;

Re Game’s

ed., pp. 154-5;

if it

WoodfalTs Landlord pp.

Settled Estates, [1898] 1 Ch. 324.

Section 32, relied on

by the

plaintiffs,

which provides that

leases “executed in pursuance of the exercise of any of the powers

conferred

by”

the Act “shall not take effect until registered in the

proper registry or land

and that the

by the

titles office

where the lands are situate,”

lease or duplicate to be registered shall be executed

lessee as well as the lessor, does not, I think, help the plain-

tiffs.

The purpose

of the

enactment

to sec. 33 of the English

is

made more

Act (40-41 Viet.

ch. 18),

clear

on reference

which shews that

the requirements of that section were intended to guard against

fraud or mistake.

:

,

ONTAEIO LAW REPORTS.

XVI.]

The

lease to the defendant

was

181

registered after the death of the Meredith,

widow, but before the land was sold by the executors, and in opinion

when

of rent in the

my

it took effect, notwithstanding the payment meantime by the defendant to the executors. I see

registered

why

no reason, and none was suggested in argument,

the delay in

registration and the payment of rent to the executors, the rights

bond

of a

fide

purchaser for value without notice not having inter-

vened, should have the effect of destroying the lease so far as affected the interests of the persons entitled in remainder.

If

it

the

contention of the plaintiffs’ counsel were well founded, had the

widow died on the day following the execution of the lease and before it was registered, it would seem to follow that the lease could never have taken effect under the Act. The provision as to registration is

somewhat analogous to that

ch. 16, as to

27 Hen. VIII.

of the statute of

the enrolment of deeds of bargain and

and the

sale,

purpose of the two enactments was similar. In Vaughan ex dem. Atkins v. Atkins (1771), 5 Burr. 2764, delivering the

“There than

is

judgment

of the Court,

Lord Mansfield

said, at p.

2787

no rule better grounded in law, reason and convenience the several parts and ceremonies necessary to

this, ‘that all

and by relation.’ Livery relates to the bargain and sale, a recovery to the deed

complete a conveyance shall be taken together as one act; operate from the substantial part, seisin,

inrollment to

which leads the use; especially

when

it

so admittance shall relate to the surrender,

a sale for valuable consideration, as

is

in'

this

case.”

The in

rule

quoted by Lord Mansfield was applied in

an early case: Doe ex dem. Stafford

The language statute of

of sec.

32

Henry VIII.

differs in

The

v.

some

Brown

Province

(1833), 3 O.S. 90.

respects

latter enacts that

this

from that

“no

of the

lands, manors,

tenements or other hereditaments shall pass, alter or change from one to another, whereby any estate of inheritance or freehold shall be

made

to be

the

or take effect in

any person or persons, or any use thereof of any bargain and sale thereof, except

made, by reason only

sale be made by writing indented, sealed and manner prescribed by the Act within six months

same bargain and

enrolled” in the

next after

its

date;

while the provision of sec. 32 of R.S.O. 1897,

ch. 71, is that the lease shall

meaning

not take effect until registered.

of this cannot, I think,

be that no

effect

The

whatever qs to be

C.J.

1908

National Trust Co. Shore.

LAW

ONTARIO

182 Meredith, C.J.

1908

National Trust Co.

given to the lease until does not attach to

why when from

its

it

it is

until

REPORTS.

if

this

the registration takes place the lease should not operate

execution,

—the substantial part,—by

be not

so, as I

have

said, ! see

However,

relation.

no reason why in the circum-

stances of this case the lease did not

when

under the Act and become valid against

registered take effect

other persons entitled

all

widow under the

to estates subsequent to the estate of the

ment:

effect under the Act and there is no reason

registered,

V.

Shore.

but that

registered, it is

[vol.

settle-

sec. 43.

am wrong

however, I

If,

my

in

view as to the third objection,

the provisions of sec. 24 of R.S.O. 1897, ch. 330, afford a complete

answer to the objection.

The

section

‘‘24.

as follows:—

is

Where

any power

in the intended exercise of

of leasing,

whether derived under a statute, or under any instrument a lease has been, or shall hereafter be granted, of the non-observance or omission of

which

is,

some condition or

.

.

.

by reason

restriction,

or by reason of any other deviation from the terms of such power, invalid as against the person entitled, after the determination of

the interest of the person granting such lease, to the reversion, or against other the person who, subject to

any

lease lawfully granted

under such power, would have been entitled to the hereditaments comprised in such

made bond

lease,

such

and the

fide,

have entered thereunder,

lease, in case

lessee shall

named

the same liave been

therein, his heirs

.

be considered in equity as a contract

for a grant at the request of the lessee, his heirs

valid lease under such power, to the like purport invalid lease as aforesaid, save so far as

and

... effect as

of

who would have been bound by

under such power

“Provided If

.

shall

a

such

any variation may be

necessary in order to comply with the terms of such power; and

persons

.

.

all

a lease lawfully granted

be bound in equity by such contract.

.

the lease in question

is

invalid as a lease having effect under

the provisions of secs. 42 and 43 for the reasons urged in the objection, the section quoted, in

my

opinion, applies,

and makes the^

under the power conferred

lease a

good contract for a valid

by

42 of the Settled Estates Act, binding upon the

sec.

in equity,

and possession under

lease

it is

plaintiffs

a sufficient answer to the action:

.

ONTARIO

XVI.]

LAW

Farwell on Powers, 2nd ed., p. 345;

1

REPORTS.

183

Key & Elphinstone Precedents,

5th ed., p. 847. I

Meredith, C.J,

1908

must not be understood

as assenting to the

learned counsel for the plaintiffs that the

payment

argument

of the

of the rent to

and

National Trust Co. V.

by the executors after the death of the widow had the effect of a new demise of the premises by the executors from month to month. It was certainly not so intended by the defendant, and I would find upon the evidence that such a new tenancy was not created. If any new tenancy was created it was a tenancy from year to year, and not a monthly tenancy, but I think that none of that or any other nature was created. In my opinion the action fails and must be dismissed with costs. the acceptance of

it

A. H. F. L.

Shore.

ONTARIO

184

[IN

REPORTS.

[vol.

THE COURT OF APPEAL.]

The Keewatin Power Company v. The Town of Kenora. The Hudson’s Bay Company v. The Town of Kenora.

a A. 1908 Jan. 22.

LAW







Streams Water and Watercourses N on-tidal Rivers Grant Lands Bordering on Title to Bed of River ad Medium Filum Aquoe

Rivers and

Common Law

——

Doctrine

R.S.O. 1897,



of

ch. Ill, sec. 1.



The common law

of England relative to property and civil rights as introthis Province in 1792, now enacted in the R.S.O. 1897, ch. Ill, sec. 1 except in so far as repealed by Imperial legislation having force in this Province, or by provincial enactments, is the rule for the decision of the same. Where a grant of land is made bordering on a river, if a tidal river, the title to the bed is presumed to remain in the Crown, unless otherwise expressed in the grant; whereas if non-tidal, whether navigable or not, the title in the bed acL medium filum aquce is presumed primd facie to be in the riparian proprietor. Where, therefore, lands were granted by the Crown bounded by the Winnipeg River, a non-tidal river, the title to the bed of the river ad medium filum aquce was held to have passed to the riparian owners by virtue of the grant to them, there being nothing in the grants, particulars of which are set out in the case, to rebut the presumption. Judgment of Anglin, J., at the trial, varied.

duced into



,



These were appeals from the judgments

of Anglin,

J.,

re-

ported 13 O.L.R. 237.

On September C.J.O.,

23rd, 1907, the appeals were heard before Moss,

Osler, Garrow, Maclaren and Meredith, JJ.A.

The appeals were argued t

WallaceNesbitt,W.C.,2in.d.

together.

John Jennings,

iov the

Keewatin Com-

pany. L. G. McCarthy, K.C., and ,C._A. Moss, for the Hudson’s Bay Company. The first question to be considered is as to whether the river was or was not a navigable river; and this depends on its condiThe Winnipeg River was tion in its natural unimproved state. The portion not, as a whole, in its natural state, a navigable river. in dispute here, namely, the eastern outlet of the Lake of the Woods, is a distinct and separate outlet of insignificant character, river and non-navigable. The navigable portion of the commences some fifteen miles below; if a public water highway

^

existed

from the Lake

formed part

of

it.

of the

Woods, the eastern

The respondents treated

it

outlet never

themselves as

non-navigable by omitting to comply with the requirements of the R.S.C. 1886, ch. 92,

sec. 2,

now

R.S.C.

1906,

ch.

115,

sec.

1

(•

,

4,

LAW

ONTARIO

XVI.]

REPORTS.

185 consent

C. A.

when they built the dam. non-navigability by accepting the

1908

which otherwise would have rendered necessary the Govemor-General-in-Council

of the

They

also

admitted

its

lease from the Province of Ontario without the required provision

bed

as to the

of the river, 61 Viet, ch, 8

navigable or not

but that

it

is

Whether

(O.)

really immaterial, for there

was a non-tidal

The bed

river.

This clearly would be so at

the Act of 1772, 14 Geo. III. ch.

now

1,

was

question

of the river therefore

passed to the appellants as riparian proprietors grant to them.

no

is

it

by

virtue of the

common

and by

law;

contained in R.S.O. 1897,

common law was introduced into At common law the rules applicable

country

ch. Ill, sec. 1, the

this

to its full extent.

to rivers are:

(1)

In navigable tidal rivers, the right to the bed of the river, ad

medium

filum aquee, remains in the Crown;

tidal rivers the right

and

(3) in

is

presumed to be

(2)

in non-navigable

in the riparian proprietor;

navigable rivers above the tide, the right

to be in such proprietor.

is

also

presumed

In the case of the Great Lakes and inter-

national waters a contrary presumption might be invoked, as there are dicta of learned Judges tion;

which would give force to such presump-

but there has been no actual decision on the point.

no inconvenience or inconsistency in holding that a river highway, and at the same time subject

to the

its

public easement

bed of

There is

is

a public

in the riparian proprietor,

is

navigation.

It

cannot be

assumed that the Crown, as represented by the Province, intended to reserve the river

bed for the protection

public

of

right

of

The Province has no jurisdiction or control over navigation, and would therefore, have no power to make a lease reserving such right. The right to the flow and usufruct, both

navigation.

ordinary

and extraordinary,

appurtenant to the

of

the

waters

ownership of the

ownership of the bed of the stream.

of

bank,

a stream,

are

and not to the

The Crown, having granted

the fee in the lands on both banks, could not afterwards derogate

from their grant by granting the fee in the bed of the ad medium filum aquee, to others.

river,

N. W. Rowell, K.C., and George Wilkie, for the respondents. The evidence abundantly establishes the fact that the eastern branch of the Winnipeg River, as found by the

was water communication

part of a navigable river. of the links of

It

for years for

trial Judge,,

formed

known and used

as one

commerce, and transport a-

The Keewatin

Power

Co.

V.

The Town OF

Kenora.

LAW

ONTARIO

186 C. A.

tion of merchandise,

1908

that navigation

The Keewatin

Power Co. V-

The Town OF

Kenora,

is

and was

by

When

fact.

once

it is

shewn

a sufficient body of water above and below the spot

is

where the natural impediment

though

exists,

stream at that spot practically unnavigable, part of the stream in

is

it

it

may

render the

does not cease to be

The question whether or medium construction depending upon the in-

natural sense.

its

not land bounded by a navigable river filum aquce,

The fact

or rapids does not render a

falls

law or in

[VOL.

highway.

of great value as a

interrupted

river non-navigable either in

that there

REPORTS.

a question of

to be extended ad

is

tention of the parties to the instrument, to be collected from the

language used with reference to the surrounding circumstances.

Here the intention was that the bed

of the river should not pass.

In England the circumstances were such as might justify the Courts

bed

in holding that in the case of non-tidal waters the

ad medium filum

of such waters,

passed with the grant of the riparian lands.

aquce,

It is not necessarily a rule of the

drawn from the intention

common

of the parties

law, but a conclusion

under the circumstances

There the rivers and lakes which formed

as they existed there.

the boimdary of the lands granted were small in area and of

importance compared with the extent of lands granted, and

on

this principle that the

bed

of the river

was presumed

cluded in the grant of the adjoining lands.

Here small

in Canada. of the Great

The

reverse

tracts of land were granted

Lakes and large

rivers, in

is

little

it

was

to be in-

the case

on the banks

which the public had the right

would not be consistent with reason and common sense to hold that the doctrine as applied in England of navigation,

and

it

applied here.

The following set out in the

Court:

authorities were referred to in addition to those

judgment appealed from and the judgments

of this

Famham

on Water and Water Rights, 1904, 36-38, 102-3, 243-6, 249, 308, 1462, 2301-3, 2484; Gould on Waters,

121, 124,

1900, secs. 41, 45, 111;

Robertson v. Watson (1875), 27 C.P. 579;

Angell on Watercourses, 17th ed., 1877, sec. 537, 542-550, 713, note;

Regina

v.

Fisher

(1885),

1

Ex. C.R.

Attorney-General

121;

v.

Fraser (1907), 37 S.C.R. 577; Esquimau Waterworks Co. v. Victoria (1906), 4 of

W.L.R. 59; 3 Kent’s Com.,

Law, 2nd

ed., vol. 21, p.

425;

sec. 439;

Coulson

Amer.

&

pp. 65, 98, 100; Woolrych on Waters, 2nd ed., 42; daries, 5th ed., p. 16;

Earl of Ilchester

& Eng.

Encyc.

Forbes on Waters,

Hunt on Boun-

v. Rashleigh (1889), 5

Times

ONTARIO LAW REPORTS.

XVI.]

187

Anthony Falls

C. A.

Paul Water Commissioners (1897), 168

1908

Beatty v. Davis (1891), 20 O.R. 373;

L.R. 739;

Water Power Co.

St.

v.

U.S.R. 349, 359-61.

Moss, C.J.O.:

January 22.

and

on to

carried

The

trial

—These

commenced among others,

actions were

with the object and purpose,

the defendants from expropriating any lands or

of restraining

and from prosecuting

interests therein belonging to the plaintiffs,

arbitration proceedings to ascertain the value to be paid for such

lands or interests, and from trespassing on the properties of the

and for a mandamus to compel the removal by the defendants of certain structures alleged to be placed by After the trial had progressed them on the said properties. entered into an agreement whereby the parties the time, for some expropriation and arbitration proceedings were accepted and respective plaintiffs,

all

proceedings to obtain the above mentioned

were aban-

relief

doned, and the case was proceeded with for the purpose of enabling the Court to determine the rights and interests of the plaintiffs in their respective properties with a

trators as to the basis

priated lands

How

far

and

view to instructing the arbi-

on which the compensation for the expro-

interests should be ascertained.

was open to the parties and the Court to under-

it

take the ascertainment of the facts bearing on a question of this nature,

and

forestall the arbitrators in the exercise of their

and functions instructions

in that respect,

on questions

of

and

law which, in

powers

them by

anticipation

strictness,

should only

to give

be given upon a case stated by the arbitrators, has not been

The

a question.

on

this

parties appear to

apprehend no

made

difficulty arising

head before the arbitrators, and as the learned

trial

Judge

acquiesced in the course taken, and has dealt exhaustively with the cases,

we may

express our opinion

determined, or such of

them

upon the questions

of

law

as appear necessary in order to attain

the desired end.

Whether,

if

as a question of

was deemed proper or necessary to determine, fact, whether the watercourse spoken of as the

it

Winnipeg River is really a portion of that any sense a navigable stream, my conclusion upon the evidence would be the same as that reached by the

east branch of the river,

or

is

in

learned trial Judge,

it is

not needful to say.

Kbewatin Power Co. V.

The Town OF

Kenora. Moss, C.J.O.

LAW

ONTARIO

188

He had

C. A.

1908

The Keewatin Power Co. OF Kenoria. Moss, C.J,0.

we do not

the advantage, which

[vOL.

possess, of a personal

view and inspection of the locus in quo, and, as he

\dews

states, his

as to the character of the waters at the point in dispute are largely

based upon this inspection. But, in the \iew I take,

V.

The Town

REPORTS.

it is

not necessary to pursue this sub-

ject further.

As

I

gather from the judgment, the learned

trial

Judge’s con-

clusion of law, based on the assumption that the east branch is h navigable stream, are as follov/s: (a) The presumption of law is that a grant by the Crown of lands bordering on a navigable

stream does not carry fore, (6) that, tiffs

title

to the thread of the stream; and, there-

notwithstanding the respective grants to the plain-

of the lands bordering

on the stream in question, the

to the bed remained in the

Crown;

(c)

that there

is

title

nothing in

the instruments themselves manifesting a grant beyond the shore line or

overcoming the primd

trary,

(d)

facie

they contain language,

presumption; but, on the conor, at all events,

the grant to

the Keewatin Power Co. contains language, which, on a proper construction, rebuts or repels

and

of the stream;

(c)

any intention to grant to the thread

that the plaintiffs are entitled to the usual

by law to riparian proprietors, subject, however, as regards the Keewatin Power Co., to the special restrictions specified in paragraphs 2 (b) and 2 (c) of the formal judgment. The stream or watercourse in question is situate, of course, far from the ocean, and is not subject to its tidal action. It is what is called in England a non-tidal stream, and, if situate there, would not, as regards the presumption as to property in the bed, rights accorded

be subject to

the

rule

of

law applicable to tidal

On

rivers.

the contrary, the presumption would be that the grant of the

lands on the border of the stream carried with of the

bed to the thread

it

the ownership

of the stream, subject, of course, to

such

public rights of navigation as might exist.

That

is

the

common law

of

England, as expressed in

decisions of the Courts, and, as the learned trial

‘Hhe doctrine

of the

common

many

Judge observes,

law, as administered in England,

that, whereas in tidal navigable waters the title to the alveus

presumed to remain

in the

Crown

is

unless expressly granted, in

all

non-tidal rivers, whether in fact navigable or non-navigable,

the

title

to the alveus

is

presumed to be

in the riparian proprietors,

is

LAW

ONTARIO

XVI.]

REPORTS.

189

too long and too clearly established to admit of any controversy.”

Bearing in mind that to-day the law of this Province enacted in R.S.O. 1897, ch. Ill, sec.

1,

that in

is,

as

matters of con-

all

troversy relative to property and civil rights, resort shall continue

had to the laws

to be

England as they stood on the 15th of

of

October, 1792, as the rule for the decision of the same, except so far as the said laws

may have

been repealed by Imperial

lation having force in this Province, or

Legislature, the

by Acts

legist

of the Provincial

above statement of the law of England might

have sufficed to lead to conclusions contrary to those stated under sub-heads

and

(a)

No doubt

(6).

the learned

trial

Judge would

have so held but for the argument to which he gave having regard to the

many

lakes

effect that,

and streams within the

terri-

torial limits of

the Province, some of which are of great magni-

tude and very

many

tions

of

and circumstances

common law

rule of the

which are navigable in

fact,

the condi-

of the Province render inapplicable the of England.

In face of the very plain and explicit language of the Act R.S.O. 1897, ch. Ill, sec. since its first

to the suggestion that has

pretation tion

is

I feel great difficulty in acceding

been made that no wider rule of inter-

to be applied to

is

which has been continued unchanged

1,

enactment in 1792,

it

than

by settlement.

With much

to be given where the ques-

deference, I cannot but think that,

under a statute framed as ours, a especially of the ciples of the is

is

as to the scope of the laws introduced into a colony acquired

much

larger

body

of the law,

broad and well-understood doctrines and prin-

common law

introduced than

is

with regard to property and

to be

deemed

the settlers or colonists of a

civil rights,

to be carried with

new uninhabited

them by Until

country.

the latter have established a system of laws for themselves,

it is

reasonable and convenient that the administration of the system

which they carry with them should be modified and even restricted

by considerations applicable to their situation and condition the new land. But when in the establishment of a system laws

it

is

distinctly

and unequivocally declared

that,

troversies relating to certain subjects, such as property

in of

in

con-

and

civil

be had to the common law of England as it on a certain day, wffiat warrant is there for saying that

rights, resort shall

existed

the rules of property prevailing at that time are not to be ad-

C. A.

1908

The Keewatin Power Co. V.

The Town OP

Kenora. Moss, C.J.O.

LAW

ONTARIO

190 C. A.

ministered?

1908

would lead to manifest absurdity.

The

can easily be

Keewatin Power Co. V.

The Town OF

Kenora

REPORTS.

Certainly none, unless

by the

applied

it

[vOL.

can be seen that to do so

And

in such case the

remedy

To what extent

Legislature.

such an enactment introduces local Acts of Parliament or local customs, or usages not forming part of the far they are to be

common

how

law, or

deemed modified by circumstances,

is

another

question.

But what reason

Moss, C.J.O.

doctrine of the

stream in that

it is

this

of

England?

application,

it

found, as in this instance,

is

—indeed,

much narrower than many plicable in

England to a non-tidal but navigable

where

Province,

short and narrow

applying a well-understood

for not

exists

common law

much

very

shorter

and very

streams to which the doctrine

It is said that the rule

and that to apply

it

must be

is

some streams or the Great

to

Lakes would lead to incongruities and possible absurdities. is

of

ap-

of general

But

there any ground for saying that the application of the rule

presumption would necessarily lead to such a result?

nothing more than a primd facie presumption, and, like buttable presumptions,

There

stances.

is

may

is

to

we

many

the case in

it

is

rebutted,

facie

in non-tidal navigable streams.

presumption

some extent or wholly

and

all cases.

instances in England, occasionally in

and not infrequently

Whichever primd

re-

nothing incongruous in the fact that in some

that in that sense the rule does not apply generally to

tidal streams

all

be repelled by countervailing circum-

cases the presumption prevails and in others

That

It is

is.

applicable,

it

may

In

to other circumstances.

yield

this- case

are not dealing with the Great Lakes nor with a river forming

part of the international boundary.

primd

facie

buttal.

On

But

in these instances the

presumption would probably be not

difficult

of re-

the other hand, in the case of streams, of which

there are not a few throughout the Province, as, for instance, in

the

Muskoka

to afford

which are navigable for many miles by vessels

region,

of considerable

room

and burden, but which are so narrow as only one vessel to pass up or down at one

size

for

and the same time,

it

would be very

difficult,

under ordinary

conditions, to repel the presumption. I

am

not unmindful of the fact that in a number of instances

there are found expressions of very learned

favouring the view that the rule of the

and able Judges strongly

common law

is

inapplicable

LAW

ONTARIO

XVI.]

to the Great

Lakes and

REPORTS. But, while there

C. A.

no actual decision on the

1908

rivers of this country.

are these expressions, there has been

191

direct point.

So far as the actual decisions are concerned, not one

in-

is

consistent with the continuance of the rule that, in respect to

streams of the character of the one in question here, the primd facie

presumption

bank

carries

with

The learned

that the proprietorship of the land on the

is it

the right to the

soil

ad medium fllum

which the expressions occur, and observes

them does the question now presented appear have been expressly decided. In this I agree, and I confess

that in none of to

that, like him,

notwithstanding

all

that has been said, I see no

incongruity and no difficulty likely to result from the application of the

rule

presumption arising from proprietorship of the

of

bordering land to our numerous inland rivers which are navigable

As before stated, the presumption is rebuttable. The point is tersely stated by Lord Blackburn, in Caldwell v. McLaren (1884), 9 App. Gas. 392, when he says (p. 404) “They

in fact.

:

Lordships of the Judicial Committee) “think there can be

(their

no doubt that by the law of England the owner both sides of a running stream, whether is,

primd

facie at least,

And

the stream.’'

owner

of the soil

later, in 1887,

it

of the soil

on

be navigable or not,

which forms the bed of

by Bowen,

L.J., in

Blount

v.

Layard, reported as a footnote to Smith v. Andrews, [1891] 2 Ch. 678, at pp. 681, 689:

“The

natural presumption

is,

that a

man whose

land abuts on a river owns the bed of the river up to the middle of the stream,

sumption

is

unless

is

it

may

if

he owns the lands on both

a tidal river.

may

.

.

But these

.

are presumptions

be rebutted.”

be noted, in connection with the case of Barthel

Scotten (1895), 24 S.C.R. 367, in

on the bank

tourts of that State have

is

v.

which lands in Ontario, situate

of the Detroit River,

opposite shore of that river

hat,

sides, the pre-

that the whole of the bed of the river belongs to him,

of fact, which It

and

were in question, that on the

the great State of Michigan.

by a long

The

line of decisions established

“as an incident to the ownership of lands on the margins

of na\dgable streams, the

to the

V.

The Town OF

Kenora. Moss, C.J.O

aquce.

Judge, in his elaborate and able judgment,

trial

refers to all the cases in

The Keewatin Power Co.

law of Michigan attaches the legal title submerged lands under the stream comprehended within

ONTARIO

192 C. A.

1908

The Keewatin Power Co. V.

The Town OF

parallel

REPORTS.

[vOL.

extending perpendicular to the general trend of

And

the shore along his land to the centre of the stream.”

apparently the rule applies as well to the Detroit River as to other navigable streams. it

Indeed, as the learned

Judge mentions,

trial

has been expressly held to apply to the St. Mary’s River, a large

navigable stream forming part of the international boundary.

Kenora. Mobs, C.J.O.

lines

LAW

do not, of course, suggest that the decisions of the Courts

I

Michigan should be accepted as decisive of any point of law

of

in this Province.

merely refer to the law of Michigan as shewing

I

an apparent ‘incongruity” in regard to ownership of the

stream on different sides of the same

my

In

opinion, the rule of the

of the

bed

river.

common law

as to the

presump-

tion of title in the beds of the streams, whether navigable or

non-navigable, in the

first

still

and

prevails in this Province,

Whether there

instance.

is

to be applied

exist circumstances or con-

ditions sufficient to repel the presumption

a question to be

is

dealt with in the particular case.

have already said that in the case

I

some

Lakes and and conditions would

of the Great

of the rivers rebutting circumstances

not be far to seek.

As regard the stream

in question,

and many others navigable

in fact as well as in law, in esse as well as in posse, the

tion

is

Primd

facie there is

nothing to distinguish them from similar

streams in England or Ireland. similar to

navigation

is

any

of

serious inconvenience.

England as introduced by the statute is

not disto

them

The public

right

in such cases resort shall not be

The remaining question in the

are

In short, there seems

not thereby affected.

no good reason why law

The conditions

any appreciable extent, nor does the application

of the rule lead to

of

presump-

not easily overcome.

had

to the

of 1792,

whether there

is

anything either

terms of the grants themselves or in the surrounding circum-

stances to overcome the primd facie presumption.

As regards the grant

to the Hudson’s

Bay Company,

the learned

trial

Judge points out that the so-called reservations contained

in

of the right of

it

not

inconsistent

navigation and of access to the shore are

with the

presumption,

if

it

depth for fishing

exists.

So the

bank one chain in purposes, which seems to 'have created more

reservation of the right to use a strip along the

LAW

ONTARIO

XVI.

the

difficulty in

with the

mind

to the

title

of

bed

REPORTS.

193

the learned trial Judge, of the

consistent

is

stream ad medium filum

aquce.

Without the reservation, the exclusive right of fishing would be

The

vested in the grantees: Smith v. Andrews, [1891] 2 Ch. 678.

would have no

public

right

fishing in

of

The

it.

reservation

merely shews an intention to preserve to the public a right of

from the shore with nets which otherwise they would not

fishing

In the absence of the reservation, the grantees would

have.

have the exclusive

A

right.

free fishery

may

exist in private

waters by grant or presumption from the owner of the

soil.

He

may grant the right to another or others exclusively or to them common with himself: Bloomfield v. Johnson (1867), I.R. 8

in

Here

C.L. 68, at p. 107.

all

Crown has done

that the

is

to reserve

for the benefit of the public a right which otherwise the grantees of the soil

would have been exclusively

entitled to.

In the case of the grant to the Keewatin Company, the argu-

ment against the presumption in addition to the grant of

rests largely

upon the

fact that,

Tunnel Island, the grant comprises

two small islands in the west branch

of the

Winnipeg River, be-

tween Tunnel Island and the mainland, a block of land on the south shore of the mainland, and

all

the

islets

or reefs of rock

and the land under water in the west branch, between Tunnel Island and the block of land on the south shore.

seem to me material to consider whether the grant islets

and

made

the grant do not set reefs

of the

in parcel

(e)

title

Whatever the reason, the

effect is to

render

to the bed of the stream in the part indicated

There

west branch.

may have

been some good reasons

supposing that, as respects the west branch, there were con-

ditions

which rendered

in respect to

law

and land under water comprised

them.

undoubted the

ing

in the part mentioned was The resome other intention. forth any application to purchase

and apparently no additional consideration was paid

in respect of



and land under water

reefs,

islets,

thereof,

for

not

ex majore cauteld or with

citals in

the

It does

of the island,

it.

it

advisable to put an end to

on the east branch, does is

overcome?

all

question

But, as respects the portion of the land borderit

follow that the presumption of the

The east branch and not calling

ently circumstanced,

is

in

a different stream, differ-

any way

for special

words

of grant in order to secure the grantee in the rights usually apper13

—VOL.

XVI. O.L.B.

C. A,

1908

The Keewatin Power Co. V.

The Town OF

Kenora. Moss, C.J.O.

ONTARIO LAW REPORTS.

194 C. A.

taining to owners of bordering lands.

1908

away from them necessary than the employment

The Keewatin Power Co.

Moss, C.J.O.

that, in is

of language which, in itself,

is

not inconsistent with the existence of the right.

The proviso that the grant

The Town OF

me

appears to

that right, something more

order to take

V.

Kenora.

It

[vOL.

subject to the condition and

is

understanding that nothing therein contained shall be construed

upon the grantees exclusive rights elsewhere upon upon any other streams flowing into or out of said lake, must be read with special reference to the fact that exclusive rights have, by force and virtue of the grant, as conferring

the Lake of the Woods, or

been conferred with reference to the east branch. reservation as in the grant to the Hudson's for fishing purposes,

carries

with

it

subject to the public right of navigation.

right,

must

and the grant

There

Bay Company

is

no

of rights

the exclusive

The proviso

also be read in the light of the fact that the grant affects

the two watercourses or streams, and the proviso should, therefore,

much

be taken as referring not so

Lake

flowing into or out of the

On

the whole, I

of

my

opinion,

it

as to other streams

unable to see that the presumption of

overcome by anything in the grant

title is

In

am

them the Woods. to

itself.

should be declared that the

to the bed

title

middle of the stream, passed by

of the east branch, as far as the

the respective grants to the plaintiffs of the lands in the east and

west banks thereof respectively. entitled to

whatever

such ownership. proprietors,

confer

and

benefit or

It is it is

upon them

The

respective

advantage

conceded on

all sides

is

to be derived from

that they are riparian

a question whether that does not, in effect,

rights in the stream quite as valuable in a pecu-

niary sense as flow from their ownership of the

be

so,

are

plaintiffs

the plaintiffs

will, in

soil.

And

any event, obtain before the

if

that

arbitrators

the compensation proper to be allowed.

The ments

result will

be that the appeals are allowed, and the judg-

at the trial are varied so as to give effect to the

judgment

now pronounced. The and

respective plaintiffs are entitled to their costs of the actions

of the appeals.

But, in the view of the agreement

made

at

the trial involving the adoption of the expropriation and arbitration proceedings, the costs will not include the costs of

and

LAW

ONTARIO

XVI.]

REPORTS.

incidental to the motions for injunction. of

them by the learned

The

195 disposition

made

1908

Judge should remain undisturbed.

trial

The conclusion reached renders unnecessary any inquiry into the foundations of the law of England as to the title of the Crown the

in will

bed of

tidal

rivers.

But

venture to think that

I

it

be found that the prerogative rights of the Sovereign took

their rise

in the necessity for providing for the defence of the realm

and the protection and safety weal of the public at large

of the public



—the general common-

—rather than the necessity of protecting

the rights of the public in navigation

and

fishing.

come on for trial before me, I would have refused to consider the main question involved in them, for these reasons: the litigation was not real litigation; the actions were actions brought by agreement between the parties for the determination of questions which had not actually arisen between them, and which might never have any substantial Meredith, J.A.

:

If

these actions had

upon the things which were actually

effect

them; and the main question involved affecting

innumerable

titles to land,

is

in controversy

between

one of the very widest range,

and

essentially one

which ought

not to be determined except in litigation between persons having

and having

a substantial interest involved in its determination,

the right to have

it

considered.

The

parties are engaged in

arbitration respecting the value of certain lands.

It

may

an

be that

the question of the ownership of the .bed of the stream in question

may become

arbitration,

but

a question of substantial importance in that

it

may

possibly be that, having regard to the

undisputed rights of the land owners, the arbitrators

may deem

the question of the ownership of the bed of the stream of no substantial concern.

raised

the

any such

It

would have been quite time enough to have

litigation as this

main question to stand

when

in their

the arbitrators had found

way; and, having now ample

power, easily exercised, of finding out what the law of a stated case,

superfluous

is,

by means

they should have adopted that course, and so

—superfluous

been avoided.

have referred to reconsidering

it

in any event—litigation would have But the actions were heard, and the question I was considered; and so there is no escape from

here,

though that does not prevent an expression

of regret that other persons,

C. A.

having undoubted and great interests

The Keewatin Power Co. V.

The Town OP

Ken ORA. Moss, C.J.O.

LAW

ONTARIO

196

REPORTS.

[vOL.

C. A.

of the

1908

but are having their real property rights affected in a very sub-

The Keewatin Power Co. V.

The Town OF

way behind

stantial

may

coming to the

and by

their backs,

litigants

who may

who As a

or

a grant

grantee

waters

in

England,

owner

the

is

this title

better not to

whether the well-settled

is,

a moiety of the

to

much

abutting upon the

land

of

be found

will

it

jump

before

ditch.

The main question title

are not before the Court,

it,

not be substantially interested in the like manner.

very general rule

Kenora. Meredith, J. A.

most substantial character in

soil

of

is

it,

applicable to

That,

Province.

highway ordinarily gives

or under the way,

of

by which

rule,

according

when the

inland navigable

law

the

to

of

would pass to the medium filum aquce or vice, Such has always

might be, cannot be questioned.

as the case

been the law of England, though in regard to some waters

it

does not appear to have been well understood until after Lord that, however,

Hale’s time;

We

is

immaterial.

with the indisputable fact that, according to

start, then,

the law of England, the rule would apply to this case whether

the river

is

navigable in fact or not,

picion of being a tidal river.

it

being quite out of

Then we have the

sus-

all

likewise indis-

putable fact that, by legislative enactment, the laws of England, as they were

on 15th October, 1792, are to be the

rule for the

decision of such a controversy as this, except in so far as repealed

by Imperial legislation having force in this Province, by the laws of this Province, in its present or earlier stages existence, still in force. These facts, put together, seem to

or varied or of

me

to be conclusive against the defendants’ contention, conclu-

sive that the rule does apply to the river in question

navigable or not,

it

lation repealing or var5nng such legislative as

it

whether

being admitted that there has been no legis-

enactment in so far

affects this question.

But

it

is

said that the natural conditions of this country are

such as to render the rule quite inapplicable to navigable nontidal waters here.

That

so, is judicial legislation

remedy?

The proper

I quite deny.

the proper, or

legislature

is

But, assuming is it

quite

competent to apply

all

needed

so,

even in matters of comparative insignificance;

relief,

and, constantly,

shews

to be

it

at all a permissible,

its

since legislated in this very matter, in so far as

readiness

it

and

to it

dO;

long

affects nearly

public roads,

all

LAW

ONTARIO

XVI.]

by

REPORTS. and freehold

vesting the soil

and giving the municipal councils

jurisdiction

1903, secs. 599, 600

Crown,

C. A.

over them and

1908

in the

the Consolidated Muni-

vesting such roads in the municipalities: cipal Act,

197

and 601.

If

we may take

this

subject out of the statutable rule as to the laws of England,

may

we

with equal propriety, or impropriety, take any other subout of

ject

it,

we may think

because, in plain language,

it

ought

The statute plainly declares what come within the rule, namely, ^^all matters of controversy It gives no excuse for relative to property and civil rights.” in the wisdom exceptions or at the will or introduction of the whim of any Court, Judge, or judicial officer. The fact that not to have been included.

shall

such legislation has for such a length of time taken the subject out of the realm of

common

experience, no doubt, accounts for

much misunderstanding

of its character

may exist against it. common sense, and is

But

ence.

It is

it

is

and some prejudice which

founded upon the plainest of

a rule of great convenience, not inconveni-

but a rule of interpretation, which, of course, gives

way when a contrary intention is made apparent, whether It the writing itself or by the surrounding circumstances.

in is

hardly conceivable that, under ordinary circumstances, a person

owning land extending to the middle and conveying, intends to reserve the It

is,

as abutting on, or

and the mere

extending

to, or

is,

highway, and

selling

under the highway.

which the

tail is

intended

fact that the lands are described

bounded by, the highway ought

not to prevent the land subject to the it

strip

in almost every instance, a case in

to go with the hide,

for

of the

way

passing to the grantee,

in the vast majority of cases, inconceivable that the

grantor intended to retain such a strip, absolutely useless, and

The same

possibly onerous, to him.

And what

applies,

with at least equal

it make owned by the Crown jus privatum, or in the form of the Crown Lands Department of this Province, or is owned b}^ any one else. The jus publicum is the same. The Crown may sell, just as any other owner may, and in this very case has expressly sold and conveyed part of the bed of this river; and in selling the Crown Lands Department, just as any other business concern, has an eye to the main chance. This very case affords a striking example of what I mean. This contest

force,

to

a waterway.

whether the

soil

or land

is

real

difference can

The Keewatin

Power

Co.

V.

The Town OF

Kenora. Meredith, J. A.

LAW

ONTARIO

198 C.A.

is

1908

purposes and in private interests;

The Keewatin Power Co. V.

The Town OF

Kenora. Meredith, J. A.

REPORTS.

not in the interests of navigation, but

but to ascertain who

really wholly for private

is

that

[vOL.

to say,

is

which the defendants are acquiring

it is,

bed

entitled to the price of the

is

in truth,

of the river

for the purposes of a private

dam, a dam which will most effectually stop any such navigation as there might in a state of nature have been where it is to be, and would be a public nuisance the rule

is

the place were naturally navi-

if

So that, by reason merely

gable.

of the navigability of the river,

substantial advantage to the navigator

were held in trust for him; and

by the

held

Nor would there be any

no sense even inconvenient.

in

if it

the bed of the river

if

were, ought

it

not to be so

navigation and shipping being

federal authorities,

within the exclusive legislative authority of Parliament?

But

in this case, as in all other cases in

we

are confronted with

two

bogies,

which the question

now

so familiar that,

is

raised,

if

familiarity rightly breed contempt, they ought not to be viewed

much

The one is International Complications; other the Great Lakes and Rivers. In regard to the first,

with

surely enough to point out that, for several thousands millions

complications

line

more inflammable.

it

would be a ground the

rule,

is

intervening,

without

and that

The

are,

fact that in the Great

would be under water would hardly make

it

of

sides,

out of such ownership

arising

happily quite as rare as real ghosts.

Lakes the land

on both

line

owned zone

sort of neutral or publicly

international

it

of miles,

covered by water and privately

acres of land, not

of

owned, extend to the international

any

the

awe.

But

there w'ere

if

for legislation, or

not for the exclusion

anything in the point, taking the case out

for

of the rule

by

adjudication,

because incompatible with the circumstances, of this continent.

In regard to the Great Lakes,

I

am

not aware whether they have

ever been proved to be tide or tideless waters.

without any sort of sibly

scientific

from darkest ignorance

say that

I

knowledge of the

fact.

It

and pos-

subject otherwise, I must

would decline to consider them

dence of the

Though, speaking

of the subject,

tideless

without evi-

would seem to me somewhat strange

if

such bodies of water, though so very small in comparison with

by the attractions of the The Mediterranean the sun.

the great seas, were wholly unaffected

queen

of the night, as well as of

could hardly be called a tideless sea, though

its tides, in

most

places.

LAW

ONTARIO

XVI.]

REPORTS.

199

would be entirely unobserved by the unobservant, and the tides

C. A.

less,

and

1908

hardly discernible by the most observant, would none the

less

The Keewatin Power Co.

of the

Great Lakes, even

ten or twenty or thirty times

if

be tides; their quality would be just the same as that of the stupendous tides of the

Bay

Fundy, though

of

in quantity so far apart.

this

rule

can be applied to these lakes and rivers;

is,

perhaps, useless digression.

Ocean and other great

applicable to the Atlantic

some other

rule

was unavoidable;

filum

of course, in-

it is,

seas,

and what better

and so

rule could

be adopted than that which Lord Hale declared was always the

law of England, and which declaration ever since has been accepted

and acted upon as a correct statement

of

as appropriate to the conditions of this

country as

of

England.

Wherein

is

Assuming,

not?

it

such law?

It is just

it is

to those

that

then,

the

by reason of not being tidal water or for any other reason, within the ad medium filum, what anomaly arises from that; indeed, what difficulty of any sort? If the whole or a great part of this Province had been granted to a great company, like the Hudson’s Bay Company, or even to a body such as the Crown Lands Department, and had been described as bounded on the south and south-west by the Great Lakes and rivers, would any one doubt that the grant would carry the title ad medium filum, subject to the highway over them? And, if so, is that Great Lakes are,

not in

itself

a sufficient answer to the suggestions of inapplicability?

But

it is

of a

few acres, or of a town

said, is it

of these lakes, it

miles deep? as to

Crown grant a farm lot but a few feet, frontage upon one

not absurd that, lot of

should carry

Of course

it

title

is

if

the

to a strip of land perhaps sixty

absurd, and so manifestly absurd

unmistakeably indicate such a contrary intention as to take

the case out of the rule, which, as I have said before, struction of the

document

to a contrary intention,

stances of the case. for,

as everyone

only,

and one which

made apparent by

Again, such a case

knows,

all

is

one con-

at once gives

way

the writing or circumis

but a fanciful one,

the lands in this Province are sur-

veyed into acres,

lots, generally farm lots of one hundred or two hundred and are not only shewn upon plans of the survey, but are

staked at their angles, and sold accordingly, and

it is

say that these surveys and plans do not extend ad nor are the stakes placed under the water.

needless to

medium

The land

is

V.

The Town

The ad medium

But

filum,

invariably

OP

Kenora. Meredith, J. A.

LAW

ONTARIO

200

REPORTS.

[vOL.

C. A.

sold according to such surveys

1908

hardly,

The

a lot described as containing one hundred acres more or

Keewatin

Power

Co.

V.

The Town OF

Kenora. Meredith,

J. A.

if

at

and

If it could,

all, arise.

and

plans,

could

it

this question

can

possibly be held that less,

ex-

tending to the waters of the lake, conveyed not only one hundred acres,

but possibly twenty-five square miles or sixteen thousand

square acres.



The same

considerations apply, with

force, to the greater international rivers,

and

the same force, to the great inland bodies

also,

So that

national.

The law

of

more or

less

with precisely

water not inter-

of

this scarecrow, too, is quite harmless.

England, therefore,

is

the rule for the decision of

the statute so requires, and the Courts have no more

this case;

endeavour to evade than they have to defy that enact-

right to

ment; and even

that were not so, and

if

liberty to formulate

any other general

if

rule,

the Courts were at I

am

not able to

suggest a better one, nor have I heard of a better one suggested

by anyone

else.

Arguments based upon suggestions

plicability are but attempts to evade;

upon the

so, too,

of

inap-

arguments based

fact that in England, in one sense, only tidal rivers are

navigable rivers.

The

rule has

been adopted, and must be ap-

plied, for better or for worse, until legislation intervenes.

The our

cases ought not to present

way

plain, for the highest

subject,

obstacle, but should

authority

unmistakeable

expressed, in plain

any

words,

we have has recently its opinion upon the

an opinion directly opposed to the conclusion

Judge in these actions: see Caldwell y.

make

of the trial

McLaren, 9 App. Cas. 392,

and Farquharson v. Imperial Oil Co. (1898), 29 The opinion of the Judicial Committee of the Privy Council, in Caldwelks case, was expressed by as able and experienced a Judge as Lord Blackburn, who was certainly not a mere 'prentice hand on such a subject (see such cases as Plumstead Board of Works v. British Land Co. (1874), L.R. 10 Q.B. at

p.

404,

O.R. 206.

16,

and Orr-Ewing

v.

Colquhoun (1877), 2 App. Cas. 839, such as

and others may, with a

strict

1

regard for the truth, confess ourselves

to be in comparison with his great experience.

Whatever

views might have been, I would be content, and would

my own

feel

bound,

to give effect to the unequivocal opinion expressed in that case in

preference to the dicta of a few

among

the

many Judges, who have

sat in these lower courts, to the contrary, leaving

Council to recall their words,

if

it

it

to the Privy

be possible that they were in-



ONTARIO LAW REPORTS.

XVI.]

201

advertedly uttered; for imagining which I can imagine no excuse;

C. A.

having regard to the importance of that case and

1908

to the contrary,

which

to the stubbornness with is

in

was contested throughout,

it

it

were not relied upon

at least highly improbable that such dicta

argument, or otherwise made known to the learned members

Committee, and,

of the

if

would carry even greater weight;

case

much

the words so

so,

in point in this

may

it

be that

they

were so deliberately used.

There

is

no incongruity

when

tions or forgetfulness, or misapplications, of

stream or other body of water

is

a highway, obviously cannot take

The magnitude

for.

applied to waters

fact that the

navigable, or, in other words,

out of the rule, for that would

it

of

The

it.

take every highway, on land or water, out of

contend

which no one can

it,

the stream or other body of

water may, equally obviously, sufficiently shew a contrary intention,

not contrary to the rule, but as the rule expressly provides.

It is

not without

its

amusing features to have the super-tidal

waters of Great Britain and Ireland treated as

mere ponds and rivulets when this question It

ought not to be, though

the fact that

some

it

may

they were but

if

discussed here.

is

mind

be, necessary to bring to

of the inland waters of the

United Kingdom

even when compared with such

are really not so insignificant,

“magnificent v/ater stretches” as the east or the west branches of the

Winnipeg River

place where the

dam

is

Lake

at the

of the

Ir.

R. C.L. 424.

or bombastry,

It is

I

its

may

may have

Dwyer that

v.

the

at the

“mag-

Rich (1870),

“ spread-eaglism

naturally

infest

a

new

not be permitted to invade

law. this

branch of the

case.

the question whether or not the stream in question

fact navigable, I agree cult to

it

fields, will

would allow the appeal on

On

see

be hoped

to

however much

and fresh country in other the domain of

Woods, though

to be built the former

nificent” width of about sixty feet:

4

understand

with the

how any

trial

Judge, though I find

is

in

it diffi-

of the parties to this action, or the

Crown Lands Department, can very reasonably contend, among themselves, that it is, and least of all the defendants, in the face of the fact that the latter are acquiring the

for the

V.

The Town OF

Kenora. Meredith, J.A.

in the rule

incongruity arises only from misconcep-

which are navigable;

The Keewatin Power Co.

purpose of erecting works

—including

bed a

of the

dam

stream

across the

LAW

ONTAEIO

202

—for

REPORTS.

[vOL.

C. A.

stream

1908

the existence of a public right of way;

and the whole conduct

The

of such parties

opposed to any such

right, the object of the

Keewatin Power Co. V.

The Town OF

Kenora. Meredith, J. A.

a purpose entirely inconsistent with any notion of

is

defendants being solely to adapt and apply the stream to the productions

water-power for generating

of

the other parties to obtain as for such of their rights as

payment

other hand, is

in

may

of

from them

acquire for that

out of the question;

is

on the one hand, and to avoid, on the

legal navigation to obtain,

there

the stream

in

and

electricity,

as jDOssible

the defendants

Real navigation

purpose.

much money

of as

much money

as possible,

that

all

is

it.

And upon

the last question, whether the writing

itself

shews

that the parties themselves intended that the rule should not apply, or,

bed

more

of the

opinion, portion.

correctly speaking, that a title to a moiety of the

stream should not pass, the defendants have, in

more than

than against effect

form

failed to establish the affirmation of the pro-

So far as the

are concerned, there

upon

it, if

is,

of reservation in

more

words

in support of the

relied

upon ought

are contained in a very

Crown

Bay Company

the Hudson’s

plaintiffs

I think,

really the

They

it.

my

presumption to have

common

any

general

and probably were inserted

grants,

without any regard to the actual circumstances of the case, but

simply because functor}^

it

adhesion

was the usual thing to

However,

precedent.

them

to insert

had

—a

they

per-

been

inserted with a view to the circumstances of this particular grant,

the more important words would grantee’s favour. able waters

They reserved a

tell

very considerably in the

right of

upon the land granted, and

way

over

all

navig-

as the only navigable

waters which apparently could come within the grant are those in question, the conclusion

must be that land under them was

intended to be included in the grant.

On

the other hand, they

also reserve right of access to the shores of the rivers, streams lakes, together

with the right to use so

much

of the

banks thereof,

not exceeding one chain in depth from the water’s edge, as

be necessary for fishing purposes. this

again excluded the notion of

remaining in the grantees; but to be implied, and, because

it

is

it is

I

and

may

would have thought that

any ownership

of the land

said that a right of fishing

implied, there

is

is

to be a further

implication that, contrary to the rule and the deed, the bed of the

ONTARIO LAW REPORTS.

XVI.]

203

stream was to remain in the grantor, because the right of fishing generally belongs to the Is

owner

not the broadest possible

But why go

of the land.

implication

so far?

by giving the

satisfied

grantors the right of fishing, and, beside that, the reservation limited to the stream in question, but covers

and

lakes,

whether navigable or not, and

the rivers, streams

all

can hardly be contended

it

by water.

that the grantees were not to take any land covered It is to

not

is

be borne in mind, too, that these are but reservations,

out of the thing granted, to the Crown, and not to the public.

In regard to the other grants, the questions do not arise out of

any general form

of words,

but out of words directly applicable,

Two

and applicable only, to that particular grant. relied

upon by the defendants:

island, which, it title

is

said,

first,

But that

not so to take.

the expressed grant of an

would go to the grantees

ad medium filum, and, therefore, is

things are

they took

if

appears that they were

it

taking very

much

In

for granted.

the present state of the authorities one would be rash to say that islands pass with the

all

bed

and

of the stream,

so

it

would be

but a most obvious precaution to provide in express words for the

title

to this land, not covered

therefore, falls to the ground. is,

as unquestionably there

of the

rule

is,

by

This point,

water, passing.

But, then,

is

it

an express grant

said that there

of part of the

bed

west branch, along the forty-acre parcel, which under the

would pass without such a grant, and

plain that the rule

that, therefore,

was meant not to apply to any

it

is

of the parcels

am

not very sure that

such a conclusion would follow in this case.

The Crown had

granted.

If

the facts were as so stated, I

granted a moiety of the bed of the stream to the other plaintiffs

by the other patent; the whole of

it

b}^

this patent

in a contiguous place;

it was expressly granting what object could there be

in retaining a useless strip of one-half of the in

one place, and

why

bed

treat one grantee differently

of the

stream

from another?

Public interests could not have been the object, for then the whole

bed must have been retained, and

it

is

difficult to perceive

how

a retaining of the whole bed

would materially affect mere rights

of

I

navigation.

But, unless

am

very

much

mistaken, these

considerations are quite immaterial, and, in truth, this express

grant of part of the bed of the river, considered conclusive against the application of the rule,

is

very

much more

like

a conclusive

C. A.

1908

The Keewatin Power Co. V.

The Town OF

Kenora, Meredith, J.A.

ONTARIO

204 C.

A

fact to the contrary.

much

mistaken, and that

The Keewatin

which

my

Power Co, V.

The Town

Meredith,

opinion turns

J. A.

is

REPORTS. am

be that I

course,

of

[VOL.

very

the more likely as the point upon

one which, as far as

is

not before been mentioned.

am

I

aware, has

under the grant

It is this, that

of

the forty acres no part of the bed of the stream could pass, and, therefore,

OF

Kenora.

may,

It

1908

LAW

was necessary

it

to expressly grant

it,

and

it

would

follow that there w'as no intention to retain the bed of the river,

and that cause

it

was not mentioned

it

in regard to the other parcel be-

passed under the rule of the law of England in question.

That the bed

of the river adjoining the forty acres did not pass

me

with the grant of them seems to is

to be as plain as can be.

conveyed by minute metes and bounds.

and then runs

post planted at the water^s edge” of the river,

numerous courses

until

it

It

It begins at ‘‘an iron

in

again reaches “the water’s edge,” and

thence runs “along the said water’s edge, following turnings and windings, through

to the

at the water’s edge.

place of beginning”

It is difficult for

could ever have been imagined that to such a grant: Co.,

L.R.

see Plumstead

10 Q.B.

the

stream, instead of merely the half of

whole it, is

the iron post

how

it

could be applicable

Works

of

is,

to understand

’this rule

Board

That

16.

—that

me

of

v.

British

Land

the bed of the

thus expressly granted

has no very great significance.

The appeal

should, I think, be allowed generally,

be adjudged that the plaintiffs

and

it

should

are each entitled to one half of

the bed of the stream in question, subject to whatever public right of

stream.

way

there

may

be,

and

for

whatever

The defendants should pay the

OsLER,

Garrow and Maclaren,

it is

worth, over the

plaintiffs’ costs.

JJ.A., concurred. G. F. H.

I

— ONTARIO LAW REPORTS.

XVI.]

205

THE COURT OF APPEAL.]

[IN

The Corporation of the City of Toronto

The Toronto

v.

— Removal —Deposit

Railway Agreement

of

of

— —Removal —55

Snowfalls

Snow

Electric

— Construction

Sweeper

Viet. ch. 99, sec.

of

25

Jan. '22, of

(O.).

plaintiffs under which the defendants’ railway is operated provides that the track allowances shall be kept free from snow at the expense of the defendants, so that the cars may be in use continuously; and that if the fall of snow is less than six inches at any one time, the defendants must remove the same from the tracks, and shall, if the city engineer so directs, evenly spread it on the adjoining portions of the roadway, but should the quantity of snow at any time exceed six inches in depth, the whole space occupied as track allowances shall be at once cleared of snow, and the snow removed and deposited at such points on 55 Viet. ch. 99, or off the street as may be ordered by the city engineer. sec. 25 (O.), passed to construe the above, enacts that the defendants shall not deposit snow on any street, square, highway or other public place in the city of Toronto without having first obtained the permission of the

The agreement with the

city engineer: Held, that there was nothing in the above to prevent the defendants from sweeping the small snowfalls or the large to the sides of the road by means of an electric sweeper, and (Meredith, J.A., dissenting) the purpose of the application being to prevent the use of the sweeper altogether, the appeal should be dismissed. Per OsLER, J.A. When the snowfall was less than six inches at a time the company might leave it at the side of the road unless that would create a nuisance. Per Garrow, and Meredith, JJ.A. In all cases the company was bound to remove the snow and ice after sweeping it aside unless the city engineer directed that it be spread there.





This was an appeal by the corporation

of the city of

Toronto

from the judgment of the Railway and Municipal Board, under the

circumstances set out in the judgments.

The appeal was

on November 14th, 1907, before Moss, C.J.O., Osler, Garrow, Maclaren and Meredith, JJ.A. argued

Fullerton, K.C., for the appellants.

J.

S'.

H.

S. Osier, K.C., for the

^[January

22.

Toronto R.W. Co., the respondents.

Osler, J.A.:

from the judgment or order

—This

of the

is

an appeal by the city

Railway and Municipal Board

made, on an application by the

pany to

desist

city, to compel the railway comfrom throwing the snow which falls upon their

track allowances on to the sides of the street adjacent thereto

without the permission of the city engineer, in alleged violation of clauses 21

and 22

of the

A.

1908

Railavay. Street

C.

agreement under which the railway

— LAW

ONTARIO

206 is

1908

clauses.

The

Our

jurisdiction to entertain the appeal depends

Corporation OF

of the Ontario

Toronto

ch.

The Toronto Railway.

[vol.

operated, and of sec. 25 of 55 Viet. ch. 99 (O.), explaining those

C. A.

V.

REPORTS.

31.

It

upon

sec.

43

(2)

Railway and Municipal Board Act, 1906, 6 Edw. VII. confined to questions of the jurisdiction of the

is

Board and questions

The preliminary condition

of law.

of ob-

taining leave to appeal has been complied with.

The question Osier, J.A.

of

law concerns the construction of the clauses

agreement and the section of the Act above referred

of the

to.

These are as follows: ‘‘21.

The track allowances

from snow and

at the expense of the purchaser, so that the cars

continuously.

.

.

whether

(as hereinafter specified),

for a single or double line, shall be kept free

may

ice

be used

.

snow is less than six inches at any one must remove the same from the tracks and

“22. If the fall of

time, the purchaser

spaces hereinafter defined, and shall,

if

the city engineer so directs;

evenly spread the snow on the adjoining portions of the roadway,

but should the quantity of snow or six inches in depth, the (viz., for

ice, etc.,

at

any time exceed

whole space occupied as track allowances

double tracks sixteen feet six inches, and for single tracks the city engineer so directs, be at

eight feet three inches), shall,

if

once cleared of snow and

and the said material removed and

ice

deposited at such point or points on or

off

the street as

may

be

ordered by the city engineer.

55 Viet. ch. 99 (O.), (1892). arisen as-to the construction

conditions, shall

and

“Sec. 25.

And whereas

effect of secs.

doubts have

21 and 22 of the said

hereby declared and enacted that the said company

it is

not deposit snow, ice or other material upon any street,

square, highway or other public place in the city of Toronto, with-

out having

first

obtained the permission of the city engineer of the

said city, or the person acting as such.’'

The dispute between the

parties

is

as to the right of the de-

fendants to use an electric sweeper for the purpose of removing the

snow from

that this

moved

is

their track allowance.

It is

the only practicable method

conceded or not denied

by which

it

can be

so as to enable the defendants to give a continuous

re-

and

uninterrupted service of their cars, but the plaintiffs contend that the sweeper cannot be used without the consent

*of

their

LAW

ONTARIO

XVI.]

REPORTS.

engineer, which has not been given because

from the track allowance to the sides

and thus, as the

necessarily do,

207

it

brushes the snow

C. A.

1908

of the street, as

it

must

deposits

it

there

plaintiffs say,

The defendants remove the snow and dispose of obligation to their deny do not it under the circumstances and in the manner required by their contrary to the express prohibition of the Act.

agreement, but say that the sweeping of ance to the road

is

not a depositing of

and

ing of the Act,

this

it

it

from the track allow-

there within the

an order forbidding the use of the sweeper.

A

snow plough and

the time the parties

sweeper were known methods, at

removing snow,

their agreement, of effect

was

to brush the

snow

to the

road adjacent to the track allowance.

What, then, and

made

was used, the

and, whichever sides of the

electric

is

the true construction of the clauses in question

of the Act, so far as

That a heavy

fall

of

it

declares it?

snow or an accumulation

of light falls

on the track would practically obstruct the tracks for the purpose of a useful and continuous service was well known, and

was equally well known or anticipated that from the tracks and persons

who used

would be very

left piled

on the

was desired

tinuous

and uninterrupted car

it

endangered from the cause objects to be attained its

I

falling into the ditch;

to insure a prompt, con-

and,

on the other, to

by the public should not be These were the

have mentioned.

by the agreement and the Act

establishing

meaning.

Take the clauses

as they stand.

be kept free from snow and

so that the cars

by

service,

provide that the use of the streets

to

snow were removed

sides of the track allowance,

likely to get into trouble

on the one hand,

and declaring

it

the streets with horses, sleighs or other vehicles

so that,

it

if

may

ice,

The track allowances are

at the expense of the defendants,

be used continuously

—that

is,

so far as

it

snow is less than six inches at any one time it must be removed from the track allowances as defined, and, if the city engineer so directs, must be evenly spread by defendants on the adjoining portions of the roadway. But if he does not so direct, there is nothing in clause 22,

is

necessary to attain that object.

whatever

may

If

the

fall of

be the defendant's obligation at

Toronto V.

The Toronto Railway.

mean-

would appear to have been the opinion

Railway and Municipal Board, as they declined to make

of the

The Corporation OF

common law

not

Osier, J.A.

LAW

ONTARIO

208

to create a nuisance

1908

the small

The

accumulations of successive

so

Corporation OF

interruption of the

Toronto

bids the deposit

V.

The Toronto Railway.

Then comes the

it

which

statute,

for-

streets without the consent of the

means,

purpose of leaving

might ultimately cause a serious

falls

traffic.

on the

That

engineer.

[vOL.

by doing so, which prevents them from leaving removed on the sides of the roadway, where

C. A.

falls

REPORTS.

as I understand

there

—a

final

city

it,

a deposit for the

deposit.

This must refer

to the first branch of clause 22, because the second branch of Osier, J.A.

that clause, which deals with the case of the heavier snow

falls,

expressly provides for the removal of that and for the depositing of

it

at such points

is

on or

That

city engineer.

is

the streets as

off

may

be ordered by the

the sense in which the word “depositing”

used in the second branch of the clause, and the word “deposit”

in the declaratory section

When

my

in

is,

opinion, used in the

occupied by the track allowances to be at once cleared of

and deposited of the cars.

by

plished

object

first

and the material removed

ice,

off

the streets as the engineer

ensure the continuous running

to

that can only or most conveniently be accom-

If

first

on or

is

throwing the material

of the road, then, subject to

off

the tracks to the sides

any further obligation

dants, whether under the agreement or at

not that a perfectly reasonable

ment and the Act?

way

of

They must not

as a final place of deposit;

it

streets before

of hay, or a

been

sense.

the city engineer so directs,

is, if

snow and

at such points

The

directs.

swept

same

a snowfall of more than six inches occurs, the whole space

left

it

becomes a nuisance,

house or anything

on the

else

of the defen-

common

why

law,

is

complying with the agreeleave

it

where they have

they must take just as a

off

it

the

waggon, or a load

must be removed which has It becomes the streets within the mean-

temporary purpose.

street for a

a question of the reasonable user of

ing of the agreement and the Act, and I can see nothing which pre-

vents the defendants from sweeping the small snow large to the sides of the road

by means

as they afterwards deal with

it

either in accordance with the

directions of the engineer or otherwise, so as to prevent

becoming a nuisance.

may

be

action,

it

from

Thus, their whole duty, whether under

the agreement or the Act or at

The

or the

falls

of their sweeper, so long

common

law,

is

performed.

or whatever the proceedings before the Board

called, in

my

opinion,

fails,

and the order

of the

Board

should be affirmed with costs.

.

I

LAW

ONTARIO

XVI.]

Garrow,

—Appeal

by the

REPORTS.

209

Toronto from an order

C. A.

of the Ontario Railway and Municipal Board, dated 23rd April, 1907, dismissing an application by the city in effect to compel

1908

J.A.:

city of

The

the Toronto

Corporation OF

to

Toronto

R.W. Co. to desist from using an electric sweeper sweep the snow from its tracks in the city of Toronto.

A

proper disposition of the application seemed to involve,

and was dealt with upon the argument as involving, the consideration

and construction

also sec. 25 of

55 Viet. ch. 99

(O.),

is

operated, and

passed to interpret the clauses in

question.

The Railway Board, clined to

it

under

in the exercise of its 'discretion

63 of the Ontario Railway and Municipal Board Act, de-

sec.

make

the order restraining the use of the sweeper.

The

clauses in question read as follows:

And

the section of the statute in question

[setting is

them

as follows

out.]

[setting

:

out.]

No

difficulty arises

in clear

The

21.

It

ice so that the cars

may

be used continuously.

real difficulty arises as to the disposition of the

removal from the track.

tracks are, of course, laid in

Bearing this in mind,

posing the duty

what

are public highways, for the

it

be done with

from the track should be placed nuisance,

injurious

to

set out in

If

by law

responsi-

eitlier

paragraph 21, the

snow and ice removed upon the adjoining or

or in such quantity as to create a

the travelling public.

had in law no power to do so

is

The

it?

cannot be assumed that, in im-

corporation could have intended that the

way

after

shall

upon the company

other highway in such a

snow

What

maintenance and repair of which the corporation ble.

imposes the duty

language upon the company to keep the track free from

snow and

its

upon paragraph

—that

is,

The corporation

to authorize a nuisance.

paragraph 21 stood alone, the company would have been

compelled to remove the snow and they best could



if

ice,

in harmless quantities,

and to dispose

of

it

as

upon the highway; but

if in larger quantities, large enough to injuriously affect travel upon the highway, then elsewhere, where it could do no harm. Then paragraph 22 comes in, to some extent in relief of the com-

pany, at least in the case of a snowfall of less than six inches at

any one time, which they may, 14

—VOL.

XVI. O.L.E.

if

the city

engineer

Toronto Railway.

agreement

of certain clauses in the

between the parties under which the railway

V.

The

so

directs,

Garrow, J.A.

LAW

ONTARIO

210 C. A.

1908

The

REPORTS. But

evenly spread on the adjoining highway. so direct, there

And

falls.

is

[vOL.

he does not

if

otherwise no special provision as to such snow-

from the

failing a direction

city engineer, they

Corporation OF

have to be disposed of as before indicated

Toronto

could do no harm.



^that is,

would

where they

V.

So far

The Toronto Railway.

I see

The

guage.

no particular

difficulty in

with the latter part of paragraph 22.

difficulty begins

In the earlier part of the paragraph one Garrow, J.A.

—namely, snow

or ice at

is

that the to

any kind,

Nor

also mentioned.

snow or

to

ice

snow or

is

ice

is

kind of snowfall

The

with.

dealt

six inches in depth,” can scarcely

which does not usually

since ice,

even clear that

it

My

upon the track allowance.

use of the words

first



with the words, “but should the quantity

any time exceed

refer to a snowfall of fall,

specific

one not exceeding six inches

latter part, beginning

of

understanding the lan-

snow or

ice,

upon the track allowance, but

it

refers

only

impression

is

etc.” does not refer

to

snow or

ice

upon

the highway at the side of the track allowance, and that the intention

was

that,

when a depth

or accumulation exceeding six inches

had there occurred, then the snow or

ice

upon the track

allow-

ance should no longer be placed upon the side of the track, but should,

if

the city engineer directed, be removed and deposited

where he directed.

What

I do not understand

is

the use of the words “If the city

engineer so directs,” where they occur in the part of the paragraph

with which I

am now

dealing.

It

would appear, as

it

reads, as

snow and ice upon the track allowance, which under paragraph 21 and the first part of paragraph 22, the company is bound to remove, might when of greater depth remain, with the apparent result that there would if,

in the absence of his direction, the

probably be no continuous service. these words were intended to

come

I

cannot help thinking that

in a little later in the sentence;

that the intention really was to stipulate absolutely for the re-

moval, which would be in harmony with the earlier provisions,

and

to

make

the direction of the engineer applicable only to the

,

disposal of the material.

Then the

,

statute does not, I think, alter the situation.

—namely,

in fact, helps to support the view which I take

the

company

is

bound

It,* '

that

to keep its track open, in order to give

a continuous service; to do so

it

must

at its

own expense remove

— ONTARIO LAW REPORTS.

XVI.]

211 removal and so

C. A.

as to prevent an undue interference with the rest of the high-

1908

the snow and

And

ice.

in dealing with

after

it

it

must

act under the direction of the city engineer.

But

I see

no objection to the use

way,

mode

convenient and expeditious

of

The

sweeper as a

Corporation OF

removing the snow from

Toronto

of the electric

V.

the track and depositing

That

side.

is

not, in

it

my

temporarily upon the highway at the

“De-

opinion, an infraction of sec. 25.

posit” there must

a permanent character, and

not

of

mean a deposit of made merely in the course one

removal to a permanent

place.

Of course, the responsibility of the company for the snow swept to the side does not end with the sweeping, but only when they have taken

or dealt with

it

it

he permits

it

must be removed, no matter what the

it

by the

as directed

to be spread at the side,

If

city engineer.

may be, but if not, fall may have been

it

whether under or over six inches.

i.e.,

In the result I think the Board was right in refusing the order

and that the appeal should be dismissed with

as asked,

Meredith, J.A. presented

by the

:

—We

parties,

ought not to evade the real question

and

of

which the

a complete and final early solution;

we

interests of each

demand

ought, indeed, to be care-

avoid any evasion of that question.

ful to

costs.

That question

is

not

whether the company ma}^ employ a sweeper or any other par-

means

ticular

whether they

removing the snow from their tracks, but

of

may

snow upon the adjoining part highway, when the snowfall is not more than six inches

the

deposit the

is

of

at

any one time, without the consent of the corporation or the direction of the city engineer to stance, but

it

also the

is

poration’s complaint

sweeper

is

not so

do

so.

That

is

not only the sub-

The

very form of the question.

(paragraph 4) explicitly so puts

much

as

even mentioned throughout

it. it.

cor-

The The

company’s answer

is that brushing the snow to the sides of the by means of a sweeper is not depositing it on the street within the meaning of the enactment in question. It is difficult,

street

therefore, to perceive

tion

on

is

it

solely

how

it

could be plainer stated that the ques-

whether snow so deposited on the street

is

“deposited”

within the meaning of the enactment, and very

imderstand

how

it

was or

is

possible to slip

difficult to

away from that ques-

The Toronto Railway. Garrow, J.A.

,

LAW

ONTARIO

212

REPORTS.

mere means by which the snow is removed means are immaterial the effect, by whatever

C. A.

tion to one affecting the

1908

for,

The

means accomplished, is the thing. The agreement between the parties early

Corporation OF

Toronto

surely, the

V.

left

it

open to the

superlatively litigious

so

now

against each other, to raise the very question which is

The Toronto

in

dispute between them.

Railway.

That part Meredith,

;

who have proved themselves

parties,

[vOL.

J. A.

paragraph 22 which relates to a snowfall of

of

than six inches

plain

is

enough when read by

ing part, relating to a snowfall of in connection with

it,

more than

less

it is

the follow-

six inches,

when read

itself;

which opens the way for disputation to

The casus omissus of a snowfall of just six inches does not seem to have caught the litigious eye, and so, per-

the

contentious.

haps,

it

may

even at the

When remove

be unwise to mention

risk of

waking someone

the snowfall

it

from

Their obligation

is

it

two

is

and

must

also spread

a direction they use or tion to

'

sell it

it

fold,

shall,

if

the

contingent on

is

They must remove the snow with-

may remove

must be used

so

of the highway.

they

will, and dump, With such a direc-

whither they

it

and lawfully

for the

so,

Without such

evenly as before mentioned.

as they please

shall

engineer

city

they receive such a direction to do

if

it

be exact,

else’s sleeping dogs.

but the second part

can.

corporation’s purposes, doubtless

make or improve sleighing. As I have said, the difficulty

is

evolved out of the provision

regarding a depth of more than six inches at any time, in which

event

it

company it

is

provided that,

shall clear

at such place

shall

order.

it

on or

The

from

off

if

directed

by the city and remove

their tracks,

engineer, the it

and deposit

the highway or street as the city engineer

differences in this event

from the other are

in the provision for the direction for the removal, ,

likes to

on the adjoining portions

the direction of the engineer.

out any direction;

though one

than six inches the company

less

their tracks,

evenly spread

direct,

it,

of the city engineer to order where,

and

whether on or

in the

off

the

power street,,

the snow shall be deposited. of the parties, confirmed by legiscompany would have no power to deposit the snow It removed from their tracks upon any other part of the street. the agreement in mind And confers well bear this always. to is

Apart from the agreement

lation, the

ONTARIO LAW REPORTS.

XVI.]

no such

except on the direction or order of the city

right,

So

neer.

213

would have no

engi-

quite apart from the legislation in question,

that',

difficulty in reaching the conclusion that the

I

com-

pany must remove from its tracks snovTalls of less than six inches at a time, if they would interfere with the continuous running of the cars;

and that they could deposit

and leave

—on

it

so directed

it

—by which

the adjoining part of the

by the

mean put highway only when I

Such are the very words

city engineer.

respect,

had arisen

not deposit

matter at

It recites

rest.

as to the effect of the agreement in this

them by enacting that the company shall any snow, ice or other material upon any street with-

and

settles

What can this be but determination of the very question now again raised? What escape is doubt or question was involved?

out the permission of the city engineer. a legislative

What

other

from

there

sweeper

is

snow by means of a within the meaning of the enactment.

It is said that depositing

it?

not depositing

Why

But why not?

it

not quite as

much

as depositing

it

in the like

snow plough or hand shovels or by any other implement or means? It is difficult for me to imagine anything plainer within the meaning of the word, whether its derivation manner by means

or

its

of a

common uses be looked

the removal there, is

.of

at.

Obviously, I would have thought

snow from one place

depositing

it

What

there.

To load

pose half as well?

would merely sweeping

it

it

and leaving

to another,

into vehicles there

would

not, nor

together for immediate removal, be

company

In passing

themselves,

in their

it

may

...

be

agreement of

February 19th, 1897, describe the work of the sweeper as

snow

it

other word answers the pur-

within the meaning of the agreement.

observed that the

deposit of

on the adjoining portions

‘‘a

of the high-

way.'’

To

is to enable them upon the highway, which the corporation own cost or else remain, criminally and civilly,

give effect to the company's contention

to create a nuisance

must abate at liable

for the

its

consequences, which could hardly have been in-

tended.

The reasoning and quite

clusive

The Corporation OF

Toronto V.

The Toronto Railway. Meredith, J.A.

legislation surely puts the

that doubts

1908

of

the agreement.

But the

C. A.

of the commissioners

seems to

me

very incon-

as unsatisfactory as their conclusions.

They

1

LAW

ONTARIO

214

REPORTS.

[vol.

C. A.

say that the company must, under the agreement, remove the

1908

snow from

The

part of the roadway

Cc^RPORATION OF

very ineffectual,

Toronto

it

there.

V.

The Toronto Railway.

first

finds

is

way to

it

an easy, but

It is

by imagining

should one look for any such provision until one

some

right in the

more

remove the snow from Meredith, J,A.

not provided for.”

get one’s burden over the ditch

Why

It is surely

there?

“removal from the adjoining

their tracks, but that

company

logical to

and leave the snow

to put

say that the company must

have power to leave

their tracks; that they

upon the adjoining part

of the street only

neer so directs, and, therefore,

if

when

the city engi-

they put and leave

it

there with-

out such direction they are WTongdoers.

Then the commissioners seem

away by

to have been carried

the mistaken notion that, in order to give any

the cor-

relief to

was necessary that the use of the sweeper should be

poration,

it

stopped;

and that

plement that

its

it

was so

useful,

if

not so necessary, an im-

use ought to be permitted.

It

seems strange

that they should have acquired the former notion, for they state

when the snowfall exceeds six inches, and they also directed that when the aggregate of the sweepings of lesser snowfalls “attained” that depth, the company shall remove it, if ordered by Whether first removed by sweeper, the, city engineer to do so. that

plough or hand shovel,

moved

it

must, with present appliances, be

cumbered to that extent, even that

is

and the

to the adjoining part of the street,

practically necessary;

so

if

it

loaded directly into vehicles;

ought to have been obvious

that the company might use the sweeper for the

any unnecessary

then, without

delay,

shift

it

to procure the city engineer’s direction to leave

must have known,

too, that the

always be at work at once, whether the

if

unable

there.

They

again, it

and

till

after

that the plough must turns out to be two

fall

And, again, they seem to have considered the

or ten inches.

method

just as they

first shift,

company do not wait

the snowfall of sometimes days’ duration;

present

re-

street be in-

of

sweeping the acme of machinery and method,

might have, in their days, deemed the dimly reminis-

cent white-horsed sweepers of Mr. Osier.

But

carpet sweepers, rotary lawn sweepers, hay loaders, suction house cleaners, etc., if

it is

plainly within the

bounds

required, a sw^eeper which will load the

track,

or otherwise efficiently dispose of ,

of possibility that,

snow on it

i

in these days of

upon the without making a cars

-

»|

S

S

ONTARIO

XVI.]

LAW

REPORTS.

to anyone else, even

215

not without profit to the

C. A.

But it is enough to say that the question is not whether methods are convenient or inconvenient effect must be given to the agreement of the It is, parties as supplemented by the legislation in question.

1908

nuisance of

company,

is

it

if

almost within hailing distance.



know

however, satisfactory to

that that agreement can be en-

any

forced without in the least degree hampering

of the uses of

The Corporation OF

Toronto V.

The Toronto Railway.

the sweeper, with which the commissioners were so enamoured.

In their reasons the commissioners refer to their discretion; but they have no ^ort of discretion to

make

a

new agreement

between the parties, nor, either with or without the consent of both or either of them, to permit the company to commit a nuisance

The

upon a highway. to the use of the

rights of all his Majesty’s liege subjects

highway are paramount, and always

to first consideration.

They were asked

entitled

to enforce the agreement

between the parties, as confirmed and interpreted by the

and there having been a violation

lation in question;

legis-

of

that

agreement by the company, in their failure to remove the snow, it

was the commissioners’ duty, under the very purposes words giving them

plain

of the

company

jurisdiction, to direct the

to

do those things which were necessary for the proper fulfilment of the

They have no

agreement.

But

it

may

be said that

pany were obliged to remove the it

sort of a capricious discretion.

would be very unjust

it

the snow, no matter

all

might be, nor how harmlessly,

fall

or,

is

not so in fact



if

how

light

street.

But

hardship could pervert the meaning of

Having regard to both paragraphs

the agreement.

the com-

indeed, beneficially,]

might be spread on the adjoining parts of the

that

if

of the agree-

ment, and with a reasonable application of that useful ingredient,

common to

sense,

quite plain that the

it is

remove any snow which does not

running of the cars. tion in

any other

the city engineer,

Nor

respect.

who may

on the adjoining part of the as one

company

interfere with the continuous

are they at the

mercy

of the corpora-

not the corporation, but

It is

direct

are not required

where the snow

street;

and he must act

in

good

occupying a quasi- judicial position, so that right

done and oppression prevented.

on the adjoining part of the street

it

is

shall be spread faith,

may

be

So long as depositing the snow aids, or

even does not interfere

with, traffic, then, in the honest exercise of his power, the

city

Meredith, J.A.

LAW

ONTARIO

216

REPORTS.

[vOL.

when

C. A.

engineer will direct that

1908

spreading

The

hold his direction, and the

company must

they lawfully can, which

eminently reasonable and proper;

Corporation OF

Toronto

it

Railway. Meredith,

upon the public

their nuisance

Toronto

is

and

criminally

civilly

Let

me

the

corporation

liable

repeat that there

road,

for is

traffic

if

so

he will with-

dispose of

would be entirely unreasonable and improper

V.

The

be evenly spread there;

it

would create a nuisance or impede

it

as best it

they could cast

and make the corporation

it.

no sort

of objection

on the part

J. A.

of

to

the use of

the sweeper so long as the

company removes the snow deposited by or spreads

it

that I cannot treat the case except as in

which the

real question is

when the

fall is less

and

it

leave

It

it

upon the highway,

there under the direction of the city engineer: and it

substantially

is,

whether the company have a

than six inches, to merely

sweep

it

one

right,

aside

there.

seems to

me

that very

much

needless bickering, misunder-

standing and litigation, have arisen between these parties from a failure to recognise the true position of the

city engineer,

and

the power of the Courts to prevent any undue interference with the honest performance of his duties under the agreement in question.

I

would allow the appeal.

Moss, C.J.O., and Maclaren,

J.A.,

concurred in dismissing

the appeal. A. H. F. L.

ONTARIO LAW REPORTS.

XVI.]

[IN

THE COURT OF

London and Western Trusts

217

APPEAL.] Co. v. Canadian Fire

C. A.

Insurance Co.



1908

——Absence

——

Fire Insurance Lease Change in Nature of Risk 3rd Statutory Condition ledge by Landlord Omission to Notify Insurers.

of Notice or Knowof Landlord



Control'’

of a Divisional Court in favour of the plaintiffs was affirmed by the Court of Appeal (Meredith, J.A., dissenting), substantially for the same reasons as those appearing in the opinion of the Divisional Court delivered by Boyd, C., 13 O.L.R. 540.

The judgment

This was an appeal by the defendants from the decision of a Divisional Court, reported sub nom. London and Western Trust Co. V.

Canada Fire Insurance

judgment

of

dismissed,

and

Falconbridge, directing

Co.,

13 O.L.R. 540, reversing the

C.J.K.B.,

whereby the action was

judgment to be entered for the

plaintiffs.

The action was brought by the plaintiffs, as liquidators of Loan Company, the owners of a building in the town of Sudbury, insured by the defendants against fire by a policy dated the 10th October, 1904, to recover for a loss by fire on the 30th November, 1905. The defence was under the third statutory condition, which the Birkbeck

is

set

out in the judgments below.

The appeal was heard by Moss,

C.J.O.,

Osler, Garrow, Mac-

LAREN, and Meredith, JJ.A., on the 27th November, 1907. Wallace Nesbitt, K.C., and N. dants, appellants. risk avoids

W.

Rowell, K.C., for the defen-

At common law any change material

the policy:

to the

see Thornton v. Sillem (1854), 3 E.

&

B.

The common law rule sometimes worked injustice where the change was one extraneous to the property insured, over which the insured had no control, and which did not come to his knowledge. The third statutory condition was passed to remove this injustice, and what was contemplated thereby was that a policy should not be avoided by a change which did not come to the knowledge of the assured, and which was beyond

868, 882, 883.

the control of the assured, as might well be the case where the

change was exterior to the insured premises.

The change

the occupation of the premises here was a material one, as

is

in

con-

March

24.

ONTAEIO

218

LAW

REPORTS.

By

C. A.

ceded, and

1908

reason of the change, the premises ceased to be premises of the

clear that

it is

it

was not

[vOL.

notified to the insurers.

London and character described in the policy, and the risk became a mercanWestern tile one. If the defendants accepted such a risk, they would Trusts Co, V.

Canadian Fire Insurance Co.

be entitled to receive a premium at least

five

times greater than

The defendants should not be held liable to pay the They could not legally loss on a risk which they never assumed. issue a three-year policy on a mercantile risk, and no new policy The assured cannot, under the third statutory conwas issued. dition, by leasing the premises, throw upon the insurers a liability which would not be upon them if the assured himself continued in actual occupation: see Grant v. Howard Insurance Co. of New that paid.



York (1843), 5

Hill (N.Y.) 11;

Kyte

v.

Commercial Union Assur-

The condition

ance Co. (1889), 149 Mass. 116, 119, 123.

in

is

the nature of a warranty that no change material to the risk shall

be made,

onus

within the control of the assured to prevent

if

on the assured to prove that

is

it

was beyond

his

it;

the

power to

prevent the change, and this the assured failed to do: see North

American Fire Insurance Co.

means the

trol”

5th

(1855),

111.

see Padelford v. Providence

3 R.I.

May on

166;

ed., p.

Zaenger (1872), 63

“Con-

464.

legal right to control the property in respect of

the matter in question:

Insurance Co.

v.

102;

Bunyon on

Mutual Fire

Fire Insurance,

Fire Insurance, 4th ed. (1900), p. 227;

Porter on Fire Insurance, 4th ed., p. 197; Kuntz v. Niagara District Fire Insurance Co.

(1866),

16 C.P. 573;

Liverpool and

London

Insurance Co. v. Gunther (1885), 116 U.S.R. 113, 128, reversing the decision in Gunther v. Liverpool and London and Globe Insur-

ance Co.

(1882),

20 Blatchf. 362.

Assurance Co. (1864), 14 C.P. 57,

by the same Court

as the

Kuntz

is

Heneker

British

v.

in our favour,

case.

America

and was decided

The same

line of

thought

as in Sillem v. Thornton, supra, will be found in London Assurance

Corporation v. Great Northern Transit Co. (1899), 29 S.C.R. 577.

Breuner

and London and Globe Insurance Co. (1875), on by the Chancellor, but it is directly in the English cases and of the decision of the Supreme

v. Liverpool

51 Cal. 101, the teeth of

is

relied

Court of the United States in the Gunther case, supra.

Refer-

ence also to the other cases cited by the Chancellor. G.

rent

C.

Gibbons,

K.C.,

for

the

plaintiffs,

had gone down from $23 to $15.

respondents.

There

is

The

no evidence

of

ONTARIO LAW REPORTS.

XVI.]

219

notice to or knowledge of the plaintiffs or their agent of a change

C. A.

house

1608

There was nothing in the appearance

in the risk.

to indicate that

was

it

British

was used

one room only.

in

changes

it

made by

as a store;

if

of the

business was done there, London and

The landlord

is

a tenant without his knowledge:

America Assurance

Co., 14 C.P.. 57;

13

Western

not responsible for

Heneker

Trusts Co. V.

v.

Canadian Fire Insurance

Am. & Eng. Encyc.

of Law, 2nd ed., pp. 286, 289; Clement on Fire Insurance, vol. 2, p. 291, rule 5; Nebraska and Iowa Insurance Co. v. Chrisliensen (1890), 45 N.W. Repr. 924, 927;. Merrill v. Insurance Co. of North

Co.

America (1885), 23 Fed. R. 245; North British Mercantile Insurance Co. of London and Edinburgh v. Union Stockyards Co. (1905), 87 S.W. Repr. 285; ance Co.

(1878),

Worswick

v.

Canada Fire and Marine Insur-

3 A.R. 487, 496.

no knowledge knowledge through their

Although the assured had

defendants had

of the change, the

agent,

local

and

full notice

and the defendants are

estopped: Peck v. Phoenix Mutual Insurance Co. (1881), 45 U.C.R.

Michigan Millers Mutual Fire Insurance Co. (1902), 91 N.W. Repr. 160, 162; Naughter v. Ottawa Agricultural Insurance Co. (1878), 43 U.C.R. 121, 130; North British and Mercan-

Rauch

620;

tile

v.

Insurance Co. v. Steiger (1888), 124

111.

81;

McIntyre

East

v.

May,

Williams Mutual Fire Insurance Co. (1889), 18 O.R. 79; 3rd

1159; Clement, vol.

ed., p.

1, p.

428, rules 29, 30.

Nesbitt, in reply, discussed the cases cited,

to

Moore

v.

and referred

also

Phoenix Fire Insurance Co. (1886), 64 N.H. 140; Porter,

4th ed., p. 197.

March ment

Moss, C.J.O.:

24.

of the Divisional



I

am

of the opinion that the judg-

Court should be affirmed.

The question has been made to turn almost altogether, upon the proper reading of the words ‘‘any change

wholly,

if .

not .

.

within the control or knowledge of the assured’’ in statutory condition No. 3, which forms part of the contract of insurance

between the It

parties.

seems to have been taken for granted that the user made

of the insured premises

by the Birkbeck Company’s

was a change material to the

tenant, Ferris,

risk.

The learned Chief Justice who tried the case states in his judgit was admitted that such was the case. No question arises, therefore, on that point, and the case must be dealt with

ment that

on the footing

of a

change material to the

risk.

— ONTARIO

220

LAW

'

REPORTS.

[vOL.

The learned Chief Justice did not find that the change in the mode of user came to the knowledge of the Birkbeck Company, London and and I do not think that the evidence brings home to the BirkWestern beck Company either actual or imputed notice or knowledge. Trusts Co. C. A.

1908

Something was said by the witness Ferris about a renewal by one J. K. Maclennan, who, acting for the company,

V.

Canadian Fire Insurance

of the lease

had

in the first instance

made

the arrangement for letting the

The

lease

then entered into was not pro-

Co.

premises to Ferris. Moss, C.J.O.

duced at the it

was

six

but Ferris deposed that he had a

trial,

for six

months

at $23 a

lease, and that month; that he paid that rent for

months, and after that $20 for one month, $18 for one month,

and $15

month, which was the month

for the next

A

building was burned down.

produced.

by

in

of the lease has

an informal instrument, dated the

It is

1905, signed

copy

Ferris,

who

which the

now been March,

1st

agrees to rent the premises at $23

per month, payable in advance on the 8th day of each month.

No term is mentioned except Tenancy begins on the 8th March. It is but a monthly lease, and calls for no as above stated. renewal.

The

fair inference is that it

—the

1905.

to $15.

The

Ferris appears to

and there

is

fire



in Sep-

occurred on the 30th November,

have paid the rent at Maclennan's

office,

nothing to shew that the latter had any occasion

to visit the premises or that he

change

i.e.,

rent was reduced to $20, in October to $18, and in

tember

November

continued during the whole

but at the end of six months

of Ferrises occupancy,

had acquired knowledge

of the

of user.

The policy

of insurance

for three years,

and there

was issued on the 14th October, 1904, is no dispute that at that time the

premises were being used as a dwelling.

The

description given

The lease and policy was therefore correct. to Ferris made on the 1st March, 1905, was not given for the purpose of enabling him to use it otherwise than as a dwelling, and in the application

for the first

We

month he did not carry on any

have thus the case

business there.

of premises insured

by the defendants

and policy, properly used by the Birkbeck Company and their tenant, until April, 1905, a change then made by the tenant without the Birkbeck Company’s knowledge at the time, and without its afterUnder these circumstances, was wards coming to their notice. correctly described in the application

as described,

ONTARIO LAW REPORTS.

XVI.]

Company such

221 a non-compliance

C. A.

with the terms of the condition as to diseptitle the plaintiffs to

1908

there on the part of the Birkbeck .

recover? It

cannot be denied that the mere leasing of the premises in

the condition in which they were, and for the same purposes for

which they were used at the time when the insurance was

was not an act contrary to the terms

whereby a change material to the effected did not

come

risk

effected,

decisions of our

was

effected,

Courts do not afford

the question, but whatever light

and the change

is

given

much

light

upon

favourable to the

is

contention.

plaintiffs’

Heneker

British

v.

upon

well decided

America Assurance

its facts,

14 C.P. 57, was

Co.,

but neither the facts nor the language

The

lease to

was made before the insurance was

effected.

of the

condition were the same as in this case.

Lomas

(the tenant)

There were no special restrictions upon the tenant in the matter

The

of erecting further or other buildings.

policy under which

the premises were afterwards insured contained a condition which

provided that “ii after insurance effected

.

.

.

the risk shall

be increased by any means whatsoever within the control of the insured

And

it

.

.

.

such insurance shall be void and of no effect.”

was held that the erection

of buildings

the insurance did not avoid the policy, for

it

by the tenant

after

was an act not within

the control of the assured, because, under the terms of the lease, the tenant buildings,

was under no

restriction against putting

and might during the term

as he pleased

up further

of the lease build as

much

without regard to the landlord, provided he did not

infringe the rules against waste.

In that case the insured had,

before the issue of the policy, deprived himself of the control of

and the decision is only useful as shewing that the word ‘‘control” in a condition of this character is subject to qualithe premises,

fication,

trol of

and that whether a particular change

the assured

view of

all

Kuntz

V.

is

within the con-

a matter of fact to be determined

upon a

the circumstances.

The terms of

is

of the condition of the policy in review in the case

Niagara

Fire Insurance

own

Unless the change

to their knowledge.

own

V.

Co.

did no act of their

was one within their control, the policy was not avoided.

The

Trusts Co.

Canadian

of the condition.

Company

Afterwards the Birkbeck

London and Western

District Fire Insurance Co., 16 C.P. 573,

were

Moss, C.J.O.

LAW

ONTARIO

222

A

C.

1908

Any

very general.

alteration

REPORTS.

[vOL.

or addition to the building in-

sured or the erection or alteration of any building within the limits

London and described in the application vitiated the policy unless notice was Western given and the consent of the company was obtained. There Trusts Co. V.

Canadian Fire Insurance

was no

qualification as to control or knowledge,

and

it

became

merely a question of fact whether the allegations as to alterations or additions to the building insured were proved in terms

Co.'

Control or knowledge was apparently treated

of the pleadings. Moss, C.J.O.

These decisions were previous to the enactment

as immaterial.

by the

Legislature of the statutory conditions, the obvious in-

was to

tent of which

afford a greater measure of security to in-

sured persons than was always obtainable by them under conditions

framed by and in the

And

interest of the insurance companies.

to the words of the condition should our attention be

given, rather than to decisions of the Courts in

England or the

The absence of unanimity in the State Courts somewhat similar conditions is very noticeable.

United States. in regard to

Upon

the best consideration I have been able to give to the

language,

read in

it

its

me

appears to

that the word ‘‘control”

For acts

widest sense.

of

is

not to be

which the insured has no

previous knowledge or of which he only acquires knowledge too late to save himself

be

held

by

responsible.

notice to the company, he ought not to

Evidently

“knowledge”

intended

is

to

cover changes happening before the insured was aware of them.

There the duty to give notice of the change would as there

was knowledge.

It is

not necessary to

arise as

soon

make “knowledge”

apply to the cases of changes made by the insured or directed to be

made by him

or otherwise directly authorized to be

made by him.

In those cases the duty of giving notice would at once

of

so

—the fact

arise.

Con-



and directing action may not be capable An act ever being exercised even though the power exists. strictly forbidden by a person possessed of the power to pre-

trol

vent

it,

if

of checking

present

when

it

was attempted, may be done without

his knowledge. I

cannot suppose that the Legislature meant that in respect

of such

an act a person insured was to

lose the benefit of his policy,

except, of course, in the case of the act afterwards coming to his

knowledge and

his, failing

before the loss occurred.

vdthout good reasons to give notice

ONTARIO LAW REPORTS.

XVI.]

223

In the present case the Birkbeck Company were under no

and that was

obligation not to lease the property,

They rented

as a dwelling,

it

and there

is

all

they did.

Suppose they had inserted in the lease ever so

of user.

making a change. Can have been contemplated or intended by the Legislature that

stringent a covenant against the tenant it

the tenant, in disregard of such a covenant, did

if

material to the risk, which never insured, the result I

came

would be deprival

to the knowledge of the

of the benefit of the policy?

are in the disjunctive,

and may not inappropriately

be treated as appl5ung to the two kinds of cases

where there is

active intervention,

is

—that

is,

control

and knowledge where there

no active intervention, but there

is

subsequent notice of the

change.

was

Here there

neither active

intervention or subsequent

knowledge, and, there being no other defence, the plaintiffs ought to recover the

amount

of the policy.

The appeal should be dismissed and with OsLER, J.A. cellor in

:



I agree

costs.

with the judgment of the learned Chan-

the Divisional Court.

by the defunct company of which the plaintiffs are the liquidators was made after the policy, and it seems to have been conceded that the change made by the tenant in the mode of occupying the premises was a change which would The

lease to Ferris

was a change within the control or knowledge the assured, within the meaning of the third statutory con-

avoid the policy, of

dition,

if it

which provides that ‘‘any change material to the

and within the control or knowledge

risk

of the assured shall avoid

the policy as to the part affected thereby, unless the change

promptly notified in writing to the company or

The change

in question

Western Trusts Co. V.

Canadian Fire

Insurance Co.

make changes

do not think the language should be so construed.

The words

1908

nothing to shew that London and

they contemplated or intended to countenance a change in the

mode

C. A.

its local

is

agent.”

was not known to the assured, and was The question is, whether it can

not notified to the company.

properly be held to have been a change “within the control” of the assured.

The question is, no doubt, one of some difficulty, to judge from the numerous and somewhat conflicting decisions on the

Moss. C.J.O.

ONTARIO

224

LAW

REPORTS.

[vOL.

and the English cases do not afford much

C. A.

subject,

1908

English companies not having adopted the condition in question^

London and which

tTuS?C^ V.

Canadian Fire Insurance Co.

one of those framed by the Judges and imposed by

is

the Legislature upon companies transacting business in this Pro-

The learned

vince.

cases

Judge seems to have

trial

relied

upon these

from the condition, they, no doubt,

and, apart

;

material to the risk even

establish that a change

clearly

made by a

if



if the latter by a tenant of the assured regards the policy, be deemed other than a stranger Bunyon on Fire Insurance, 5th ed., avoid the policy

stranger or

Osier, J.A.

assistance, the

can, as

— would p.

:

May on

Insurance, 4th ed., sec. 227;

The object

B. 868, at pp. 882, 883, per Lord Campbell.

was to place the assured

condition

perhaps be

more

a

and

in,

equitable,

which, though material to the or

knowledge

the policy.

assured,

them

assured.

It

of the

than he would otherwise

may

there

that

risk, is

and

It qualifies, in short,

limiting

insure the

the

of

&

a more advantageous,

in

position

imply

terms

its

166;

Sillem v. Thornton, 5 E.

change

be a

not within the control

therefore

not

will

affect

changes of that character by

to those within the control or knowledge of the is

common

owner

a tenant, and

business of an insurance

of property

it is

which

is

common knowledge

the possession of the insured himself,

company

to

then in the possession of that, it

even

may

if it

is

then in

be subsequently

demised, and that in either case the actual physical control of the demised premises and the actual power to

however much against the

will or

or even in breach of the lessee’s covenant,

has the legal control

may

is

title

and possession

make changes

therein,

without the consent of the is

lessor,

in the lessee,

of the premises.

If

who

the tenant’s

the landlord’s control, the unauthorised act of the former

destroy the policy, as

even though

it

may

it is

here contended that

it

has done,

not come to the latter’s knowledge until too

him to give the prompt notice required by the conKnowledge of the change subsequently acquired would then be unimportant for the purpose of any useful action by the landlord under the condition, if it must be taken to have been within his control because made by his tenant, since the time for notifying the insurers would have been running from the “Control,” to my mind, means the actual date of the change. late to enable dition.

physical control of the assured in respect of the particular thing

LAW

ONTAKIO

XVI.]

done which

relied

is

upon

EEPORTS.

as effecting the change.

from the tenant or by taking

may have

the thing

It

legal proceedings against him, since

been done in the face of the strongest prohibi-

and the policy might have become avoided in

tion,

cannot

by exacting a covenant

the mere power to prohibit either

mean

225

spite of the

promptest proceedings by the landlord after the unlawful act tenant had come to his knowledge.

of the

do not see

I

why

the

C. A.

1908

London and Western Trusts Co. V.

Canadian Fire Insurance Co.

words

plain

a question is

of the condition should not prevail.

what the

parties

have contracted

made by the assured owner,

it is

or

by

within his control or knowledge.

If

insurer of

when

made by

Heneker

and

decided,

that,

a third person

only required to give notice to the

is

America Assurance

v. British

the change

without the knowledge

has come to his knowledge.

it

If

simply

with his consent,

his tenant,

in lawful possession of the insured premises

or assent of the assured, he

for.

It is

I think the case

was well

Co., 14 C.P. 57,

upon the reasoning of that case,

it

can make

no difference whether the tenancy began before or after the date of the policy.

Co.,

See also Kuntz

16 C.P. 573,

Mercantile

Insurance

Co.

and Iowa Insurance Co.

Niagara J.,

S.C., 87

District Fire Insurance

578; North

p.

SW.

v. Christiensen,

and other cases referred to

Neb. 572;

at

London and Edinburgh

of

Ky. 465;

Stockyards Co., 120

I

v.

per Wilson, C.

v.

British

Union

Repr. 285; Nebraska

45 N.

W.

Repr. 924, 29

judgment below.

in the

would dismiss the appeal.

Garrow and Maclaren, Meredith, J.A.

JJ.A., concurred.

(dissenting):

—This

is

not a case to which the

doctrine expressed in the words stare decisis

et

can be applied.

No

of this Province,

seems to be discoverable; and,

of foreign

if

the judgments

Courts could be looked upon as decisions which ought

to be followed, there

by them,

non quieta movere

case in point, having authority in the Courts

would be at

least as great difficulty in abiding

in the proper sense, for

they seem to lead to diametrically

opposite ends.

This case also

is not a simple one of law, but depends upon both the proper interpretation of the words used

in the contract

between the parties and the facts peculiar to

it.

In the case of Heneker v. British America Assurance Co., 14 C.P. 57, so

much

relied

upon

in the Divisional Court, the property

had been leased before the insurance was 15



^VOL. XVI.

O.L.E.

effected,

and the insurers

Osier, J.A.

ONTAEIO

226

LAW

RBPOETS.

[vOL.

C. A.

took the risk with a knowledge of the tenancy, and the altera-

1908

tions

which were made were such as the Court considered within

London and the rights of such tenant, and so beyond the control of the in-

Western Trusts Co.

sured; and so that case

On

V.

Canadian Fire Insurance Co. Meredith, J.A.

is

very obviously different from this case.

the other hand, in the case of Kuntz v. Niagara District

by the defendants, the condition was that the policy should be avoided by any alteration or addition to the buildings insured, not notified to the company for approval; the controlling words of this case ^‘within Fire Insurance Co., 16 C.P. 573, relied upon



the control or knowledge of the assured”

Wilson,

J.,

in delivering the

being there used.

The few observations

Again, a very obviously different case.

Adam

—not

judgment

of the Court,

of

which

seemed to give so much satisfaction to the appellants, and are quoted in their reasons for

when due regard ^4n case if it

it

is

had

this appeal,

do not aid them at

to the sentence ending with the

was done without

his consent or

knowledge.”

all

words But,

were otherwise, cases are not to be determined in any court

by mere observations made by the way. The question is whether the policy was avoided under the third statutory condition, indorsed upon it, and subject to which it is expressly, in the policy, as well as by virtue of the statute, made. That condition is in these words: ‘^Any change material to the risk, and within the control or knowledge of the assured, shall avoid the policy as to the part affected thereby, unless the change is

promptly notified in writing to the company or

and the company when so for the unexpired period in writing

notified

may

and cancel the

its local

return

policy, or

agent;

premium may demand

the

an additional premium, which the assured

shall, if

he

pay to the commake such payment forthwith after

desires the continuance of the policy, forthwith

pany;

and

if

receiving such

he neglects to

demand, the policy

shall

be no longer in force.”

According to the only evidence upon the subject, adduced at

some time after the making of the policy the property by the plaintiffs to a tenant for six months, and after such term the tenancy was renewed from month to month, at a reduced rent each month, for three months and until the fire occurred by which it was destroyed. The tenant did not occupy the prothe

trial,

was

let

perty as a dwelling-house only, but, with a stock of goods of considerable value which he brought to

and stored there

and

re-

ONTARIO

XVI.]

LAW

REPORTS.

227

plenished from time to time, he carried on the business of a mer-

C. A.

1908 who sold to pedlars only, such persons returning frequently make their purchases, and residing, apparently, in the house London and Western The evidence for the until they departed with their purchases.

chant,

to

Trusts Co.

defence shews that, in the introduction and carrying on of this business on the property, which

was insured

as a dwelling-house,

was a change very material to the risk, and no evidence to the Indeed it was and is substantially admitted contrary was offered. there

There

that there was such a change. plaintiffs

manner to

had any knowledge

is

no direct evidence that the

of the tenant^s business, or of the

occupancy by him, but the learned

of

Judge seems

trial

have been of the opinion that such knowledge was abundantly Additional evidence might and should have

proved indirectly.

been given on this question; the lease ought to have been proved

and

filed at

the

and the

trial,

plaintiffs’ agent,

who

alone trans-

acted the business in question for the plaintiffs, ought to have

been there examined as a to the plaintiffs

might

and inferences unfavourable

witness*;

fairly

be drawn from their failure to give

such evidence, which was quite within their “control,” and was of a

very material character upon a subject necessarily more or obscure without

less

But, in the view I take of the case,

it.

these questions of fact,

upon which

been thrown, are not essential to After the

making

its

of the policy,

much

so

might have

light

proper determination.

and with a knowledge that the

property was insured as a dwelling-house, and that any change material to the risk, within their control or knowledge,

avoid

unless continued in the

it,

the plaintiffs let

any

it

thereby conferred upon

If

him the

they had in so

the change, could

would

out in the condition,

evidence shews, as to right to

which he did make;

be said that the change trol?

set

to the tenant, as before mentioned, without

restriction, so far as the

to the risk,

manner

it

make

its user,

the change, material

and, that being so,

made was not within

many words

be argued that

how can

it

the plaintiffs’ con-

conferred the right to it

and

make

was not a matter within

Having just as effectually conferred the power by the words which they did use, by letting the house without any restriction as to the user, the effect must be precisely the

their control?

same.

It

the tenant

does not need the aid of Heneker’s case to shew that

was within the

right conferred

upon him by the

plain-

V.

Canadian Fire Insurance Co. Meredith, J.A

— ONTARIO

228

REPORTS.

[VOL.

on the business upon the property which he

C. A.

tiffs

1908

as before described.

in carrying

LAW

It

would have been a simple matter

London and plaintiffs to have exercised their control by refusing to Western any purpose other than that of a dwelling-house, and, Trusts Co.

did,

for the for

let

they

if

V. desired to retain their contract of insurance, that should have been Canadian ] done; in this instance it would have caused them the loss of this Fire Insurance particular tenant, as he desired the property for the purposes

Co. of the business Meredith, J.A.

he afterwards carried on there, but would have

retained their insurance as

was;

it

unless,

indeed, they chose,

with the defendants’ concurrence, the alternative course provided for in the condition;

that

to have saved the tenant

is,

notice to the defendants.

Doing that which

insurance rendered necessary,

offering

and given

their contract of

the property only as a

dwelling-house, would have plainly revealed the tenant’s desire to rent for the purposes of a store, which,

acceded

if

to,

would

have rendered the notice to the defendants plainly necessary.

The

fault altogether lies with the plaintiffs.

We

must guard against a natural disposition to view question from the standpoint of an insured’s interests only.

this

So

we must remember what the law, coinciding with common sense, is, upon the subject, apart from the special condition in too

question,

and then consider to what extent that condition

Apart from the condition, any change, material to the

such law. risk,

avoids

made with The common sense

the policy, whether the change be

without the knowledge of the insured. that

is

alters

obvious.

The

insurers contract to insure one thing;

or of

how

can they be held to have insured some other thing of a different

and more hazardous character

them

?

What

justice in

to carry a different risk, the carrying of

worth double or

treble, or

in

any

compelling

which might be

other degree substantially

greater than, that which they contracted

to carry?

Then how upon

far does the condition in question impose that obligation

them

?

Only to the extent

the control or knowledge of inclination of the

minds

of changes

made which

of the great

are without

Again, the natural

the insured.

body

of insured persons

is

to extend the benefit of the condition so as to construe it as if “ control and knowledge ” instead of “ control or the words were

knowledge.”

some

of

There must be cases

of

knowledge without control

which readily suggest themselves

;

and

also

of control

,

ONTARIO

XVI.]

why

C. A.

1908

To say that he who

the right and power to do a certain act

doing of

me

seems to

it

and contrary to the order

of the insured, yet

the insured’s agent, his wife or

house,

it

may

upon another London and Western

There are cases in

made both without it

the knowledge

must be a change

For' instance, the case of

within the provisions of the condition.

dwelling

confers

had no control over the

very inconsistent.

which, though the change be

their

229

use the two words with the disjunctive conjunc-

them?

tion between

REPORTS.

—some of which also readily suggest themselves;

without knowledge for, if not,

LAW

be,

making the change

in

place of business, in his absence, and

The rule qui facit per alium facit per se made by the insured’s tenant, under conferred upon him by the insured, how

against his expressed will.

would surely apply. authority to

can It

it

make

If

it,

be said that

it

was not only within

was not within the insured’s control? his control, but

control, exercised in permitting the

was made.

authority,

not necessary to

It is

would be the

effect

of a

it

was by virtue

of

such

change to be made, that consider, in this case,

it

what

change made by a tenant without the

and without the knowledge,

of the

insured

landlord.

Such a case would be very materially the opposite of this case. But it was contended that there was sufficient notice to the defendants of the change to comply with the terms of the con-

am

In that I

dition.

entirely unable to agree.

The mere taking

another risk, upon other property, from another person in no way connected with the earlier contract, more than a year afterwards, cannot, by any stretch of imagination, be converted into notice in writing upon which the insurers could act ^‘when so notified.” The notice must be in writing, to the company or of

its local

agent,

and

it

to consider that the in

would be surely beyond the bounds

of reason

company’s agent, when acting in that capacity

an entirely disconnected and independent matter, more than

a year afterwards,

any

sort

of

cases relied

Peck

V.

was acting

as agent for the plaintiffs, or giving

“notice” such as the condition requires.

upon

for the plaintiffs

on

this

Of the

branch of the

case, in

Phcenix Mutual Insurance Co., 45 U.C.R. 620, notice in

company was given through one who was its agent, how given? Not as agent for the company, but in the in-

writing to the

but

sured’s behalf, as the notice itself very plainly indicated, beginning as

it

did,

with the words “Mr. Richard Pratt requests

me

to in-

Trusts Co. V.

Canadian Fire

Insurance Co. Meredith, J.A

LAW

ONTARIO

230

REPORTS.

[vOL.'

C. A.

form the company/’ and then going on to give the very notice which

1908

the condition required;

whilst in the case of McIntyre v. East

London and Williams Mutual Fire Insurance Co., 18 O.R. 79, it was held that Western written notice had not been given, under circumstances very Trusts Co. V. much stronger in favour of a contention that it had than those Canadian These cases are, therefore, very much against, rather of this case. Fire Insurance than in favour of, the plaintiffs’ unreasonable contention on this Co.

branch of the Meredith, J.A.

I to

case.

would allow the appeal and

be entered by the

restore the

judgment directed

Judge.

trial

E. B. B.

[MABEE,

Re Cramp Steel Company

1908 Jan. 13.

J.]

Company

—Dominion

(Limited).

—Application

Winding-up Act

of

Act

to

Provincial Cor-

poration. of the Dominion Winding-up Act (R.S.C. 1906, ch. 144) do not apply to a company incorporated under the Ontario Companies Act unless such company is shewn to be insolvent.

The provisions

for a winding-up order by shareholders company incorporated under the Ontario Companies Act, and was heard before Mabee, J., in Chambers, on January 10th, The facts are set out in the judgment. 1908.

This was an application

of a

F. Arnoldi, K.C., and J. A. Paterson, K.C., for applicants.

W.

E. Middleton and

J A.

Ferguson, for the company.

.

J. R. Cartwright, K.C., for the Attorney-General of Ontario.

January

13.

Mabee,

J.:



^This

is

an application by share-

holders for a winding-up order under R.S.C. 1906, ch. 144.

The

company was incorporated under the Ontario Companies

Act.

There are no creditors, so insolvency cannot be shewn.

was

It

admitted that the applicants had made out a case imder sub-sec. (d)* * 11.



The Court may make a winding-up order, when the capital stock of the company is impaired to the extent of twenty-five per centum thereof, and when it is shewn to the

(d)

(e)

satisfaction of the Court that the lost capital will not likely be restored within one year; or when the Court is of opinion that for any other reason it is just and equitable that the company should be wound up.

ONTARIO LAW REPORTS.

XVI.]

of sec. 11,

and that

the facts, but

is

sub-sec.

might be held to apply to

(e)

had no

v^as objected that these clauses

company incorporated under the laws

cation to a

There

it

also

231

appli-

is

Re

shewn Cramp Steel

may, by application to the Court, obtain

Dominion Winding-up Act, this being legisupon insolvency which falls within the jurisdiction of the Federal Parliament: Re Union Fire Ins. Co. (1887), 14 O.R. 618, the benefit of the

lation

(1889) 16 A.R. 161, (1890) 17 S.C.R. 265.

The attempt made here

to apply the provisions of

is

Dominion Act to a company that has no that relief

may

be

creditors, the

the

clause

sought under providing that a winding-up order

is

made when

company is impaired Now, the Steel company and being a corporate body brought

the capital stock of the

to the extent of twenty-five per cent. in question, not being insolvent,

under the Ontario Companies Act,

into existence

subject to the Ontario Winding-up Act, but I

how

it

am

is,

of course,

unable to see

can be brought under the provisions of the Dominion Wind-

ing-up Act.

If this latter

Act provided that the clause in ques-

tion should apply to provincial corporations,

or not, I think provide, so

it

would

it is fair

clearly be ultra vires,

to presume that

it

whether insolvent but

it

does not so

was intended to apply

to

such companies as were subject to Federal control or companies incorporated under the Dominion Companies Act.

cannot be made under

I think it is clear that the order It

was

sub-sec.

also

of sec. 6,* as the material

(6)

sec. 11.

contended that the order might be made under

shews the company

process of a voluntary liquidation or winding-up.

same objection applies to

this section



or,

I think

is

in

the

in other words, the

only clauses of the Dominion Act that can be

made

to apply to

an Ontario corporation are those dealing with insolvency.

The

facts

the motion

shew a proper case

fails

does not apply,

for a winding-up order,

and as

only upon the ground that the Dominion Act it is

dismissed without costs. G. G.

...

* 6. This Act applies to incorporated trading companies doing business in Canada wheresoever incorporated and, (b) which are in liquidation or in process of being wound up, and, on petition by any of their shareholders ask to be brought under the provisions of this Act. .



J.

1908

of Ontario.

no doubt that where an Ontario corporation

to be insolvent, a creditor

Mabee,

C o.

(Ltd.)

— LAW

ONTARIO

232

[MULOCK,

Kelly et

1907

Nov.

2.

—Election

Company

C.J.,

EX.

[vOL.

D.]

Electrical Construction Co.

al. v.

—Parties—Proxies—By-law Regulating— By—General Power Shareholders—R.S.O. 1907,

of Directors

law Proper for Directors ch. 191, sec.

REPORTS.

47—7 Edw.

of

VII. ch. 34,

sec. 87.

Action by certain shareholders of a company, on behalf of themselves and all other shareholders, except the individual defendants, to have the election of the latter as directors set aside for irregularity: Held, that the action must be dismissed unless the plaintiffs obtained the consent of the company to sue in the company’s name; as, however, the company was a party defendant and all necessary parties before the Court, it was proper to dispose of the case on the merits, conditionally on such consent being obtained and the record amended. Under sec. 47' of the Ontario Companies Act, R.S.O. 1897, ch. 191 (7 Edw. VII. ch. 34, sec. 87), by-laws regulating the requirements as to proxies are to be made by directors, and shall have force only until the next annual meeting of the company, and, unless confirmed thereat, shall cease to The shareholders, themselves, therefore have no power to have force. initiate and pass such a by-law at general meeting; and, in the absence of any valid by-law regulating the matter, nothing more is necessary to a proxy than valid execution by the shareholder.

This was an action to

set aside the election of the

company, and

directors of the defendant

for other relief,

The

circumstances set out in the judgment. before

Mulock,

C.J. Ex.D., sitting

board

of

under the

action was tried

without a jury, at London,

on April 2nd, 1907.

and G.

G. C. Gibbons, K.C.,

S. Gibbons, for the defendants,

raised the preliminary objection that the action

constituted,

and that

the company: V.

10

Macdougall

Alston (1847),

W.R.

it

1

v.

Gardiner (1875),

1

of

Ch.D. 13; Mozley

Ph. 790; Hattersley v. Earl of Shelburne (1862),

881, 31 L.J. Ch. 873.

T. G. Meredith, K.C.,

and

J.

W.

G. Winnett, for the plaintiffs,

contended that the objection was too

ground for demurrer: p. 376;

was not properly

should have been brought in the name

late,

misjoinder not being

Holmested and Langton’s Judicature Act,

and that the case was properly constituted:

McMurray (1881), 28 Gr. 533; Davidson Sadgrove v. Bryden, [1907]

1

The Court overruled the

v.

Dickson

v.

Grange (1854), 4 Gr. 377;

Ch. 318. objection,

Meredith and Winnett, for the

and the case proceeded.

plaintiffs,

contended that any

:

ONTARIO LAW REPORTS.

XVI.]

233

by-laws regulating proxies were required to be passed by the directors, not, as here,

by shareholders at a general meeting Ontario :

Companies Act, R.S.0. 1897, directors

191, sec. 47; that the by-laws of the

c.

were not confirmed by the shareholders at the next share-

by the Act; that the statute gave the shareholders the right to vote by proxy, and that right could not be interfered with. They referred to Dickson v. McMurray, 28

holders’ meeting, as required

Gr. 533.

G. C. Gibbons, for the defendant, contended that sec. 47 gave the

power to pass the by-law respecting the requirements as to proxies

Bombay Burmah Trading Corporation v. Palmer’s

Company

Dorabiji,

etc.,

[1905] A.C.213;

Precedents, 8th ed., p. 599; that what was done

here afforded no opportunity of examining proxies, which object of the statute:

v. Phillips (1883),

23 Ch.D.

that the action was not brought on behalf of the

p. 32;

or of

Harben

all

the shareholders, but for the plaintiffs personally,

is

the

14, at

company who were

estopped because they were at the meeting of shareholders that that the by-laws not having been

passed the by-laws in question;

revoked remained the lawful by-laws of the company: V.

Stephenson

Yokes (1896), 27 O.R. 691, pp. 270, 697. Meredith, in reply, referred to Holmested and Langton’s Judi-

Pender

cature Act, p. 206;

November

2.

Mulock,

Lushington (1877), 6 Ch.D. 70.

v.

C.J.:



^This is

an action to

set aside

the election of the board of directors of the defendant company,

and for other

relief.

The company was incorporated by letters patent issued on March 17th, 1897, under the authority of the Act respecting the Incorporation of Joint Stock Companies ch. 157 of the

Revised Statutes

of sec. 5 of the

by Letters Patent, being and now by virtue

of Ontario, 1887,

Ontario Companies Act, R.S.O. 1897,

c.

191,

it

is

subject to the provisions of secs. 17 to 105 of that Act.

On February of the

of a

5th, 1907, the annual

company was held

board of

for,

five directors.

clusion of the voting the

meeting of the shareholders

amongst other purposes, the election

A

poll

was opened, and on the con-

chairman declared Messrs. Campbell,

Workman, Gorman, Heman and Thomas elected, and they have ever since acted as members of the board.

1907

Kelly V.

Electrical Construction Co.

ONTAEIO

234 Mulock, C.J.

1907

Kelly V.

Electrical Construction Co.

LAW

EEPORTS.

[vOL.

The plaintiffs contend that they and C. W. Sifton, and not Workman, Gorman, Heman and Thomas, were elected, and they bring this action on behalf of themselves and

other shareholders,

all

except the individual defendants, and ask to have the election set

and that defendant Campbell, who was chairman

aside,

W.

meeting, be ordered to declare the plaintiffs and C.

been elected directors, or for a declaration that the C.

W.

at the

Sifton to have plaintiffs

and

Sifton were duly elected in place of the other individual

defendants.

The defendants, including the defendant company, by statement of defence contend that the

plaintiffs are

their

not entitled to

maintain this action, and that the election was conducted in accordance with the requirements of the by-laws of the company.

The substance

of the plaintiffs’ complaint

defendants are usurping the

that the individual

of directors to the exclusion

office

therefrom of the plaintiffs and C.

is

W.

Sifton.

As stated below, the

evidence does not, I think, shew that a majority of votes was ten-

dered in support of the plaintiffs and Sifton, and therefore the case is

narrowed down to the one point

—^whether the

be set aside at the instance of these If is

election should

plaintiffs.

the directors were not duly elected their usurpation of

an invasion

of the rights of the corporation to

manage

office

its

own

internal affairs.

The

election of directors

of the shareholders.

If

board should remain in

term

of office,

for

would

it

is

a matter under control of a majority

the majority are satisfied that the present office until

the expiration of the statutory

no useful purpose would be served by unseating them,

at once be in the

power

of the

majority to restore

them

to office.

In the management of a company’s domestic

may

affairs

the board

manner of doing what the company is by doing irregularly or illegally do in a regular or legal manner. In any

frequently err as to the

entitled to do, as, for example,

what

it

has the right to

such case the majority of the shareholders larity or illegality,

and

it

may

waive such irregu-

would be purposeless

for the Court to

entertain an action at the instance of individual shareholders set aside a transaction of the

and

company, when the next moment

the majority of the shareholders might in substance repeat their

former action, though in a manner not open to objection.

For

ONTAEIO

XVI.]

instance,

LAW

EEPORTS.

235

what purpose would be served by the Court

an election of a board of directors

if

setting aside

the majority of the shareholders

were opposed to such action and could at once render

by

re-electing the unseated

To avoid such

members?

fruitless litigation,

Ph. 790, and later cases,

is

down

the rule, as laid

Mozley

v.

in

Alston (1847),

well established that in respect of acts

within the powers of the company, and thus capable of confirmation

by the majority

of the shareholders, the

the instance of individual shareholders.

Court

will

not interfere at

Therefore, I think that

unless the plaintiffs obtain the consent of the

company

company’s name, the action should be dismissed.

to sue in the

It

is,

I think,

a proper case in which they should be given an opportunity for

The board might give

it,

might be obtained from the shareholders in some manner,

as,

obtaining, or

it

if

for example,

possible,

at

such consent.

a special general meeting convened under the

and following sections

provisions of sec. 52

panies Act, R.S.O. 1897,

The company

is

c.

of the Ontario

Com-

191.

at present party defendant,

parties, either as plaintiffs or defendants, are

and have taken part in the

now

real issue of the case.

and

all

necessary

before the Court,

Therefore,

it is

advisable, I think, that instead of giving effect at this stage to the

and dismissing the action, I should, conupon the record being amended, as above indicated, dispose of the case upon the merits. Dealing, then, with the facts and circumstances of the case, it defendants’ objection ditionally

appears that the dispute as to the result of the election has arisen in

consequence of four absent shareholders, represented at the

meeting by proxy, not having been allowed to vote. If

Sifton

they had been, the

would have been

plaintiffs

elected.

contend that they and C. W. The four absent shareholders

were E. Holden, the holder of 20 shares; of

one share;

Chas.

W.

Chas. Sifton, the holder

Sifton, the holder of 13 shares;

and G.

Gerrard, the holder of 44 shares. It

was shewn that

J.

B. Campbell, without authority, voted on

owned by Messrs. Olmstead and Macpherson, and that Thos. Dealy was the holder of 20 shares, which he had pledged to the Dominion Bank, 'and it was contended by the plaintiffs that 7 shares

under

sec.

1907

Kelly V.

Foss v. Harbottle (1843), 2 Ha. 461; 1

nugatory

it

Mulock, C.J.

36 of the Ontario Companies Act, R.S.O. 1897, ch. 191,

Electrical Construction Co.

:

ONTARIO

236 Mulock, C.J,

1907

(7

Edw. VII.

of these

ch. 34, sec. 67),

LAW

REPORTS.

[vol.

Dealy was entitled to vote in respect

20 shares without any proxy.

The votes cast for the different candidates, not counting those by the four proxies hereafter referred to, were as follows Electrical Construc- For D. J. Campbell, 177 votes; and for Workman, Gorman, Heman tion Co. and Thomas, 121 votes each; and for each of the plaintiffs and Kelly V.

represented

C.

W.

Sift on,

56 votes.

Workman, Gorman, Heman, and Thomas,

for Campbell,

would

still

Deducting the 7 votes improperly counted there

remain in their support 170 votes for Campbell and 114

votes for each of the other four, leaving these four in a majority of 58,

and the

plaintiffs

cannot overcome this majority without

counting the 44 votes of Gerrard, and at least 14 additional votes.

In the determination, therefore, of the question, to deal with

any

Dealy or Chas.

it is

unnecessary

special question growing out of the cases of Thos.

Sifton.

The following

are the circumstances under which the votes

of the four absent shareholders

were disallowed:

E.

J.

Sifton,

having in his possession the written proxies of the four absent shareholders, took

them

to the company’s office the

day before the

and he there made known to Mr. Reeve, the company’s bookkeeper and accountant, who appeared to be in charge of the office, his desire to register the proxies, and for that purpose he handed them to Mr. Reeve. The latter not appearing to know what to do with them, Sifton told him to stamp them with the company’s stamp, to date the transaction, and to mark them as registered. Reeve did as desired and then handed them back to Sifton, who, placing them in his pocket, took them away. At the election the next day Sifton produced the four proxies and handed them to the chairman of the meeting, conelection for the purpose of registering them,

tending that the parties in whose favour they were drawn were

thereby entitled to vote for the absentees.

The chairman under-

took to rule otherwise, on the ground that the proxies should have

been deposited with the company the day before the election, as required

by an

ing words:

alleged by-law of the

‘^All

at the head-office of the

at

company, which

is

in the follow-

instruments appointing proxies shall be deposited

company

at least one

day before the date

which they are to be used.”

By much

their statement of claim the plaintiffs contend that, inas-

as this by-law seeks to restrict the unqualified right to vote

ONTARIO

XVI.]

LAW

REPORTS.

by proxy, conferred on the shareholders by Companies Act, it is ultra vires and void. At the was put trial,

clusive,

sec.

237 63 of the Ontario

1907

the minute-book of the company,- pp. 5 to 10 inin,

shewing certain by-laws, including one in the

words of that in question, passed by the board of directors on

May

and the defendants

13th, 1897,

also

put in what purport to

be certain by-laws adopted by the shareholders at the adjourned

annual meeting held on

number one

May

which include in their

16th, 1905,

the precise words of the by-law above quoted,

in

respecting voting

by proxy.

Before the close of the evidence I called the attention of counsel to the provisions of sec.

regards voting

47 of the Ontario Companies Act, which, as

by proxy, seemed

to

empower the shareholders

to

adopt only such by-laws respecting proxies as had been passed by the board of directors since the annual meeting of shareholders held next before that of

May

16th,

1905,

and counsel

for the

defendants thereupon searched in the directors’ minute-book for

such by-law, but failed to produce any. Section 77 of the Ontario Companies Act requires directors to cause proper books to be kept, containing minutes of ings of the board of directors

authenticated. If,

and the by-laws

all

of the

the proceed-

company duly

This implies that such by-laws must be in writing.

therefore, there exists

any

directors’

by-law passed since the

annual meeting of shareholders immediately preceding that of

May

16th, 1905, the defendants, being in control of the

books, should have

had no

difficulty in

producing

it,

company’s

and from

its

non-production I assume that none such exists.

The

first

question to determine

proxies passed

by the board

is

whether the by-law respecting

of directors

on

May

13th, 1897, or

any

by-law, was in force at the election of directors held on February 5th, 1907.

Section 47 of the Companies Act declares that the directors may from time to time make by-laws to regulate (e) ^Hhe re-

...

quirements as to proxies

.

.

.

but every such by-law

unless in the

meantime confirmed

company duly

called for that purpose, shall only

.

at a general meeting of the

have force until

the next annual meeting of the company, and in default of confirmation thereat shall at, force,

and

in that case

Mulock, C.J.

and from that time

only, cease to

no new by-law to the same or the

have

like effect

Kelly V.

Electrical Construction Co.

ONTARIO

238 Mulock, C.J.

1907

Electrical Construction Co.

REPORTS.

[vol.

have any force until confirmed at a general meeting

shall

of the

company.’’

The

Kelly V.

LAW

directors’

by-law of

May

the next annual meeting after

The only kind

have force.”

of

13th, 1897,

its

passage,

was not confirmed

and thus

by-law capable

is

one in force at iu question not

of confirmation,

annual meeting of the

proxies,

May

language

exact

and

it

May

that

of

May

13th,

1897,

supported as a by-law originating in the holders had inherent

respecting

the shareholders’ by-law did

if

not operate as a confirmation of the directors’ by-law

and

16th, 1905,

but the shareholders at their

16th, 1905, purported to pass a by-law in

of

was contended that

holders’ meeting,

by

Thus the by-law

being in force at the time of the annual meeting of

was not capable

at

ceased “to

of confirmation

the shareholders under the provisions of sec. 47 the time of such annual meeting.

it

first

it

could be

instance at a share-

that, irrespective of the statute, the share-

power

to pass

it

as a piece of domestic legisla-

tion necessary for the proper carrying on of the affairs of the

com-

pany.

The presumption

This contention, I think, cannot prevail.

that a corporation has implied power to pass by-laws necessary for

the proper

management

of its affairs arises only in the

Here the Companies Act declares what powers,

express power.

in respect of proxies, shall be enjoyed its

provisions,

arise

by

absence of

by

a corporation subject to

and therefore the question here

implication, but

having regard to

its

what

is

not what powers

are the powers of the corporation

express statutory powers.

Section 63 of the Companies Act enacts that “at

all

general

meetings of the company every shareholder shall be entitled to as

many

may vote by directors may pass

votes as he holds shares in the company, and

proxy,” and

sec.

47 declares that the board of

by-laws regulating the requirements as to proxies. sections

holder

is

must be read

These two

together, their effect being that each share-

entitled to the right to vote

by proxy subject

to the one

qualification,

namely, compliance with the requirements of a direc-

tors’ by-law,

which,

if

not confirmed within the time limited for

that purpose, ceases to exist. Section 47, empowering directors to pass by-laws respecting

power from the general body of As stated by Vaughan, B., in Rex v. Westwood

proxies, impliedly withholds such

shareholders.

ONTARIO

XVI.]

(1830), 7 Bing.

power

of

REPORTS.

239

'^Wherever a charter confers an express

at p. 29:

1,

LAW

making by-laws,

as to a particular subject,

on a certain

part of the corporation (more especially where, as in this case,

those terms are very general and comprehensive), there

is

no ground

on which a presumption can be raised of an implied power existing in the

body

but that such power

at large;

is

expressly taken from

body according to the rule, Expressum facit cessare taciturn.^’ Were the rule otherwise there might in the present case be in existence at the same time previous to the election two inconsistent by-laws, one passed by the board of directors, the other by the

that

shareholders, prescribing conflicting regulations respecting proxies.

be seriously argued that the statute contem-

It cannot, I think,

plated such a possibility.

power conferred by

I

sec.

am therefore of opinion that the express

47 upon the board of directors to pass

by-laws respecting proxies deprives the body at large of any inherent power to deal with that subject, holders’ by-law of

that body,

is

null

13th, 1897, not

the time fixed

May

16th, 1905,

and

void.

if

and therefore the share-

regarded as originating with

Then the

May

by-law of

directors’

having been confirmed by the shareholders within

by

sec. 47, also

became

null

The

and void.

plaintiffs

by their statement of claim, attack the by-law on the ground was merely a shareholders’ by-law. Nevertheless this point came up for consideration at the trial, and the defendants unsuccessfully endeavoured to discover a directors’ by-law to serve as did not, that

it

foundation for the shareholders’ by-law. I therefore see

no reason why the

plaintiffs

should

not

be

allowed the benefit of the point, and think they should be entitled to raise It

it

formally by

amendment

to their statement of claim.

would thus seem that when the election

1907, ,was held there existed

no by-law

the requirements as to proxies,

of the

of

February 5th,

company

and those produced

regulating

at the meeting

being in themselves sufficient authorizations, entitled the holders to vote

on behalf

to

of the constituents thereof.

This they were not

The votes which they represented were

permitted to do.

have defeated the four directors whose elections are

lenged,

and

if it

was

tendered and for result

of

clear

whom,

the election.

sufficient

now

chal-

from the evidence that these votes were would be possible to declare the true

it

The evidence, however, does not with

reasonable certainty indicate for

whom

these votes would have

Mulock, C.J.

1907

Kelly V.

Electrical Construction Co.

*

LAW

ONTARIO

240 Mulock, C.J.

1907

Kelly V.

Electrical Construction Co.

been to

cast,

amend

and

I therefore

have no

the election return.

,

i

REPORTS.

[vol.

sufficient material

upon which

All that the evidence discloses

is

that the holders of proxies were present at the meeting for the

purpose of voting; but the chairman having ruled that the proxies

would not be recognized and having instructed the scrutineers not

by the holders thereof, such action resulted would be useless to press further their right to vote. Had this right not been denied them they would in all probability have voted, and the result of the election might have to accept votes tendered

assuming that

in their

been ex V.

In such a case the election should be set aside

different.

rel.

Davis

it

Wilson (1857), 3 C.L.J. 165; Reg. ex

v.

Ferguson (1866), 2 C.L.J.

19.

plaintiffs obtaining authority to

rel.

:

Reg.

McManus

Therefore, conditional on the

use ‘the

name

of the

company

as

and within a reasonable time amending their stateclaim by making the company a party plaintiff, instead

party

plaintiff,

ment

of

and making the formal amendments to the statement

of defendant,

of claim consequent

on such change, the election

of the defendants

Workman, Gorman, Heman and Thomas should be new election had.

set aside

and a

would, I think, be expedient that the four directors in question

It

should continue in parties

may

office until

the election of their successors.

The

be able to agree upon a convenient date for holding

the election, the same to be stated in the judgment, otherwise I shall

have to name the date.

If

the plaintiffs

fail

within a reasonable

time to obtain authority to sue in the company’s name and

make

notice, bring the fact of such failure before

evidence, It is

to’

the necessary amendments, the defendants may, on 24 hours’

and

in the

me on

affidavit or other

meantime no formal judgment

to be entered.

not a case calling for any order as to costs. A. H. F. L.

— —

ONTARIO LAW REPORTS.

XVI.]

241

[DIVISIONAL COURT.]

Mullin

V.



D.C.

Provincial Construction Co.





Appeal Right of Judge to Sit on Appeal from Himself Divisional Court Staying Execution Pending Appeal and Trial of_ Counterclaim Ontario Con. Rule 827 (2). Judicature Act, sec. 70 (2)



f

sec. 70 (2) of the Ontario Judicature Act, R.S.O. 1897, ch. 51, a Judge is disabled from sitting as a member of the Divisional Court hearing an appeal from a judgment or order made by himself, and he has therefore no jurisdiction, after the setting down of an appeal from his judgment, to make an order that execution shall not be stayed. In an action for goods sold and delivered the defendant counterclaimed for The plaintiff recovered judgment at the trial of his claim, and trespass. the trial of the counterclaim was adjourned.' The defendant appealed to the Divisional Court, on the ground that the amount for which the plaintiff had recovered judgment should be reduced by $214.50 as damages

By

for breach of

warranty:

Held, that the trial Judge had no jurisdiction to make an order on application to him under Con. Rule 827 (2) that execution should not be stayed, notwithstanding that an appeal to this Court had been set down but that as the order was a proper one on the merits, execution should not be stayed save as to the $214.50, as the counterclaim was not one which should have been joined with the action, and it was not shewn that if a verdict were obtained on the counterclaim, there would be any danger of the amount net being recoverable from the plaintiff; and that, as to the $214.50, it was proper to stay execution, notwithstanding affidavits on behalf of the plaintiff of his belief that the defendant’s appeal was merely for delay, and as to his uncertainty in respect to the defendant’s financial ability to pay the claim, there being no suggestion or evidence that by staying the execution to this extent the plaintiff would probably lose his claim. ;

This 827

tvas a

(2), for

motion by the

plaintiff,

under Consolidated Rule

an order that execution should not be stayed in

action, notwithstanding a

this

pending appeal to a Divisional Court,

and was made before Riddell,

in

J.,

Chambers, on December

20th, 1907.

The circumstances J.

are set out in the judgment.

H. Denton, for the

plaintiff.

H. D. Gamble, for the defendant.

December

me

21.

Riddell, J.:—This was an action tried before

at the non-jury sittings, at Toronto.

The

plaintiff

claimed

the price of a quantity of sand delivered from his pit and received

by the defendants. The defendants say that the sand delivered was inferior to what the plaintiff had represented it would be, and also

counterclaimed: 16

—VOL.

XVI. O.L.B.

“That

.

.

.

the plaintiff entered the

1907 Dec.

21,

— LAW

ONTARIO

242

REPORTS.

[vOL.

D. C.

office of

1907

into confusion, throwing on the floor the office books of account of

Mullin

the defendant company, and abusing and otherwise annoying the

V.

Provincial Construction Co.

the defendants

employees and servants $ 200

.

and upset and threw the

company;

of the

and

office

for this they claimed

.

At the Riddell, J.

.

.

trial I

found the facts against the defendants in the claim,

and directed judgment

to be entered for the plaintiff upon his The defendants were not ready to go on with the trial of their counterclaim by reason of the absence of a material witness, and I gave them the option of withdrawing the counterclaim and bringing a new action, or of adjourning the trial of the counterclaim. They accepted the latter alternative. The counter-

claim for $738.75.

claim has not yet been tried, neither party being at fault respecting the delay. I refused to stay the issue of the

Upon

counterclaim.

judgment

until the trial of the

the same day judgment was entered and

execution issued and placed in the hands of the sheriff of Toronto. The defendants served notice of motion to the Divisional Court, claiming $214.50 for damages for breach of the plaintiff of his contract as to the quality of the sand; and thereupon applied for a flat on December 12th. A fiat was granted to set down the appeal

and (no doubt per incuriam)

also to stay the execution.

Consolidated

Rule 828 provides that upon an appellant becoming entitled by setting

down an appeal

tion, a fiat sheriff.

and

may

This

to the Divisional Court to a stay of execu-

cannot, however, issue under this Rule unless

imtil the appellant has

become

entitled to a stay,

the time of the application he was not.

A

motion

now made by

is

an order that the execution the setting

down

hands of the

issue staying the execution in the

fiat

the

plaintiff,

shall not

of the appeal.

The appeal

is

set

which at down.

under Rule 827 (2)* for

be stayed, notwithstanding

This motion

is

in

no way an appeal

* Rule 827 (1) Unless ordered by the Court appealed to or a Judge thereof, the execution of the judgment or order appealed from shall, in the case of a motion or an appeal to a Divisional Court, upon the motion or be stayed pending the appeal being set down for argument motion or appeal, except in the following cases : :

....

(a)

...

.

Upon thereof may

special application, the Court appealed to or a Judge order that execution shall not be stayed, in whole or in part, except on such terms as may seem just. (2)



.

.

.

ONTARIO LAW REPORTS.

XVI.]

243

a motion rendered necessary, as

contended,

D.C.

by the setting down of the appeal. It is objected that I am not ‘‘a, Judge” of ‘Hhe Court appealed to,” it being contended that the appeal is to a Divisional Court, and

1907

from the

fiat,

but

is

by the stay automatically

it is

effected

that under sec. 70 (2) of the Ontario Judicature Act, R.S.O. 1897,

am

ch. 51,* I

this appeal.

number

of

precluded from sitting in a Divisional Court upon I

have had the opportunity

my brethren,

I think that the objection

is

with a

without

Section 68 of the Act provides that the King’s Bench,

foundation.

Common

Chancery,

and

of consulting

such divisions;

Pleas and Exchequer divisions shall not

and there

shall

sit

as

be no Divisional Courts of any of

these divisions; but the Divisional Courts shall be Divisional Courts of the

High Court.

An

appeal

is

taken to “a Divisional Court of

the High Court or to the Court of Appeal”:

Rules 782, 783;

where to a Divisional Court

High Court.

Rule 827

(1)

it is

really to the

and

Where

or (2) speaks of “the Court appealed to,” the distinction

High Court, not High members the Court between certain of and other members The objection is overruled. In my judgment, of the same Court. motions of this kind are generally best made before the Judge who tried the action and who should be most conversant with the facts. As to that, however, much may be said on both sides.

is

indicated between the Court of Appeal and the

On

the merits, I should not think of staying the execution

until the trial of the counterclaim,

even

to proceed with a claim that cannot stantial verdict.

The counterclaim

if it

be seriously intended

be expected to result in a subis

in

my view, in

any event, one

which should not have been joined with the action. are cited in

Holmested

&

Many

cases

Langton’s Judicature Act, pp. 459-461,

where just such counterclaims were held not such as could be conveniently tried in the action.

There or that

is

if

no suggestion that the

would be any danger

As is

plaintiff is

not a

man of substance,

a verdict were obtained upon the counterclaim there

to the claim,

of its not being paid.

it will

be noticed that the sole ground of appeal

that the defendants should have been allowed

they

fix at

$214.50) for breach of warranty.

damages (which

There

is

no appeal

* Sec._70 (2): No Judge shall sit as a Judge on the hearing of an appeal from any judgment or order made by himself; but subject to this provision every Judge of the High Court shall be qualified and empowered to sit in any of

such Divisional Courts.

Mullin V.

Provincial Construction Co. Riddell, J.

— LAW

ONTARIO

244

REPORTS.

[vOL.

D.C.

against the remainder ($738.75 minus $214.50), $524.25, and no

1907

ground is alleged why this should not be paid.

Mullin V.

Provincial Construction Co. Riddell, J.

The execution should

not be stayed as respects this sum, namely, $524.25.

In respect of the $214.50,

it

must

be,

kept in mind that “the

general rule and the right of the appellant

is

that, save in the

excepted cases, proceedings below are stayed upon the appeal

...

being perfected

A

proper case must be

made out

for

allowing the respondent to enforce what has not yet become a final

judgment, the appeal being a step in the cause’’:

Centaur Cycle

4 O.L.R. 92, at p. 95. All that is shewn here is the by the plaintiff that the defendants have no defence to the action, and that their present appeal is merely for the purpose of delay, added to the affidavit of the plaintiff’s solicitor that the plaintiff

V. Hill (1902),

belief

has expressed considerable anxiety as to the financial ability of the defendants to pay the claim, and the solicitor’s the defendants’ appeal

to delay the plaintiff

is

time to raise the money.

There

is

own

belief that

and obtain more

no suggestion that by staying

the execution the plaintiff will probably lose his claim, and no facts are set out from which such an inference can be drawn.

On

the present material I do not think that the motion can

succeed to the

move again

full extent,

but

come

in case facts

I reserve leave to

the plaintiff to

to his notice indicating danger to

his claim.

As

to the costs to which the plaintiff

is

entitled

under the judg-

ment, I understand that the execution does not cover them; that there will be a

may

sum

against which to

for costs

so

which

be awarded to the defendants by an Appellate Court.

The order

will

be that the stay effected by the setting down

of the appeal be removed to the

defendants pay that

ment on

or before

sum

Costs of this motion



to the plaintiff in

amount

of $524.25, unless the

to the plaintiff’s solicitor

December if

upon the judg-

26th, 1907.

the pending appeal be proceeded with

to the plaintiff in the appeal

is

draw



any event.

if

the appeal be not proceeded with

The

principle

upon which

I proceed

that as the plaintiff has succeeded in part he should not pay

costs in

any event; and

if

the appeal

is

simply for time or

if it

turn

out to be ineffectual, the plaintiff should be paid his costs.

The defendants appealed, and the appeal was argued oh January 2Ist, 1908, before Boyd, C., and Anglin and Mabee, JJ.

ONTARIO LAW REPORTS.

XVI.]

245

H. D. Gamble, K.C., for the defendants, contended that the learned Judge should not have sat on the motion to set aside the stay of execution in this case: Ontario Judicature Act, R.S.0. 1907, ch. 51, sec. 70, sub-sec. 2;

that sec. 68 had changed the practice as

Provincial Construction Co.

means that all Judges may sit, except the Judge appealed

He

and that on the merits the motion should not succeed.

from;

Mullin V.

it

previously existed in the Act of 1895, 58 Viet. ch. 12, sec. 63 (0.); that sec. 68

D. C., 1907

also referred to

CentorCi/cZe Co.

4 O.L.R. 92; Confederation

v. Hill,

Life Association v. Labatt (1899), 35 C.L.J. 443; Rice v. Rice (1899), ibid.

535;

Wintemute

v. Brotherhood of

Railway Trainmen (1899),

19 P.R. 6. J.

H. Denton,

for the plaintiff,

two Courts, the High Court that properly speaking there

contended that there were only

of Justice is

and the Court

of

Appeal;

no such Court as a Divisional Court,

High Court, and as the Judge of the High Court the Judge below was entitled to sit: Regina v. Bunting (1884),

the appeal

is

to the

7 O.R. 118; Centaur Cycle Co. v. Hill, at p. 94; that

on the merits

the execution should not be stayed.

Per Curiam:

—^The learned Judge had no jurisdiction to

the order in question, which

must be

set aside.

make

As, however, the

made was a proper one on the merits and a new order must be made to the same effect, there will be no costs.

order

A. H. F. L.

[DIVISIONAL COURT.]

The a. R. Williams Machinery Co., Limited, v. The Crawford Tug Co., Limited, and J. T. Crawford.

—Right

Company It

to

Guarantee Debt of Another

— Ultra

This was an appeal from the refusal of

his

Honour Judge

in the

county

1908 Jan. 31.

Vires.

is ultra vires of a tug company, incorporated for the purpose of carrying on a general carrying, towing, wrecking, and salvage business in all its branches, to guarantee payment by the owner of a tug employed by the company of a boiler purchased by him to operate the tug.

Judge of the eighth division court

D. C.

Barrett,

of Bruce, to

enter judgment for the plaintiff in this action as against the de-

——



ONTARIO

216

Tug

LAW

D. C.

fendants, the Crawford

1908

the plaintiff for that purpose, or for

The

a. R.

Willi IMS

Machinery Co., Ltd. V.

The Crawford Tug Co., Ltd., and T. Craw-

circumstances

REPORTS.

Co., Limited,

a

new

[vOL.

upon the application trial,

of

under the following

:

One Koch, owner of the tug employed by the Crawford Tug required a new boiler to enable him to operate the tug. Owing to his financial position he could not obtain this boiler, and to enable him to secure a contract with the plaintiff for the Co.,

supply of the

J.

‘‘

ford.

boiler, the following

We guarantee the

The

boiler

guarantee was given:

The Crawford Tug Co. (Sgd.) J. T. Ceawford.”

above contract.

was supplied by the

Koch

guarantee, but

plaintiff

failed to pay,

and

on the

faith

this action

of

this

was brought

against the defendant^.

The defendant company was incorporated on January 19th, by letters patent under the Dominion Companies Act, R.S.C. The objects mentioned in the letters patent (1886), ch. 119. 1893,

were as follows:

() The constructing,

acquiring,

chartering,

navigating and

maintaining any steam vessels or sailing vessels or other vessels for the

purpose of carrying and conveying passengers, goods,

mails or other traffic

;

and

for the purpose of carrying

on a general

carrying, towing, wrecking and salvage business in all its branches, upon and over any of the navigable waters within or bordering upon the Dominion of Canada, to and from any part therein, and to and .from any foreign port. () To construct or acquire any elevators, docks, offices or building that may be necessary for the carrying on of the com-

pany’s business.

The

learned

—“The follows: one

Julius

division

suit

is

court

-Judge’s

judgment

was

brought for goods sold under lease

Koch, and guaranteed by the

as

lien of

defendant, John T.

Crawford.

“At the trial I expressed the opinion that guaranteeing the payment of goods sold, as here alleged, was no part of the defendant company’s business, and herein cited to fore,

me

I find

nothing in any of the cases

that should cause a change of that view; there-

the plaintiff cannot recover against the tug company.

“The claim

against

as to the authority he

J.

had

T. Crawford

is

for a misrepresentation

to give such a guarantee for the

com-

.

ONTARIO LAW REPORTS.

XVI.]

247 D.C.

There was no evidence to support this claim, and the

pany.

amount claimed, being $141, makes the Court, as in personal actions $60

‘‘The

must,

action

plaintiff's

1908

out of the jurisdiction of

it

the limit.

is

The

be

therefore,

dismissed

with

a. R.

Williams Machinery Co. Ltd.

costs."

V.

The appeal was argued on January 24th, 1908, before Boyd, Anglin and Mabee, JJ.

C., •

The Crawford Tug Co., Ltd., and T. Craw-

J.

E. Middleton, K.C., for the plaintiff, contended that what

W.

had been done was incident to the business of the company, and to assist a sub-contractor, and was intra vires: Attorney-General V.

North-Eastern

R.W

.

Nurses’ Association,

British

[1897]

2 Ch.

Jennings, for the defendant, contended that

vires to

G887), 18 Q.B.D. 815;

Co.

Council, [1903] 1

it

was

&

Co. v. South London

Ladford

ultra

Tramways

Rural District

v. Billericay

Brice on Ultra Vires, 3rd ed., p. 269;

K.B. 772;

was nothing to shew that the company got any

that there

from

ed., p. 259,

guarantee, and that the guarantee was not under seal,

should be: Barnett, Hoares

it

2nd

3,

“Company."

sub. voc.

J.

Royal

v.

Green's Brice's

272;

Ultra Vires, p. 718; English Ency. of Law, vol.

as

Breay

Co., [1906] 1 Ch. 310, 316;

benefit

this guarantee.

company need

Middleton, in reply, contended that a trading

National Malleable Castings Co. v. Smith’s Falls

not use a seal:

Malleable Castings Co. (1907), 14 O.L.R. 22.

January

by

Boyd,

pany,

The judgment

31. C.:

—Giving

incorporated

debt of a person

who

to

it is

do

defined

a

things,

main purposes

is

pressions

to

of

on the ground

justified

and

therefore,

it.

I use ex-

Lord Selborne

in Small v.

Smith (1884), 10 App. Cas. 119, at pp. 129-133. case

Lord Blackburn says the authority “which

directors

is

to

the nature of

manage

its

all

business.

a potential

is

that,

a reasonable implication of power to do

drawn from the language

com-

answer for the

—that there

necessity for entering into the guarantee,

there

stock

joint

not within the general

if

company, must be

incidental to the

was delivered

Court

the

does work for them,

or special powers of the

that

of

a guarantee by

In the same is

given to the

the affairs of the society according to .

.

.

According to that they might

ford.

— LAW

ONTARIO

248

REPORTS.

D.C.

do very much the same things which by

1908

in a business limited in the

The

a. R.

Williams Machinery Co. Ltd. V.

The Crawford Tug Co., Ltd., and J. T. Crawford.

refers to Brettel v.

case

pretty close to the present.

is

common law

same way would be

and he

[vol.

a partner

entitled to do,”

Williams (1849), 4 Exch. 623, 632.

A

partnership of railway con-

work on a railway.

tractors agreed to do certain

That

U.

&

K. made

a sub-contract with the defendant to do part of the work, and for that purpose required coals to

make

partners signed a guarantee for the

payment

supplied to U.

&

K.

brick, of

and one

of the

such coals to be

Held, that the guarantee was not necessary

for carrying the partnership contract into effect Boyd, C.

be convenient for that end

—and,

—though

it

might

was

therefore, the partnership

not bound. This reason

is

The only the new was doing work for the

sufficient to dispose of the appeal.

who bought

evidence of any relation between the person boiler

and the tug company

A

company on the bay.” in the

Exchequer case

There

is

is

signed for the

in 1902 secretary of the

to his

more remote

(1886), ch. 119, etc.,

and

sec.

made on

company by one Crawford, who

company.

power or authority, and

it

No

evidence

is

given as

cannot be assumed that his signa-

The incorporation

ture binds the corporation.

ment,

relation than existed

cited.

also a formidable obstacle presented in the fact that

the guarantee

was

that ‘‘he

is

is

under R.S.C.

76 provides that every contract, engage-

behalf of the

company by any

officer

or

servant of the company, in general accordance with his powers as such

under the by-laws

the company.

Proof

of the

company,

shall

be binding on

lacking as to such by-laws or other

is

—who

of enabling the secretary

is

to create a binding engagement

a mere servant of the

by way

means

company

of guarantee,

even

if

it

be within the power of the corporation to become surety for the debtor Koch.

The appeal should be dismissed with

costs.

A. H. F. L.





ONTARIO LAW REPORTS.

XVI.]

[DIVISIONAL COURT.]

Whalen

v.

P- C.

Wattie.



1908



Divisional Court of High Court Division Court Appeal Division Courts Act, sec. 158 Amendment Filing Certified Copy of Proceedings Extension of Time for—Jurisdiction.

Appeal

A

to





Divisional Court of the High Court, which is the Court for hearing division court appeals, has no power to extend the time limited by sec. 158 of the Division Courts Act for filing the certified copy of the proceedings in the division court, and has no power, under sub-sec. 2 of sec. 158 (as added by 4 Edw. VII. ch. 12, sec. 2), or otherwise, to extend the time for setting down the appeal until it is seised of the appeal by the filing of the certified copy, the time for filing which may be extended by the Judge in the division court.

Motion by the defendant certified

copy

to extend the time for filing the

of proceedings in the 1st division court in the district

of Muskoka and to extend the time for setting down an appeal by the defendant from an order of the Judge or acting Judge of the district court of Muskoka, presiding in the division court,

new

refusing a

trial after

The action was

a judgment in favour of the plaintiff.

by the

for the price of cattle sold

plaintiff to the

favour of

Judgment was given on the 11th January, 1908, in the plaintiff for the recovery of $119. A motion for a

new

was made by the defendant

defendant.

trial

refusing

it

in February,

fendant contended, he was not notified of

The defendant, however, did file

and an order

was pronounced on the 8th February, but, as the deit

until the 28th February.

owing to some misapprehension,

not,

the certified copy of the proceedings in the division court

within two weeks, even reckoning from the later date, though he

intended to appeal, and later served notice of a motion to extend the time.

The following provisions

of the Division Courts Act,

R.S.O.

1897, ch. 60, are applicable: 154.



(1)

In case a party to a cause

.

.

.

wherein the

sum

upon the appeal exceeds $100 exclusive of costs, is dissatisfied with the decision of the Judge, upon an application for a new trial, he may appeal to a Divisional Court of the High Court of Justice, and in such case the proceedings in and about the appeal shall be the same as on an appeal from a county court, except where in dispute

otherwise provided 17

by

VOL. XVI. O.L.E.

this Act.

.

.

.



7

April

3.

— LAW

ONTARIO

250 D. C. 1908

Whalen V.

Wattie.

The

157. is

pending,

a duly

clerk of the court in

shall, at

certified

REPORTS.

[vol.