Ont.]

REPORTS AND NOTES OF CASES..

Dominion of Canada.

SUPREME COURT.

[Nov. 16, 1903.

CAN. MUTUAL RESERVE FUND LIFE Ass. v. DILLON.

Appeal-New trial-Alternative relief.

In an action on a policy of insurance on the life of plaintiff's husband, the defence being misrepresentation and concealment of material facts, plaintiff obtained a verdict though defendant's counsel claimed that there was no case to go to the jury. On appeal to the Court of Appeal, claiming judgment for defendants or in the alternative a new trial, such alternative relief was granted (5 O.L.R. 434). The defendants then appealed to the Supreme Court to obtain the larger relief.

Held, that the appeal did not lie; that it was not an appeal from the order for a new trial, and that the judgment refusing to enter a dismissal of the action was not final. Appeal quashed without costs.

Ont.]

Lucas and Wright, for motion to quash. Aylesworth, K.C., contra.

CANADIAN MUTUAL LOAN Co. v. LEE. [Nov. 19, 1903. Appeal-Amount in dispute—Title to land-Future rights.

L. had given a mortgage to The Standard Loan and Savings Co. as security for a loan and had received a certain number of the company's shares. All the business of that company was afterwards assigned to the Canadian Mutual Loan Co., and L. paid the latter the amount borrowed with interest and $460. 80 in addition and asked to have the mortgage discharged. The company refused, claiming that L. as a shareholder in the Standard Co. was liable for its debts and demanding $79.20 therefor by way of counterclaim. At the trial of an action by L. for a declaration that the mortgage was paid and for repayment of the said $460.80, such action was dismissed (1 O.L. R. 191), but on appeal the Court of Appeal ordered judgment to be entered for L. for $47.04 (5 O. L. R. 471). The defendants appealed to the Supreme Court.

Held, that the appeal would not lie; that no title to lands or any interest therein was in question; that no future rights were involved within the meaning of sub-s. (d) of 60 & 61 Vict., c. 34; and that all that was in

dispute was a sum of money less than $1,000, and therefore not sufficient to give jurisdiction to the court. Appeal quashed with costs. W. J. Clark, for motion. Shepley, K.C., and Macdonell, contra.

Ont.]

C.P.R. Co. v. BLAIN.

[Nov. 30, 1903.

Railway-Injury to passenger-Duty of conductor.

B., a passenger on a railway train, was assaulted shortly after beginning his trip by an intoxicated fellow-passenger. He complained to the conductor who promised to get a policeman at the next station, but failed to do so. The assailant having become more quiet B. did not anticipate a further attack, but was assaulted a second time, which was also reported to the conductor who took no action and a third assault having been made, B. left the train and completed his journey on the following day. In an action against the railway company B. obtained a verdict for $3,500 which was sustained by the Court of Appeal. On appeal to the Supreme Court of Canada,

Held, affirming the judgment of the Court of Appeal (5 O.L.R. 334) that the company was liable; that it was the duty of the conductor on being informed of the first assault to take precautions to prevent a renewal, and his failure to do so gave B. a right of action.

Held, also, that as B. did not anticipate the second assault the conductor could not be assumed to have foreseen it and the jury having evidently given damages for that as well as the third, the amount recovered should be reduced to $1,000 and a new trial had if this sum was not accepted. Appeal allowed without costs.

Johnston, K.C., and Denison, for appellants. Riddell, K.C., and D. O. Cameron, for respondent.

Ont.].

THOMPSON V. Coulter.

[Nov. 30, 1903. Executors--Action by-Evidence- Corroboration - R.S.O. (1897) c. 73,

S. 10.

In an action by executors to recover money due from C. to the testator it was proved that the latter when ill in a hospital had sold a farm to C. and $1,000 of the purchase money was deposited in a bank to testator's credit; that subsequently C. withdrew this money on an order from testator who died some weeks after when none was found on his person nor any record of its having been received by him. C. admitted having drawn out the money, but swore that he had paid it over to testator. No other evidence of any kind was given of such payment.

Held, reversing the judgment of the Court of Appeal that a primâ facie case having been made out against C. and his evidence not having been

corroborated as required by R.S.O. 1897, c. 73, s. 10, the executors were entitled to judgment. Appeal allowed with costs.

F. E. Hodgins, K. C., for appellants. Aylesworth, K.C., for respondent.

Man.]

MANITOBA & N.W. LAND CORP. v. DAVIDSON. [Nov. 30, 1903. Principal and agent-Breach of duty-Secret profit.

D. represented to the manager of a land corporation that he could obtain a purchaser for a block of its land and was given the right to do so up to a fixed date. He negotiated with a purchaser who was anxious to buy but wanted time to arrange for funds. D. gave him time, for which the purchaser agreed to pay $500. The sale was carried out and D. sued for his commission, not having then received the $500.

Held, reversing the judgment appealed from (14 Man. L. R. 233) that the consent of D. to accept the $500 was a breach of his duty as agent for the corporation which disentitled him from recovering the commission. Appeal allowed with costs.

Aylesworth, K. C., for appellants. G. A. Elliott, for respondent.

G.T.R. Co. v. MCKAY.

[Dec. 1, 1903.

Ont.] Railway-Speed of train-Crowded districts-Fencing-Negligence-50 &51 Vict, c. 29, ss. 197, 259 (D)—55 & 56 Vict., c. 27, ss. 6, 8 (D).

By s. 259 of Railway Act, 1888, as amended by 55 & 56 Vict., c. 27, s. 8, "no locomotive or railway engine shall pass in or through any thickly peopled portion of any city, town or village at a speed greater than six miles an hour unless the track is fenced in the manner prescribed by this Act." Besides the usual railway fences the only fencing required is that provided for by 55 & 56 Vict., c. 27, s. 6, which is substituted for s. 197 of The Railway Act, 1888, namely, "At every public road crossing at rail level of the railway the fence on both sides of the crossing and on both sides of the track shall be turned into the cattle guards, so as to allow of the safe passage of trains," The plaintiff, McKay, was injured and his wife was killed by a train passing through a thickly peopled portion of the town of Forest at a speed of at least twenty miles an hour and on the trial the jury found that such speed was excessive for that place and constituted negligence on the part of the company.

Held, reversing the judgment of the Court of Appeal (5 O.L. R. 313), GIROUARD, J.. dissenting, that the company, having complied with the statutory provisions as to fencing, were not liable. Appeal allowed with

costs.

Riddell, K. C., and Rose, for appellants. Hellmuth, K.C., and Hanna, for respondent.

N.S.]

DICKIE V. CAMPBELL.

[Dec. 4, 1903.

Rivers and streams-Floating logs-Damage to riparian owners.

The Nova Scotia statute R.S.N.S. (1900) c. 95, s. 17, gives to persons engaged in the transmission of saw logs and timber down rivers and streams the reasonable use of and access to the same for their business and relieves them for liability from any but actual damage thereby, unless caused by their own wilful act.

Held, affirming the judgment appealed from (36 N.S. Rep. 40) that such persons are liable for all actual damage caused in transmitting logs, even without negligence, and the owner of the logs is not relieved from liability though they were transmitted by other persons under contract with him..

On motion for a new trial one of the grounds was misdirection in the charge to the jury. The trial judge reported to the full court that he did not make the direction on which this objection to his charge was based and gave a correct report of what he said.

Held, that this was not an objectionable course for the judge to pursue and in any case it was a matter for the court appealed from whose ruling was not subject to review. Appeal dismissed with costs. Harris, K. C., for appellant. W. B. A. Ritchie, K.C., for respond

ents.

Yukon Terr.]

CREESE V. FLEISCHMAN.

[Dec. 9, 1903.

Appeal-Discretion—Amendment-Formal judgment.

The Supreme Court would not interfere with the exercise of discretion by a provincial court in refusing to amend its formal judgment. Such amendment is not necessary in a mining case where the mining regulations operate to give the judgment the same effect as it would have if amended. Appeal dismissed without costs.

J. Travers Lewis, for appellants. Russell, K.C., and Haydon, for respondents.

EXCHEQUER COURT OF CANADA.

Burbidge, J.] [Nov. 23, 1903. IN RE GRAND TRUNK R. W. Co.; THE CITY OF KINGSTON; THE COUNTY OF FRONTENAC; AND THE KINGSTON AND STORRINGTON ROAD Co. Railway Committee of Privy Council-Construction of subway-Country road and city street-Cost of construction-Ultra vires-Merits of order.

The Municipal Corporation of a city was one of the movers in an application to the Railway Committee of the Privy Council for an order authorizing the construction of a sub-way under a railway, by which one of

the city streets was made to connect with a country road, the works being adjacent to a city street but not within the city limits.

Held. 1. The city was interested within the meaning of the term as used in the 188th section of the Railway Act, which, provides that the Railway Committee might apportion the cost of such works as those in question between the railway company "and any person interested therein."

2. On an application to make an order of the Railway Committee of the Privy Council a rule of Court, the Courts will not go into the merits of the order, or consider objections to the procedure followed by the Railway Committee.

Semble, that while the Railway Committee of the Privy Council has jurisdiction in such a case, to impose upon the party interested an obligation to bear part of the expenses, it has no jurisdiction to compel a party other than the railway company to execute the works.

Orders made a rule of Court.

J. McD. Mowat and Glyn Osler for the motion. D. M. McIntyre

contra.

Burbidge, J.]

VROOM V. THE KING.

[Dec. 7, 1903.

Petition of right-Damage to lands-Subsidence-Release of claim

Liability.

In connection with the work of affording terminal facilities for the Intercolonial Railway at the port of St. John, N. B., the Dominion Government acquired a portion of the suppliant's land and a wharf, the latter being removed by the Crown in the course of carrying out such works. For the lands and wharf so taken by the Crown, the suppliant was paid a certain sum, and he released the Crown from all claims for damages arising from the expropriation by Her Majesty of the "lands and premises, or the construction and maintenance thereon of a railway or railway works of any nature". One of the effects of the removal of the wharf was to leave a wharf remaining on the suppliant's land more exposed than it formerly had been to the action of the waves and tides; but no sufficient measures were taken by the suppliant to protect his property or to keep it in a state of repair. '

Held, that there was no obligation upon the Crown, under the circumstances, to construct works for the purpose of protecting the suppliant's property; and as the injury complained of happened principally because the suppliant had failed to repair his wharf the Crown was not liable therefor.

W. Pugsley, K.C., for suppliant. McAlpine, for the respondent.