Page images
PDF
EPUB

ditions, the lenders in London, were entitled to claim from the bank at its office in Montreal, the money which they had advanced solely for the purpose which had ceased to exist. Their right was a civil right outside the province, and the legislature of the province could not legislate validly in derogation of that right. “These circumstances distinguish the case from that of King v. Lorett, where the point decided was in reality quite a different ore. “In the opinion of their Lordships the effect of the statute of 1910, if validly enacted, would have been to proclude the bank from fulfilling its legal obligations to return their money to the bondholders, whose right to this return was a civil right, which had arisen and remained enforceable outside the province. The statute was on this ground beyond the powers of the legislature of Alberta, inas much as what was sought to have been enacted was neither confined to property and civil rights within the province, nor directed solely to matters of merely a local, or private nature within it. . “Other questions have, as already stated, been raised in this appeal as to whether the statute of 1910, infringed the provisions of sec. 91 of the British North America Act by attempting to deal with a question relating to banking, and by trenching on a field already occupied by the Dominion Banking Act. It was also contended that the appropriation of deposits to the general revenue fund of the province was Outside the powers assigned to the provincial legislature for raising revenue for provincial purposes. “The conclusions already arrived at make it unnecessary for their Lordships to enter on a consideration of these otestions, and of other points made during the arguments of counsel. “Their Lordships will advise his Majesty that the appeal should be allowed, and the action dismissed. Respondents must pay costs here, and in the Courts below.”

SUPREME COURT OF Canada. * DUNN v. EATON. N.S.] [October 29th, 1912. Appeal—Final Judgment—Reference.

In an action claiming rescission of a contract for the sale of timber lands and other equitable relief and, in the alternative, damages for deceit, the trial Judge held that it was a case for damages only and gave judgment accordingly and referred to a referee matters arising out of a counterclaim, ordering him also to take an account of money's paid, an inquiry as to liens and incumbrances and as to the quantity of standing timber on the lands and other proper accounts. Further consideration of the cause was reserved. This judgment was affirmed by the full Court and the defendants sought to appeal to the Supreme Court of Canada.

Held, that the action tried and determined was the common law action for deceit only; that the judgment given therein was not a final judgment within the meaning of that term in the Supreme Court Act; and that the court had no jurisdiction to entertain the appeal. Clarke v. Goodall (44 Can. S. C. R. 284), and Crown Life v. Skinner (44 Can. S. C. R. 616), followed.

Appeal quashed with costs.

Curry, K.C., for appellants.
Rogers, K.C., for respondents.

TWO MOUNTAINS EI, ECTION CASE. QUE.] |October 29th, 1912,

Dominion Election–Nomination—Identification of Candidate–Powers of Returning Officer.

The failure in the paper nominating a candidate for election to the House of Commons is substantially defective if it

[ocr errors]

:

does not identify him by addition, residence or description, and should be rejected. DUFF and IDINGTON, J.J., dissenting.

The Returning Officer may reject such nomination after the time for nominating candidates has expired, and may declare another whose papers are sufficient, elected by acclamation, DUFF, J., dissenting.

Appeal dismissed with costs.

Mignault, K.C., and Atwater, K.C., for appellant.
Perron, K.C., and Genest, for respondent.

HESSELTINE v. NELLES. ONT.] [DECEMBER 10TH, 1912.

Appeal Final Judgment Further Directions Master's Report.

On the trial before the Chancellor of Ontario of an action claiming damages for breach of contract, judgment was given for the plaintiffs with a reference to the Master to ascertain the amount of damages, further directions being reserved. This judgment was affirmed by the Court of Appeal. The Master then made his report which, on appeal to the Chief

. Justice of the Common Pleas, was varied by reduction of the

amount awarded. The Chancellor then pronounced a formal judgment on further directions in favour of the plaintiffs for the damages as reduced. The defendants appealed from the judgments of the Chief Justice and the Chancellor and the two appeals were, by order, heard together but not formally consolidated. Both judgments were affirmed by the Court of Appeal and the defendants sought to appeal from the judgment affirming them and also from the original judgment sustaining the decision at the trial having applied without success to the Court below for an extension of time to appeal from the latter judgment. See Welles v. Hesseltine (27 Ont. L. R. 97). Held, BRODEUR, J., dissenting, that the only judgment from which an appeal would lie was that affirming the judgment of the Chancellor on further directions; that the Chan

[ocr errors]

cellor could not review the original judgment of the Court of Appeal nor that varying the Master's report, and the Court of Appeal was equally unable to review them on the appeal from the Chancellor’s decision; and the Supreme Court being able to give only the judgment that the Court of Appeal should have given, was likewise debarred from reviewing these earlier decisions.

Appeal dismissed with costs.

Nesbitt, K.C., and Matthew Wilson, K.C., for appellants.
Holman, K.C., for respondents.

RLIN E v. I) () MINION FIRE INS CO.
ONT.] [DECEMBER 10TH, 1912.

Fire Insurance—Removal of Goods—Consent–Binder—
Authority of Agent.

IN. Bros. & Co., through the agents in New York of the respondent company, obtained insurance of a stock of tobacco in a certain building in Quincy, Flo., and afterwards obtained the consent of the company to its removal to another building. Later, again, they wished to return it to the original location and an insurance firm in New York was instructed to procure the necessary consent. This firm, on Jan. 14th, 1909, repaired a “binder,” a temporary document intended to license the removal until formally authorized by the company, and took it to the firm which had been agents of respondents when the policy issued, but had then ceased to be such, where it was initialled by one of their clerks on his own responsibility entirely. On March 19th, 1909, the stock was destroyed by fire in the original location and shortly after a formal consent to its removal back was endorsed on the policy, the respondents then not knowing of the loss. In an action to recover the insurance:

Held, affirming the judgment of the Court of Appeal (25 Ont. L. R. 534) that the “binder ’’ was issued without authority; that even if the insurance firm by whose clerk it was initialled had been respondents’ agents at the time, they had, under the terms of the policy, no authority to execute, and authority would not be presumed in favour of the insured as it might be in case of an original application for a policy; and that it was not ratified by the endorsement on the policy as the company could not ratify after the loss.

Appeal dismissed with costs.

D. L. McCarthy. K.C., for appellants.
Hamilton Cassels, K.C., for respondents.

(UIMONI) v. FIDELITY-PII (ENIX FIRE INS. CO. N.B.] [DECEMBER 10TH, 1912.

Fire Insurance–Insurance on Lumber–Conditions—Warranty–Railway on Lot–Security to Bank—Chattel Mortgage. A policy insuring against loss by fire a quantity of sawn lumber in a specified location contained a warranty by the assured “that no railway passes through the lot on which said lumber is piled, or within 200 feet.” Held, that a railway partly constructed and hauling freight through the said lot, though not authorized to run passenger cars and do general business, is a “railway” within the meaning of the warranty. A condition of the policy was that if the subject of insurance be personal property, and be or become encumbered by a chattel mortgage, it should be void. ' Held, per DUFF. J.. A security receipt under the Bank Act given to a bank for advances is not a chattel mortgage within the meaning of this condition.

Appeal dismissed with costs.

Hasen, K.C., and F. Taylor, for appellants.
Teed, K.C., and Fairweather, for respondents.

« PreviousContinue »