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Law of British Columbia—Validity of By-law—Municipal Act, 1892 (55 Vict. ch. 33), sec. 146—Limitation of Actions against Municipality—Municipal Clauses Act, 1897 (61 Vict, ch. 144), secs. 23, 244.

Section 146 of the Municipal Act 1892, of British Columbia provides that: “When debentures have been issued under a statute or under a by-law, and the interest on such debentures . . . has been paid for the period of one year or more by the municipality, the statute and the by-law and the debentures issued thereunder . . . shall be valid and binding on the corporation, and shall not be quashed or set aside on any ground whatever.”

Held, that the effect of the section was not limited to the validating of the debentures issued under a by-law, but that the by-law itself could not be set aside after the lapse of a year on the ground of irregularity in the procedure by which it was obtained.

By sec. 243 of the Municipal Clauses Act 1897, “all actions against any municipality . . . for the unlawful doing of anything purporting to have been done under powers conferred by any Act of the Legislature . . . shall be commenced within six months after the cause of such action shall have first arisen,” and by sec. 24, “all actions against a municipality other than those mentioned in the last preceding section shall be commenced within one year after the cause of such action shall have arisen.”

Held, that the sections applied to an action brought for continuing damage alleged to have been caused to land of the appellant by a dyke and works erected and maintained by the respondent municipality, and for an injunction.

Judgment of the Court below affirmed.


Sale of Land Option of Purchasing Construction of A greement Whether of Agency or as Principal–Commission. -

The appellants, by an agreement in writing, agreed to give to the respondents the option of purchasing certain land at the price and on the terms set out in the agreement. The agreement contained this clause: “We hereby agree to pay one thousand dollars commission to the respondents on sale of above described property on above described terms.”

Held, that an option of buying having been given to the respondents in plain, unequivocal terms, the subsequent clause as to commission was not so necessarily inconsistent with it as to convert the agreement into a contract of agency under which the respondents, being agents, had no right to purchase as principals.

Judgment of the Court below affirmed.

Livingstone v. Ross (85 L. T. Rep. 382; (1901) A. C. 327), distinguished.

Mines and Minerals—Natural Gas.

The decision of the Privy Council in Barnard-ArqueIroth-Stearns Oil Company and others v. Farquharson (107 L. T. Rep. 332), adds one more to the numerous and conflicting cases as to the meaning of “mines and minerals.” That was an appeal from the Court of Appeal for Ontario. The facts were shortly as follows: The appellants sold to the respondents’ predecessor in title certain land, “ excepting and reserving to the said company, their successors, and assigns all mines and quarries of metals and minerals and all springs of oil under the said land whether already discovered or not, with liberty . . . to search for, work, win, and carry away the same.” And it was held that the reservation did not include natural gas with which certain strata underlying the land were impregnated, such gas, though found with the oil, being at the time of the sale considered as a dangerous element to be got rid of, though it had since become of considerable commercial value. It was conceded in the judgment delivered by Lord Atkinson that in one sense natural gas is a mineral in that it is neither an animal nor a vegetable product, and all substances to be found on, in, or under the earth must be included in one or other of the three categories of animal, vegetable, or mineral substance. But, as Lord Watson said in Lord Provost of Glasgow v. Fairie (60 L. T. Rep. 274; 13 App. Cas, 657), “the words ‘mines’ and ‘minerals' are not definite terms; they are susceptible of limitation or expansion according to the intention with which they are used.” The natural gas case is an interesting one, but, as it turned upon the language of the exception and all the circumstances of the case, like many other of the decisions on the meaning of the words “mines” and “minerals,” it will not necessarily control future decisions. The Judge of first instance in that case referred to the important decision of the House of Lords in North British Railway Company v. Budhill Coal and Sandstone Company and others (101 L. T. Rep. 609; (1910), A. C. 116), which overruled numerous previous decisions. It was there held, upon an appeal from Scotland, that conveyances which either by reference to the Railways Clauses Consolidation (Scotland) Act 1845 (which corresponds with sec. 77 of the Railways Clauses Consolidation (England) Act 1845), or in terms, excepted the mines and minerals, did not except sandstone, which was not a mineral within the meaning of the section. That case contains a very useful summary by Lord Loreburn of some of the principal previous authorities,

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ONT.] [FEBRUARY 18th, 1913.

Election Law–Vote on Municipal By-law Scrutiny—
Powers of Judge—Inquiry into Qualification of Voter—
Disposition of Rejected Ballots—Ontario Municipal Act,

1903, secs. 369 et seq.-Voters' Lists Act, 1907, sec. 24.

A County Court Judge holding a scrutiny of the ballot papers deposited in a vote on a municipal by-law may go behind the voters’ list and inquire if a tenant whose name is placed thereon has the residential qualification entitling him to vote. DAVIES and BRODEUR, J.J., dissenting. The Judge has no power to inquire whether rejected ballots were cast for or against the by-law. Ballots rejected on a scrutiny must be deducted from the total number of votes case in favour of the by-law. The Supreme Court affirmed the decision of the Court of Appeal (26 Ont. L. R. 339), reversing the judgment of a Divisional Court (25 Ont. L. R. 267), which reversed the decision at the hearing (23 Ont. L. R. 598.)


Contract—Rescission—Sale of Land—Misrepresentations—

B. advertised for sale his farm in Ontario, stating the contents and describing it as in first-class condition. He also stated the number of trees, old and new, in the orchard on it. S., then in British Columbia, was shewn the advertisement and, after some correspondence, in which B. reiterated the statements therein, came to Ontario and spent some time in inspecting the farm, which he finally purchased on B.'s terms and entered into possession. Shortly after he leased the orchard for ten years and within a day or two discovered that the farm contained over forty acres less than, and the contents of the orchard only half of, what had been

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represented; also that the farm was not in the condition stated, but badly overrun with noxious weeds. He therefore procured the cancellation of the lease of the orchard and brought action to have the sale rescinded.

Held, that the lease of the orchard was not, under the circumstances, an affirmance of the contract for sale which would disentitle S. to rescission; that if it were an affirmance as to the orchard the subsequent discovery of the other misrepresentations would entitle him to a decree. Campbell V. Fleming (1 A. & E. 40), distinguished.

Appeal dismissed with costs.


Criminal Law—Indictment for Murder–Trial—Charge to Jury—Non-direction—New Trial.

On the trial of an indictment for murder of one Kenneth Lea, it was proved that the prisoners, who had been drinking, came on the deceased’s lawn and commenced to shout and sing and use profane and insulting language towards him. He twice warned them away and finally appeared with a loaded gun threatening to shoot. A rush was made towards the verandah where he stood when he took hold of the barrel of the gun and struck one of the prisoners with the stock. The gun was discharged into his body and there was evidence that the prisoners then maltreated him and his wife. He was taken to a Hospital in Halifax, where he died shortly after. The trial Judge in charging the jury, instructed them that the prisoners were doing an unlawful act in trespassing on the property of deceased and that if they were actuated by malice it would be murder, if not, it was manslaughter, drawing their attention specially to sections 256 and 259 (b) of the Criminal Code. The prisoners were found guilty of murder. On appeal from the decision of the Supreme Court of Nova Scotia on a reserve case:—

Held, that the Judge should have drawn the attention of the jury to sub-section (d) of section 259 and directed them to find whether or not the prisoners knew, or ought to have

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