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known, that their acts were likely to cause death and his failure to do so was non-direction for which the prisoners were entitled to a new trial.
Appeal allowed with costs.
CITY OF MONTREAL v. LAYTON.
Public Health—Suspected Food for Sale–Action by Health Officers—Control by Court—Evidence—Injunction.
In December, 1910, the appellant company had a large quantity of eggs, frozen in bulk, stored in the warehouse of a cold storage company, the mis-en-cause in the action. On December 19th a food inspector of the city of Montreal entered the warehouse and removed four cans of the eggs, and on the 25th notified the Cold Storage Company that the whole lot was under seizure until a report was obtained on the samples so taken. On January 24th, 1911, the Chief Food Inspector of the city notified the Cold Storage Company that they must consider the eggs as still under seizure and not allow any of them to be removed or sold, and on the next day he instructed them to comply with an order of the Provincial Board of Health that the eggs were not to be sold anywhere in the province. On the 26th the respondents were notified that if the eggs were not removed from the province they would immediately be destroyed. The respondent company then brought action to restrain the city from further interference with their property, and a temporary injunction was issued which was enlarged from time to time until the action was decided when it was made permanent, the trial Judge holding that the eggs were fit for human consumption, and the city’s proceedings were illegal. His judgment was affirmed by the Court of King's Bench on the ground that there had been no lawful seizure of the eggs and the injunction restrained the city from seizing or interfering with them otherwise than by due process of law. On appeal to the Supreme Court of Canada:—
Held, that the finding of the trial Judge that the eggs were fit for human consumption should not be disturbed. Held, per FitzPATRICK, C.J., DAVIES, and IDINGTON, J.J., that the action of the health officers in exercising the authority conferred on them by law are not final but are subject to control by the Superior Court.
Held, per FITZPATRICK, C.J., that there was no lawful seizure of the respondents' eggs.
Held, per ANGLIN, and BRODEUR, J.J., that the Chief Food Inspector did not exercise his independent judgment in condemning the eggs, but merely followed out the instructions of civic officials and could not claim any protection under the Public Health Act.
NOVA SCOTIA CAR WORKS v. HALIFAX. N.S.] [FEBRUARY 18th, 1913.
Municipal Corporation—Ea'emption of Industry from Taration—Special Assessment—Local Improvement.
By agreement with the city of Halifax, sanctioned by an Act of the Legislature, a company doing business in the city was granted for a certain period “ a total exemption from taxation ” except for water rates.
Held, reversing the judgment of the Supreme Court of Nova Scotia (45 N. S. Rep. 552), FitzPATRICK, C.J., dissenting, that a special assessment for a proportionate part of the cost of a public sewer, claimed to be chargeable against the lands of the company was “taxation * within the meaning of said agreement and the company was exempt from liability therefor.
PICKLES v. CHINA MUTUAL INS. CO. N.S.] - |FEBRUARY 18th, 1913.
Marine Insurance—Mutual Company—Cancellation of Policy —Return of Unearned Premium–Cancellation by Operation of Law.
A mutual insurance company incorporated under the laws of the State of Massachusetts issued marine policies in favour of parties in Nova Scotia who gave notes for the premiums. The policies provided for a return of premiums “for every thirty days of unexpired time if this policy be cancelled.” Before any of the premium notes matured the policy-holders were notified that the company had been put into liquidation at the instance of the Insurance Commissioner, the notice stating that the legal effect was “to cancel all outstanding policies.” In an action by the receiver in the company’s name to enforce payment on the notes:— Held, affirming the judgment appealed against (46 N. S. Rep. 7), that the decision of the case must be governed by the law of Massachusetts; that the holder of the policy in a mutual company being both insurer and insured, the notes sued on were assets for distribution among the creditors; and the receiver was, therefore, entitled to recover the full amount. Held also, that a cancellation resulting from the action of the State was not a cancellation within the meaning of the above clause providing for return of premium.
CANADA FOUNIORY ("(). V. BUCY RUS. ONT.] [FEBRUARY 18th, 1913.
Trade-mark—Geographical Name—Right to Register—Interference with use.
A company in the United States engaged in the manufacture of certain articles for use on railways, adopted the word “Bucyrus,” the name of a town in Ohio, as a mark to distinguish such goods from those manufactured by others, and sold them for many years in the United States and Canada under that designation. Held, that the company was entitled to register the word “Bucyrus ” as their trade-mark for use in connection with such goods. For some years the Canada Foundry Co. was agent in Canada for selling tre “Bucyrus’ goods and built up a large business for their principals. After their agency terminated they applied the designation “Canadian Bucyrus’ to similar goods of their own manufacture and eventually registered these words as a trade-mark for such goods. Held, that such trade-mark should be expunged from the registry. The judgment of the Exchequer Court (14 Ex. C. R. 35) was affirmed.
SUPREME COURT DECISION.
CROSS v. CARSTAIRS.
ALTA.] [FEBRUARY 21st, 1913.
Appeal – Provincial Election — Preliminary Objections— Judicial Proceedings—Final Judgment.
Held, per DAVIES, IDINGTON and ANGLIN, J.J., that under the provisions of the Alberta Controverted Elections Act, the judgment of the Supreme Court of the province in proceedings to set aside an election to the Legislature is final and no appeal lies therefrom to the Supreme Court of Canada.
Held, per DUFF, J., that a proceeding under said Act to question the validity of an election is not a “judicial proceeding ” within the meaning of sec. 2(e) of the Supreme Court Act.
Held, per BRODEUR, J., that the judgment of the Supreme Court of Alberta on appeal from the decision of a Judge on preliminary objections filed under the said Controverted Elections Act is not a “final judgment " from which an appeal lies to the Supreme Court of Canada.
SUPREME COURT OF ONTARIO.
Limitation of Actions—Possession of fand – Enclosure— Cultirating and Cropping—Acts of Possession—Abandonment—Person Acquiring Title by Possession not Living on Land During Winter Months—Entry of Ourner— Insufficiency—Establishment of Tille by Possession.
Appeal by the defendant from the judgment of MEREDITH, C.J.C.P., in favor of the plaintiff in an action for trespass to land.
The appeal was heard by MULOCK, C.J.Ex., CLUTE, RIDDELL, SUTHERLAND, and LEITCH, J.J.
E. D. Armour, K.C., for the defendant (appellant.)
Appeal from R. W. MEREDITH, C.J.C.P.
The plaintiff claims as owner and occupier of lots 28 and 29, block “A” Marmot street, North Toronto, registered plan No. 722, and asks an injunction restraining the defendant from trespass, and for damages for former trespass and forcible entry. The defendant denies that the plaintiff is the owner of the lots in question and says that he purchased the same from the registered owner thereof, and thereupon entered into possession of the same and built a fence thereon and planted a crop, which are the trespasses complained of. In March, 1901, plaintiff bargained for the adjoining block with one Whaley, and in May or June delivered to Whaley a buggy in part payment. In September the plaintiff enclosed the Whaley lots and the lots in question by a fence, but did not receive the deed of the Whaley lots until February 4th, 1902, when three of them were conveyed to the plaintiff, and July 4th, when the remaining three were conveyed to the plaintiff. " In the fall, probably in October, after the fencing took place, the plaintiff had manure drawn upon the lands in question, and the evidence shews that they have been cultivated and cropped by the plaintiff ever since. The plaintiff did not reside upon the land in question, nor upon the lots purchased from Whaley, until 1905 or 1906, but lived at a short distance therefrom, upon a rented farm, from which she could walk to the lot in about fifteen minutes, or drive in five minutes. The Whaley lots, and the lots in question, formed a block and were wholly enclosed from September, 1901, until action brought on the 21st June, 1912. The learned trial Judge finds that the lands in question “were fenced in with her own as one lot * in September “ and all the lots thus enclosed were together ploughed as one lot and during the following winter manure was drawn out and placed upon the land. Everything was done to it