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^7"} 7- ^^^79
THE

SASKATCHEWM LAW REPOETS.

REPORTS OF CASES DECIDED IN THE SUPREME COURT
OF SASKATCHEWAN, JANUARY 5, 1909, TO
DECEMBER 31, 1909.

RBPOSTBD UNDSR THE ACTHORITT OF THE

LAW SOCIETY OF SASKATCHEWAN.

VOL. II.

KDITOB :

ALEXANDER ROSS.

TORONTO :

CANADA LAW BOOK COMPANY, Limitrd,

Law Book Publishkbs,

32-34 Toronto St.

1010

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JUDGES

OF THE

SUPEEME COUET OF SASKATCHEWAN

DURING THE PERIOD OF THESE REPORTS.

The Honourable Edward Ludlow Wetmore, C.J.S.
The Honourable James Emile Prendergast, J.
The Honourable Henry Willlam Newlands, J.
The Honourable Thomas Cooke Johnstone, J.
The Honourable John Henderson Lamont, J.

Attorney 'Genneral :
The Honourable Alphonse Turgkon, K.C.

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ERRATA,

Page 3(J4, the word "injury" in the fifth line should be "inquiry."

" 442, McCallum v. Russell, Johnstone, J., concurred with Lamont, J.,
not with Wetmore, C.J., as reported.

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CASES REPORTED

Anderson v. Olson 405

Tedfofd & Hossie. .
March Bros. &

307

Baker v
Banton

Wells 484

Bashford v. Bott 461

Belcher v. Hudson 489

Bell Bros. v. The Hudsons

Bay Insurance Co 355

Boice V. Anderson 245

Bowe V. Whitmore 82

Brooks, In re E.J 504

Brownsberger V. Harvey 481

Campbell v. Mackinnon 345

Canada Life Assurance Co. v.

Vance 398

Canada Permanent Mortgage

Corporation v. Jesse 251

Canada Permanent Mortgage

Corporation v. Martin 472

Canacuan Pacific R.W. Co. v.

Forest City Paving Co.. . • 413
Case Threshing Machine Co.

V. Fee 38

Caswell V. Western Elevator

Co 153

Chesshire, In re 218

Cockshutt Plow Co. v. Gray

& Smith 467

Cockshutt Plow Co. v. Mc-

Loughry 259

Cook, In re 333

Davis V. Re3niolds 221

Dobson V. Doumani 190

Douglas V. Hourie 35

Ebbing, In re 167

EUisv. Fox 417

Fish y. Bryce.... Ill

Fleming v. Bonnie 30

Gaetz V. HaU 184

Gaar Scott Co. v. Guigere. . . . 374 ^
Gesman v. City of Regina. . . 50 ,

Globe Fire Insce. Co. Ltd., In

re 234,266

Gogain v. Drackett 253

Great West Life Assurance
Co. V.Hill : 158

Hall V. Tumbull 89

Hamilton v. Chisholm 227

Heward Milling Co. v. Barrett 210

Hole V.Wilson 59

Hudson V. Fletcher 489

Hunter v. Collings & Burley . 207

Imperial Bank v. Kievell 410

Jagger v. Turner & Co 476

Kasindorf v. Hudsons Bay

Insurance Co 215, 510

Keinholz v. Hansford 86

•
Laird v. Leader Publishing

Co 1

Lang School District Assess-
ment, In re 322

Lankin v. Walker 453

Leev. Broley 288

Local Improvement District
No. ll-A-3 80

McCallum V. Russell 442

McCready, In re Claude 46

McCulloughv.Defehr&Dyck 303

Mah Po V. McCarthy 119

Manitoba Brewing & Malting

Co. V. McDonald 223

Mathew v. McLean 301

Miller & Smith v. Ross 449

Mischowsky v. Hughes 219

Moore Milling Co. v. Laird.. . 369
Moose Mountain Lumber and
Hardware Co. v. Paradis
382,457

Newman v. Whitehead 11

North West Telephone Co.,
In re 379

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CASES REPORTED.

Outlook Hotel, In re 435

Parsons v. Alberta-Canadian

Insurance Co 76

Perry v.Kidd 330

Pioneer Fruit Co. v. Litschke 325

Rexv. DuflF 323,

Rex ex rel. Dale v. Lang. . .

Rexv. Tumbull

Reeves v. Konschur

Regina Windmill and Pump

Co. Ltd., In re

Reinholz v. Cornell & Gaar

Scott Co

Roberts v. Morrow

Robertson v. Hopper

Robinson v. Lott

Robinson v. Morrow

Sawyer & Massey v. Bennett

93,

Sawyer-Massey v. Carter. . . .

See V. Branchflower

Shinn v. McLean

Smith V. Bernhardt & Fry . .

Steine v. Korbin 6

Swan V. Wheeler 269

Taegar v. Rowe 159

Tasker v. Carrigan 230

Turner v. Clark 200

Union Bank v. McElroy 420

388

186

125 ' Vachoe v. Stratton 72

Velie V. Hemstreet 296

Wauchope School District

342 : Assessment, In re 327

15 ' Wark Caveat, In re 431

365 I Watt V. Watt 141

276 1 Wellwood v. Haw 23

150 Wessell v. Tudge 231

I Westaway v. Stewart 178

I White V. Cusak 106

516 I Wirth v. Cook 423

148 i Wood & McCausland v. Bark-

20 1 er 400

336 Wray v. The Canadian Nor-
315! themR.W. Co • .. 321

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CASES CITED

Abbott V. Wolsey

Abell V. McLaren 168,

Abrahams v. Dunlop

Abrahams v. The Queen

Abrath v. North Eastern Ry.
Co

Adams v. Engel 126,

Agra Bank v. Barry

Ailoway v. Rural Municipal-
ity of Morris

Anglo-Italian Bank v. Davis

Annalby v. Praetorious

Appleby et al v. MUes

Archibald v. McLaren

Armstrong v. Auger

Armstrong v. Canada Atlan-
tic R.W. Co

Ashley's Case

Ashpittal V. Bryan

Aslatt V. Corporation of
Southampton

Assets Co. Ltd. v. Mere Roihi

Assunta, The

Atlaw Assurance Co. v.
Brownell

Atkins V. Acton

Atterbury v. Wallis

Atwood V. Small

Australian Deposit and Mort-
gage Bank v. Lord

Bailey v. Chadwick

Bain v. Brand

Bain v. Fothergill

Baldwin v. Cassells

Baker v. Gillum

Balgonie, S. D., v. C.P.R.. . .

Bannerman v. Green

Bannerman v. Harlow

Bannan v. Toronto

Barlow v. Williams 67,

Bamado v. Ford

Barnes v. Marshall

Bassett v. Nosworthy

Battell V. Hudson Bay Co. . .

Bawden v. Cassells

Bayne v. Fothergill

10 Baxendale v. Bennett 160

375 Beable v. Dickerson 73

510 Beach v. Mullin 403

392 Bechman v. Noble 179

Bellamy v. Debenham 430

309 Benallack v. Bank of British

127 North America 36

517 Bertrand v. Canadian Rub-
ber Co 479

169 Bickerton V. Walker 271

297 Biggar v. Rock Life Assur-

510 anceCo 77

319 Biggs .V. McAUister 117

309 Black V. Strickland 297

88 Blenkinsop V. Clayton 340

Bingham v. Bettinson 179

361 Boczv. SpiUer 375

267 Boyle v. Lasker 159

160 Brace V. City of GloversviUe. 289

Bradley v. Riches 518

465 Breeze v. Midland R.W. Co.. 290
138 Brewer v. Broadwood 430

511 Brice v. Bannister 518

Briggs V. Lee. 319

358 Bromley v. Gerrish 451

402 Brook v. Hook 517

517 Brophy v. Attorney-General

266 of Manitoba 293

j Brown v. Croft 401, 403

138 Brown v. Hawkes. 309

Bryson v. Municipality of

76 Rosser 214

263 ; Budd Scott v. Daniel .... 120, 121

429
266
505
169
431
41
58
353
461
414
519
488
266
429

Buel V. Clifford 120

Calder V. Hallett 8

Callen v. Gaylord 237

Callo V. Brouncker 401

Callow V. Lawrence 297

Campbell v. McGregor 20

Campbell v. McKinnon 278

Canada Atlantic R.W. Co. v.

Township of Cambridge. . . 55
Canadian Canning Co. v.

Fagan 368

Capital and Counties Bank v.

Rhodes 126,127,136

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VUl

CASES CITED.

[vol.

Cattell V. Corrall 28

Cave V. Cave 518, 522

Cavendish v. Cavendish 459

Chandler v. Doulton 369

Chaplain v. Rogers 340

Chapman v. Winston 442

Chomley v. Firebrace 118

Chowdry Deby Persad v.

Chowdty Dowlut Sing 144

Claxton, In re 167

Clinev. Libby .' . . . 179

Clough V. L. & N.W. R.W. Co. 519

Coats V.Kelly 37

Cole V.Shaw 179

Commercial Bank v. Wilson. 36

Conkey v. Hart 179

Colemans Case 266

Commercial Union Assurance

Co. V. Margeson 358

Conmee v. Lake Superior

Printing Co 5

Connor v. Middagh 57

Conrad Investment Co. v.

Lloyd. 442

Cork DistiUeries v. Great

Southern and R.W. Co. .413, 414

Craven Bank v. Hartley 422

Cummings v. Cummings.168, 375

Cunmiins v. Perkins 465

Cunningham v. Fonblanque. 402
Cyrv. OTlynn 232

Danford v. Danford 160

Davidson v. Douglas 501

Davis V. Earl of Strathmore 517

Dawes v. Peck 413

Day V. Singleton 429

Dean and Chapter v. Mc-

Arthur ^ 135

Debster v. Lewis 159

Derry v. Peeke 305

Dickenson v. Lano 414

Didrick v. Ashdown 179

Dixon V. W}Tich 518

Dixon V. Winch 271

Dobson V. Festi Raisini & Co. 515
Doe d. Courtail v. Thomas. . 419
Dominion Bank v. Cowan . . . 479 i

Driffilv. MTall 344

Earl, In the Goods of 334

Ebbing, In re 377

Earles v. McAlpine 519

Ekiwain v. Baker 405

Electric and General Contract
Corporation v. Thomson

Houston Electric Co 299

Elliot, In re 103

Elwes V. Maw 265

Employers Liability Assur-
ance Corporation v. Taylor 358
Enohin v. Wylie, In re Goods

of 334

Etna Insurance Co 267

Evans v. Bristol and Exeter

R.W. Co 414

Ewing, ReOrr 511

Excelsior Life v. Prestniak. . 398

Fairweather v. Lloyd 159

Farden v. Richter 422, 452

Farley v. Bates 160

Farmer v. Clark 505

Farrand v. Yorkshire Bank-
ing Co 529

Federal Life v. Stinson. .505, 509

Fell V. Williams 298

Feiigusson v. Troop 120, 121

Fero V. Buffalo R.W. Co 19

Flannagan v. Healey 168, 375

Flureau v. Thomhill 429

Forbes v. Smith 511

Farrer v. Nash 429

Forth V. De las Lervas 511

French v. Hope 272

Frost & Wood v. Eberle 410

Fuller V. Bennett.- 517

Fuller V. Taylor 464

Garstin v. Garstin 459

Gesman v. City of Regina. . . 308

Gillingham v. Gwyn 120

Gladstone v. King 266

Goddard et al. v. Coulson et

al 319

Goodyear v. Goodyear 160

Gothard et al. v. Clark et al. 248
Government of Newfound-
land V. Newfoundland R.

W. Co 400

Covers Case 31

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II.]

CASES CITED.

Governor of Poor of Bristol

V. Waite 368

Graham, Ex p., In re Cardiff

IronCJo.. 236

Granby, Village of, v. Barn-
ard 147,159

Grand Trunk R.W. Co. v.

Richardson 19

Gray v. Haig 145

Great West R.W. Co. v. Bagge 414

Green v. Males 443

Green V. Scott 127

Griffin V.Allen 233

Grimes v. Miller 314

Grosvenor v. Green 518

Grosvenor Hotel Co. v. Ham-
ilton... 126

Gryce v. Shaw 135

Guest V. Homfray 352

Gumett V. Armstrong 127

Hackett v. Lalor 185

Haggert v. Town of Bramp-
ton 262

Haight V. Munro 160

Hall, Ex p., In re Whitney. . 283

HaU V. TumbuU 488

Hamilton v. McNeil 450

Hampshire Land Co., In re. 532
Hanfstaengl v. American To-
bacco Co 248

Harmon v. Park 250

Harper, In re 168

Harrop v. Fisher 296

Hart V. Wishart-Langan Co.. 518

Harris v. Rankin 168, 375

Harrison's Case 268

Haydon v. Crawford 286

Hellburt v. Hickson 45

Heinmann v. Hall 515

Hellawell v. Eastwood 261

Hemham v. Hall 510

Hepburn v. Patton 456

Hickinbotham v. Leach 3

Hicks V. Faulkner 308

Hirch V. Skelton 127

Hobson V. Gorringe 229, 262

Hodder v. Williams 495

Hoffman, In re. Ex p. Ven-
ning 159

Hoggart V. Scott 431

Holland v. Hodgson 229, 262

Holmes v. Midland R.W. Co. 20

Hopton V. Robertson 422

Howard v. Mitchell. 160

Howell v. Metropolitan Dis-
trict Railway 213

Hudson V. Walker 384

Hughes V. Wavertree Local

Board 188

Hulbert v. Cathcart 422

Hull and County Bank, In re.

Burgess Case^ 239, 511

Hunt V. Worsfold 510, 51 1

Hunter v. Bunnell 442

Huntley v. Russell 261

Hyde v. Lefaivre 359

Hyman v. Cuthbertson 39

Imperial Bank v. Hull 511

Ingler v. Vaughan Jenkins. . . 125

Ings V. Ross 442

Irish, In re 169

Jacker v. International Cable

Co 126

Jackson v. Bank of Nova

Scotia 160

Jackson v. Turgrand 266

Jaffery v. Toronto, Grey and

Bruce R.W. Co 20

J'Anson v. Stuart 3

Jellett V. Wilkie 118

Jibbv. Jibb 142

Jones V. Dowler 344

Kelly v.Doddv 168

Kettlewell v. Watson 532

Kingv. Alford 290

Kingston, City of, v. Drennan 361

Knill V. Prowse 280, 283

Kohn V. Fandell 404

Krell V. Henr}' 446

La Banca Magionala v. Ham-
burger 511

Labelle v. O'Connor 67

Land v. Scott 1

Lake Winnipeg Trans. L. &

T. Co. 440

Lancashire Wa^jgon Co. v.
Fitzhugh 344

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CASES CITED.

[vol.

Land Titles Act, In re 169

Lane v. Jackson 144

Law V. Jackson 141

Lee V. Gansell 494

Lefeunteum v. Beaudoin 143

L'Honeux v. Hong Kong

Corpn 511

Lemayne's Case 495

Le Neve v. Le Neve 517

Lewis V. Leonard 248

Lewis V. McKee 416

Lindley v. Lacey 445, 483

Liquidation of Estates Pur-
chase Co. V. Willoughby. . 125

Lister v. Ferryman 309

Little V. Thomas 400

Lloyd Banking Co. v. James. 530
Logan v. Commercial Union

Insurance Co 359

London and Blackwall R.W.

Co. V. Cross 455

Longbottom v. Berry 262

Longway v. Mitchell 456

Lott V. Outhwaite 442

Lowther v. Heaver 67, 353

MacAllister v. Biggs 118, 168

McArthur v. Dewar 289, 295

McArthur v. Glass 169

McCance v. London and N.W.

R.W. Co 160

McFadden v. Brandon 179

McKay v. Victoria 159

McLardy v. Stateum 185

McLaren v. Canada Central

R.W. Co 20

MacLeay, In re 102, 519

McMichael V. Brook 160

Macartney v. Miller 17, 18

Madden v. Shewer 308

Mader v. McKinnon 36

Mainwarings Case 267

Majoribanks v. Hovendon. . . 517
Manitoba Mortgage Co. v.

Daly 179

Manley v. London Loan Co. . 273

Mansell v. Clemens 442

Marquis of Hertford v. Boore 352
Marlborough, In re Duke of,

Davis V. Whitehead 434

Massey v. Gibson 118

Mather v. Fraser 262

Maundrell v. Maundrell 517

Mayor v. Claretie 511

Mayor v. Hardy 188

Messer v. Gibbs 118, 139

Miller v. Moresey 139

Molson's Bank v. Halter 36

Montreal v. Cadreux 159

Moore v. Bradley 295

Moore v. Protestant School

District 369

Moorehouse v. Linnie 250

Morphy v. Wilson 456

Morris V. Bentley 134, 505

Mueller v. Cameron 160

Mulcahy v. Archibald 226

Mulhem v. Doerke , . . . . 511

Munro v. Butt 319

National Bank of Australia v.

Morris 479

National Provincial Bank of

England v. Jackson 530

Nelichka v. Esterly 404

Newby v. Sharpe 122

Neill v. Lindsay 118

Nelson Ford Lumber Co., In

re 438

New Brunswick R.W. Co. v.

Robinson 19

New Callao, In re: 437

Newlev v. Sharp 405

Niblock V. Ross 87

North British v. Tourville. . . 159

Oakes Tarquash 267

Oglev. Aedy 118

i Oglivie v. Currie 267

Oldershaw v. Gamer 319

I Oliver v. Hunting 8

1 Ontario Bank v. Burke 299

Ontario Bank v. McMicken. . 118

Ormerod's Case 267

' O'Shea v. O'Shea. .\ 460

j Osier V. Coltard 368

j Overend Gumey & Co., In re 243

Parker, In re 49

I Parkes v. St. George 37

Park V.Long 168,375

Parquette. In re 80, 81

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11.]

CASE5 CITED.

Pease v. Town of Moosomin. 58

Peglw V.White 28

Pellatt, Exp 239

PhiUipps V. Phillipps 518, 525

PiggottsCase 256

Peterson v. Mayor 403

Peto V. WeUand R.W. Co. . . . 290

Pbillipson v. Emmanuel 510

Pirn V. Municipal Council of

Ontario 215

Poulton V. Latimore 340

Pordage v. Cole 22

Price V. Strange .••;■•■•• 28

Public Works Commissioners

V.Hill 488

Qu'Appelle Valley Farming
Co., In re 439

Rex V. Code 189

Rex ex rel. Harris v. Brad-
bum 82

Rex V. Higgs 496

Rex V. Lepine 397

Rex V. Otley 228

Rex ex rel. Ritson v. Perry. 82
Rex ex rel. Walker v. Mitchell 81
Railway Time Tables Co., In

re. 267

Raleigh v. Goschen 405

Ramsay V. Margrett . .. . 166

Reese River Silver Mining

Co. V.Smith 306

Reeves v. Butcher 179

Reeves v. Konschur 508

Reynolds v. Ashby Sons 262

Rice V. Rice. 523, 529

Richards v. Jenkins 286

Richardson v. Hoffman 179

Richardson v. Howell 450

Richardson V. Mellish 289

RiddeU, In re 126, 130, 137

Riddock & Chadwicks Con-
tract 374,377

Rivers, In re 168, 169

Robb V. Woodstock School

Board 288

Roberts Case 267

Robertson v. Jenner. 401

Robins v. The Victorian Mu-
tual Insurance Co 362

Robinson v. Hanna 370

Rochefoucald v. Boustead. . . 117

Rogers, In re 267

Holland V. Hart 518

Rose V.Sims..... 296

Rose V. Township of West

Wawanosh 58

Ross V. Dunn 36

Ross Bros. v. Pearson 35

Russell V. Cambefort

216, 510, 514

Sanguinetti v. Stuckey's

Banking Co 470

Savage v. Foster 519

Sawyer-Massey v. Bennett . . 487
Sawyer-Massey v. Dennis 168, 375
Scott V. Trustees of Burgess. 290
Scottish Petroleum Co., In re 267

Sears v. Meyers 511

Selons V. Croyden Sanitary

Authority 384

Sergeant v. Nash 520

Sewell V. Burdick 415

Shagticoke Powder Co. v.

Greenwich 289

Sharp V. Adcock 28

Sheldon V. Cox 517

Shera v. The Ocean Accident

and Guarantee Corpn 360

Shipley v. Todhunter 237

Shore v. Green 169

Singleton v. Roberts 510, 511

Sirdar Gurdyal Singh v.

Rajah, of Faridhote 304

Slater's Case 443

Smith V. Land and House

Property Corporation 31

Smith V. Dobbins 452

Smurthwaite v. Hannay

216, 510, 512

Solicitor-General v. Mere Tini 118

Sonar v. Smith 160

Southcombe v. Bishop of

Exeter 352

Southwell V. Scotter 280

Steele v. McCarthy 68

Stephens v. Mc Arthur 36

Stevens v. Daley 179

Strait V. Shaw 45

Stockton V. Collin 237

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XII

CASES CITED.

SufiFell V. Bank of England.. . 256

Surplice V. Farmsworth 120

Swanson v. Mollinson. 320

Tancred v. Leland 368

Tarlton v. Fisher 309

Taylor v. Caldwell 445

Taylor v. Fenwick 308

Taylor V. Smith 9

Thomas v. Cadwallader 22

Thompson, In re 169

Thome v. Cann. 125, 129, 131, 135

Toulmin v. Miller 442

Toulmin v. Scheir 127

Traders Bank V. Wright 457

Tniax et al. v. Dixon et al. . 319

Turcan, In re 518

Turner v. Konwenhoven.401, 403

Turner v. Robinson 402

Turrill v. Turrill 473

Ullerson Lbr. Co. v. Remire. 518
Union Bank of London v.

Ingram 167

United Telephone Co. v. Dale 385
Upton V. Townend 121

Vansandau v. Rose 386

Varley v. Whipp 41

Wainwright v. Villelard 309

Wallingfordv. Mutual Soc... 179

Walker v. Delacombe 188

Wallace v. Hesslein 488

Wansbrough v. Maton 228 Zierenbeig v. Labouchere 3

Ward V. Lumley 419

Warren v. Warren 236

Wamock v. Kleopfer 501

Waterfall v. Penistone 262

Waterous Engine Co. v.

Weaver 168,375

Wear Engine Works, In re. . 438

Weatherdl v. Goering 520

Webster v. C. P. R..169, 375, 376

Wenman v. Osbaldiston 458

Western National Bank v.

Perez 216,510, 511, 514

Weytjott V. Campbell 442

Weylson v. Dunn 519

Whimsell V. Giflfard 179

White V. Hope 279

Wilkie V. JeUett 134, 167

Wilkinson v. Alston 74

Wilmot V. Fairhold House

Property 511

Wilson V. Kerr 160

Whittaker v. Barker 419

WithaU V. Nixon 422

Wood V. Gaar Scott 179

Wood V.Pope 120

Woodward v. Sarsons 82

Young V. David Payne & Co.

Ltd 532

Young V. Kerchin 400

Ystalyfera Iron Co. v. Neath

and Brecon R.W. Co 248

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REPOBTS OP CASES

DETERMINED IN THE

SUPREME COURT OF SASKATCHEWAN.

[IN CHAMBERS.]

Laird v. Leader Publishing Co. 1909

PUadinq — Action for Libd — Application to Amend Statement of Defence — ^•"*- ^
Matter of Defence Charging Crime — AUotoance of Amendment Pleading —
Discretion of Judge — Particulars not Sufficient — Refusing Amendment for
Insufficiency,

In an action for libel, the defendant in the first place pleaded generally denying
the matters allied in the statement of claim. Subsequently he applied to
amend by pleaoing justification, and filed the proposed amended defence.
The matters relied upon by way of justification charged the acceptance of
bribes by the plaintiff when holding a municipal oflice, and it was objected
that the Court should not pennit an amendment charging fraud or crime,

I and it was also objected tnat the matters charged were not stated with
sufficient particularity: —

^eU, that the allowance of an amendment setting up fraud is discretionanr
with the Judre and in some cases pennissible, and in this case the amend-
ment should be allowed.

(2). That it is not now necessary to put the particulars nelied upon by way of
justification in the pleading, but such particulars, if not pleaded, must be
subsequently delivered, ana the proposed amended pleading was not
therefore bsJa^ although all the matters therein alleged were not stated with
sufficient particularity.

This was an application by the defendants to file an amended
defence in an action for libel, and was heard before Wetmore, C.J.,
in Chambers.

Alex, RosSj for the defendants.
J, F. L. Embury f for the plaintifiF.

January 5. Wetmore, C.J.: — This is an application for leave
to deliver an amended statement of defence in substitution for the
original. The action is for an alleged libel, and the alleged libellous
document is set forth in a judgment of my brother Johnstone in
Laird y, ScoU (1908), 9 W.L.R. 349. The defendants originally

1 — VOL. II. 8X.B.

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[vol.

Wefcmore. C.J.
1909
Laird

Leader

Publishing

Co.

pleaded in answer to the action, putting the plaintiff to the proof
of the fact of the printing or publishing of the alleged libel, that
the words set out in such alleged libel do not mean what is alleged
to be their meaning in the statement of claim, and that such words
are not capable of such alleged meaning or any defamatory meaning.
The statement of claim alleged that the alleged libel meant and
intended that the plaintiff, while in the occupancy of the municipal
office of mayor and councillor of the city of Regina, was guilty of
dishonest and corrupt acts in his office as such mayor or councillor,
and that he was so guilty of such corrupt and dishonest acts for
the purpose of gain to himself and with the result of gain to himself,
and, further, that the defendants intended by such libellous matter
that the plaintiff had received money as consideration for corrupt
and improper and dishonest acts done by him in and by virtue
of his offices of mayor and councillor of the said city.

The proposed amendment, first (by paragraph 1) denies the
writing or publishing the words complained of; second, that such
words do not mean what is alleged in the statement of claim and
are incapable of such alleged meaning or of any other defamatory
meaning; third, if the defendants did write or publish such words
or any of the words alleged, they did not refer to and were not spoken
of the plaintiff; fourth, that the words complained of are true in
substance and in fact. Then the proposed pleading goes on to
give particulars of the alleged corrupt acts of the plaintiff, and
these particulars form part of the pleading. The first three para-
graphs of the proposed amendment are practically the same as the
original statement of defence. The question turns upon the 4th
paragraph.

'This paragraph is objected to on the ground that the defendant
seeks by the amendment to set up criminal offences on the part of
the plaintiff, and such criminal offences are alleged to have been
against sec. 161 of the "Criminal Code." It was urged that under
the authorities a party to an action is not allowed by an amend-
ment to set up fraud, and that the setting up of crime by way of an
amendment is equally objectionable. In the first place, I am of
opinion that the matter of allowing a party to an action to set up
fraud by way of amendment is discretionary with the Judge, and
in some cases permissible.

Without quoting at length the reasons given by the defendant

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Laird

Leader

Publishing

Co.

for not pleading a justification in the first instance, I may state Wetmore, c.j
that in my opinion they are of such a character as to warrant the 1909
application being granted even supposing that the matter of plead-
ing fraud and pleading a criminal offence should be treated on the
same principles. I am of opinion, however, that in an action of
this character there is a distinction between the two cases, and that
where an amendment is sought in such an action it will be governed
by the same rules as are applicable to other actions.

It was further claimed that the proposed clauses of paragraph 4
did not set out the offences of which the plaintiff wtes alleged to
be guilty with sufficient particularity, and I am of opinion that
this is correct. But, at the same time, I am of opinion that that
is not a ground for refusing the amendment. It is merely a ground
for directing further and better particulars to be delivered along
with the pleading or within a reasonable time thereafter. Under
the old practice the proposed pleading, or some of the clauses of it
at any rate, would undoubtedly be held bad, but as the practice
now exists, I am of opinion that it is sufficient. In Zierenberg v.
Labauchere (1893), 2 Q.B. 183 (63 L.J.Q.B. 89, 69 L.T.172), Lord
Esher, M.R., at p. 186, after citing the judgments of Ashurst and
Buller, JJ., in J' Anson v.Stuart (1787), 1 T.R.748, goes on as follows:
"That is a leading case on the subject, and at the time when it
was decided it was necessary to put the particulars in the plea.
Afterwards the practice was varied, and a defendant could make
his plea general; but he was still bound before he went to trial
to give as particulars the same matters that he would formerly
have been bound to put in his plea." And further on, after quoting
Alderson, B., in HiMnbotham v. Leach (1842), 10 M. & W., at p. 363
(62 R.R. 654): "'The plea ought to state the charge with the
same precision as in an indictment.' That, I think, must now be
read in this way: 'If the instances are not put into the plea the
particulars must be as precise as would be necessary in an in-
dictment.' " This is the latest case that I can find upon the subject,
and I will follow it. Upon reading the affidavit of the defendants'
manager, I am satisfied that paragraphs 1, 2 and 3 of the proposed
amended defence are not true, and, in like manner, that the original
statement of defence is not true.

The order will be, therefore, that, upon the defendants' counsel
undertaking to admit at the trial that the defendants did write or

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4 SASKATCHEWAN LAW REPORTS. [vol.

Wetmore.cJ. publish the words complained of, and that such words do mean
1900 what is alleged in paragraph 3 of the statement of claim, and that
£^jj such words did refer to and were written of the plaintiff, and also
V. consenting to admit in evidence in this case, if the plaintiff desires

Publishing to use it, evidence taken under an order for examination in the case
^- pending in this Court of Henry Willoghby Laird against Walter

Scott of certain persons at MacComb, in the State of Illinois, the
defendants have leave to amend by delivering the 4th paragraph
of the statement of defence, such delivery to be made within one
day from the date of this judgment, and that within five days
after such delivery they deliver to the plaintiff further and better
particulars: (1) Setting forth more precisely the date in the year
1905 when the plaintiff accepted from the parties mentioned in
clause (a) of the said paragraph the gift of the sum of $1,500 therein
mentioned, and for granting of what contracts to the said parties
therein mentioned by the corporation of the city of Regina, the
said $1,500 was accepted by the plaintiff, and the nature of such
contracts. (2) Particulars of the alleged pretended rental for
the warehouse accommodation mentioned in clause (b) of the said
paragraph, and specifically stating what the warehouse accommo-
dation was and where the warehouse was situated. (3) Specifying
more precisely when the gift of $500 from the MacComb Sewer
Pipe Company was received. (4) Giving more precisely the date
or dates on which the plaintiff did corruptly and improperly use
his influence to procure the establishment at the expense of the
city of connection between the waterworks system of the said
city and certain premises comprised in the said addition, and
stating specifically what premises in addition to those of Reginald
Kirk and A. M. Fleming. (5) Also particulars setting out more
particularly the date upon which the plaintiff unlawfully offered
and attempted to bribe James Franklin Bole, as alleged in clause (e)
of the said paragraph, and with respect to what brick the said alleged
endeavouring to induce was exercised, and the name of the company
mentioned in such clause.

In the event of such particulars not being delivered, the de-
fendants not to be at liberty to give evidence of the matters set
forth in such respective clauses with respect to which such par-
ticulars have not been given.

I am not very well satisfied that all the matters that are pleaded

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SASKATCHEWAN LAW REPORTS.

Laird

Leader
publishinc
• Co.

are good. I have some doubts with respect to the matter pleaded ^«t™21[!L^'^*
in clause (d) of par. 4, but, as I am not clear, and n© objection 1909
was raised with respect to it, I ^-ill follow the course pursued by
the Master in Conmee v. Lake Superior Printing Co. , 2 O.W.R.
509, and leave it to the trial Judge. I do this, not because I am of
opinion that I am not in a position to decide it, but the plaintiff
is so anxious to get down to trial (and I can understand why) I
consider it advisable to take that course.

In the event of my allowing this amendment, it was lu^ed that
I should make it part of my order that the defendant go down to
trial peremptorily at the next sittings of the Court, to be held on
the 26th of this month. I do not see how I can do this, especially
in view of the fact that the plaintiff claimed the right to be allowed
to amend his statement of claim if I granted this amendment.
I do not know what amendment the plaintiff proposes to make,
but it might be of such a character that it would not be fair to
drive the defendants down to trial at such an early date. I have
come to the conclusion, therefore, not to make any such order as
that, nor will I give the plaintiff leave to amend. He must make
a substantive application for that piupose. I do that because I
see nothing in the amended defence which in itself would call for
any amendment.

The plaintiff has caused the defendants' manager to be examined
for discovery, and he claims that this amendment will render a
new examination necessary. That is conceded by the defendants'
counsel. The plaintiff, therefore, will have leave to again examine
the manager for discovery, and the costs of the first examination
for discovery will be borne by the defendants.

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SASKATCHEWAN LAW REPORTS. [vol.

[TRIAL.]
19^ Steixe v. Korbin.

Jan. 5. Sale of Goods Ordinance — Memorandum in Writing — Connecting Different
Documents — Admissibility of Parol Evidence — Inconsistency beUoeen Docur
ments — Acceptance — Receipt.

The defendant gave plaintifif's traveller an order for certain goods, a memor-
andum of the sale being made and delivered to the defendant: but not
sisned by him. Some of the ^oods were shipped, when the defenoant wrote
a Tetter to the plaintiffs referrmg to ''an order given to your traveller/' but
not specifically referring to the written memorandum. When the goods
reached their destination the defendant opened the cases, examined the
contents, but did not take delivery, claiming the eoods were not as ordered.
This, however, was not pleaded as a matter of oefence: —

Held, that where in a letter signed by the party to be charged a reference
is found to something which ma^ be a conversation or may be a written
document, parol evidence is admissible to shew that it was a written docu-
ment which was referred to, and the document referred to bavins been
proved, it may be put in as evidence and so be connected with the one
already admitted or proved, and parol evidence was therefore admissible
to connect the letter and the previous order.

2. That opening the case and examining the contents was an act of the
buyer, which recognised a pre-existing contract of sale and constituted a
sufficient acceptance to take the case out of the statute.

This was an action to recover the price of goods sold and de-
livered, and was tried before Lamont, J., at Yorkton.

C. D. Livingstone, for the plaintiff.
J. A. M, Patrick, for the defendant.

January 5. Lamont, J.: — ^The plaintifiF, who is a manufacturer
carrying on business at Montreal, sues for $474.80, the price of
goods sold and delivered to the defendant, who resides at Ganora,
in this Province.

On April 26th, 1907, the plaintiff's traveller called on the de-
fendant at Canora. The defendant inspected his samples and
gave him an order for a quantity of goods. The traveller took down
the order in writing. It was not signed by the defendant, but he
received a copy of it. The order was as follows: —

''April 26, '07.

"Order: from Samuel Korbki.

"Post Office address: Canora.

"When required: As soon as possible.

"Terms: Net 60 days, 1st Sept."

Then followed a description of the various goods ordered, and
the price, which amounted in all to $564.65.

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It was shewn in evidence that in the trade, where goods are
ordered from a manufacturer to be delivered "as soon as possible/'
they are to be shipped as soon as a sufficient quantity is manu-
factured to make a shipment of at least 100 lbs. On May 9th;
1907, the plainti£F, having a portion of the order manufactured,
shipped the same to the defendant, and sent him an invoice of the
goods shipped, and on-June 25th shipped a further consignment,
and sent the defendant an invoice of this portion also. On July
12th the plaintiff received from the defendant the following letter: —

"Some time ago I gave an order to your traveller for some
shoes to be shipped in June but I have received a part of it and it
did not say on the invoice balance to follow or anything in that
way and not filling the order I have bought elsewhere shoes and
cannot accept your shoes. Please do not ship any more. I will
not accept as I have written before. Hoping it will be satisfactory."

As to this letter the defendant denies that it is his. He says it
was written by his son without his knowledge or direction. In
this statement I do not believe the defendant. It seems to me
exceedingly unlikely that his son (a boy of fifteen years of age),
working in the store with his father and under his direction, would,
without authority, write such a letter and sign to it his father's
name. Besides, the defendant's manner of giving his evidence
was not such as to inspire confidence in its truthfulness. I hold
the letter to be binding on the defendant.

The defendant opened the two boxes shipped and examined
the goods at the railway station at Canora, but refused to take
them away,' on the ground (as he now states) that some of the goods
were inferior to the samples shewn by the plaintiff's traveller,
and also that there were goods in the boxes which he had never
ordered at all. The plaintiff, after receiving the defendant's letter,
did not ship the balance of the goods, and he now brings this action
for the price of the goods delivered at Canora. H

The statement of defence consists simply of a denial of the
contract, a denial of the delivery of the goods, and, in the alterna-
tive, "if the defendant did enter into the contract with the plaintiff,
the contract did not comply with the Sale of Goods Ordinance."
Gomisel for the defendant relied upon sec. 6 of the Sale of Goods
^Ordinance, which is as follows: — M

" (6) A contract for the sale of any goods of the value of fifty

Lamont, J.

1909

Steine

V.
KORBIN.

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[vol.

UuDont, J.

1909

Steine

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dollars or upwards shall not be enforceable by action unless the
buyer shall accept part of the goods so sold and actually receive
the same or give something in earnest to bind the contract or in
part payment, or unless some note or memorandum in writing of
the contract be made and signed by the party to be charged or his
agent in that behalf."

''(3) There is an acceptance of goods within the meaning of
this section when the buyer does any act in relation to the goods
which recognizes a pre-existing contract whether there be an
acceptance in p)erformance of the contract or not."

And he contended that in this case there was neither a note or
memorandum of the contract in writing, nor had there been any
acceptance of part of the goods so sold.

The first question for consideration, therefore, is, is there a note
or memorandiun of the contract in writing sufficient to satisfy the
Ordinance?

It has long been settled that, where the memorandum of the
bargain between the parties is contained in separate pieces of paper,
and where these papers contain the whole bargain, they form to-
gether a sufficient memorandum of the contract, provided the
contents of the signed paper makes such reference to the other
written paper or papers as to enable the Court to consider the
whole of them altogether as constituting all the terms of the bargain :
Benjamin on Sales, 5th ed., 240. The defendant's letter sets out
that he gave an order for shoes, but it does not say that this order
is in writing. Is parol evidence admissible to shew that the order
referred to in the defendant's letter was in writing aind was the
order taken by the plaintifiF's traveller? The point came before
the learned Chief Justice of this Court in the case of Colder v. HaUet
(1900), 5 T.L.R. 1, cited by counsel for the defendant, but there,
as the case went off on another ground, the point was not decided.
In Oliver v. Hunting (1890), 44 Chy.D. 205, 59 L.J.Ch. 255, 62 L.T.
108, Kekewich, J., held that "where in a letter signed by the party
to be charged a reference is foimd to something which may be a
conversation or may be a written document, parol evidence is
admissible to shew that it was a written document, and having
proved it was a written document that written document naay be
put in as evidence and so connect it with the one already admitted,
or proved." Parol evidence was therefore admissible to shew

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that the order referred to in the defendant's letter was the order
taken by the plaintiff's traveller which contained all the terms of
the contract. That they were the same was admitted.

The letter, containing as it does a reference to the order taken
by the plaintiff's traveller which contains all the terms of the con-
tract, and wholly incorporating it, is, in my opinion, a suflficient
note or memorandum of the contract to satisfy the Ordinance:
see Tayl(yr v. Smiih (1893), 2'q.B. 65, 61 L.J.Q.B. 331, 67 L.T. 39.
I have not overlooked the fact that the time when the goods were
to be delivered is stated in the defendant's letter to be "in June,"
while in the order the goods were to be shipped " as soon as possible,"
and that the rule is that there must be no inconsistency between
the terms set out in the document signed by the defendant and the
document establishing the terms of the contract. There is here
practically no inconsistency between the letter and the order,
as all the goods that were shipped were delivered in or before June.
At the trial the defendant swore that^the date agreed upon for
the delivery of the goods was not "in June," as stated in his letter,
but "immediately on the order reaching the plaintiff." In this,
also, I am satisfied the defendant was mistaken. The copy of the
order which he admitted receiving shewed the delivery to be "as
soon as possible," and having received that copy he made no
objection to the correctness of its terms. I therefore hold that the
letter and the order referred to therein constitute a sufficient note
or memorandum of the contract to satisfy the Ordinance.

I also think there was an acceptance by the defendant of part
of the goods sold and an actual receipt of the same within the
meaning of sec. 6 of the Sale of Goods Ordinance. The defendant
admitted that he opened two of the boxes shipped and examined
the goods and stated that he found some of. the goods inferior in
quality to the samples and found also in the boxes goods which
he did not order at all. The opening of the boxes and the examina-
tion of the goods to see if they were equal to sample is, to my mind,
"an act of the buyer in relation to the goods which recognizes a
pre-existing contract of sale," which, under sub-sec. 3 of sec. 6,
is a sufficient acceptance to satisfy the Ordinance and allow the
terms of the contract to be established by parol evidence. It is,
however, no acceptance in performance of the contract, and leaves
it oj)en to the defendant to resist payment on the ground that the

Lamont, J.

1909

Steine

V.
KORBIN.

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[vol.

Lamont, J.

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Steine

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KORBIN.

plaintiff has not performed the contract: Abbot v. Wolsey (1895),
2 Q.B. 97, 64 L.J.Q.B. 587, 72 L.T. 581. The only defence raised
by tte statement of defence to the performance of the contract
consists of a denial of the delivery of the goods. I find, a^ a fact,
that on May 9th the plaintiff delivered a portion of the goods to
the Canadian Pacific Raifway at Montreal for the defendant, and
on June 25th he delivered a further portion, leaving a small balance
still to be delivered; that before this balance was ready for shipment
he received the defendant's letter refusing to accept the goods.
The delivery to a carrier for the purpose of transmission to the
buyer is primd facie delivery to the buyer: Sale of Goods Ordinance,
sec. 31. There was, therefore, delivery of the goods for the price
of which this suit is brought. As to the balance of the goods, the
plaintiff was imder no legal obligation to ship them, as the renuncia-
tion of the contract by the defendant discharged him from the
necessity of further performance of the contract on his part, and
entitled him to recover for the goods delivered without a tender
of the balance: Anson on Contracts, p. 319.

I therefore find that the defendant has failed to establish the
only defence to the performance of the contract which is set out in
his statement of defence.

There will be judgment for the plaintiflf for the amount of their
claim and costs.

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n.J SASKATCHEWAN LAW REPORTS. 11

[TRIAL.]

Newman v. Whitehead. 1909

Detinue — Boarding House Keeper — Goode of Lodger — Lien for Board and Jan H.
Lodging— Goods not Brought for Purpose of Joumey-^ExterU of Right of
detention.

Defendant was a boardine house keeper, and plaintiff, while staying with him
in a transient manner, Drought a large quantity of personal property, con-
sisting of household effects and other articles, to the defendant's nouse, and
left them there, in the meanwhile becoming indebted to the defendant for
board. There was some dispute as to the amount due, and the defendant
refused to deliver the goods until payment, and claimed a lien on goods
to the value of about $1,000 for a small balance due for board: —

Held, that a boarding house keei)er's lien extends to all goods brought to
the premises by the lod^r while a guest, and not merely to goods brought
for the purpose of the journey.

2. That the hen extends to aU the goods, no matter how great the value as
compared with the amount due. .. ,m , ^M *

This was an action for detinue, tried before the Chief Justice
at Battleford.

A, M, PanUm, for the plaintifiF.

W, W. lAvingsUme, for the defendant.

January 11. Wetmore, C.J.: — ^This is an action for the wrong-
ful detention of goods. The defendant is alleged in the statement
of defence to be a boarding bouse keep)er. This is not denied by
the reply, nor did counsel for the plaintiff attempt to controvert
that fact during the progress of the trial. I must, therefore, take
that fact to be admitted. I must say that had I been left to my
own judgment I have very grave doubts if I would have arrived
at that conclusion on the evidence. I may state that I have decided
this case entirely upon the pleadings and what was urged before
me by the respective counsel for the parties at the trial. I state
this in order to avoid misunderstanding should other questions be
subsequently raised.

The facts of the case are as follows, as I find them: —
The plaintiff had entered for a homestead some distance from
where the defendant resided and carried on his boarding house,
and he was taken by the defendant to visit this homestead and also
to look over another piece of land near to where the defendant
resided with the view of a possible application to enter for it as a
homestead. However, he retained the homestead he originally

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Whitehead.

SASKATCHEWAN LAW REPORTS. [vol.

entered for. On his way to and from this homestead he passed
the defendant's place and from time to time stopped there, taking
meals, and, it is alleged, occasionally sleeping there over night.
In this way he became^ liable to the defendant as a boarding house
keeper.

It was further claimed that the plaintifiF purchased part of a
stack of hay from the defendant.

The plaintiff, in arriving at this boarding house as a guest,
brought a quantity of personal property with him, which consisted
of a cooking stove and other property mostly contained in boxes.
This property consisted of household efiFects, clothing, pictures
and the like, and was stored on the defendant's premises. A
portion of this property was taken away by the plaintifiF to his
homestead after his shack was completed. This was taken away
without objection. In fact, it was taken away at the request of
the defendant. The property left on the defendant's premises is
alleged by the plaintifiF to be of the value of $1,500, and I judge
that it was worth between at least $1,000 and that amount. The
plaintifiF demanded possession of this property from defendant,
who refused to give it up, and this action was brought for the unlaw-
ful detention thereof.

The defence set up by the defendant is that the plaintifiF is
indebted to him for board and lodging, and that he has a hen
on this stuff for the amount of such indebtedness, and he coun.er-
claims for

Board $ 8.65

5 tons of hay at $5 per ton 25.00

Work locating the homestead, li days 3.50

Total $37.15

And he credits by cash on account of hay, $10, leaving a balance
of $27.15.

The plaintiff admits incurring liabiUty for board, but denies
purchasing the hay and denies UabiUty for work locating homestead,
and he claims that the $10 that he paid the defendant satisfied all
his indebtedness to him, and that, therefore, the defendant had
no right to this property by way of lien or otherwise.

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Whitehead.

II.] SASKATCHEWAN LAW REPORTS. 13

I may say, in regard to the claim for work locating homestead, wetmore, c.J.
I am of the opinion that the defendant is not entitled to recover i»09
for it. The plaintiff states that the services were voluntarily done Newm^ n
at defendant's own instance, and I take that view under the evidence. ^^ v.
In the first place an original statement of defence was prepared
for the defendant, and no such claim was included in it. The
statement of defence under which the case came down for trial
was an amended statement of defence, and there, for the first time,
this claim for "work locating homestead" is to be found, and I
cannot find that any claim for such work was made by the de-
fendant to anyone before action brought. The claim, therefore,
seems to me to be entirely an afterthought. The only claim ad-
vanced was the claim for the hay and the board and lodging. I
find that the hay was purchased by the plaintiff; but he sets up
that it was only a conditional purchase, conditioned upon his
entering for the homestead which was near the defendant's place,
and if he did enter for that he was to take the hay, and if he did not
he was not to take it. The plaintiff's conduct with respect to this,
however, is not consistent with what he testifies to. He made a
payment to the defendant of $10, and he claims that that was in
full for what he owed him at the time such payment was made.
The time of this payment is material. That is left very vague
by the plaintiff's testimony. The only way of getting at it by his
testimony is by inference, and that by no means of a conclusive
character. The defendant's testimony, however, makes this clear.
The payment was made on the 27th April. At that time the whole
amount that could possibly be due for board, even charging the
plwntiff with stopping over night, was only $5.50. As he disputed
the claim for work locating homesteads, there was nothing else, to
which the balance of $4.50 would apply except the purchase of
the hay. I, therefore, find that he did purchase the hay. But I
find that he purchased half a stack of hay at $20 (not $5 a ton),
and which I will allow the defendant for it.

As to the amount to be allowed for board: The defendant only
proved twenty-four meals at twenty-five cents each, and a lunch
at fifteen cents. Then the board furnished to the plaintiff's mes-
senger and team when he went there to demand the goods, and which
plaintiff has admitted to be correct, is $1.25, making in €ill $7.40
for board. There were a number of items for keeping the plaintiff

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14 SASKATCHEWAN LAW REPORTS. [vol.

wetmore, C.J, over night which were not proved. What was done was this: A

1909 memorandum which the defendant copied from his books (and

Newman which really was not admissible at all except by way of reference)

V. was produced. This memorandum was merely admitted for the

purpose of reference, and the defendant proved, as I have stated,

as to the board; but he gave no testimony whatever as to stopping

over night, and, therefore, I have not allowed it.

Now, as to the question of lien: It was claimed, in the first
place, that this property which was brought to the boarding house
was not brought there for the purpose of the journey, that is, for
the purpose of using while staying at the boarding house, but was
brought therfe by the way of freight and left there as such. All
that it is necessary to say with respect to that is that the plaintiff,
having brought this property there at the time he arrived as a
guest, it became liable to the defendant's lien for board. The
authorities seem quite clear with respect to that. It was also
claimed that the seizure was excessive. The only seizure there
was the merely retaining possession of it. No authority was
pointed out to me which holds that a retention under a lien for
board or the lien of an innkeeper is excessive if the lien exists, that
the lien holder is only to retain a part of the property sufficient
to cover the indebtedness and is boimd to deliver the other up.
The right does not appear to be governed by the same principles
as attach to distress for rent. It is also claimed that the board
was paid for by the $10. That payment I find was made generally;
there was no appropriation of it by the plaintiff to any particular
part of the debt, and there was no such appropriation by the de-
fendant at the time he received it. It occurred to me whether
the defendant was bound to appropriate this $10 to payment of
the board which was then first due. It is not necessary to decide
that question, because the plaintiff subsequently incurred a bill
for board to which the $10 could not possibly apply. I, therefore,
hold that the defendant had a lien for unpaid board with respect
to the property in question at the time action was brought for
$7.40. There will, therefore, be judgment for the defendant
on the claim dismissing the action with costs. As to the counter-
claim, I find that the plaintiff is indebted to the defendant for
board $7*40, hay and oats $20.10, amoimting, therefore, to $27.50,
and deducting the $10 paid, leaves a balance of $17.50, for which

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there will be judgment for the defendant on the counter-claim with Wetmore. c.j.
costs, and declare that the defendant has a lien on the property 1909
in question left with him by the plaintiff for $7.40 and his costs of >j"77~
this action and coimterclaim. v.

I must add that it seems to me a very unfortunate matter —
almost a melancholy affair — that these two men should have got
involved in a law suit involving very heavy costs, as this has, for
such a trifling matter as lies at the bottom of it. Even on the de-
fendant's own shewing, the whole amoimt in question was $27.15,
and these mAn have gone into litigation involving several hundred
dollars. All I can say is, however, that one party seems to me to
have been just as much to blame as the other. Bjit if people will
do such absurd and foolish things they have got to take the con-
sequences of it.

[TRIAL.]

Roberts v. Morrow. ^^^^

Damage by Prairie Fire— Origin of Fire — Degree of Care Required — Prairie *'*^* ^°'
Fires Ordinance — ** Permitting Fire to Escape** — Interpretation,

Plaintiff's buildings and other property were destroyed by a prairie fire
alleged to have spread from the ashes of a stack of straw burned by the
defendant. The evidence shewed that before the stack* was fired a guard
of about 40 yards in width was burned around it, and there was also a fire
guard three furrows in width about 300 yards to the west. The prairie fire
did not occur until four days later, on which day a high wind was blowing,
and indications pointed to the remains of the straw stack as the origin of
the pre: —

Heldj that in view of the climatic conditions prevailing in the Province, a man
bnnging fire upon his land must exercise the greatest caution, and under
those conditions precautions must be taken to prevent the fira spreading
until such time as it is absolutely extinguished, and the defendant, having
failed to take such care, was liable to the plaintiff in damages.

That if a person does not properly watch a fire started by him and see that it
does not ^t away, and it escapes, he thereby "permits" it to escape within
the meanmg of sec. 2 of the Prairie Fire Ordinances (ch. 87, CO. 1898).

* This was an action for damages for destruction of property
by a prairie fire, tried before Newlands, J., at Moosomin.

J. T. Braum, K.C., (W. Peel with him), for the plaintiff.

E. L. Elwood (B. P. Richardson with him), for the defendant.

January 18. Newlands, J.: — On the evening of Thiusday,
April 16th, 1908, at about 7.30, defendant set fire to a straw stack

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on his farm, the north-west quarter of section 2-18-8 w. 2. Before
setting it on fire he burned the stubble around the stack for a
distance of 40 feet in every direction. There was also a fire guard
of three furrows some 300 yards to the west of it, and a dump
some 100 yards long across a slough leading to the road allowance
between sections 2 and 3. On the night in question there was no
wind; and defendant watched the fire until 11 p.m., and, it then
having burned down and there being no more danger, he went
home. The next day at 8 p.m. he visited the stack, and the fire
was apparently out. The evidence of other witnesses shews that
it was not out at that time nor for some da3rs later. According to
William Blizzard it was still smoking on Saturday. Plaintiff and
Harry Smith both say there were hot ashes there on the following
Tuesday, and Constable Brown, R.N.W.M.P., says it was still
smoking on Saturday, the 25th of April. - On Monday, April 20th,
a high wind was blowing from the south-east, and a fire burned
from the direction of this stack across the north-west quarter of
3 and sections 10 and 16 to plaintiff's farm on the east half of
16, and did considerable damage to plaintiff. The evidence shews
that the grass and stubble were burned from defendant's stack and
went in a fan shape towards plaintiff's farm. Anson Moore, a
witness for defendant, sought to shew that the fire had started
on section 3 and had backed up to defendant's stack and was put
out by him, but even he said that there was a strip of burnt land
from the road to defendant's stack about 40 feet wide, getting
narrower as it approached the stack, and he could not explain how
it was in that shape if it had not started from the stack but had
backed up against the wind. None of the other witnesses for the
defence gave any evidence that the fire originated from any other
direction, and as the plaintiff and three witnesses shew that it
could be traced to this burnt stack and that the ground was burnt
in a V shape from there and went directly towards plaintiff's farm,
I am of the opinion that the fire which burned the plaintiff's property
originated from hot ashes or cinders being blown from this burnt
stack by the high wind that prevailed on Monday, the 20th April,
the day the plaintiff's farm was burnt. It was also shewn that it
was not unusual to have high winds at that season of the year,
and in fact that they were looked for at that time.

It is notorious that in this country at certain seasons of the

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year, when the weather is both dry and windy, prairie fires are
a source of constant danger, and scarcely a year passes in which a
large amount of property is not destroyed by fires. The amount
of care, therefore, which a man must exercise who brings upon his
land such a dangerous element as fire is much greater than in a
country where the same climatic conditions do not prevail. The
Legislature have recognized this source of danger to the property
of residents of this Province by passing the Prairie Fires Ordinance
(ch. 87, CO., 1898). Section 2 of that Ordinance provides that
any person who either directly or indirectly . . . " (b) permits
any fire to pass from his own land" shall be guilty of an offence,
"and in addition to such penalty shall be Uable to civil action for
damages at the suit of any person whose property has been injured
or destroyed by such fire." In Macartney v. Miller (1905), 2
W.L.R. 87, the Chief Justice, at p. 89, interpreted the above sub-
section as follows: ''It was urged on behalf of defendant that no
offence had been committed against this section because there was
no letting or permitting upon the part of the defendant; that the
term 'letting' or 'permitting' involved the idea of action or abstain-
ing from action. Conceding this to be true, I am of the opinion
that there was on the part of the defendant at least an abstaining
from action. He started the fire; it is true that he stayed there
for an hour or an hour and a half, but that is the longest time he
did stay there, I find, and when he left, the fire was smouldering
in the straw bucks, and a wind sprang up later in the day, which
caused it to spread. According to his own testimony also, which
I very much doubt, he burned some sort of a guard around the
straw bucks before he set fire to them. If he did, the guard must
have been insufficient for the purpose. It did not prevent the fire
from getting away. If a person kindles a fire on his own land
and does not properly watch it to see that it does not get away, and
it does get away, he lets or permits it to do so; that is, he abstains
from taking the action that he ought to have taken to have pre-
vented it so getting away, and therefore he is guilty of an offence
under the section of the Ordinance referred to."

Taking that as the correct interpretation of this section, are
the two cases so similar that I should follow that case and hold the
defendant liable for the damage which the plaintiff suffered from
the fire? The main distinction between the two cases is that de-

2 — ^voL. n. SX.B.

Newlands, J.
1909

Roberts

Morrow.

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fendant burnt a fire guard of 40 feet around his stack before setting
it on fire, and the fire which did the damage happened on the fourth
day after the burning of the stack.

Can he, therefore, adopting the interpretation placed by the
Chief Justice on the word *' permit" in Macartney v. MiUetj be
said to have permitted this fire to have escaped from his land.
As I have pointed out, more care is required in this dry and windy
country on the part of those bringing fire upon their land for the
purposes of husbandry than where the conditions are not so favour-
able to the spread of fire. And the only care that should satisfy
a cautious man would be to take precautions against its spreading
until certain that the fire was extinguished. So long as fire re-
mained in the burnt stack there was danger of its being scattered
by a high wind, as happened in this case, and if this could be pre-
vented, as I believe it could, then by failing to prevent it from
passing from his land he permitted it to escape, and is therefore
liable in damages to any person whose property was injiu^ or
destroyed.

The defendant raised the question of the plaintiflf's ownership
of the buildings destroyed. At the trial plaintiff swore that he
had bought the land and held it imder an agreement of sale. This
is, I think, sufficient evidence of title in an action of this kind.

I allow plaintiff the following damage: for the buildings de-
stroyed, $500; and for other property, $550, with costs.

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[TRIAL.]

Cairns v. Canadian Northern R.W. Co. l»09

Railway Company — Destruction of Property by Spark from Locomotive — Negli' Jwi. 20.
gence of Defendant — Proximate Cause,

Plaintiff was the owner of a warehouse in close proximity to defendant's
railway. Within six feet of the warehouse he piled a quantity of hay,
which became ignited by a spark from a locomotive on the railwajy, and the
fire spread to the warehouse , which was totally destroyed. The jury found
that the fire originated from the defendant's engine, but that the plaintiff
had been guilty of negligence in storing the hay in such close proximity
to the railway: —

Heldf that as the jury had found the plaintiff negligent, and as such negligence
was the proximate cause of the damage, he could not recover.

This was an action for damages for the destruction of the
plaintiff's warehouse by fire originating from an engine of the
defendant company, and was tried before Newlands, J., at Sas-
katoon.

Jaa. Straton and H. L. Jordan, for the plaintiff.
0. H, Clarke and J. D. Ferguson, for the defendant.

January 20. Newlands, J.: — ^This is an action for burning
plaintiff's warehouse and contents. The jury foimd that the fire
was caused by defendant company; that they used modem and
efficient appliances, but were otherwise guilty of negligence; that
plaintiff was guilty of contributory negligence by placing baled
hay on his property too close to his warehouse.

The evidence shewed that a pile of baled hay was set on fire by
a spark from defendant company's locomotive, that the fire was
communicated from the hay to the warehouse, which, with the
contents, was totally destroyed. This hay was piled within six
feet of the warehouse by plaintiff, and the jury have found that
this was negligence on his part.

It was urged by plaintiff that he had the right to use his property
as he saw fit, and was not compelled to protect it against the negli-
gence of any other party. In support of this contention he cited
the dictum of Strong, J., in New Brunswick Railway Co. v. Robinson
(1886), 11 S.C.R. 688, p. 696. This dictum is based upon Fero
V. Buffalo, etc,, R.W. Co., 22 N.Y. 209, and Grand Trunk
R.W. Co. v. Richardson, 91 U.S. 454-473 ; also Jajfery v.

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1909

Canadian
Northern
R.W. Co.

Toronto, Grey, and Bruce R.W. Co., 23 U.C.C.P. 553 ; Holmes
V. Midland R.W. Co., 35 U.C.Q.B. 253; McLaren v. Canada
Central R.W. Co., 32 U.C.C.P. 324 ; and Campbell v. McGregor,
29 N.B.R. 644. In none of these cases did the jury find that the
plaintiff was guilty of negligence, and therefore I do not think
that they are authorities that I should follow in this case.

The jury having found that the plaintiff was negUgent in piling
hay too close to his warehouse, and this action being for the loss
of the warehouse and contents, not for the loss of the hay, it follows
that if plaintiff had exercised more care in piling the hay, that is,
had piled it at a greater distance from his warehouse, as a prudent
man would have done, knowing, as he must have known, that there
was danger in the hay being set on fire by sparks from defendants'
locomotives, his warehouse would not have been burnt.

Having left the question of contributory negligence to the '}\uy,
and the jiuy having found as they did, I have to enter judgment
for defendants with costs.

[TRIAL.]

1909 See v. Branchflower.

Jan. 20. Contract — Action for Damages for Non-performance — Failure of Plaintiff ta
Perform Conditions — Mutual and Dependent Covenants.

Defendant agreed to plough a certain quantity of land in consideration of
receiving a portion of the crop to be grown thereon. The plaintiff, on his

Cart, agreea to provide a granary for the purpose of storing the grain to
e grown. Defendant failed to plough the land agreed upon, and plaintiff
did not erect the granaiy. In an action by the plaintiff for damages for
failure to plough tne land, defendant pleaded that by reason of the plain-
tiff's failure to provide the granary he nad to hauj away the grain, and the
time occupied m doin^ so prevented him completing the contract before
frost prevented him domg so: —
Held, that neither the covenant of the plaintiff to furnish the granary nor
that of the defendant to plough went to the whole consideration, and the
covenants were not mutual conditions the one precedent to the other, and
therefore the failure of the plaintiff to furnish the granary was no defence
to the plaintiff's action for damages on the other branch of the contract.

I? This was an action for damage for non-performance of a contract
to plough a certain quantity of land, tried before Newlands, J.,
at Saskatoon.

F. F. MacDermid, for the plaintiff.
A. W. Rutledge, for the defendant.

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January 20. Newlands, J.: — ^This is an action for the breach
of a covenant by defendant to plough back 152 acres, in the fall
of 1907, free of charge. The following is the agreement between
the parties; —

"Davidson and Lake City, Sask.,

Feb. 18, 1907. ^

"This contract enterd in to this the 18 day of feb Betwene
B. A. SEE. Party of the first part, and N. Branchflower. party
of the secont part.

"first prty a gieese to hyer party of the secont part to turn back
80 achers more ar less on the NWJ of sec 22 28 24 w2. first party
agreese to pay sectentparty $2 per acher far al lands turned back
inthe inthe spring.

"first party agreese to turn over to secontparty 152 achers morear
less 142 achers to be put in wheat 10 achers. to be put in barley,
"first party a greese to furnish all the seed and is to hav half of al
the crops that is grone on said lands, first party agreese to pay
half of the meshean bill farthrashing said crop, seccenty party
greese to put the grain in the grainry on the said lands mentened.
party of the secont part a greese to furnish teams and tools and al
laber conecet with the seeding and harvesting of the said crop al so
the twine to cover same, first party agreese to furnish granary
on said lands ser fisent to hold said crop.

"secont party a greese to plowe back 152 achers in the fall of 1907.
free of charge."

The defence is that the plaintiff agreed to furnish a granary
on said lands sufficient to hold the crop, but he neglected to do so,
and defendant was forced to remove and haul away the grain, thus
preventing him from ploughing up the 152 acres before the arrival
of the frost in the fall of 1907.

This defence depends upon the question whether these covenants
are mutual and dependent one upon the other. In Leake on Con-
tracts, 5th ed., p. 458, the following rules are laid down as applicable
to such covenants: " But the construction mainly depends upon the
matter of the mutual covenants or promises. ' When two covenants
in a deed have no relation to each other, the non-performance of
the one could not be pleaded in bar to an action brought for the
breach of another; for this plain reason, amongst others, that the

Newlands, J.
1909

See

Branch-
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damages sustained by a breach of one such covenant may not be
at all adequate to the damages sustained by the breach of the
other.' " (Willes, C.J., Thomas v. CadwaOader, WiUes 499). '' When
mutual covenants go to the whole consideration on both sides
they are mutual conditions, the one precedent to the other; but
where a covenant goes only to a part of the consideration, and a
breach of such covenant may be paid for in damages, it is an inde-
pendent covenant, and not a condition precedent." {Pordage
V. Cole, 1 Wms. Saund. 552, 554, rules 3, 4).

Neither the covenant to. plough 152 acres on the part of the
defendant nor the one to furnish a granary on the part of plaintiff
go to the whole consideration, and I do not see how the performance
of the one depends upon the performance of the other. The coven-
ant to furnish a granary goes only to part of the consideration
and may be paid for in damages, and it is therefore an independent
covenant and not a condition precedent. The breach of it is there-
fore no defence to this action, and as defendant has not counter-
claimed for damages it cannot be set off in this action against the
plaintiff's claim.

The plaintiff also claims damages for not being able to take
a crop off said land in 1908 on account of its not being ploughed
the preceding fall. In giving evidence on this claim plaintiff
swore it was impossible to tell what, if any, crop he would have
got off said land if it had been ploughed according to agreement,
and as I have' no means of fixing any damages on this claim I will
not allow any.

Plaintiff claims that 107 acres of the 152 were not ploughed
according to agreement, and under the evidence I am of opinion
that $2 per acre is a fair price for same. I will allow plaintiff
S214 damages with costs.

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n.] SASKATCHEWAN LAW EEPOETS. 23

[TRIAL.]
Wellwood v. Haw. ijroo

Vendor and Purchaser — Specific Performance — Vendor Owner of Uncertain Jan. 20.
Equitable Interest — Relief to which Plaintiff Entitled — Misrepresentation —
Laches — Property Traversed by Public Road — Divisibility of Contract.

The plaintiff and defendant agreed to an exchange of certain properties in
wmch they, at the time of the agreement, had some equitable interest.
The plaintiff subsequently acquired title to nis land and brought an action
against the defendant for specific performance, the defendant having then
only an equitable interest of an indefinite character in the property he had
agreed to convey. The defendant pleaded misrepresentation, and par-
ticularly that the plaintiff had not a good title, owinff principallv to the fact
that part of the property in question was traversed oy a road which had
been used by the public for upwards of twenty-four years: —

Held, that in view of the uncertain nature of the interest of the defendant
in the land in question, the Court could not decree specific performance
of the contract.

2. That the property in c|uestion being traversed by a hif^hway in use for
over twenty years^ and in respect of which the owner might at any time
be involved in a htigation, the. Court would nbt compel the purchaser to
accept the property subject to a prospective lawsuit.

3. That even though the road in question affected only a portion of the land,
yet the contract was an entire one, and the Court could not decree specific
performance as to part.

This was an action for specific performance of a contract for
sale of land, tried before Wetmore, C.J., at Prince Albert.

A. E. DoaJc, for the plaintiff.

Jas, McKay, K.C., for the defendant.

January 20. Wetmore, C.J.: — ^The plaintiff and defendant
entered into the following agreement: —

" Prince Albert, Sask., April 30, 1907.

**Memo of agreement made in duplicate between B. Wellwood
of the city of Prince Albert in the Province of Saskatchewan,
broker, and I. E. A. Haw, of the town of Qu'Appelle in the said
Province of Saskatchewan, contractor.

"Whereas B. Wellwood agrees to sell and I. E. A. Haw agrees
to buy lots 1 to 6 in block 7 and lots 43 to 46 in block 6 and 45
to 48 in block 5 and 15 and 16 in block 3 and 12 and 13 in block 1
according to a plan of subdivision known as Hazel Dell for the
price or at the sum of thirty eight hundred dollars or its equivalent
payable as follows whereas I. E. A. Haw agrees to sell and B. Well-
wood agrees to buy the south half of section 13 township 19 range 16

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24 SASKATCHEWAN LAW REPORTS. [vol.

wetmore, C.J. situated and Ijdng west of the 2nd meridian in the Province of Sas-
1909 katchewan for the price or at the sum of thirty eight hundred dollars

Wellwood ^^ ^^® equivalent and whereas B. Wellwood agrees to give a transfer
y. free from all encumbrance for the lots mentioned herein and I. E. A.

Haw agrees to give a transfer of the farm herein mentioned free
from all encumbrance I. E. A. Haw agrees .to build a residential
house the cost when finished to be not less than two thousand
dollars to be built this coming summer of 1907. B. Wellwood
reserves the right to inspect the farm herein mentioned and if not
suitable to declare this contract null and void farm to be inspected
within ten days from date."

At the time of entering into this agreement neither of the
parties had the title to their respective properties. The plaintiff
had an agreement with one McLeod (who owned the Hazel Dell
lots) for the purchase of the same, and the defendant seemed to
be under some sort of an agreement with the representatives of
what was known as the Sykes estate for the purchase of the half
section mentioned in the agreement, together with other lands.
The plaintiff, however, at the time of the making of this agreement,
was, by virtue of his agreement with McLeod, in a position to
make a title on certain conditions. However, this does not seem
to me to be material, because at the time of the bringing of this
action he was the registered owner of the property in Hazel Dell
and was in a position to give a title. The defendant never has
had the title to the half section of land vested in him, and, for all
I know, may not be financially in a position to acquire it. The
defendant never went into possession of the lots agreed to be sold
to him in Hazel Dell, nor has the plaintiff gone into possession
of the half section of land agreed to be sold to him. The defendant
has refused to carry out the contract, and this action is brought
for specific performance on the part of the defendant, and for
damages.

One diflSculty meets me right on the threshold of this case, and
that is, how can I decree specific performance of the contract —
that is, how can I decree that the defendant shall carry out his
contract by giving to the plaintiff what he is entitled to under the
agreement, namely, a clear title? I know of no authority by which
I can make any vesting order to serve the piupose, because I can
only make a vesting order in respect to what the defendant has

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n.] SASKATCHEWAN LAW REPORTS. 25

to give, and that at present is at the best a mere equitable interest wetmore. c.j.
of a very uncertain quantity. I cannot order him to pay the money 1909
that the Sykes estate claim in respect of their contract before they wellwood
will execute a transfer, and hold him guilty of a contempt of Court v.

if he refuses to do it. The only remedy, therefore, it appears to
me the plaintiff has, if any, is for damages.

The defendant defends this action, however, on the ground
that he was induced to enter into the agreement by the misrepre-
sentations of the plaintiff made at the time of entering and before
entering into the agreement, and which alleged misrepresentations
are as follows: —

(1) That there was a contract signed at that time for the
immediate erection of a hotel of the value of $20,000 on one of the
blocks in which some of the lota in Hazel Dell agreed to be sold
to the defendant were situated, and that such hotel would be
completed forthwith, before the end of the sununer of 1907.

(2) That contracts were signed and executed between the
Provincial Government of Saskatchewan and the Canadian Northern
Railway Company for the immediate erection of a joint traffic
and railway Imdge across the North Saskatchewan river (which
flowed by Hazel Dell), such bridge to be erected in the immediate
vicinity of the lots in block 1 agreed to be sold to the defendant,
and that such bridge would be erected and completed forthwith
and before the end of the summer of 1907.

(3) That he (the plaintiff) had a clear title to the lots in Hazel
Dell so agreed to be sold, and was in sole occupation and possession
of the same, and that they were free of all claims and easements,
and that he would give the defendant quiet and peaceable and
undisturbed possession of the jsame.

(4) That five or six good substantial residences of the value
of not less than two thousand dollars each would be erected and
completed forthwith, some on the blocks wherein the lots agreed
to be sold were situated and others in adjoining blocks.

And that such representations were untrue, inasmuch as there
was no contract to build the hotel and no hotel has been built;
there was no contract to build the bridge and it has not been built;
that the plaintiff had not at the time of bringing the action a clear
title to the lots and could not give the defendant quiet and peaceable
and undisturbed possession thereof; that there was and is a public

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road in use through the lots in block 1, and has been for over twenty
years.

As to the first, second and fourth alleged misrepresentations,
the evidence is very contradictory, the plaintiff swearing to one
thing and the defendant to another, and there is no other witness
to throw any light on the questions with respect to which they
have testified. I have come to the conclusion, and find, that these
alleged misrepresentations were not made. I think the defendant's
conduct is inconsistent with the fact that they were made, or that
he so relied upon them as to warrant the contract being set aside,
assuming that they were made and were false. He states distinctly
that he did not lay much stress on the hotel being built or the
completion of the bridge, and, again, he saw through the whole
sununer that the bridge was not commenced or the hotel or other
buildings started; nevertheless, he makes no protest, he does not
seek to repudiate the contract imtil after this action was com-
menced, on the 5th September, 1907.

As to the title which the plaintiff had at the time that the con-
tract was entered into, or just before, the defendant was well aware
of it, and, as I have already stated, before this action was brought
the plaintiff acquired the right and could have given a clear title
to the defendant, except in so far as the matter to which I am now
about to refer is concerned — ^that is, the road. Hazel Dell was
surveyed off ioto blocks and lots, with streets. Block 1, in which
lots 12 and 13 were agreed to be sold to the defendant, fronts south
on the Saskatchewan river, and is boimded on the north by First
avenue, one of the streets so laid out by the survey. Riuming
between this avenue and the river is a road or trail leading from
the ferry and running all the way across this block. This road
has been used by the public for twenty-four years and upwards,
and to my mind is a very serious blemish to these lots. The de-
fendant has been continually, ever since he made the purchase,
objecting to the fact that this road was there. This does not seem
to be practically denied. On the occasion of his going there with
the plaintiff, and noticing the road, he told him: ''There is no use
of me coming over here to build, I would be opposing the public,
I would be opposing the Government in blocking up this road, and
I don't want to be up against such a proposition as that, as I would
be open for action either by the public or by the Government."

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n.] SASKATCHEWAN LAW REPORTS. 27

The plaintiff admitted that the defendant spqke to him about the Wetmore, c. j.
road, said it looked to him as though it would be an encumbrance umo
on the property, and that he told the defendant that he thought ^ ;"
legally he could have the road removed, but that he wasn't going v.

to any trouble about it, as he had seen the Attorney-General at '*^^-

that time, and in some conversation he had had with him he had
pointed out where he thought it would be a benefit to the public
to have the road changed and have it in conjunction with First
avenue, and the Attorney-General led him to believe that he would
change the road for him, being that he was giving him more ground
on another street off his sub-division, and from the conversation
he had with the Attorney-General he was led to believe that he
would change the road, and he told the defendant that he didn't
think there would be any trouble in getting the road changed;
and then he went and saw the Attorney-General who succeeded
the one first spoken to, who said he didn't think there would be any
trouble in getting it changed. There is the fact duly recognized
that this road was an objectionable feature with respect to these
two lots, and the desirability of having it changed. Nevertheless,
it never has been iJhanged, and the assurances of the Attorney-
Generals have not made the matter any better. The objectionable
feature is there yet, and I am of opinion that the defendant cannot
be compelled to accept the property while that objectionable feature
is there. The plaintiff, at least, ought to have had it removed before
he brought this action, and I say this apart from any question of
misrepresentation.

I do not intend to express any opinion with respect to the legal
effect of the user of this road, whether it would amoimt to a pre-
sumed dedication of the road imder the circumstances by the user,
or whether it would amount to a dedication of the road by a user
for over twenty years. All that is necessary for me to say is that
there is a prospect of a very good lawsuit over it. The authorities
are quite clear that the Coiul; will not compel a person to take a
title which will involve him in a lawsuit. In Fry on Specific Per-
formance, 4th ed., p. 385, I find the following: ''Where the prob-
ability of litigation ensuing against the purchaser in respect of the
matter in doubt is considerable, or, as it was put by Alderson, B.,
where there is 'a reasonable decent probability of litigation,' the
Court, to use a favourite expression, will not compel the purchaser

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[vol.

Wetmore, C.J.

1909
Well WOOD

Haw.

to buy a lawsuit." . CatteU v. Corrall, 4 Y. & Coll. Ex. 237,
is cited for that proposition. I have not been able to lay my hand
upon this report, but, knowing the high standing of the author
of Fry on Specific Performance, I have not the slightest doubt
but that the quotation is properly made. In Price v. Strange
(1821), 6 Madd. 159, at p. 165, the Vice-Chancellor lays it down:
"In attempting to lay, down a rule upon this subject, I should 3ay
that a purchaser is not to take a property which he can only acquire
in possession by litigation and judicial decision." In Sharp v.
Adcock (1827), 4 Russ. 374, the Master of the Rolls says as follows:
"To compel the piu-chaser to take this title would be to compel
him to buy a suit, for the application of the words which are relied
on as giving the fee to all previous devises made to the wife, is much
too doubtful ever to be settled without litigation"; and judgment
was given in favour of the purchaser. In Pegler v. White (1867),
33 Beav. 403, at p. 408, the Master of the Rolls lays down as follows:
"This Court will not compel a person to take a title where it has
distinct evidence before it, not only that there are two claimants
to the reversion, but that it is impossible for this Court to say
which of the two may be in the right, and thrft it would involve
the necessity of the purchaser of the property filing a bill of inter-
pleader for the purpose of being secured in the enjoyment of it."
That seems to me to be practically the situation in this case in so
far as the forcing upon the defendant to take the Hazel Dell lots
is concerned, and in this case the fact that it was recognized that
the public had rights with respect to that trail is emphasized by
the plaintiff considering it so serious that he applied to the Attorney-
General for the purpose of having the road changed, so that the
rights of the public would be wiped out.

The fact that this objection applies specially only to lots 12
and 13 does not affect the question, because I cannot order this
contract to be divided and hold that with respect to one portion
of the lands agreed to be conveyed the contract may be enforced
but not enforceable with respect to the other. The whole contract
must stand or fall together, and that is specially so in this case,
where the purchase price to be given in payment is a block of land.
It is true that it is reduced to a money value in a manner, but,
nevertheless, the intention is by the agreement that one party
was to give as a consideration for certain lots of land another block

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of land. The plaintiff, bringing this action, must be ''ready and Wetmore, c. J.
willing" to perform his part, and "ready" does not mean merely 1909
that he must be prepared to do it, but he must be ready to give wtLLwooD
-what he agreed to give; he must, in the first instance, be ready «•

to give a good title, and that to the whole of it, and he must be ready
to give it free from objectionable features, such as this road is.
He must be ready to transfer property which will not involve the
transferee in a lawsuit, and, if he is not in a position to do that,
he is not "ready" within the meaning of the word; and, if he is not
ready, he cannot compel the other party to transfer to him.

I am, thereforfe, of the opinion that the objection that is raised
with respect to this road is valid. The defendant has never done
anything that would amount to an acceptance of this property
without that road being there, and he has been prevented from
doing so by the representations of the plaintiff that he was going
to get it removed, which he never did do.

Therefore, I am of opinion that this action must be dismissed
with costs to the defendant. And under the circumstances of
this case, justice will be done by ordering the agreement of the
30th April, 1907, to be cancelled, and I so order.

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30 SASKATCHEWAN LAW REPORTS. [vol.

[TRIAL.]

1909 Flemming V. Bonnie.

Jan. 21. Vendor and Purchaser — Action for Purchase Price — Misrepresentation by
. Vendor as to Price Paid for Land and Buildings — Effect of.

Plaintiff sold defendant a house and lots and sued defendant for the purchase
price. The defendant alleged that he was induced to purchase on the
plaintiff's representation that he had paid $375 for the lots and $400 for
the house. The plaintiff admitted that the lots cost him only $175 and the
house $300. The defendant, before purchasing, examined the property,
and after purchasing made inc|uirie8 as to the value: —

Hetdj that tne representations m question must be regarded as repre-
tentations respecting the value, and there bein^ no fiduciary relationship
between the parties the purchaser was not justified in placmg confidence
in them.

2. That in order to avoid a contract for misrepresentation, the representation
m,ust not only be untrue, but the purchaser must have been induced to
act upon that representation, and as the vendor had examined the property
before purchasing, and after purchasing had made inquiries as to the value,
it would appear tnat he had not relied solely upon the representations and
so been induced to enter into the contract on the strength of such repre-
sentations.

This was an action to recover the purchase price of land, tried
before Newlands, J., at Saskatoon.

H. L. Jordan, for the plaintiff.
J, D, Ferguson, for the defendant.

January 21. Newlands, J. : — ^This is an action for the purchase
price of certain lots sold by plaintiff to defendant. The defence is
that the plaintiff misrepresented the price he paid for them, the
cost of the buildings thereon, and the selling price of the adjoining
lots. The land and buildings were sold for $625, and defendant
swears that plaintiff told him that he had paid $375 for the lots
and $400 for the house thereon. ' Plaintiff admits that the house
cost him between $200 and $300, and that he paid only $175 for
the lots. Is this such a misrepresentation that will avoid the
contract? In JKerr on Fraud and Mistake, 3rd ed., p. 51, he sayis:
"The representations of a vendor of real estate to the vendee as
to the price which he has paid for it are, in respect of the reliance
to be placed on them, to be regarded generally in the same light
as representations respecting its value, or the offers which have
been made for it. A purchaser is not justified in placing confidence
in them." "But," he goes on to say, "a false affirmation by a
vendor as to the actual cost of property, or as to the amount spent

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upon it by him in improvements, may amount to a fraudulent
misrepresentation." The cases he cites in support of this last
proposition are all cases in which there was some fiduciary relation-
ship between vendor and purchaser, and I can find no case in
support of that proposition where there was no such relationship
between the parties.

In order to avoid a contract, a representation must not only
be imtrue but the purchaser must have been induced to buy by
that particular representation: SmM, v. Ltand and House Property
Carjxyraiion (1884), 28 CD. 7, 51 L.T. 718. In this case the pur-
chaser wanted the house to live in, and he examined it for himself.
His subsequent conduct shews that he did not place reliance in
the vendor's statements, as he made inquiries for himself. He did
not make these inquiries until after he had completed the purchase,
but the fact that he did make them shews that he had not confidence
in the vendor's statements. In Gofers Case (1875), L.R. 20 Eq. 114,
at p. 123, Bacon, V.C, said: ''It is not inequitable that a man
should buy as cheap and sell as dear as he can. The seller is under
no obligation to state the price at which he purchased. The
purchasers are the best judges of whether the thing offered for sale
is worth the money which is demanded for it." Parties in pur-
chasing real estate ^generally deal at arms' length, and however
immoral it may be to make false statements about the value of
property, if the purchaser is not deceived thereby he has no ground
for avoiding the contract.

Judgment will be for plaintiff for amount claimed. As he has
been residing in the house since the sale, there will be a reference
to the local registrar to ascertain the rent due, which will be set-off
against the plaintiff's claim.

Newlands, J.
1009

Flemming

Bonnie.

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32 SASKATCHEWAN LAW REPORTS. [vol.

[IN CHAMBERS.]

1909 In re Regina Windmill and Pump Co., Limited.

Jan. 25. Companies Winding-up Ordinance — Company in Liquidation — Seizure of
Goods by Sheriff Before LiquidaHon — Right of Sheriff to Sell.

An order was made, under the provisions of the Companies Winding-up
Ordinance (ch. 13 of 1903), to wind up a company, and a li<]uidator was
appointed. Before the appointment of the liquidator the sheriff seized the
goods of the company under a writ of execution. On an application for
an Older directing the sheriff to hand over the gpods so seized to the
liquidator: —

Heldf that the Court had^ imder the Companies Winding-up Ordinance, 1903,
no jurisdiction to require the sheriff to hand over the goods seized by him
under execution.

Application for an order requiring the sheriff to hand over
to the liquidator the goods of a company in liquidation seized by
him prior to the appointment of the liquidator, heard before
Lamont, J., in Chambers.

W. S. Ball, for the liquidator.

W. B, Scott, for the sheriff.

J. A. Cross, for the execution creditor.

January 25. ' Lamont, J.: — ^This is an application, on behalf
of the liquidator, for an order directing the 'sheriff to hand over
to the liquidator certain goods and chattels of the Regina Windmill
and Pump Company, which the sheriff has in his possession by
virtue of a seizure of the same made under an execution against
the said company.

On December 2nd, 1908, an execution against the goods of the
said company was placed in the hands of the sheriff, and on the
same day he made a seizure. On December 17th of the same year
a summons was taken out asking for an order to wind up the com-
pany, and on December 29th the winding-up order was made.
The sheriff was, therefore, in possession of the goods under an
execution before winding-up proceedings were commenced, and
the question is, is he imder our law obliged to hand the goods
seized over to the liquidator?

The winding-up proceedings were taken under the Companies
Winding-up Ordinance, 1903. That Ordinance contains no pro-
vision directing goods in possession of the sheriff to be handed
over to the liquidator similar to sec. 9 of the Assignments and

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Preference Act, nor any provision similar to sec. 84 of the Dominion
Winding-up Act. By sec. 7, sub-sec. 2, the Ordinance directs
that the property shall be applied in satisfaction of its liabilities
pari passu with a certain preference to claims for wages. By
sec. 22, sub-sees. 2 and 3, power is given to the Court to stay any
pending action and to order that no action shall be commenced
or proceeded with except with the leave of the^Court. The Court,
therefore, has power to restrain the sheriff from proceeding to sell
the goods under the execution in his hands if sufficient reasons are
shewn therefor. In the present case, however, no application has
been made to stay proceedings by the sheriff, and until such an
order is made it seems to me that not only is the sheriff within his
light in not giving up the goods, but he might be liable to the
execution creditors if he released his seizure without being so directed
by the Court. In Masten's Company Law, at p. 606, the learned
author says: "Where a creditor has actually issued execution
against a company before the petition to wind it up has been pre-
sented, and the sheriff is in possession when it is presented, the
Court will not interfere to deprive the creditor of the fniits of his
diligence unless uncjer special circumstances, e.g., oppression or
fraud." And in Lindley's Law of Companies, 6th ed., p. 911, it is
also laid down that the Courts will not interfere to deprive a creditor
of the fruits of his diligence in getting execution and making a
seizure.

Where a winding-up order has been made and a liquidator
appointed, the liquidator stands in the place of the company, and
has no greater powers over the goods of the company than the
company itself would have, unless such powers are given to him
by statute. If the proceedings were under the Dominion Winding-
up Act, ch. 144, R.S.C. 1906, it would seem that the sheriff would
only be entitled to hold the goods for his costs and such costs of the
execution creditor as by the law of this Province are given a prefer-
ential lien on the goods (sec. 84). Our Ordinance, however, does
not appear to contain any provision depriving an execution creditor,
who has seized before the winding-up proceedings were commenced,
of the fruits of his execution, and as no order has been made by
the Court staying proceedings by the sheriff for enforcing his
execution, I am of opinion that the sheriff was right in refusing to
hand over the goods seized. The application will, therefore.

3— VOL. II. S.L.R.

Lamont, J.
1909

In re

Regina

Windmill

AND

Pump Co.,
Limited.

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[vol.

LamoQt, J.
1909

In re
Regina

WiNDWILL
AND

Pump Co.,
Limited.

be dismissed, with costs to be paid by the liquidator out of the
estate.

If the Uquidator is of opinion that the whole estate can be
more advantageously administered by having possession of the
goods seized by the sheriff, I will maJce an order directing the sheriff
to deliver the goods upon the liquidator paying or guaranteeing
to the sheriff the amoimt for which he holds these goods, and all
costs.

[TRIAL.]

1909 Douglas v. Hourie.

Jan. 26. AsngnmerUs and Preferences Act — Action to Set Aside Chattel Mortgage —
Knowledge of Mortgagee of Insolvency of Mortgagor — Intent to Obtain
Preference— Mortgage to Secure Past and Present Advances — Validity of —
Action Brought by Simple Contract Creditor — Right of Such Creditor to
Maintain Action,

Defendant Hourie, being in insolvent circumstances, gave a chattel mortgage
to the defendant bank to secure $500 past indebtedness and $250 a present
advance. The manager of the defendant bank was well acquainted with
the defendant Hourie's circumstances, and must 'have known him to be
insolvent. A simple contract creditor of Hourie brought an action to aet
aside the mortgage as void under the Assignments and Preferences Act: —

Held J that in order to render a conveyance void under the provisions of sec. 39
of the Assignments Act, there must be knowledge of the insolvency on the
part of botn parties and concurrence of intent to obtain an unlawfm prefe]>
ence over other creditors.

2. That the chattel mortgage attacked having been given and taken with .
knowledge of the insolvency of the mortgagor, was as to the past indebted-
ness of $500 void, but was valid as to the suivance of $250, which, although
not actually advanced until a few days after the mortgage was given, was
intended to be a present advance on the security of the mortgage.

3. That under the Assignments Act any creditor majy maintain an action to
set aside a fraudulent conveyance imder the provisions of the Act, whether
his claim has been reduced to judgment or not.

This was an action to set aside a chattel mortgage as given
in fraud of creditors, and was tried before Prendergast, J., at
Yorkton.

J, A. M, Patrick and W. R. Parsons j for the plaintiff.
C. P. FuUerton and J. H. Parker, for the defendant Bank.

January 26. Prendergast, J.: — ^This is an action to set
aside a chattel mortgage from the defendant Hourie to the other
defendant, the Bank of British North America, as being fraudulent
under the Assignments Act.

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n.] SASKATCHEWAN LAW REPORTS. 35

With respect to the financial status of Hourie when he made ^"^ndergast. j
the chattel mortgage, it is unnecessary to go into the schedule 1909
of liabilities and statements of assets filed. It is enough to say Dquglas
that they resolve themselves into this: that provision being first ••

made to pay off the secured creditors, there remained only a
balance of $476 to satisfy claims amounting to more than $2,600.
I consequently find that Hourie was insolvent at the time.

I cannot but feel, moreover, that Mr. Lang, manager of the
defendant bank, knew of Hourie's insolvency. He knew a good
deal of Hourie 's business in a general way; he knew that he had
been owing the bank nearly $500 for eighteen months; he must
have known that the general power of attorney which Hourie
gave to him and McClure was intended to be virtually an assign-
ment to wind up his affairs, as he must also have had informa-
tion on October 3rd that the crop, estimated at $3,000 in the
statement, exhibit B, which had been placed in his hands, was
a failure.

The case seems to me to come within sec. 39 of the Assign-
ments Act. This sec. 39, in my view, is not qualified at all by
sec. 42, which appears to have a bearing only on sees. 40 and 41.
It also differs from sees. 1 and 2 of the Preferential Assignments
Ordinance, which it has replaced, in that the latter contains the
words, "or which has such effect" — i.e., of being preferential.

It was largely upon the strength of these five words in the
ordinance that our own Court, in Ross Bros. v. Pearson (1905),
1 W.L.R. 338, decided that the mortgage was void.

It appears, however, that the five words in question had in
themselves no particular significance, as in BenaUack v. The Bank
of British North America (1905), 36 S.C.R., p. 120, which was
an action brought under an ordinance of the Yukon Territory
substantially similar to our Preferential Assignments Ordinance,
it was held that, in order to render the assignment void, there
must be knowledge of the insolvency on the part of both parties
and concurrence of intent to obtain an unlawful preference over
the other creditors.

This should apply a fortiori to sec. 39 of our Act, inasmuch
as, although substantially similar to the Yukon and our own
Ordinance, it,. nevertheless, differs from them (as above remarked),
in not referring to the effect which the assignment may have.

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HOURIE.

36 SASKATCHEWAN LAW REPORTS. [vol.

PreBderga8t,j. jj^ MolsoTi's Bank V. HoUcr et at. (1891), 18 S.C.R., p. 88, and
1909 in Stephens v. McArthur, 6 Manitoba Reports, p. 496, the
j^^^^g main question was also as to the interpretation of the words, "or
V. which has such effect," and the latter case also turned on the

question of pressure, which does not arise here. In CodviUe v.
Eraser, 14 Manitoba Reports, p. 12, the main point con-
sidered is the dominant motive which actuated the parties, in
order to come to their real intent, and that, again, has nothing
to do with the present case.

The chattel mortgage was given by the defendant Hourie to
the defendant bank on October 3rd to cover two advances: a prior
advance of S§00 and an actual advance of $250.

In my opinion, under sec. 39 of the Act, and the decision in
BenaUack v. The Bank of British North America, supra, the mort-
gage is void as to the $500.

As to the $250, I think the mortgage should hold. I take
this to be an actual advance. The fact that the amount was
not taken out at once, but only a few days after, by Hourie does
not make it a future advance, and so does not come under the
prohibitions of the Bank Act. With reference to this trans-
action, considered singly and by itself, the bank cannot be said
to have been a creditor, and, then, the fact that full considera-
tion was given would negative the fraudulent intent. But the
main point is that such a transaction is expressly declared valid
by sec. 44 of the Act.

With reference to the distinction between the two advances
secured by the one mortgage, the point arose in Mader v. McKinnon
(1893), 21 S.C.R. 653, and Gwynne, J., referring to the third sec-
tion of ch. 124, R.S.O., which is similar to our own enactment,^
said: "If, then, any portion of the amount to secure which the
chattel mortgage in the present case was given could be held to
have been a present actual bond fide advance of money made by
the mortgagee, I should be of opinion that to such extent the
mortgage would be good and valid, although as to the residue
it could not be sustained, and that such a case was quite distin-
guishable from The Commercial Bank v. WUson , 3 E. and A.
Reports, p. 257."

The chattel mortgage, in my opinion, should then hold as to
the actual advance of $250.

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n.] SASKATCHEWAN LAW REPORTS. 37

It was also ui^ged for the defendants that the plaintiff has Prendergaat.j.
no standing in the case, not being an execution creditor. This, 1909

however, does not seem to be required by the Act, see. 48, sub- i>ougla8
sec. 6, of which says: "Where there is no valid assignment for v.

the benefit of creditors, one or more creditors may," etc., and
not "one or more execution creditors may," etc. It is true that
in Parkes v. St. George, 10 O.A.R., p. 496, it was held that
the plaintiff, not being a judgment creditor, could not maintain
the action; but the action was one to impeach a chattel mort-
gage for irregularities by reason of its non-compliance with the
provisions of the Chattel Mortgage Act, and not at all an action ^
under the Preferential Assignments Act. So in Hyman v. Cuthhert-
son, 10 Ontario Reports, p. 443, the judgment was that
the plaintiff, not being an execution creditor, could not dispute
the defendant's possession of the goods. But the reason given
was that the case did not come under the Assignments Act. So,
also, in Coats v. KeUyy 15 O.A.R., p. 81, and in Ross et at.
V. DunUj 16 O.A.R., p. 552, where Burton, J.A., in giving
judgment upholding the chattel mortgage, called attention to
the fact that the action was taken and the mortgage impeached
neither under the statute of Elizabeth nor under the statute against
fraudulent conveyances.

There will be: —

(1) An order rescinding and declaring null and void the said
chattel mortgage with respect to the said sum of $500 as against
the plaintiff and other creditors of the defendant Hourie.

(2) An order for the delivery to the clerk of this Court of such
property and moneys as are still in the possession of the defen-
dant bank after satisfaction of the said mortgage rescinded in
part as aforesaid, and for such further relief as may seem meet.

With costs to the plaintiff.

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38 SASKATCHEWAN LAW REPORTS. [vol.

[TRIAL.]

1909 J. I. Case Threshing Machine Co. v. Fee.

Jan. 27. Sale of Goods — Entirety of Coniract — Intention of Parties — Sale by Description —
Misrepresentation — AdmissHnlity of Parol Evidence to Vary Written Con-
tract— Acceptance by Buyer — Reasonable Opportunity of Inspection.

Plaintiffs agreed to sell defendant certain threshing machinery, consisting of
"a second-hand, portable John-Abell engine, known as the Sutcliffe engine/'
separator, and other accessories. The engine was second-hand, and the
other articles were new. The memorandum of the agreement was embodied
in two documents, the reason given by the agent of the plaintiff being that
they would not warrant the second-hand goods, but would warrant the new
• goods, the document relating to the engine containing no warranty. It was
alleged that the engine was represented as having been recently re-buUt
and as good as new. When the goods arrived, the defendant, who knew
nothing of engines, made a cursory examination of the articles, and then
signed the notes for the purchase price. Subsequently his engineer ex-
amined the engine and refused to have anything to do with it, on the ground
that it was so badly out of repair as to be unsafe. The defendant thereupon
refused to accept the goods. In an action for the purchase price: —

Held, that as the agreement was for articles necessary to constitute a complete
threshing outfit, and the memorandum of sale was only severed on accoimt
of the warranty, the contract must be deemed to be an entire contract, and
the defendant was not required to accept any portion of the goods if he
was not required to accept all.

2. That the representations as to the character of the engine were not of a
collateral nature, but were a description of the property to be sold, and the
sale was therefore a sale b^ description, and as the goods delivered did not
correspond with the description the purchaser was entitled to reject them.

3. That as the character of the engine to be sold was not sufficiently stated
in the memorandum of sale, parol evidenqp was admissible to prove the
description of the engine to be delivered.

4. That the execution of the notes for the purchase price after a cursory
examination by the defendant, who was not capable of judging whether the
engpe was as described, was not an acceptance of the g<x>ds, but he was
entitled to a qeasonable opportunity of examining the goods with the
assistance of one qualified to judge of the quality of the goods delivered^
and to reject them if they did not comply with the description.

This was an action for the purchase price of certain threshing
machinery sold to the defendant, tried before Lamont, J., at
Yorkton.

J, A. M. Patrick J for the plaintiffs.
C D, Livingstone y for the defendant.

January 27. Lamont, J.: — ^This is an action brought by the
plaintiffs to recover the amount of six hen notes made by the
defendant in the plaintiffs' favour, payable as to two of them^on
November 15th, 1907, as to two others on November 15th, 1908,
and as to the last two on November 15th, 1909. The notes con-
tained an accelerating clause, and were given to secure payment

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n.] SASKATCHEWAN LAW REPORTS. 39

of a second-hand portable steam engine, a wind stacker and loader, Lamont, J.
a quantity of belting, and attachments necessary for changing 1909
a horse-power threshing outfit to a steam-power machine. The j J~r
agreement for these articles was made on August 2(>th, 1907. On Threshing
that date, the plaintiffs' agent, John R. Franks, met the defendant ^"^^^
at Sheho, and learning that he had a horse-power threshing outfit, ^^e.
proposed^ to him to change the machine to steam power, and after
some negotiations sold him the above mentioned articles.

The plaintiffs' agent admits that at the time the agreement was
entered into he stated to the defendant that he had a second-hand
engine which was just the thing the defendant required, that the
engine had been recently rebuilt, and that for the defendant's
purpose it was just as good as a new one. The defendant agreed to
take the engine and the other articles so as to have one complete
steam threshing machine. The plaintiffs' agent then drew up two
written contracts, one for the engine and one for the other articles.
The defendant asked why he did not put them all in one contract,
and the agent explained that if he did so the defendant would lose
the warranty which the plaintiffs gave with the new goods, as they
did not give a warranty with a second-hand engine. The defendant
then signed the two orders. The order for the engine wac an
order for "one 16 horse-power portable J. Abell engine, known
as the Sutcliffe engine." Some time later the engine and other
articles arrived at Sheho. The defendant, who lived fifty miles
away, happened to be in Sheho one day, and there saw the plaintiffs'
agent Franks and the plaintiffs' machine expert. The three went
down to where the engine was and looked at it. The defendant
had never had an engine and knew nothing about one, and stated
so to Franks. On seeing the engine, he said it looked pretty
ancient. Franks said that the expert had examined the engine
and there was nothing to fix about it. As Franks had to hurry
to catch his train, they were only a few minutes looking at the
engine. On returning to the office Franks asked the defendant
to sign the notes sued on, which he did.

A short time afterwards the defendant came to Sheho with
his engineer and a couple of men and teams to take the engine home.
As soon as the engineer examined the engine he refused to operate
it, and said he would have nothing to do with it. He pointed out
that there were no fire grates in the engine, that there was nothing

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[vol.

LamoDt J.
1909

J. I. Case

Threshing

Machine Co,

Fe^.

to keep the fire off the bottom" of the ash-pan, and that in the ash-
pan itself there were several holes and openings through which the
fire would fall to the ground; the flame-sheet was badly burned
and cracked, some of the flues were choked, and there were holes
in the wire screen in the smoke-fitack as large as a hen's egg, and
that in the condition in which the machine was it was absolutely
dangerous to take near a bam or stacks. The new goods appeared
to be all that they were represented as being. The defendant
then refused to take away either the machine or the new goods.
He left them where they were, and told the plaintiffs' agent that
he would not accept them, and also refused to pay the notes.

On January 8th, 1908, the plaintiffs' solicitor sent the defendant
a notice which, after reciting the notes and the proviso containing
the accelerating clause, declared on behalf of the plaintiffs, all the
notes to be due and payable forthwith, and in the following May
commenced this action.

The defence set up (1) that the contract was an entire one
including both the engine and the new goods, (2) that the sale was
a sale by description, and that the goods supplied did not answer
the description. The statement of defence alleges that at the
time the contract was entered into the plaintiffs' agent represented
that the said machinery and every part thereof was in good, com-
plete running and working order, that the engine had been recently
rebuilt and was as good as new, and that all the said machinery
was fit for the purpose of threshing grain > that these representa-
tions were untrue, and that the said engine was not reasonably
fit for the purpose for which the plaintiffs sold it to the defendant.
The defendant counterclaims for general damages and for (55
freight paid by him.

I will first deal with the question as to the entirety of the con-
tract.

The question whether a contract for several things is an entire
contract for all, or is to be considered as split up into separate
contracts for the different articles, depends upon the intention of
the parties and the circumstances of the case: Benjamin on Sales
5th ed., 193.

The fact that all the goods were contracted for at the same
time, that they consisted of the different articles necessary for the
completion of the defendant's machine as a steam thresher, and

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n.] SASKATCHEWAN LAW REPORTS. 41

that the only reason they were not embodied' in the one order was Lamont, j.
because the warranty applying to the new goods did not apply 1909
to the engine, Jshews, primd facie, that the contract was an entire j T^gj,
one, as the clear intention of the parties was to make one complete Threshing
steam threshing outfit, and the new goods were absolutely useless ^^
to the defendant without the engine. I hold, therefore, the con- l^^®-
tract to be an entire one.

Was the sale a sale by description?

On the ;sale of a specific article by description, the description
is a condition where it is essential to the identity of the chattel,
so that its falsity makes the chattel something quite different
from what was contracted for: per Prendergast, J., in Bannerman
V. Harlow (1908), 1 Sask. L.R. 301.

In that case the plaintiff sold to the defendant a second-hand
engine, separator, tank and pump which were then in Manitoba,
and took his lien notes therefor. At the time of the sale he repre-
sented that the engine and separator were in good, complete,
running order, as good as new; that they had only been used for
120 days and were fit for the purpose of threshing grain, for which
purpose the plaintiff knew the defendant was purchasing them.
It was held by the Court en banc that this was a sale by description,
and as the machinery delivered did not correspond with the de-
scription the defendant was entitled to reject it.

In Varley v. Whipp (1900), 1 Q.B. 513, 69 L.J.Q.B. 333, the
plaintiff sold to the defendant a ''self-binder" reaping machine
which he said was then at Upton, and which he declared as having
been used one season and having cut only about fifty or sixty acres.
The defendant had not seen the machine, but relying on the plain-
tiffs' representations agreed to buy it. The statement that the
machine -had cut only about fifty or sixty acres was untrue. The
defendant refused to accept it. In an action for the price, it was
held that the description given was not a mere collateral warranty
but an identification of the machine, that it was a sale by de-
sciiption, and as the machine deUvered did not answer the de-
scription the defendant was not liable for the price. In that case,
Channell, J., said: "The term 'sale of goods by description' must
apply to all cases where the purchaser has not seen the goods but
is relying on the description alone."

In the present case. I find that at the time the sale was made

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[vol.

Lamont, J.
1909

J. I. Case

Threshing

Machine Co,

Feb.

the plaintiffs' agent irepresented to the defendant that the engine
was in good working and running order; that it had been "recently
rebuilt," and that, for the purpose of the defendant (which was
that of threshing with a 28x46 inch Case separator) the engine
was just as good as a new one. He also stated that the engine had
been purchased by him from one Sutcliffe, and that it was then at
Birtle, in the Province of Manitoba. The defendant had never
seen the engine, and relied upon the description given by the
plaintiffs' agent. Under the above quoted authority, I must hold
the sale to be a sale by description.

It was contended, however, by the plaintiffs' counsel, that the
order having been taken in writing, and the writing not containing
these verbal representations, parol e\ddence was not admissible
to shew that the representations had been made. I do not think
this contention can be supported. The written contract described
the subject matter of the sale as ''one 16 horse-power portable
J. Abell engine, known as the Sutcliffe engine." The word "Sut-
cliffe" in the contract does not designate a particular make or kind
of- engine, but simply the man from whom it was bought. The
defendant had never seen the engine, and it is unbelievable that
he would have purchased it without the representations made as
to its quality and usefulness merely on the statement that it was
a second-hand engine known as the Sutcliffe engine. The engine
delivered was purchased from a man named Sutcliffe, but, supposing
that Sutcliffe had a number of second-hand engines, some in good
repair and some absolutely worthless, can it be contended that
the sending to the defendant of any one of these engines would be
a compliance with the contract? I do not think so. The parties
having described the engine in the contract as the " Sutcliffe engine,"
parol evidence was admissible to shew what engine the parties
meant by that description.

The next question is, did the engine correspond with the de-
scription?

Section 15 of the Sale of Goods Ordinance says that when
there is a contract for the sale of goods by description there is an
imp ied condition that the goods shall correspond with the de-
scription.

The evidence shewed that the plaintiffs obtained the engine
from one Peter Sutcliffe, of Birtle, in the spring of 1907. Sutcliffe

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had purchased the engine second-hand in the fall of 1905. In his Lament, J.

evidence Sut cliff e stated that shortly before he purchased the 1909

machine it had been re-flued, and that immediately after he bought j T^se

it he had new brasses and a new jacket put on it. The evidence Threshing

also shews that flues have some times to be replaced within two

years after they are put in, and that flame-sheets have been known ^^b,

not to last for two years without requiring repair. Under these

circumstances^ can an engine that was renovated two years prior

to the sale to the defendant be said to be ''recently rebuilt"?

Apart from the plaintiffs' agent Franks, there was only one witness

who gave evidence on the point, and he said that an engitie rebuilt

two years before could not be said to be "recently rebuilt." I am

of opinion that his statement is correct. Where a machine is

represented as being recently rebuilt the inference to be drawn is

that the rebuilding has been of so recent a date that the machine

is practically in the same state of repair and usefulness as it was

the day the rebuilding was finished. I find that the engine in

question in this action was not in that condition. I find that there

was no fire-grate in the engine, that the spring which regulates the

governors was missing, that some of the flues were choked up, that

the flame-sheet was badly burned and cracked, that the ash-pan

was so biuned and twisted that if the engine were put in operation

the fire would drop through to the groimd, and that in the condition

in which the engine then was it was absolutely unsafe to take near

a farmer's barn or stacks for the purpose of threshing. I therefore

find that the engine did not correspond with the description.

It was argued by the plaintiffs' counsel that even if the engine
was not^ at the time of its delivery in working order that it could
have been repaired at a small cost, and that the plaintiffs' expert
offered to repair it. What it would have taken to make the engine
answer the description I cannot say on the evidence, but in my
view that is immaterial. The plaintiffs were bound in the per-
formance of their contract to tender an engine that answered the
description of the one sold, and if they did not do that the de-
fendant was entitled to reject it.

It was further contended by the plaintiffs' counsel that even if
the engine did not answer the description of the machine sold, the
defendant by examining the machine after it had been delivered
at Sheho, and then signing the notes sued on, accepted the engine.

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[vol.

Lamont, J.
1909

J. 1. Case

Threshing

Machine Co.

Fee.

and that being so the condition became a warranty and he lost
his right to reject the goods, and must rely on the warranty alone,
for breach of which he can claim only damages. At the trial I
was somewhat impressed with this argument, but on further con-
sideration I do not think it tenable. Section 33 of the Sale of
Goods Ordinance reads as follows: —

"33. Where goods are delivered to Jihe buyer which he has not
previously examined he is not deemed to have accepted them
unless and until he has had a reasonable opportunity of examining
them for the purpose of ascertaining whether they are in conformity
with the 'contract."

"34. The buyer is deemed to have accepted the goods when
he intimates to the seller that he has accepted them, or when the
goods have been delivered to him and he does any act in relation
to them which is inconsistent with the ownership of the seller,
or when after the lapse of a reasonable time he retains the goods
without intimating to the seller that he has rejected them."

Here, the l^uyer did not accept the goods, unless the slight
examination he made with the plaintiffs' agent and the signing of
the notes constitutes an acceptance. Under sec. 33 he is not
deemed to have accepted the goods unless and until he has had a
reasonable opportunity for examining them. Did the defendant
have that opportimity? He was personally present at the engine
for a few minutes with the plaintiffs' agent. He knew nothing
about an engine. The agent stated that the expert who was
present had examined the engine and there was nothing to fix
about it. The expert expressed neither assent or dissent, although
he knew that the statement was not correct. The evidence is
contradictory as to how long the examination of the engine lasted.
The plaintiffs' agent says ten or fifteen minutes, the defendant
two or three minutes. No examination at all was made of the
inside of the engine beyond looking at the fire-box. In my opinion
this cannot be considered as an examination within the meaning
of the section. Such an examination means an examination on
behalf of the defendant by some one who is competent to make
an examination. The defendant himself had not sufficient know-
ledge of engines to say whether or no it complied with the contract.
This inspection, therefore, was, for all practical purposes, no in-
spection at all. I am of opinion that the examination by his

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II.] SASKATCHEWAN LAW REPORTS. 45

engineer was the first opportunity the defendant had of examining Lament. J.
the engine for the purpose of ascertaining whether or not it was 1909
in conformity with the contract. That examination was made , , ^
within a reasonable time after delivery, and the defendant had not Threshing
in the meantime exercised any proprietory right over the goods, ^^

nor had he done anything by which he lost his right to reject them: ^^^•
See judgment of Brett, J., in HeUburt v. Hickson (1872), L.R. 7
C.P. 465; also StraU v. Shaw (1908), 9 W.L.R. 72.

Besides, the plaintiffs' agent Franks did not think the defendant
had lost his right to reject the machine, for he stated in his evidence
that when he left town after getting the notes he understood the
defendant would take the engine out and the expert would test it.
The defendant, therefore, in my opinion, was justified in rejecting
the engine, and, as I have found the contract to be an entire one,
the other articles as well.

As to the counterclaim, the defendant claims $55, being freight
paid on the engine by him to the plaintiffs' agent, who actually
paid the freight on his behalf, and which the defendant subsequently
paid to him. The written contract contains a clause by which
the defendant agrees to pay freight charges ''in case he should
cancel this order or decline to accept this machinery." This clause
can, it seems to me, apply only where the machinery shipped
corresponds with the machinery so\d, and as I have held that the
engine delivered was not in conformity with the contract, the
clause does not bind the defendant to pay freight on it, and he is
therefore entitled to a return of the freight paid.

There will, therefore, be judgment for the defendant on the
claim, with costs, and judgment for him on the counterclaim for
$55 and costs. The notes sued on will be delivered up to be can-
celled.

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46 SASKATCHEWAN LAW REPORTS. [vol.

[IN CHAMBERS.]

10<>® In re Claude McCready.

Feb. 1.

Extradition — Abortion — Evidence — Primd Facte Case — Accessory,

The accused was arrested at the instigation of the United States authorities
charged with having procured an uiuawful operation to be performed upon
a woman. In support of the charge a deposition of the woman was pre*
sented which set out that she had been seduced by the accused and become
pregnant; that he had taken her to St. Paul to have an operation per-
formed; that he took her to a physician who made an examination of ner;
that afterwards the accused left St. Paul, and after his departure an opera-
tion was performed by the physician ana a miscarriage resulted: —

Held, that as the deposition did not set out that the operation which was to
be performed and .which the accused took the complainant to St. Paul to
have performed was the unlawful operation which was performed, and as
there was no evidence to connect him with the unlawful operation, he must
be discharged.

This was an application for the extradition of one Claude
McCready, charged with having procured an unlawful operation
to be performed upon a woman, in the State of Minnesota, and
was heard before Lamont, J., in Chambers.

Avery Casey , for the State of Minnesota.
Norman Mackenzie, K.C., for the accused.

February 1. Lamont, J.: — When the matter came before me
two weeks ago, Mr. Casey, acting on behalf of the authorities of
the State of Minnesota, made an application for fxirther time to
perfect the evidence against the accused. He then stated that
certain depositions had been forwarded to him, but that these
were insufficient for the purpose, and he would require time to
return them to St. Paul for correction. To-day he appears with
practically the same material, and asks for a further remand.
The application for remand is based solely upon a telegram from
the authorities in St. Paul. When the matter was last before me,
I stated that the matter had been dragging along since December
12th, 1908, and that unless the prosecution was ready to go on
when the matter came up again to-day I would discharge the
accused, as although under extradition proceedings the Court is
supposed to give the prosecution every reasonable opportunity
to secure their evidence, the law does not contemplate that a
subject and resident of this country must be held in custody or under

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bail indefinitely. I therefore refuse the application for a further
remand.

In extradition proceedings of this character, the duty cast upon
the extradition Judge, under the extradition treaties and our
Extradition Act, is, simply to see if there is such evidence before
the Coxirt that the accused is guilty of the crime charged as would
justify a magistrate in committing for trial when holding a pre-
liminary inquiry xmder the Criminal Code. He has to see (1) that
the offence charged is an extraditable offence; (2) that the evidence
establishes a primd facie case that an offence has been committed;
and (3) that it was committed by the accused.

In this case the accused is charged with having, on the 16th
day of November, A.D. 1908, at St. Paul, in the State of Minnesota,
with intent thereby to procure a miscarriage of Ruby Fanning,
a certain woman, unlawfully used on the body of the said Ruby
Fanning, and inserted in the body of the said Ruby Fanning, a
certain instrument, to wit, a catheter. This is the crime with
which the accused stands charged before me. There is no question
but that this is an extraditable offence. There is also no question
as to its being an offence under our Criminal Code. The language
of the information is practically word for word with the Code,
and my duty is to see now whether or not the evidence is such as to
establish a primd fade case that the accused committed this crime.

In the information he is charged with having unlawfully used
upon the body of the said Ruby Fanning, and inserted into the body
of the said Ruby Fanning, a catheter. The evidence shews that
he himself was not guilty of using any instrument as charged,
but xmder our Code it is not necessary that he himself should be the
one to use the instrument. Section 69 of the Code reads as follows:

"Every one is a party to and guilty of an offence

" (a) Who actually commits it.

" (b) Does or commits any act for the purpose of aiding any
person to commit any offence.

" (c) Abets any person in the commission of the offence.

" (d) Coimsels or procures any person to commit an offence."

Under this section all that is necessary to justify me in com-
mitting the accused; so far as the law of Canada is concerned, is to
shew that he aided or abetted the commission of the offence, or
that he counselled or procured some person to commit it. The

Lamont, J.

1909

In be

Claude

McCready.

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[vol.

L&monU J ■
1909

In re

Claude

McCready.

only evidence which haa been submitted to me (apart from certain
admissions which the defendant has made, but in which admissions
nothing was said to connect him with the crime charged) is the
deposition of Ruby Fanning. To the reception of this deposition
in evidence objection was taken by counsel for the accused. He
contended that the requirements of our Act necessary to entitle
it to be received had not been observed. I will not now deal
with the objection, as in my opinion the deposition, even if received,
is clearly insufficient to justify the committal of the accused.
In her deposition Ruby Fanning sets out that in May last she had
sexual intercoiu'se with the said Claude McCready and became
pregnant to him, and that on the 25th October she and McCready
left Regina and journeyed together in the same train to the city
of St, Paul, arriving there on the 27th October; that the purpose
of their joimiey was to have an operation performed there upon the
body of the said Ruby Fanning by a physician in the city of St. Paul ;
and that in furtherance of the said purpose the said McCready
remained in the city of St. Paul until the 29th day of October;
that on tliat date he took her to a physician's office, and the said
physician made then and there an examination of the private and
sexual parts of the said Ruby Fanning; that on the same date
Claude McCready left the city of St. Paul and returned to Regina;
that thereafter, on the 14th day of November, 1908, the said
physician performed an operation upon the body of said Ruby
Fanning, and that thereafter, on the 16th day of November, said
Ruby Fanning had a miscarriage, and the child with which she
was pregnant did then and there die as a result of said operation.
Now, as I read this deposition, every word of it may be absolutely
true, and yet the accused be absolutely innocent of the offence
with which he is charged. The purpose of the journey of the
accused and the said Ruby Fanning to St. Paul, as set out in the
deposition, was to have an operation performed on the body of
Ruby Fanning by a physician in St. Paul, That operation, from
anything stated in the deposition or in the evidence before me, may
have been a perfectly legitimate operation. There is nothing in
the deposition which connects it with the operation which the
physician on the 16th of November performed. It may have been
that he took her there to have a legitimate operation performed,
and that the operation that was performed by the physician after

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he left and which produced the miscarriage may never have been
discussed or thought of by the accused. I cannot assimae that
the operation which she alleges he took her to St. Paul to have
performed was the criminal operation which was afterwards per-
formed— if the operation subsequently performed was criminal.
There may be a strong suspicion that it was, but whoever drew
the deposition of Ruby Fanning was not sufficiently careful to have
her say so in the deposition. If the accused counselled and pro-
cured an unlawful operation he would be as guilty as if he performed
it, but, as I have said, there is nothing in the deposition to connect
the operation which she says he took her to St. Paul to have per-
formed with the operation which was, on the 14th November,
over two weeks after he left, performed by the physician. And
further: the deposition does not say that the operation performed
by the physician was an tmlawful operation. Section 303 of our
Code requires that the use of the instrument on the body of a woman
with intent to procure a miscarriage must have been unlawful.
From the evidence before me I' cannot say that the operation which
was performed and wliicb resulted in the miscarriage might not
have been necessary to preserve her life, in which case it is not
unlawful. Every miscarriage brought .on by a physician is not
unlawful, and I cannot assume without evidence that this one was.
The law has been clearly laid down that while it does not require
very strong evidence to justify a committal, there must be some
legal evidence before the Court connecting the accused with the
commission of the offence. From the material before me, and
certain statements which it has been shewn were made by the
accused, there seems to be some grounds at least for the suspicion
that the accused counselled or procured the commission of an opera-
tion resulting in a miscarriage, but the evidence before me is not
sufficient to connect him with it or to shew that the operation
was an tmlawful one. And, as was said by Osier, J., in Re Parker,
19 O.R. 612, if the parties concerned in prosecuting do not
take sufficient pains to see that there is sufficient legal evidence
before the Court to connect the accused with the crime charged,
the Court has no option but to discharge the accused, as a criminal
in extradition proceedings has the right to be discharged unless
a primd fade case against him has been made out.
I therefore discharge the accused.

4 — VOI^ n. 8.L.B.

Latnoat , J.
1909

In re

Claude

McCready.

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50 SASKATCHEWAN LAW REPORTS. [vol.

[TRIAL.]
1909 Gesman v. City op Regina.

Feb. 10. Highway — Closing of by Municipal Corporation — Effect of By-law Cloting

B Streets Passed Wtthout Notice— Validity of— Effect of sec. 101, Municipal
j^ Ordinance — Defect of Substance or Form.

By a plan duly recorded in the proper land titles office, the area incorporated
within the bounds of the city of Regina was shewn as divided into blocks
and lots, streets and lanes. The defendant the city acauiied block 197,
excepting one lot, which was subsequently acquired by the plaintiffs, and
other land, and being desirous of creating a number of warehouse sites, the
city decided to close the streets and lanes leading to block 197, and for
that purpose passed a by-law. No notice of this by-law was given to the
registered owner of the lot subsequently acquired by plamtifFs. The
defendants, having passed the by-law, proceeded to sell block 197 and
portion of the streets and lanes so closed, and buildings were erected which
obstructed the way of egress and ingress to plaintiffs' lot, and plaintiffs
sued for a declaration that the streets«nd lanes closed were public highways,
and for the removal of the obstructions: —

Hdd, that imtil notice is given to the registered or assessed owners of all
land abutting upon any street or lane which it is proposed to close by
by-law, under the provisions of sec. 5 of ch. 28 of the Ordinances of 1903
the cit^ coimcil has no jurisdiction to pass any by-law closing such streets.

2. That if any by-law is so passed without notice, the provisions of sec. 101
of the Municipal Ordinance (ch. 70, CO., 1898) and 307 of the Regina
Charter (ch. 46 of 1906), now sec. 193, City Act, ch. 16, of 1908, will not
validate any act done under such by-law, the lack of jurisdiction to pass
such by-law without notice not being "a want of substance or of form."

This was an action for a declaration that certain highways
in the city of Regina which had been closed were still public high-
ways and for an order that the obstruction be removed,

J. A. Allan J for the plaintiffs.

F. W. G. HauUain, K.C., for the defendant city.

J. F. Frame, for the other defendants.

February 10. Lamont, J.: — ^This is an action for a declara-
tion that Halifax street and the lanes in block 197 in the city
of Regina, as set out on a plan of the said city, known as plan
old 33, which the council purported to close by by-law, are still
public highways, and for an order for the removal of the obstruc-
tions thereon.

The plaintiffs are the registered owners of lot 13 in block 197.
Block 197 was originally part of section 30, township 17, range 19,
west of the 2nd meridian. This section originally belonged to
the Dominion Government, and, along with two sections belong-
ing to the Canadian Pacific R.W. Co., was conveyed to E. B.

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Osier and others, as townsites trustees, by deed bearing date
October 29th, 1883. The agreement under which these lands
were transferred to the said townsite trustees provided 'that the
townsites should be 'surveyed and "laid out in town lots and
streets and squares'' by the said trustees, and that they should
put the lots on the market and sell the same, and, after deducting
the expenses of sub-dividing the land and the administration
thereof, should divide the balance received between the govern-
ment and the Canadian Pacific R.W. Co. The said trustees sub-
divided a portion of said lands, including that portion of section 30
in reference to which this action is brought, and on January 19th,
1884, filed in the land titles office for the Assiniboia land regis-
tion district a plan of said sub-division, which plan is now known
as plan old 33. This plan shews that a portion of section 30
was sub-divided into lots and blocks, with streets between the
blocks and lanes, extending down the centre of the blocks at the
back of the lots, and connecting with the streets. One of these
blocks was marked block 197, a^id between that block and block
198 was a street marked "Halifax street." Lot 13 in block 197
abutted on Halifax street, and extended to the lane in the centre
of the block. According to this registered plan, lots in the city
of Regina were placed on the market and sold.

By a deed bearing date October 25th, 1883, the townsite trus-
tees sold said lot 13 in block 197 to James Browne, which con-
veyance was duly registered in the said land titles office at Regina
on December 20th, 1887, and by transfer bearing date Decem-
ber 15th, 1887, James Browne transferred the said lot to S. L.
Hicks, which transfer was also registered on December 20th, 1887.

On April 22nd, 1903, the said townsite trustees transferred
to the Dominion Government all the lots in the said sub-division,
according to the said plan, which were then not sold or disposed
of. These included all the lots in block 197 except lot 13. By
a grant dated June 27th, 1904, the Dominion Government trans-
ferred all the said lots to the city of Regina. On May 10th, 1906,
S. L. Hicks sold and transferred said lot 13 to the plaintiffs, which
transfer was duly registered and certificate of title issued to them.

On October 2nd, 1905, the council of the city of Regina passed
by4aw No. 339, closing up certain streets and lanes. Said by-
law enacted as follows: —

Lamont, J.

1909
Gesmxn

City op
Reqina.

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[vol.

Lamont, J.
Gesman

City op
Regina.

"Now, therefore, the council of the city of Regina assembled
do hereby enact as follows: —

"1. That all portions of Osier street, Halifax street, Ottawa
street, Montreal street and Quebec street, situate lying and being
between the south line of Eighth avenue and the northern limit
of Dewdney street, as said streets and avenue are set out in the
map or plan of said city on record in the land titles office for the
Assiniboia land registration district as old number thirty-three
(33), be and they are hereby closed.

"2. That all lanes in blocks 192 to 199, both inclusive, as
said blocks are shewn on a map or plan of said city on record in
the land titles office for the Assiniboia land registration district
as old number thirty-three (33), be and they are hereby closed.

"3. That the corporation of the city of Regina be and it is
hereby authorized to sell or lease the areas of land formerly occu-
pied by said streets and lanes hereby declared to be closed."

After passing the said by-law, the council sold the east half
of Halifax street to the defendants the Western Manufacturing
Company, and part of the west half to the defendants the Regina
Liunber and Supply Company, and the other part to R. B. Ferguson,
who, in turn, sold his portion to the Regina Lumber and Supply
Company. The defendants the Capital Ice Company are now
in possession of the north half of Halifax street between the said
blocks 197 and 198, having purchased the same from the defen-
dants the Western Manufacturing Company and the Regina
Lumber and Supply Company. The defendants the Western
Manufacturing Company have lumber piled on their portion of
the street. The defendants the Regina Liunber and Supply
Company have erected a bam on their portion, and have fenced
the street in with their own land, and the defendants the Capital
Ice Company have two ice houses erected on their portion of the
said street. The defendant the Western Manufacturing Com-
pany have also taken possession of the lane in the rear of lot 13,
and have erected buildings thereon, by which the said lane has
become impassable.

It will be readily seen that if Halifax street and the lanes in
block 197 are closed, the plaintiffs have no means of ingress or
egress to or from their lot 13, and they have brought this action
for a declaration that the street and the lanes are still public high-

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ways. The plaintiffs' statement of claim also included a claim
for damages for the deprivation by the defendants of the enjoy-
ment by the plaintiffs of lot 13, but at the trial no e\'idence was
offered on this claim, and the plaintiffs' counsel abandoned it.

In their statement of defence the city rely on by-law No. 339
and the fact that it has never been quashed or repealed. The
other defendants rely on the said by-law and on their purchase
from the defendant city. In their reply the plaintiffs deny that
by-law No. 339 was ever property or legally passed or that it ever
became an effective by-law of the defendant city. The ques-
tion to be determined is whether or not by-law 339 is a good and
valid by-law. , The by-law was passed under the authority of
sec. 5 of ch. 28 of the Ordinances of 1903. Section 5 reads as
follows: —

"5. The council of the city of Regina may pass by-laws for
closing and selling or leasing any public highway the fee whereof
is not vested in the Crown, provided that no such by-law shall
be passed unless at least two weeks' notice of the intenti6n of the
council to pass the same be served upon the persons registered
or assessed as the owners of the lands abutting upon the portion
of the highway so proposed to be closed and sold or leased, and
be published in at least two weekly issues of a newspaper published
in the city previous to the passing, of the by-law; nor until any
person who claims that his land will be prejudicially affected
thereby and petitions to be heard has been afforded an oppor-
tunity to be heard by himself or his agent in relation to the pro-
posed by-law; and any such person so claiming, petitioning, and
appearing shall be compensated for all damage to his land which
he shall sustain by the passing of the by-law."

At the* time of the passing of the by-law the fee in the high-
ways closed was not in the Crown. The evidence shews that no
notice of intention of the council to pass the by-law was served
upK>n S. L. Hicks, who was at the time of the passing thereof both
the registered and the assessed owner of lot 13.

Mr. Hicks had for years been a resident of Pasadena, California,
and had up to the date of the by-law paid all taxes levied against
his land by the defendant city. The plaintiff contended that
the ^ving of the notice to the registered and assessed owners of
the land abutting the highway proposed to be closed by the

190P
Gesman

City of
Reoina.

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1009
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by*law was a condition precedent to the passing of the by-law, and
until they were so served the council had no power to pass it.

For the defence it was contended, first, that the plaintiffs
had no right to bring this action, because the right to notice and
the right to compensation were personal to Hicks and did not
run with the land.

Whatever force there might be in this contention were the
plaintiffs claiming compensation under sec. 5 (concerning which
I express no opinion), it cannot, it seems to me, have any applicar
tion in an action of this kind, where the plaintiffs seek to preserve
their conunon law right of access to land which they purchased
according to a well-known and dulyrregistered plan, which plan
shewed certain streets and lanes as public highwa3rs. That these
streets and lanes were recognized as public highways by the de-
fendant city is shewn by the fact that they made title to the re-
maining lots in block 197, according to the said plan, and also
by the by-law upon which they now rely.

The defendants relied upon sec. 101 of the Municipal Ordinance
(ch. 70 of 1898) and on sec. 307 of the Regina Charter (ch. 46 of
1906). Section 101 reads as follows:—

" 101. In case no application to quash a by-law is made within
two months next after the final passing thereof, the by-law shall,
notwithstanding any want of substance or form either in the by-
law itself or in the time or manner of passing the same, be a valid
by-law."

No application was made to quash by-law No. 399. It is,
therefore, necessary to determine whether the by-law was a valid
by-law when originally passed, and, if not, whether sec. 101 vali-
dates it. Is the effect of this section to make valid every by-law^,
irrespective of its character, passed by the council, if no applica-
tion to quash it is made within two months, or is its application
limited to by-laws within the competence of the council to pass,
but in the passing of which some irregularity has occurred? By
the language of the section itself, its validating effect is limited
to *'any want of substance or form either in the by-law itself or
in the time or manner of passing the same." The defect alleged
against by-law 399 is that it was passed without notice being
first served on the owner of lot 13 of the intention of the council
to pass it. Is jthis fatal to its validity?

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In the case of Canada Atlantic RW. Co. v. Tovmship of Carr^
bridge, 11 O.R. 392, which was an action for a mandamus
to compel the council to deliver to the plaintiffs certain deben-
tures, being the amount of a bqnus granted to them by a by-law
of the defendant township, the defence raised the objection that
the council had no power to pass the by-law, as it had not re-
ceived the assent of the electors as required by sec. 346 of ch. 18
of 1883 (O.). ^ The plaintiffs rephed that the defect was one of
substance or form within the meaning of sec. 333 of the same
Act (similar to sec. 101), and that the by-law was validated by
that section.

Section 342 of the Ontario Act gave to every mimicipal council
the right to pass by-laws for contracting debts by borrowing on
the rateable property of the municipality, but sec. 346 provided
that "every by-law for raising upon the credit of the municipality
any money not required for its ordinary expenditure and not
payable within the same municipal year shall, before the final
passing thereof, receive the assent of the electors of the munici-
pality." The coimcil of the defendant corporation passed a by-
law granting a bonus to the plaintiff. The by-law did not receive
the assent of the electors before it was finally passed. Rose, J.,
said: ''It seems to me if a majority of the electors did not assent
to the by-law, it is not within the proper competence of the council
to pass it. The fault does not seem to be either in the form or
substaiice of the by-law or in the time or manner of passing it."

In appeal, 14 A.R. 299, it was held that the non-assent of the
electors was fatal to the by-law. Osier, J.A., at p. 307, said:
''For, assuming that where promulgation makes a by-law proof
against a motion to quash it after a certain time, it establishes
also its validity for all purposes, yet it cannot validate a by-law
which ordains something not within the competence of the council
to pass; and by sec. 323, where a by4aw which requires the assent
of the electors has not received such assent, an application to
quash it may be made at any time. A fortiori, therefore, such
an objection is fatal in an action on the by-law."

This judgment was unanimously affirmed by the Supreme
Court of Canada (1889), 15 S.C.R. 219, where Gwynne, J., used
the following language: "In the present case, it is sufficient to
say that .the defect which has rendered the document in question

Lamont, J.
1909

Gesman

V.
City op
Reoina.

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Laxnont, J.

1909
Gesman

V.
ClTT OF

Regina.

utterly void, and, in fact, no by-law, cannot be cured by the pro-
mulgation clauses of the Municipal Institutions Act. These
clauses apply only to by-laws which it was competent for the
council of the municipal corporation to pass. Now, by sec. 559
of the Act, it was not within the competency of the municipal
corporation to give to the proposed by-law in question here a third
reading and to pass it, as it had not received the assent of the
ratepayers in the manner provided by the Act."

If, in that case, it was not within the competency of the council
to pass the by-law until it had received the assent of the rate-
payers, I fail to see how the city council had power to pass by-law
No. 399 before giving notice to the registered owners of the property
to be affected by the proposed by-law. In both cases the legis-
lature gave to the raimicipal council power to pass the by-law
provided certain condition precedents were complied with. In
the above-mentioned case the Supreme Court has held that the
council had no jurisdiction to pass the by-law until the condition
precedent had been complied with. That decision is binding
upon me, and, as I cannot see any distinction in principle between
the necessity for obtaining the consent of the electors and the
necessity for serving the notice required by sec. 5 before the council
shall pass the by-law, I must hold that the council was not com-
petent to pass by-law 399 until the notice required had been given
to the registered owner of lot 13. I therefore hold the by-law
to be invalid; and the provisions of sec. 101 cannot, in my opinion,
validate it. That section cannot confirm jurisdiction or miake
valid a by-law which the coimcil had no power to pass. As was
pointed out by Gwynne, J., in the case above referred to, a by-law
which the council had no power to pass was no by-law at all.

The object the legislature had in view in passing sec. 101 is,
I think, clear. ReaUsing that the powers it was granting to
municipal bodies must be enforced by individual officers and
servants, and that in the passing and enforcement of by-laws to
carry these powers into effect the requirements of the statute
might not infrequently be overlooked or violated, the legislature
desired to establish a period of limitation within which the by-
law should be liable to be impeached for "any want of substance
or form in the by-law itself or in the time and manner of passing
it," but that, after the expiration of the time so limited, the

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by-law, if unimpeached, should be valid. The failure to give the
notice required by sec. 5 is not a defect in the substance or form
of the by-law which can be cured by its non-impeachment for
two months, but the notice is a condition precedent without which
the council has no jurisdiction to pass the by-law.

The defendants further contended that, even if the by-law
was illegal, the plaintiffs' action could not be maintained, as they
are protected under sec. 307 of the Regina Charter. That section
reads as follows: —

"307. In case a by-law or resolution is illegal in whole or in
part or in case anjrthing has been done under it which, by reason
of such illegality, gives any person a right of action, no such action
shall be brought imtil one month has elapsed after the by-law
or resolution has been quashed or repealed, nor until one month's
notice in writing of the intention to bring the action has been
given to the city; and every such action shall be brought against
the city alone and not against any person acting under the by-
law or resolution."

This section was treated by all the counsel engaged in the case
as being exactly similar to sec. 273 of the Municipal Ordinance.
There is, however, a slight difference in the wording. Section 273
says "in case a by-law or resolution is illegal in whole or in part
and in case anything has been done imder it," etc. After some
consideration, I have come to the conclusion that, so far as this
action is concerned, there is no difference in meaning between
sec. 273 and sec. 307. This section was taken from the Ontario
Act, and has been the subject of numerous conflicting decisions
in the Ontario Courts. In considering the section, the Court of
Appeal for Ontario, in Connor v. Middagh, 16 A.R. 356,
held that it was a bar only in respect of actions awarding damages
for something done xmder the by-law, but that it is not a bar in
an action to restrain the corporation from enforcing an invalid
by-law. In that case Hagarty, C.J., in referring to the section,
said: "We must see how far this bar operates. This is not a
proceeding to enforce the by-law. It is not a claim to obtain
possession of property held or taken xmder the by-law. It is
simply a claim for damages against the corporation and its officers
for acts done imder the by-law, and it is only to such claims for
damages that the legislature requires the preliminary proceedings

Lamont, J.
1909

Gesman

t?.
Cin- OF
Reoixa.

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1909

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of obtaining the judgment and decisions of the Courts as to the
validity of the authority under which the acts were done for which
damages are claimed."

In Rose V. Township of West Wawanosh et al.j 19 O.R.
294, Street, J., said: "It was objected on the part of the defen-
dants that, even supposing the by-law to be illegal, they were
protected by sec. 338 of the Municipal Act (our 307) from any
action, because it had not been quashed. It is, perhaps, true
that the plaintiff here might be unable until he had quashed the
by-law to recover damages for anything done under even such
a by-law a^ this; but the damages here claimed are trifling; the
substantial relief sought is an injunction to restrain the defen-
dants from proceeding to enforce the rights they claim under
this by-law. Section 338 does not tie the hands of a person
threatened with damages imder an illegal by-law; it only pre-
vents his bringing an action to recover damages for a wrong already
done him until he has quashed it.''

In Barman v. Toronto, 22 O.R. 274, Boyd, C, held
that ''no preliminaries (as to notice or quashing) are needed when
the by-law is on its face invalid, and the relief sought is to restrain
action being taken thereon by the mimicipality which is injurious
to the party asking the intervention of the Court."

•In Pease v. Tovm of Moosomin (1901), 5 Terr. L.R. 207, which
was an action for a declaration that a resolution of the council
was illegal and void, and for a return of certain monies paid out
of the civic fxmds under it, Wetmore, J., held that it was not
necessary to quash the resolution before bringing action.

As the relief sought in the present case is a declaration that
the streets and lanes are public highways and the removal of
obstructions therefrom, I hold the action to be maintainable by
the plaintiffs, although by-law 399 has not been quashed.

There will be judgment declaring that the ^portion of Halifax-
street and the lanes in block 197 which by-law No. 399 purported
to close are still public highways. The defendant the city of
Regina will have four months within which to validly close theae
streets and lanes. If, at the expiration of that time, this has
not been done, the other defendants will reniove the obstructions,
they have placed on Halifax street and the lanes in block 197.
The defendant city will pay the plaintiffs' costs.

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[TRIAL]
Hole v. Wilson. i^^g

Vendor and Purohciser — Default of Purchaser — Rescission of Contract — For- F^b~13
feiture of Payments — Possession of the Premises — Time Essence of Contract
— Intention of Parties — Peaceable Possession — What Constitutes.

PlaintiiT was the owner of certain property in Yorkton, upon which were
certain buildings in which she carried on business as dealer in implements
and as a keeper of a feed stable. The implement business consisted largely
of selling goods on commission as agent for several different machine com-
panies. Sne entered into an agreement to sell the property in question
to the defendant, together with the business carried on by her, and to use
her best efforts to procure for the defendant the aeencies for the several
companies represented by her. The agreement provided for quiet possession
of the premises by the purchaser until default, and that upon default the
plaintiff could cancel the contract and retain all monevs paid by the pur-
chaser in respect thereof. The defendant, being in financial difficulties,
was unable to secure the agencies in question, notwithstanding that the
plaintiff gave assistance to secure such agencies. The defencutnt made
default in payment of the second instalment and the plaintiff served notice
of cancellation. Subsequently the plaintiff entered into possession of the
premises in the absence of the defendant, who on his return resisted the
plaintiff's right to possession. The plaintiff sued for a declaration that the
contract was cancelled, while the defendant claimed the return of the
purchase price on the ground that he had not secured the agencies: —

Held, that the agreement havins declared time to be of the essence of the
contract, and there being notning in the dealings between the psuties to
indicate that it was not lially the intention of the parties that it should be
80, it must be held that time was of the essence of the contract.

2. (Following Steele v. McCarthy, 1 Sask. L.R. 317) that time bemfc of the
essence of the contract and the defendant having made default under such
agreement, and the plaintiff having performed her part of the. contract.,
the plaintiff was entitled to cancel tne contract under tne provisions thereof,
and such cancellation was not in the nature of a forfeiture against which
the Court could relieve, but was distinctly a matter of agreement between
the parties to which effect must be given.

3. That the Ck>urt could only order the return of the payments made by the
defendant as an alternative to specific performance by the plaintiff, which
could not be ordered, as the defendant was not ready and willing to perfonn
his part of the agreement.

This was an action for a declaration that an agreement for
sale of land was cancelled and that the plaintiff was entitled to
possession of the premises, and was tried before Prendergast,
J., at Yorkton.

T. L. Metcalfe and J, A. M. Patrick, for plaintiff.

C, P. FuUerton, J. F. MacLean and J. H. Parker, for defen-
dant.

February 13. Prendergast, J.: — ^The plaintiff, who appears
ajB vendor in an agreement for sale of four lots in the town of Yoric-
ton, alleges that the defendant, who is the purchaser, has de-
faulted in making certain payments provided therein, and a^s

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Prendersaet, J
1909

Hole

Wilson.

that it be declared that the said agreement is void, that she is
entitled to possession of the premises, and that a cash payment
of $2,000 made by the defendant shall remain her property, with
her costs of action.

The defence is to the effect that the agyeement contemplated
not only the four lots, with the buildings thereon, but also the
privileges and appurtenances belonging or appertaining thereto,
and that the latter included the bam business and machine busi-
ness then carried on upon the premises by the plaintiff; that
the plaintiff has failed to deli\'er and is and has always been un-
able to deliver the said bam and machinery business; that he
(the defendant) has not defaulted in any of the conditions and
payments provided by the agreement, but is and always has been
ready to fulfil his obligations; that the plaintiff forcibly ejected
him (the defendant) out of possession of the said premises; and
he claims, first, the retum of the sum of $2,000 paid by him to
the plaintiff; second, for loss of time, $600; third, for damages
for loss of profits, $2,000; and, fourth, for legal expenses incurred
in resisting the plaintiff's obstmction, $200, with costs.

The agreement is dated November 4th, 1907, and the following
seem to be its most salient features: —

It provides for the sale of the four lots, "together with all
the privileges and appurtenances thereto belonging or apper-
taining," and further on are the two following clauses: —

"It is further agreed and understood between the parties
hereto that the privileges and appurtenances belonging or
appertaining to the said premises as aforesaid shall include the
livery, bam and machine business situated and carried on upon
the said premises, and shall include the goodwill of the said livery,
bam and machine business as heretofore conducted by the said
vendor.

"The said vendor further covenants, promises and agrees
that she shall use her best efforts to procure for the said purchaser
the agency of the different machinery firms represented by her
in the carrying on of the said machine business, and all expenses
incurred in procuring the said agency for the said purchaser shall
be home by the said purchaser."

The consideration is stated as $8,000, payable as follows:
$2,000 on the execution of the agreement, $2,000 on December

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II.] SASKATCHEWAN LAW REPORTS. 61

4th, 1907, and $1,000 on January 4th in the years 1909, 1910, Prendergait. j.

1911, and 1912. 1909

There is a clause for possession and quiet enjoyment, which ^[^

reads as follows: — v.

Wilson.
"And the said vendor shall and will suffer and permit the

said purchaser, his heirs and assigns, to occupy and enjoy the

said lots and premises from the date hereof until default shall

happen to be made in the payment of the said sum of money

above mentioned; subject, nevertheless, to impeachment for

voluntary or permissive waste."

There is also a default and forfeiture clause in the following
words: —

"And it is further expressly agreed that if the said purchaser,
his heirs, executors, administrators or assigns, fail to make pay-
ments as aforesaid, or any of them, within the times above Umited,
or fail to carry out in their entirety the conditions and stipulations
of this agreement in the manner and within the times before
mentioned, the times of payment as aforesaid, as well as the strict
performances of each and every of the said other conditions and
stipulations being a condition precedent, and of the essence of
this agreement, then the said vendor, her heirs, executors, adminis-
trators and assigns, shall have the right to declare this agreement
null and void as fully and completely as if these presents had
never been executed, by written notice to that effect personally
served on said purchaser, his heirs, executors, administrators
or assigns, or mailed in a registered letter, addressed to him or
them, as the case may be, at the Yorkton, Saskatchewan, post
office; and all the rights and interest hereby created or then
existing in favour of the said purchaser, his heirs, executors, ad-
ministrators or assigns, or derived under this contract, shall there-
upon cease and determine, and the premises hereby agreed to be
sold shall revert and revest without any further declaration of
forfeiture or notice, or act of re-entry, and without any other
act by the vendor to be performed or any suit or legal proceeding
to be brought or taken, and without any right on the part of the
said purchaser, his heirs, executors, administrators or assigns,
to any reclamation or compensation for moneys paid thereon,"
etc.

The plaintiff conunenced carrying on a bam and machinery

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Hole

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business in Yorkton in the spring of 1900. The first was never
but a feed bam business, but in the summer of 1907 the implement
business had come to be considerable. It consisted mainly in
the selling of farming implements, as agent of the International
Harvester Company, the American-Abell Threshing Company, and
the Fairchild Company for John Deere goods. In4>lements of
the value of between $25,000 and $40,000 were being handled in
a year. The agency of the International Harvester Company
represented probably more than five-sixths of the plaintiff's busi-
ness— nearly the whole of it.

On August 8th, 1907, the defendant entered the plaint ff's
emplo3rment. His duty was to set up machinery, to go out in
the country where machinery was being sold, and to make him-
self generally useful. He says himself that he thought he could
conduct the business; that he considered for some time the ad-
visabiUty of procuring it; that he thought of it a couple of months,
and made it a point to know what the business was. I should
heie say that the defendant is educated, observant, particularly
intelligent, and has seen a good deal of the worid. I ha\*i; no
doubt that he knew perfectly what the business amounted to
and consisted of, and that he was aware that the agency of the
International Harvester Company was practically the whole busi-
ness, and that it was not within the powers of the party holding
such agencies for the time being to transfer them at will. He
knew, moreover, that those agencies were given out from year
to year, and that that of the International Harvester was about
to expire.

After many conversations on the matter, a draft agreement
was made on November 2nd or 3rd, and handed over in type-
written form to the defendant, who took it with him and kept
it some time. He says, '* I had it in my possession 24 or 48 hours
before execution."

On November 4th the agreement was executed, the defendant
paid the plaintiff $2,000, received the keys, and took possession.

It appears that it was then mentioned to the defendant, and
well understood by him, that the following payment of $2,000
(to become due one month later) was to be paid over by the plain-
tiff to the International Harvester Company in satisfaction of
her liability to them.

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Wilson.

II.] SASKATCHEWAN LAW REPORTS. 63

The agreement being signed, and the defendant put in pos- Prendergast. i.
session, the plaintiff, after that, introduced him to her customers, 1909
telling them that she had sold out to him, and retired altogether ^^^
from the business. ___ v.

On November 7th the plaintiff went down to Winnipeg ex-
pressly to introduce the defendant to the three companies, and
tiy to procure him the agencies. After discussing the matter
some time with Mr. Rodney, the manager of the International,
and after the plaintiff had stated, among other things, that the
defendant had already paid her $2,000 as evidence of her convic-
tion that he was financially able, Mr. Rodney inquired about
a writ issued against the defendant by the Union Bank on Novem-
ber 23rd for $143, and finally told him he was aspiring to some-
thing too large for him, advising him at the same time to get a
partner or some kind of security. The manager of the American-
Abell told them that their agency would go with the International.
The Fairchild Company seemed disposed to advance goods on
some basis or other, but the defendant did not seem to think it
worth anything without the International Agency. Later W. J.
Hamilton, who was either the local agent or the travelling agent
of the International, being at Yorkton, the plaintiff approached
him also, with a view of securing the agency for the defendant.
Called as a witness, Hamilton said that she was pretty aggressive
about it; that she kept at him pretty persistently; that he thought
she made it a personal matter, and that she appeared anxious.

The defendant says that, after his interview with Rodney, he
complained to the plaintiff that he had not got the kernel with
the shell.

I might mention here, as to the defendant's financial status,
that from November 23rd, 1907, to March 20th, 1908, seven writs
were issued against him for sums varying from $50 to $289, and
judgment was eventually secured against him in several cases.

After coming back from Winnipeg, the defendant says that
he tried to find a partner, but could not.

On November 26th the plaintiff, having on several occasions
during that month put up her horses at the bam in question,
the defendant sent her an itemised bill for the same, the last item
being of that same day.

Nothing more of any moment seems to have occurred until

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64 SASKATCHEWAN LAW REPORTS. [vol.

PrendergMt, J. December 4th, when the second instalment came' due. The

1909 plaintiff then sent word to the defendant, saying that she requiied

jjqj^^ the money to pay the International, and he replied as follows

V. (exhibit D) on the same day: —

Wilson.

"In answer to the question you left for me with William

McCann as to the International Harvester Company drawing on

me, I am not prepared for such a contingency, and since our talk

with Mr. Rodney I must get a partner."

The defendant says, in a general way: ''After the first pay-
ment was due (December 4th), I was frequently requested to
pay the money."

Being again pressed for payment, the defendant, on December
21st, sent to the plaintiff a letter (exhibit C), which is in the
following words: —

" I see a fighting chance in Winnipeg and go down this morning."

The defendant says that he meant by that that he thought
Mr. Rodney might take a guarantee company.

The defendant, having accordingly gone to Winnipeg, again
saw the manager of the International the same day, but could
not come to terms; so he came back to Yorkton and advised the
plaintiff that he could not get the agency.

On December 31st the plaintiff caused a written notice to
be served on the defendant. It is signed "J. A. M. Patrick,
solicitor for the vendor, Mrs. Jane Hole," refers to the agreement,
sets out at full length the clause therein which is hereinabove
reproduced as the default and forfeiture clause, and ends as
follows: —

''Take notice that you have made default in payment, and
the vendor, Mrs. Jane Hole, hereby declares this agreement null
and void."

"And further take notice that the said vendor, Mrs. Jane
Hole, desires you to give up possession of the said premises at
once."

The defendant did not give up possession, but instructed his
solicitor on the same day to send to the plaintiff's solicitor a letter
(exhibit 1), in which, after referring to the notice cancelling the
agreement having been served, he says: —

"I have advised Mr. Wilson to state that as soon as Mrs. Hole
carries out her part of the agreement he is ready and willing to

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il] SASKATCHEWAN LAW REPORTS. 65

carry out his part. If Mrs. Hole will deliver to him the premises Prcpderga8t,j.
above-mentoned, together with the machine business and livery i909
business which she sold him, Mr. Wilson is ready to make the ^~
payments called for in the agreement. ^^ v.

"If Mrs. Hole is unable to carry out her part of the agreement,
Mr. Wilson will consider terms of settlement by which the parties
can be placed as nearly as possible in the same position as they
were before the contract was entered into, together with «^y
actual damage he has suffered by reason of her non-fulfilment of
the contract.

"In the meantime Mr. Wilson intends to retain possession of
the premises.''

On the morning of January 22nd, when nobody was in the
bam, the plaintiff made entry, with two of her hired men, with
the intention of taking possession. The plaintiff having retiuned
a few minutes later, a scuffle ensued, which ended by the defen-
dant being arrested, and the events of that day were the matter
of long aigtunent by counsel, as upon it turns the question as to
who ultimately remained in possession on that occasion, and in
whose possession must the premises be deemed to have been at
the time of the trial. But I will deal with this later, and only
touch upon it now, as this completes the statement of the facts
of the case.

The main groimd of defence — and upon it revolves the whole
case — is that the plaintiff imdertook, under the agreement, to
transfer to the defendant the three implement agencies which
formed part of the business.

I do not think that this is at all tenable. First of all, if such
had been the intention, the parties would more likely have first
made sure that this could be done, before the agreement was
executed, the $2,000 paid, and the premises delivered over.

There is also the statement, sworn to by Mr. Patrick's clerk,
that just after the agreement was executed, the defendant ex-
pressed his satisfaction, and said to him, "If those agencies only
come my way I will be able to make the next payment without
difficulty." Then there are other implement companies than
the three named, of which the defendant might have procured
the agencies, so that the procuring of the latter was not abso-
lutely vital to carrying on a machinery business on the premises.

&— VOL. n. 8.L.B.

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[vol.

Prend«rcast. J.
1909
Hole

Wilson.

The defendant also says that, after being told by Mr. Rodney
that he could not get the International Agency, he complained
to the plaintiff that he had not the kernel with the shell. Why
should he complain? If this agreement was made subject to
the contingency that the plaintiff should procure the agencies,
he had only to say tha^, the contingency failing, the agreement
was off. But, on the contrary, being aware that the agreement
was absolute and definite, he realised that his expectations would
not be fulfilled, and, feeling disappointed, he expressed that dis-
appointment by complaining. I might here remaric that this is
the only occasion when he went even so far as to utter a com-
plaint. It was not a complaint that was in order on his part
under the circumstances, but the strongest kind of remonstrances.
Neither is his conduct up to December 31st, when he was served
with the default notice, at all consistent with his ground of de-
fence. Even when the plaintiff pressed him for the payment
due on December 4th, his letter in reply (exhibit D), as well as
that other one (exhibit C), where he speaks of having still another
fighting chance, both rather apologetic in tone, in no way dis-
closes the mental attitude that would have been natural at that
junctiue if he had felt that he was not getting what had been
contracted for. The main point, however, is that the very word-
ing of the agreement clearly disproves the defendant's conten-
tion. After stating that ''the privileges and appurtenances
belonging or appertaining to the premises shall include the Uvery
bam and machine business . . . and shall include the good-
will of the said livery bam and machine business," it proceeds
thus: "The said vendor further covenants, promises and agrees
that she shall use her best efforts to procure for the said purchaser
the agency of the different machinery firms represented by her."

This, in my opinion, is conclusive.

The plaintiff did agree, however, to use her best efforts to
procure these agencies. Did she do so? Being asked the straight
question: ''Confining the matter to the International (which was
practically the whole business), what could Mrs. Hole have done
that she did not do to procure the agencies?" the defendant re-
plied, "She could have obtained it on Mr. Rodney's suggestion —
that is to say, by going security for me. She could have taken
the contract herself. She could also have sold it to somebody

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else who had Mr. Rodney's sanction as to being sufficient security. Prendergast. j.
I cannot suggest now anything more that she could have done.'' 1909
Or, in other words, the plaintiff might have taken all the responsi- "
biUty, which means have made herself liable for all the losses, v.

whilst the defendant would have taken all the profits. I think Wilson
that this disposes of this point altogether.

I am of opinion, then, on this branch of the case, that the
plaintiff has completely performed her part of the agreement.

As to the time being here of the essence of the contract, I do
not see how this can be disputed. The agreement so states in
unmistakable terms, and I cannot conceive that the default and
forfeiture clause above reproduced could be made stronger.

The rule has been laid down repeatedly that it is not enough
that time shotild be declared in the written agreement to be the
essence of the contract, but that, moreover, there shotild be nothing
in the subsequent conduct of the parties to shew that such was
not really the intention. The case of Lowther v. Heaver (1889),
4 Ch. D. 248, 58 L.J. Ch. 482, 60 L.T. 310, was decided on that
principle, and so did the Manitoba Courts in Barlow v. WiUiams
(1906), 4 W.L.R. 233. But here no contrary intention of the
plaintiff appears. As soon as the payment of December 4th was
due, the plaintiff called for it. The defendant himself says that
after that he was frequently asked to make the payment. When
the plaintiff had him served with notice of default on December
3l8t, it was only 27 days after this payment was due, and in the
interval she had made those frequent requests, and he had written
—letter (exhibit C) dated December 31st — about his "seeing a
fighting chance in Winnipeg and going down in the morning;"
which is, in itself, an acknowledgment that he was being pressed.
It is also in evidence, as stated, that the* defendant knew, when
entering into the agreement, that the plaintiff wotild require the
instalment due on December 4th to pay the International; and
in LabeOe v. O'Connor (1908), 15 O.L.R. 519, where the purchaser
was aware that one of the instalments would be used to pay off
an indebtedness of the vendor, Anglin, J., pointed out that not
only was there a clause in the contract making time of the essence
thereof, but that adequate reasons for such stipulation had been
communicated by the vendor to the purchaser, and agreed to
by him.

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[vol.

Prendergast, J.
1909
Hole

Wilson.

As to the provision for the forfeiture of payments being in the
nature of a penalty, I would refer to the decision of our own Court
en banc in Steele v. McCarthy (1908), 1 Sask. L.R., 7 W.L.R. 902.
In that case the default and forfeiture clause was substantially
the same as in the present one, and the learned Chief Justice Wet-
more said (at p. 908), in delivering the judgment of the Court:
"The simple question is, was the provision that time should be
the essence of the contract, and that, on default of keeping the
covenants and making the payments provided for, the defendant
could give notice cancelling the agreements and render it void,
a matter of agreement or a provision respecting a penalty? I
am of opinion that it was distinctly a matter of agreement, and
not a provision creating a penalty. I am quite at a loss to under-
stand how the term * penalty' can apply to a provision of the
sort I am discussing. If a provision merely related to the for-
feiture of payments made, I^ can quite understand how the Court
might construe the payment proposed to be forfeited in the nature
of a penalty; but here is an agreement by which the parties have
mutually agreed that, on default of the performance of certain
covenants or the making of certain payments by one party to the
other party, such other party may determine and put an end to
the agreement; that is distinctly a matter of agreement, and if
parties choose to insert such a clause in a contract they must be
held to it. This Court cannot make an agreement for them or
alter the agreement they have made. It is stated in some of the
books that it is a question of intention whether time shall be of
the essence of the contract or not. When the parties have ex-
pressly provided in their agreement that it shall be, I see no way
by which the Courts can, on any principle known to me, escape
giving effect to th.eir mutual agreement."

But I must say that I do not see how this question of time
being or not being here of the essence of the contract can affect
this case. It would be a very important question, and a deter-
mining one indeed, if the defendant were asking for specific per-
formance, because he would then have first to show that his rights
have not been forfeited by lapse of time. But the defendant
has not asked specific performance; he does not want at all what
the agreement (as I interpret it) contemplates, it being, in his
view, without the agencies, a mere shell — "a shell without the
kernel."

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Nor do I see that it matters (and this has reference to the PrendergMt. j.
defendant's claim for a return of the $2,000) whether the forfeiture 1909
clause is in the nature of a penalty. Supposing it were? The ^^^^
return of the $2,000 could only be decreed against the plaintiff _^ v,
as an alternative left to her between that and the performance
of her part of the agreement. In order to have standing before
this Court, the defendant must at least be in a position to say:
"I am ready to perform my part of the agreement; I ask the
Court to compel the plaintiff to perform hers; and if she does
not do so, I claim the return 6f $2,000." Here, on the contrary,
the defendant is not wilUng to perform his part of the agreement;
he does not ask that the plaintiff be compelled to perform hers,
and yet he claims the return of the money. This is what dis-
tinguishes this case from a dozen cases cited for the defendant,
and lis many for the {daintiff, and which it is needless to review,
as they have no resemblance to the present one. Of course, it
might be different — ^because the defendant's claim for specific
performance would then be a mere matter of formality and in
that sense idle — ^in a case where the vendor would have placed
himself in a position where it was impossible for him to perform
his part of the contract. But I have held that, very far from
that being the case here, the plaintiff has already done all that
she was called upon to do under the agreement.

The foregoing, besides establishing the plaintiff's claim, also
disposes of the defendant's counterclaim for the return of the
$2,000, for loss of time ($600), and for damages for loss of pros-
pective profits ($2,000).

There remains to be dealt with the defendant's 'counterclaim
of $200 for legal expenses incurred in resisting the plaintiff's alleged
obstruction at the bam on January 22nd, already briefly alluded to.

The facts, in brief, are as follows: — On January 21st the plain-
tiff, who was then living on her farm, came to Yorkton, with two
hired men. The premises in question were left by the defendant
that night in care of the stable boy, who slept on the premises.
Next morning the stable boy left the bam unattended, with all
the doors wide open, and went to breakfast. The plaintiff and
her two hired men then made entry, and claimed to be in posses-
sion. When the defendant returned there was a prolonged
struggle, and many other things occurred from that moment

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[vol.

PrenderKast, J
1909
Hole

Wilson.

until the evening which, to my mind, are immaterial, for, in order
to ascertain the plaintiff's position, we have, in my opinion, to
go back to the time in the morning when she was* alone, with her
two hired men, in the bam. Was she then, at that time, in quiet
and peaceable possession? What is required to constitute quiet
and peaceable possession depends on circimastances. It is obvious
that, in order that it should be peaceable and quiet, it is not re-
quired that possession should be effected with the consent of the
party claiming an adverse interest, or else the question would
never arise. In this case, however, the defendant agreed to the
clause that the vendor would "suffer and permit him to occupy
and enjoy the said lots and premises ..." only "until
default shall happen to be made in the payment of the said sum
of money." Then there is the defatilt and forfeiture clause,
providing that, in case of default, the plaintiff should have the
right upon notice "to declare the agreement null and void as fully
and completely as though these presents had not been executed,"
and that "all the rights and interests hereby created ... in
favour of the said purchaser ... or derived under this con-
tract, shall thereupon cease and determine, and the premises
hereby agreed to be sold shall revert and revest without any further
declaration of forfeiture, notice or act of re-entry, or without any
other act by the vendor to be performed or any suit or legal pro-
ceeding to be brought or taken." The defendant should have
vacated the premises in compliance with this stipulation and *
the notice. He had no longer any right to be there. The plain-
tiff conMnitted no act which, even on the part of a stranger or in
any circumstances, wotild amount to a breaking in; she did not
even turn a key or lift a window or a latch; she foimd the doors
open, the bam vacant and unattended, and she entered. Under
the agreement she had. a right to possession, and, having thus
acquired it peaceably and quietly, she was, in my opinion, from
that moment in quiet and peaceable possession, and whatever
.costs the defendant may have incurred to oust her of this posses-
sion must be his loss. If this view is correct, it, of course, dis-
poses of this last item of $200 of the defendant's counterclaim.

All the items of the counterclaim are then dismissed.

As to costs. It might, perhaps, be ai^ed that, having chosen
to resort to the proceeding of giving notice and taking possession.

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it was not in order for the plaintiff to resort to the further pro- Prendergagt. j.
ceeding of an action, and that the costs of the latter should not, 1909
at all events, be borne by the defendant. The answer to that uolb
is that, if the action was a useless and idle duplication of pro-
ceedings, the defendant should have made it clear that he was
not contesting it, or. was only contesting it in the sense and to
the .extent of bringing in a counterclaim. The defendant did not
make it clear in his evidence that he considered that the premises
were worth nothing to him, and that he abandoned possession
of them to the plaintiff. If he had made that as clear in his state-
ment of defence, I probably would experience difficulty in awarding
costs against him. But his defence, besides being ambiguous
in several other respects, and alleging virtually that the plaintiff's
possession was obtained by violence, distinctly alleges that he
has not defaulted in any payment, but has, on the contrary, per-
formed all his part of the agreement, which strikes at the root
of the plaintiff's claim. The plaintiff is, then, entitled to her
costs.

I do not see that it is necessary to declare that the $2,000 re-
ceived by the plaintiff shall remain her property. I do not think
that such a declaration is customary, and it is, moreover, in\pUed
here by the fact* of the counterclaim being dismissed^

There will be a declaration that the agreement is rescinded
and void.

And an order for possession as prayed for.

With costs to the plaintiff.

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72 SASKATCHEWAN LAW REPORTS. [vol.

[TRIAL.]

1909 Vachoe V. Straton.

Feb. 16. Promissory Note — Verbal Agreement as to Extension of Time for Payment —
Principal and Agent — Commission on Sale of Land — Duty of Agent — Sale
Without Agent's Knowledge.

Plaintiffs, as executors, sued on a promissorv note. Defendant admitted the
note, but alleged a verbal agreement for the extension of time for payment.
He also counterclaimed for conmiission on sale of land, it appearing that
deceased had promised hun a conmiission if he could procure a purchaser.
The defendant interested a party in the property, but the latter, finding it
impossible to raise sufficient money to carry the sale through, mentioned
the property to a third party, who went to the deceased and purchased on
the terms stated to the defendant, without the defendant's Imowledge, and
without the deceased being aw^are that the piuxshasers had learned that the
property was for sale through any efforts on the defendant's part: —

Held, that the date of payment expressed in the promissoiy note could
not be varied by parol evidence.

2. That in order to entitle the agent to conmiission on sale of land it must
be shewn that the sale is the direct result of the agent's efforts, and it is not
sufficient that he mention the property to another person who is not his
agent, nor the agent of the purchaser, and who afterwards mentions it to a
third party, who purchases.

This was an action to recover the amount of a promissory not*,
with a counterclaim for commission on sale of land, tried before
Newlands, J., at Saskatoon.

R. W. Shannon^ for the plaintiff.
Jas, McKay, K.C., for the defendant.

February 16. Newlands, J. : — ^This is an action on a promisson'
note for the sum of $5,478.33, made by defendant in favour of
James Flanagan, deceased. Defendant admits the making of the
note, but says that while on the face of it the said promissory note
appeared to be absolute as between the said James Flanagan,
deceased, and himself, it was at the time of the making thereof
agreed that the money secured thereby should not be payable
until the 27th February, 1909. The defendant, by this defence,
seeks to alter a written contract by parol evidence, which cannot
be done, and there must therefore be judgment for the plainiiffs
for the amount claimed, with interest and costs. The defendant
also counterclaims for $6,250 commission due him for the sale of
certain property belonging to said James Flanagan, deceased.

In order that defendant should succeed on his counterclaim
he must prove (1) that there was an agreement between himself

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and Flanagan that he should receive a commission on his obtaining
a purchaser who would purchase the property at a price and on
terms agreeable to Flanagan; and (2) that he did obtain such a
purchaser.

As to the agreement between the parties, .1 am of the opinion,
from all the evidence, that there was such an agreement, and that
Flanagan did agree to give defendant a commission on his obtaining
a piu-chaser for said property who would purchase same at a price
and on terms agreeable to him. Now did he obtain such purchaser?

The evidence shews that the defendant offered the property
to one A. Bramley Moore after obtaining from Flanagan his price
and terms; that Moore told the defendant he would either take
the property himself or obtain a purchaser for him; that Moore
found that the first payment of $30,000 was more than he could
raise, so he (Moore) submitted the proposition to Miller and Robin-
son, of Lloydminster; that one of that firm went to Saskatoon and
saw Flanagan, and purchased the property for the price and on
the terms mentioned by defendant to Moore, but did not com-
municate with defendant in any way, and defendant did not know
that the purchasers were obtained by Moore until after this suit
was commenced. There was no evidence that Moore was an
agent for either the defendant or the purchasers; he was simply
a third party who said he could get a purchaser and who afterwards
did get a purchaser. No doubt the property would not have
been sold if defendant had not spoken to Moore, but is that sufficient?

In Beable v. Dickerson (1885), 1 Times L.R. 654, the facts were
very similar to this case, and the agent was held not entitled to a
commission. There the plaintiff instructed the defendant to sell
for him fifty shares in the London and South- Western Bank (Ltd.),
by auction or otherwise, and agreed to give him a commission of
five per cent., and handed him authority to sell the shares. The
defendant accordingly advertised them for sale by auction. After
the insertion of an advertisement, the London and South-Westem
Bank communicated with defendant and informed him that, as
they did not like their shares being advertised, they could find a
purchaser for him. Afterwards the bank wrote to him that they
had sold the fifty shares standing in plaintiff's name, and defendant
informed plaintiff of the fact. Defendant received a further letter
from the bank enclosing him a transfer to get executed by plaintiff.

NewIandB, J.

1909

Vachoe

Straton.

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[vol.

Newlands, J.

1909

Vachoe

Straton.

The transfer having been sent by defendant to the plaintiff, and
having been duly executed by the latter, was subsequently for-
warded by defendant to the bank, who sent him a cheque for
£857 10s. A few days afterwards he forwarded plaintiff a cheque
for £814 12s. 6d., being the amount of the proceeds of the sale,
less five per cent, which he kept aa his commission. Plaintiff then
brought action for £42 17s. 6d. as money had and received for his
use. The county court Judge before whom the action was tried
gave judgment for plaintiff on the ground that the shares had not
been sold by the defendant or through his instrumentality. On
appeal to the Queen's Bench Division, Coleridge, L.C.J., and
Grover, J., dismissed the appeal. Lord Coleridge, in giving judg-
ment, said that defendant had allowed the bank to find a purchaser
for the plaintiff's shares without communicating with him (de-
fendant) in any way, and that defendant, not having sold the shares,
was not entitled to the conamission. There seems to be no material
difference between that case and this one. Hfere the plaintiff
allowed Moore to find a purchaser without conununicating with him.
Moore was the person who obtained the purchaser and not de-
fendant, and therefore defendant would not be entitled to the
commission.

Amongst the cases cited by Mr. McKay on defendant's behalf
was Wilkinson v. Alston (1879), 48 L.J.Q.B. 733, 41 L.T. 394,
where the sale was made through a third party to whom plaintiff
(the agent) had offered the property. The Court of Appeal held
that the property was offered to the third party as agent of the
purchaser, and Bramwell, L.J., said, ''I do not see any difference
between a proposal made to the agent of a purchaser and one made
to the purchaser himself," and the plaintiff was entitled to his
commission. The other Judges, Brett and Colton, L.JJ., agreed
with him that Wise, the third party, was the agent of the purchaser,
and that plaintiff fulfilled his contract in introducing the property
to be sold to the agent of the purchaser.

In Bailey v. Chadvrick (1877), 35 L.T. 740, the plaintiffs were
ship auctioneers, and defendant employed them to sell, by public
auction or otherwise, the steamship Bessemer. It was agreed that
if the ship was not sold by auction but a sale wa« subsequently
effected '^to any person or firm introduced by" the plaintiffs,
"or led to make such offer in consequence of" plaintiff's ''mention

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or publication of the ship for auction purposes," the plaintiff
should be paid a commission of one per cent, on the purchase
money. At the trial, Lord Coleridge, L.C.J. , ruled that these words
included a sale which was the indirect consequence of advertise-
ments published by plaintiffs for auction purposes. The evidence
shewed that, though the purchaser must have made his offer
through hearing of the advertisement^ neither he nor his agent had
themselves seen it. The facts were that plaintiffs advertised the
Bessemer for sale and put her up to auction, but she was not sold.
Defendant afterwards sold her to a person named Wilson, who
purchased as the agent of one Sugden. At the trial it was proved
that one Pearson, who wrote to the plaintiffs to inquire about the
Bessemer shortly after the auction, had met Sugden and Had a
conversation with him about the auction, and Sugden then stated
if he had been at the auction there would have been a bid. This
conversation was previous to Sugden's purchase through Wilson.
On an application for a new trial, the Court, Coleridge, C.J., and
Denman, J., refused a rule, on the ground that the words "in con-
sequence of" were very large words, amply sufficient to include
indirect as well as direct consequence. On appeal, (1878) 37 L.T.
593, the Court, composed of Bramwell, Brett and Colton, L.JJ.,
entered judgment for the defendant on the groimd that there was
no evidence that the subsequent sale of the ship was effected to a
person who was led to make the offer in consequence of the plaintiffs'
mention or publication of the ship for auction purposes. This
decision was reversed by the House of Lords (1878), 39 L.T. 429,
on the gro\md that there was no question of law in the case, and
that upon the facts set out there was ample evidence to go to the
jxiry in support of the plaintiff's claim. This case is, 'therefore,
no authority, as the facts here are different.

Upon the whole, I am of the opinion that the weight of authority
is that the defendant, to earn his commission, must be the direct
cause of the sale; that it is not sufficient that he should mention
the property to a person who afterwards mentions it to the pur-
chaser, but in order to earn his conamission he must himself bring
the purchaser and vendor together, and he does not earn his com-
mission if he does this through the medium of another party who
is neither his agent nor the agent of the purchaser.

Newlandfl, J.
1909

Vachob

Straton

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76 SASKATCHEWAN LAW REPORTS. [vol.

[TRIAL.]

1909 Parsons v. Alberta-Canadian Insurance Co.

reb. 18. p^^^ Insurance — Application — Misrepresentation^in — Policy Void on Account
of — Knowledge of False Representation by Agent of Company — Effect of.

Plaintiff insured a building with defendant company, and made certain state-
ments in the application as to fires used on the premises which were found
to be false. The premises were destroyed by nre, and the company dis-
puted liability. In answer to the defence of misrepresentation , the de-
fendant pleaded that the company's agent, who had filled out the applica-
^ tion, was aware of the condition of the premises: —

Heldf that the policy was void on account of the mis-statements contained
in the application.

2. That even if the plaintiff's agent had been aware of the condition of the
premises, as it appeared that he had filled out the application and had filled
m the answers to the questions upon which the misrepresentations were
based, he would be acting as agent of the plaintiff and in fraud of the
company, and the company would not be bound by the policy or affected
by his Imowledge.

This was an action to recover the amount payable under a
policy of fire insurance, and was tried before Newlands, J., at
Regina.

G. H, Barr, for the plaintiff.
/. A. Allan J for the defendant.

February 18. Newlands,^ J.: — In this action the plaintiff
signed an application for fire insurance which contained, under
the general heading of "heating/' after answering questions that
there were no stoves, furnaces, pipes or chimneys, the following
questions and answers: —

'*12. Are other fires used on the premises? If so, for what
purpose? A. No, not in building.

" 13. What kind of fuel is used? A. None.

** 14. How are ashes disposed of? A. None.''

These answers are made part of the contract, and form the basis
of the liability of the company, by the following clause in the
application, which is signed by plaintiff: —

**The appUcant hereby covenants and agrees to and with
the said company:

'*That the foregoing is a just, full and true exposition of all the
facts and circumstances in regard to the condition, situation, value
and risk of the property to be insured, so far as the same are known

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to the applicant and are material to the risk, and that the above
diagram, if any, shews all buildings or combiustible material ex-
posing the property proposed for insurance; and agrees and consents
that the same be held to form the basis of the liability of the said
company, and shall form a part and be a condition of the insurance
contract."

The above answers are admitted by the plaintiff to be untrue.

These answers being false, the policy is avoided, and the plaintiff
cannot recover, unless, as the plaintiff contends, the company is
prevented from setting up that ground of avoidance by reason of its
agent, Murray, knowing at the time of the application that these
answers were \mtrue and that the plaintiff had a kettle or furnace
upon the premises for the purpose of rendering tallow.

The only evidence produced by the plaintiff upon this question
is that of his brother, who swears that he took the company's agent
over the premises to be insured before the application was signed,
and at tl^at time there was a kettle or furnace in the storehouse
for rendering tallow, with a pipe from it to the outside of the build-
ing. The agent swears that he does not remember whether this
kettle or furnace was inside or outside the building when he in-
spected it, but that if it was inside the storehouse it was not con-
nected by a pipe to the outside of the building. This evidence
of the agent is, I think, corroborated by the application, the answer
to the question "Are other fires used on the premises" being "No,
not in building " and the proof of loss put in signed by plaintiff,
which contains the following statement: "The occupancy of the
premises had not changed since the above insurance was issued,
except that tallow was rendered in storeroom." As plaintiff has
not proved that defendant's agent had any knowledge that the
answers were imtrue, it is unnecessary for me to consider what
effect they might have upon defendant's liability. I may say,
however, that the case of Biggar v. Rack Life Assurance Co, (1902),
1 K.B. 516, 71 L.J.K.B. 79, 85 L.T. 636, is an authority against
plaintiff's contention that such knowledge would alter the liability
of the company. There, as here, the agent filled up the application
for the insured. He would, therefore, be acting as the agent for
the insured, not the company, and by putting false answers to the
questions asked would be acting in fraud of the company, and the

Newlands, J.
1900

Parsons

Alberta-
Canadian
Insurance
Co.

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Xewlands, J.
1900

Par-sons

Alberta-
Canadian
Insurance
Co.

company would not be bound by the policy. I am of the opinion,
therefore, that even if plaintiff had proved this contention the
company would still not be bound by the policy. Judgment for
defendants with costs.

1909
Mar. 6.

[IN CHAMBERS.]

The King ex rel. Dale v. Lanz.

Lfocal Improvement Act — Controverted Election — Admiesibiltty of Affidavit to
Prove Election Void — Evidence €i8 to Disqualification of Voten — Conmdian
for Non-payment of Taxes — Chambers Summons — Signature of by Chamber
Clerk— Judge persona designati.

An application was made under the provisions of the Local Improvement
Act to oust a councillor on the groimd that three of the voters voting for
him had not paid their taxes and were therefore di8<}ualified. Evidence
in support of this allegation was given by affidavit, which shewed that the
voters in question had been convicted for non-payment of taxes, and
which also contained an allegation that their taxes had not been paid,
the kind of taxes not being specified: —

Held, that the provisions of tne Act contemplated evidence in support of the
application being given by affidavit, and therefore affidavits of which no
notice of intention to read had been nven might be read.

2. That the conviction by a justice of the peace of the voters objected to for
non-payment of taxes was not sufficient evidence that they had not in fact
paid their taxes.

3. That, as the affidavits did not shew that the taxes which it was deposed
had not been paid were local improvement taxes due the district, the fact
was not sufficiently proved.

4. That the summons was irregular, being signed by the chamber clerk, and
not by the Judee granting the same, who alone had jurisdiction under the
Act to sign such a summons.

This was an application to oust a councillor of a local im-
provement district, and was heard before Johnstone, J., in Cham-
bers.

G. H. Barr, for the applicant.
W. S. BaUj for the respondent.

March 6. Johnstone, J.: — This is an application, imder
sec. 16 of ch. 36 of the Local Improvement Act of 1906, as amended
by way of summons, calling upon George Lanz, the respondent,
to shew cause why he should not be ousted from his position as
coimcilman for the local improvement district 6 M. 2, on the
groimds that A. R. Thomas, H. A. Sampson and Louis Garlach

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voted at the election of the said George Lanz, and that these were
not properly qualified to vote, inasmuch as the taxes owing by
them had not been paid.

The siunmons was obtained upon the affidavit of George T.
Dale, the relator. This affidavit sets out that Dale was nominated
as a candidate as a member of the council at the election held on
January 11th, the other candidate being the respondent, George
Lanz. That the returns of the result of the election by the re-
turning officer shewed eleven votes had been cast in favour of
the deponent and thirteen in favour of the respondent; that three
of the persons who voted at the said election for Lanz were A. R.
Thomas, H. A. Sampson and Louis Garlach; that these three
persons had not paid their taxes at the time of the election, and
were on the 3rd day of February, 1909, tried and convicted betore
J. T. Westgate, J.P., imder the provisions of the Local Improve-
ment Ordinance, for having voted at the said election contrary
to the provisions of said Ordinance.

Further affidavits were produced by the appKcant, on the
hearing, to the reading of which exception was taken by counsel
for the respondent, who urged that under the practice these
affidavits could not be read, as leave had not been given to read
further material on the return of the summons.

The affidavits referred to were those of Curtis Gough and
E. M. Kezer.

I think these affidavits receivable. Upon reference to sec. 16
it will be seien that where, upon the return of the summons, it
shall appear to the Judge, upon affidavit or oral evidence, that
such person was elected unduly or contrary to the Act, the Judge
may adjudge such person to be ousted. It is here e\adently
intended that material other than that used on the application
for the summons may be used at the hearing.

The allegations contained in the several affidavits that
Thomas, Sampson and Garlach had been convicted before West-
gate, J.P., are insufficient to prove the fact that these persons
were not qualified to vote under sec. 18 of the Act, as amended.
This section reads: "At any election persons over eighteen who
are owners or occupants of rateable land in the division and who
have paid all taxes due by them to the district shall be entitled
to vote." Apart from the statements that these men had been

Johnstone, J.

1909
The King

EX REL.

Dale

Nanz.

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Newlands. J.

1909
The Kino

EX REL.

Dale

Lanz.

convicted, there is no allegation in any affidavit filed that these
persons were not entitled to vote for the reason stated, namely^
that they were in default, not having paid the taxes due by them.
The only allegation leading up to the fact that the taxes had not
been paid is contained iij the affidavit of Gough, who, in paragraph
3, states that the taxes and lands on which Thomas, Sampson and
Garlach voted, as shewn by a return of the returning officer, were
not paid to the deponent until after January 11th, 1909. This
allegation is not sufficient to prove default. The taxes in this
paragraph referred to may have been school taxes. There is
nothing to shew that the taxes referred to were those owing by
these parties to the local improvement district.

The application is also defective in that the summons is signed
by the clerk in Chambers, instead of by the Judge who granted
the same: see Re Pariuette 11 P.R. 463, at p. 469.

The summons therefore will be dismissed with costs.

[IN CHAMBERS.]

1909 In re Local Improvebient District No. ll-A-3.

Mar. 6. Local Improvement Act — Controverted Election — Irregularity in Proceedings
to Avoid — Intituling Affidavits — No Statement that Election Held — Irregu-
larity in Proceedings Prior to Election — Insufflcient Notice of Election —
Effect of — No Evidence that Result Affected,

The applicant applied to have one Stribbell ousted from office as a councillor
of a local improvement district on the ground that the notice of election
had not been posted as required by law. No evidence was given that the
result of the election was affected thereby, or that all the voters had not
voted. The summons and affidavit for the purpose of the application were
not intituled in any Court: —

Held, that it was not necessary that the proceedings under the Local Improve-
ment Act should be intituled in any Court.

2. That every irregularity will not defeat an election, and the effect it may
have on the final result must be considered, and as there was no evidence
that if the notice required by law had been posted the result of the election
would have been different, and as it did not appear that all the voters had
not voted, the application should be dismissed.

This was an application under the Local Improvement Act to
oust from office one of the councillors of a local improvement dis-
trict, and was heard before Johnstone, J., in Chambers.

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F. W. G. HauUain, K.C., for the applicant,
r. D. Brown, for the respondent.

March 6. Johnstone, J.: — ^This is an application, under sec. 16
of the Local Improvement Act, to oust from office as a member of
the council for the local improvement district named, one John
Stribbell, on the groimd that the said John Stribbell was elected
imduly and contrary to the provisions of the Local Improvement
Act at an election for a member of the said local improvement dis-
trict coimcil for the said division held on the 11th day of January,
1909, in that the returning officer for the said division at the said
election did not post up in five conspicuous places within the
division the notices required by sub-eec. 2 of sec. 25 of the Local
Improvement Act at least six days previous to the meeting of the
electors, and upon the grounds set out in the affidavit of Harry
Jones and Arthur Dinning filed.

On the hearing of this summons, which came before me on the
4th instant, exception was taken to the proceedings because they
were not entitled in any Court, and also for the reason that the
affidavits did not shew the holding of an election, or that Stribbell
had been declared elected.

I cannot give eflfect to these objections. Section 16 of the
Local Improvement Act was passed, I think, for the express
purpose of enabling the very summary disposal of questions affecting
the election of members of district coimcils. In my opinion it is
not necessary that the proceedings had under the section referred
to should be entitled in any Court: see Re ParqueUe, 11 P.R.
468, at pp. 469, 470 and. 471, and cases quoted. I also think the
evidence contained in the affidavits filed is sufficient to shew that
John Stribbell was declared duly elected.

I am of opinion, however, the evidence is insufficient to warrant
me in finding that Stribbell was unduly elected or that he was elected
contrary to the provisions of the Act. There is no proof that if
the notices required by law to be posted (sub-sec. 2 of sec. 25 of the
Act) had been so posted the result of the election would have been
different. It is not shewn all those entitled to vote had not voted.

In Regina ex rd. Walker v. Mitchell, 4 P.R. 218, Adam
Wilson, J., lays down the law that it is not every irregularity which
would be held to defeat an election, but that the effect it may have

6 — VOL. n. s.i^B.

Johnstone, J.
1909

In re
Local Im-
provement
District
No. ll-A-3.

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Johnstone, J.
1909

In rb
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District
No. U-A 3.

upon the final result of the dectioii must be considered; and that
if it did not appear that the result would have been different the
election should not be set aside.

In Regina ex rel. Harris v. Bradbum, 6 P.R. 308, Harrison, C.J.,
made a similar statement as to the law, referring to this case
and to Woodward v. Saraons (1875), L.R. 10 C.P. 733; 44 L.J.C.P.
293; 32 L.T. 867; and Regina ex rel. Ritson v. Perry, 1 P.R. 240.

The summons will therefore be dismissed with costs.

[IN CHAMBERS.]

1909 BOWE V. WhITMORE.

March 10. CarUraverted Election Act— Motion to Strike Out Particulars of Corrupt Prae-
iices — Provision in Order for Delivery of Particulars as to Effect of Non-
compliance— Effect of — Jurisdiction of Judge to Make Further Order —
Applicability of General Practice to Particulars in Controverted Election
Proceedings — Effect of Provisions of Controverted Elections Act as to
Delivery.

By an order under sec. 11 of the Controverted Elections Act, the petitioner
was directed to furnish particulars of the matters alleged in his petition,
and it was further ordered that no evidence be given at the trial of any
matter of which particulars were not delivered as ordered. The respondent
moved to strike out the particulars delivered, on the ground that the order
had not been sufiOiciently complied with, or for further and better- par-
ticulars:—

Held, that the Legislature having made provision in the Controverted Elections
Act for delivery of particulars, and navine empowered the Judge to order
that in default no evidence be given at the trial of any matters of which
particulars were not given as ordered, and a Judge having made such
order, no further or other order could now be made with respect to pai^
ticulars.

2. That as the practice provided by the Controverted Elections Act in respect
to delivery of particuiMB differed from that prescribed by the rules of Court,
and the practice under the Act was sufficient, the provisions of the rules
of Court could not be invoked to support the application, and must be
deemed to be excluded by the specific provisions of the Act.

This was an application to strike out particulars of charges
in an election petition, under the controverted Elections Act,
and for further and better particulars, and was argued before
Johnstone, J., in Chambers.

Alex, Ross, for the petitioner.

C. JB. D. Wood, for the respondent.

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March 10. Johnstone, J.: — This is an apiriication, by way
of gummons returnable in Chambers, calling upon the petitioner 190»
to show cause why an order should not be made disnussing the Bowjk
petition filed, on the ground that the particulars delivered, pur- v

suant to the order of the Hon. Mr. Justice Newlands, of Decem-
ber 11th, 1908, had not been complied with, or, in the alterna-
tive, for an order that the particulars delivered punuant to said
Older of the 11th December should be struck out, or, in the further
alternative, that the petitioner be ordered to deliver further and
better particulars.

The order of the 11th December is one made under sec. 11
of the Controverted Elections Act, directing that particulars in
writing should be delivered to the respondent's solicitors within
twenty days of the service of the order, such particulars to con-
tain the names and addresses and the time or times and place
or places where each of the acts complained of were done or com-
mitted, concluding with this provision: —

"It is further ordered that in case partictdars are not delivered,
as herein ordered, within the time herein prescribed, the peti-
tioner shall not be at liberty to give any evidence at the trial of
the petition herein with respect to facts and grounds of which
said partictdars are herein ordered and not delivered as herein
prescribed."

The section of the Act referred to reads as follows: —

"Evidence need not be stated in the petition, but the respon-
dent may at any time within twenty days after service upon him
of the petition . . . apply to a Judge for particulars or for
further and better particulars of the facts and grounds relied on
.to sustain the prayer of the petition; and the Judge may order
such particulars as may be necessary to prevent surprise and to
ensure a fair and effectual trial; and may prescribe the time within
which such particulars shall be delivered, and may, in such order,
direct that in case such particulars are not delivered as prescribed,
the petitioner shall not be at liberty to give any evidence at the
trial with respect to facts and grounds of which particulars are
ordered and not delivered."

Mr. Ross, who appeared for the petitioner, on the argument,
contended that the order having made provision for default in
the delivery of particulars in the manner stated, that the respon-

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[vol.

Johnstone, J.
1900

Bo WE

Whifmors.

dent could not obtain the relief asked for in the suntoions — that
iS; no order could be made dismissing the petition, or for the striking
out of such of the particulars as were insufficient, or for further
and better particulars — that, in effect, as to partictilars the matter
was res judicata, *

It was contended, on the other hand, by Mr. Wood, for the
respondent, that \mder sec. 18 of the Act, the provisions of the
Judicature Act relating to the delivery of particulars applied,
such practice being not inconsistent with the provisions of sec. 11.

In England the practice in election matters is usually not to
entertain motions to strike out particulars, but to refer the matter
for hearing before the trial Judge: Rogers on Elections, vol. 2,
208; McPherson's Election Law, 608.

The English rules, however, governing the delivery of par-
ticulars are different from the provisions of sec. 11.

Provision is made by rule in'England (Par. C, El.R. of Mich. T.
1868, rules 6, 7 and 8) for the delivery of particulars and for de-
fault in delivery whereby, in case of default, no evidence shall be
given of any objection, etc., not specified in the list of particulars,
except by leave of the Court or Judge, an exception not provided
for by sec. 11 of the Controverted Elections Act or by the order
for the delivery of particulars. Moreover, the English rule does
not limit the time, as does our Act, within which particulars or
further and better particulars are to be delivered.

That I have no power at this stage to dismiss the petition,
I think, must be admitted, and if I could make a valid order
striking out the objectionable particulars, I would not be disposed
to do so.

As to the last alternative — namely, an order for further and
better particulars — ^the legislature, having by sec. 11 legislated
as to the procedure in respect to the time within which the applica-
tion should be made, and having limited this time to the period
of the twenty days immediately following the service of the puti-
tion — a period now past — and provisions having been expressly
made empowering the Judge directing the delivery of particulars,
in his order,, to deal with the matter in the case of default in
delivery to the extent of ordering that no evidence shall be given
at the trial with respect to facts and grounds of which particulars
were ordered to be and were not delivered, and the Judge in this

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caae having so provided, I am of opinion I am precluded from
making any order for further and better particulars. Effect
must be given to sec. 11, the provisions of which are not in accord
with the practice and procedure imder the rules of Court con-
tinued by sec. 55 of the Judicature Act. In these rules there is
no set time within which, in an ordinary action, an application
for particulars or for further and better particulars shall be made,
and in the case of defatdt in deUvering of particulars under the
rules, the consequences are not the same. Under sec. 11 default
is pxmishable, in the first instance, with an absolute direction
that (using the words of the section) "the petitioner shall not be
at Uberty to give any evidence at the trial with respect to facts
of which particulars are ordered and not dehvered," whereas,
under the rules, in the event of default on the part of the plaintiff,
the action is, in the first instance, stayed.

The Court or Judge, moreover, under the rules, has power
to extend the time for the doing of any act. No such power is
given by the Act, and I do not think it could be successfully con-
tended a Judge could make an order extending the time twenty
days fixed by the Act within which the appUcation for particulars
must be made.

This time cannot be controlled or affected by any rule of Court.
It is absolutely determined, as is also, in my opinion, the punish-
ment or penalty for default, provided the Judge chooses to adopt
the provisions of the section in that behalf. The learned Judge,
in dealing with this matter, did so, and I think his order must be
taken to be final, in any event as far as an application in Chambers
is concerned.

The summons will therefore be dismissed with costs.

Johnstono, J.
1909

Bo WE

Whitmore.

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[TRIAL.]

1909 Keinholz V. Hansford.

March 26. Vendor and Purchaser— Sale of Land on Deferred Payments — Default by Pur-
chaser— CanceUaHon and Forfeiture of Moneys Paid — Land Encumbered
for Amount Greater than that Due by Purchaser — Right of Vendor to Insist
on Payment,

Plaintiff purchased a section of land from defendant upon deferred payments.
The plaintiff made default in one payment, and such default continuing
for two months the defendant served notice of cancellation of the contract
in accordance with the terms thereof, and claimed the right to retain idl
moneys paid thereon. At the time of cancellation the defendant had
encumbered the land for an amount greater than that which was due by
the plaintiff. The plaintiff tendered the balance due and brought action
for specific performance: —

Heldf that the defendant, having encumbered the land for an amount greater
than that due by the plaintiff at the time default was made, was not en-
titled to be paid or to receive the balance due in respect of the land by the
plamtiff, ana not being entitled to such payments could not cancel the
contract because payments were not made to him.

This was an action for specific performance of a contract for
sale of land, tried before Newlands, J., at Regina.

J, A. Allan, for the plaintiff.

F. W. 6, HauUain, K.C., for the defendant.

March 26. Newlands, J.:— On the 17th July, 1906, the
plaintiff purchased from the defendant section 1-26-2 west of
the second meridian for the sum of $6,400, payable: $500 on the
execution of the agreement of sale; $1,500 on the 20th July, 1906;
$3,000 on the 1st of Jime, 1907; $700 on the 1st December, 1907;
and $700 on the 1st June, 1908, with interest at 6 per cent. The
first three pa)anents are admitted to have been made, with the
exception of $13.25 bank charges^ which defendant had to pay
the banks making the collection. The fourth payment of $700
was not made on 1st December, 1907, because, the plaintiff swears,
he thought it was not due imtil the 1st of June, 1908. Time was
made of the essence of the contract, and provision for cancella-
tion if payments were not made as provided by the agreement.
On the 3rd February, 1908 — the payment due December 1st,
1907, not having been made — ^the defendant cancelled the agree-
ment, and sent the plaintiff a notice of cancellation. As soon
as the plaintiff received this notice he went to Winnipeg, where
the defendant resided, and tendered him the whole amount due,

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which the defendant refused to accept, claiming that he had can-
celled the agreement, and it was therefore at an end, and that
under the agreement he was entitled to retain the amounts paid
as liquidated damages. The plaintiff then brought this action
for specific performance, or, in the alternative, for relief against
the forfeiture of the sums paid the defendant. As a defence
the defendant set up the non-payment of the instalment due
December 1st, 1907, and the cancellation of the agreement under
the provisions thereof.

At the trial it appeared that the plaintiff had mortgaged this
land to two separate parties, the mortgage in each case being for
the sum of $l;500, and that in each case there was over-due pay-
ments of interest which he had not paid. These mortgages,
together, ainoimted to over $3,000, and the amount due imder
the agreement, including the payment due December 1st, . 1907>
was only $1,400, with interest, being less than half the amount
due under the mortgages. There is no covenant to convey free
from incumbrances in the agreement of sale, but the whole pur-
chase money is put at $6,400, "being $10 per acre," as stated
in the agreement, and the intent and meaning of the agreement
is that that amount is all the plaintiff has to pay, and that defen-
dant would, therefore, be liable to pay off these mortgages before
he could complete the agreement with the plaintiff. In Dart
^^ Vendors and Purchasers <p* 612) he states: "Until the con-
ycyaixce is executed by all necessary parties, the vendor remains
Ai/^ie in respect to all defects in title. He must> for instance,
i^fu^ttci the purchase money if the purchaser, having paid it, even
tbdi^h he has taken possession, is evicted by an adverse claimant.
S<5, if incimibrances are discovered, he must discharge them, or
the Purchaser may pay them off out of impaid purchase money."
^^ on p. 613: "In some cases a purchaser may, after the con-
vcyaxice is executed, retain out of unpaid purchase money the
^"^oxixit of incumbrances which then come to his knowledge. And
* Purchaser, with notice of an incumbrance which he intends to
^ ^schai^ged, should take care that it is discharged, or that satis-
**^^iTr security for its being done is given him, before he pays

his

^Honey.'

Newlands, J.

1909
Keinholz

Hansford.

l*i Niblock V. Ro88 (1908), 8 W.L.R. 792, an action for instal-
™^iits due on an agreement of sale, Scott, J., held, *' As the property

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Newlands, J.

1009
Keinholz

Hansford.

is shewn to be incumbered for a sum greater than the balance
of the purchase money due by the defendant, the plaintiff is not
entitled to judgment for the payment to film of the purchase
money now due. For the protection of the defendant I think
I should follow the practice laid down in Armstrong v. Auger ^ 21
O.K. 98, and direct its payment into Court."

Now, if the defendant was not entitled to have these last two
payments made to him, and I think he was not, it would, I think,
follow that he could not cancel the agreement of sale because
they were not so made to him, and it would be inequitable to
allow him to set up such alleged cancellation as a defence to this
action. It is true the plaintiff, after the alleged cancellation,
tendered to him the whole amoimt due, but as this tender was
evidently made in ignorance of these incumbrances, it does not
put the defendant in any better position.

The defendant not being entitled to have these payments
made to him, he could not cancel the agreement of sale because
they were not so made, and his alleged cancellation is, therefore,
of no effect; and as the plaintiff acted promptly he is entitled
to specific performance. The plaintiff will pay into Court the
balance due on the said agreements of sale — namely, $1,400 —
with interest and $32.88 paid by the defendant for taxes, which
amount will be paid out to the ^persons entitled to the same under
the said incumbrances; and the defendant will then transfer
the land to the plaintiff free from incumbrances> The plaintiff
will have the costs of this action.

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[TRIAL.]
Hall v. Turnbull. 1909

Vendor and Purchaser — Agreement for Sale of Land on Deferred Payments — March 27.
1^ Default by Purchaser— Cancellation of Contract — Specif Performance —
, Right to — Dday — Forfeiture of Purchase Money Paid — Jurisdiction of
Cowrt to Relieve,

Plaintiff purchased a section of land from defendant on deferred payments,
the contract containing a clause providing for cancellation upon non-
payment of any of the mstalments, and that in the event of cancellation
the vendor should be entitled to retain all purchase money paid. Default
was made in payment of the second instalment, and the defendant cancelled
the contract and declared the moneys paid forfeited. After a lapse of about
a year the plaintiff tendered the balance due and demanded a conveyance,
which being refused, he brought an action for specific performance: —

Held, that the plaintiff was not entitled to specinc performance by reason
of his delay.

2. That the purchase money paid not being in the nature of a deposit, and
being a substantial payment, its forfeiture on cancellation would constitute
a penalty against which the Court would relieve.

This was an action for specific performance, or, in the alter-
native, for the return of money paid on a contract for sale of land,
and was tried before Newlands, J., at Regina.

J. F. Frame, for the plaintiff.
J. A. Allan, for the respondent.

March 27. Newlands, J.:— On the 28th of August, 1906,
the plaintiff ptirchased from the defendant section 21-30-7 W. 3rd,
and took separate agreements of sale for each 'quarter-section,
the consideration being $1,440 for each said quarter. Five hundred
dollars was paid down on each quarter-section, and the balance
was to be paid in five annual in^alments, with interest at 6 per
cent., such payments to be made on the 28th days of August in
the years 1907 to 1911, inclusive.

The first payment u|ider this agreement fell due on the 28th
August, 1907. On the 2l8t of August of that year the defen-
dant wrote to the plaintiff calling attention to the fact that the
pa3rment would fall due on that date. This payment was not,
however, made by the plaintiff, and on the 22nd October, 1907,
the defendant sent the plaintiff a notice in writing cancelling the
said sale. This notice was given under the following provision
in the agreement of sale: —

"And it is further agreed that if the purchaser shall fail to

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[vol.

Newlands, J.
1900
Hall

V,
TURNBULL.

make the pa3Tnents of principal and interest aforesaid, or any
of them, or the taxes, in the manner and at the time herein before
specified, or shall fail in the performance of any of the covenants
herein , contained, then, and in such case, the vendor shall have
the right at any time to serve a notice upon the purchaser, per-
sonally served upon him, or mailed in a registered letter, addressed
to him at the post oflSce named below, declaring his intention,
at the expiration of thirty days after the service or mailing of
such notice, of terminating this agreement and forfeiting all
interest of the purchaser therein, and of re-entering and re-pos-
sessing the land, as in his first estate, without claim of the pur-
chaser upon any of the moneys paid by him thereunder; and
upon the expiration of such time the vendor shall be at liberty,
without further notice of intention as aforesaid, by due process
of law, to re-enter upon and re-possess the said land as in his first
estate."

There was also a provision in the agreement that time was
to be of the essence of the contract. The notice of cancellation
given was as follows: —

'^W. E. Hall, Esq.

" I, Leonard Tumbull, of the city of Brandon, in the Province
of .Manitoba, farmer, hereby notify you that there is due on the
purchase by you of the south-east quarter of section twenty-one
(21) in township thirty (30) and, range seven. (7) west of the third
principal meridian, in the Province of Saslcatchewan, from noue,
the said Leonard Tumbull, the sum of $188 principal and $56.40
interest, which fell due on the 28th day of August, a.d. 1907, together
with interest on the said sum at 6 per cent, per annum from th^
28th day of August, a.d. 1907, to tlus date. -

^'And take notice, that .unless the- said money is paid within
thirty (30) days from the mailing of this notice by registeped
letter, the sale and agreement therefor will be c^Ilcelled, and all
money heretofore paid by you will be forfeited, and I will, with-
out any further notice to you,, enter into possession of the said
property and receive and take all rents and, profits thereof, an^
will either occupy the said property myself or continue to rent
same, or shall make sale or sales thereof as I^ shciJil. think fit and
proper, ajad any. int^ijest you may have a,cquired in the sai4 lands

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n.] SASKATCHEWAN LAW REPORTS. 91

and premises will be at an end, and you will have no further right, Newiands, J.
title or interest therein. 1909

"Dated at Brandon, this 22nd day of October, A.D. 1907. JIlL

"Leonard Turnbull, TuRiJ^iuLL.
*'Per Adolph & McKay, his Solicitors."

And a separate notice was given for each quarter-section.

These notices were mailed by registered letter to the plaintiflF,
addressed to "W. E. Hall, Hanley P.O., Sask.," this being the
address given in the agreement of sale. These notices never
reached the plaintiff, he being then in the United States. Before
leaving he had asked the postmaster at Hanley to forward his
mail to Mason City, Iowa, but the postmaster had apparently
by mistake forwarded the letter containing these notices to Mason
City, Illinois, and the letter was returned to the defendant ap
unclaimed. This, however, was not the fault of the defendant.
He sent the notice to the address provided for by the agreement
of sale, and the postmaster, in forwarding the same, was acting
as the agent of the plaintiff. Not hearing from the plaintiff,
the defendant entered into possession of the said land and did
some breaking on same. The plaintiff returned to Saskatchewan
in July, 1908, and on the 20th July and again on the 5th of August
of that year tendered him the amount due under the said agree-
ment of sale, excepting the amount of some taxes which had been
paid by the plaintiff. The defendant refused to accept the moneys
tendered, and the plaintiff brings this action for (1) specific per-
formance of the contract, and, in the alternative, (2) for relief
against the forfeiture of the $2,0p0.,paid by him on the said land.

The plaintiff is certainly not entitled to specific performance.
The payment was due August 28th, 1907, and the plaintilT did
not make the same because he did not have the money and could
not, and he did not tender the amount due xmtil nearly a year
afterwards. After this long delay he is certainly not entitled
to have the contract specifically performed.

As to the alternative claim for relief against the forfeiture
of the amount paid by the plaintiff, the agreement sets out that
if the purchaser shall fail to make the payments of principal, etc.,
the vendor, on giving notice, may re-enter, etc., without claim

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SASKATCHEWAN LAW EBPOETS.

[vol.

Newlands, J.
1909
Hall

V.
TURNBULL.

of the purchaser upon any of the moneys paid him thereunder.
The amount paid was $500 on each quarter-section — ^in all $2,000.
It was not paid as a deposit to bind the bai^gain, but was a pay-
ment on account of purchase money. The agreements state:
"The purchaser has paid the sum of five hundred dollars on account
of the said purchase." Being a substantial pajnnent on account
of the purchase money, its forfeiture on the cancellation of the
contract would be, in my opinion, a penalty against which this
Court can relieve. This also applies to the sum of $62 paid by
the plaintiff for local improvement taxes on the said land. As
the land was unimproved, and the purchaser never entered into
possession, there is no set-off against these amounts for the use
and occupation of the said land by the plaintiff.

I therefore give judgment for the defendant on the claim for
specific performance, and relieve the plaintiff against the for-
feiture of the said sum of $2,062, which will be paid by the defen-
dant to him, after deducting therefrom his taxed costs of action^
which I allow to the defendant.

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n.] SASKATCHEWAN LAW REPORTS. 93

[TRIAL.]

Sawyer-Massey v. Bennett. 1009

Contract for Sale of Landr-Deferred Payments— Prooi^jon in Contract for ^^^^^ 29.
Aimgnment Only by Consent of Vendor — Transfer in Fee Simple by Pur-
chaser— Refusal of VencUrr to Approve of as an Assignment — Subsequent
Assignment to Innocent Purchaser — Fraud in Procuring Approval of by
Agent of Assignee — Locus Standi of Transferee under First Transfer to
Attack Assignment for — Restraint on Alienation — Right of Vendor to
Reserve Pending Completion of Contract,

Defendant Bennett piurchased a quarter section of land from the Canadian
Pacific R.W. Go. on deferred payments, the contract containing a clause that
no assignment of the contract should be valid unless approved of by the
company. Subsequently and before the land was paid for, and while the
company was still the registered owner, Bennett by a transfer in fee simple
transferred the land to the plaintiffs. About one year later the plaintiffs
tendered the transfer to the company as an assignment, and applied for
approval thereof. This the company refused to do on the ground that the
instrument was not an assignment. Negotiations were continued for some
time. Before the plaintiff began these negotiations the Massey-Harris
Co. had secured an assignment of the contract in proper form as security
for a debt, but this assignment was never registered, being apparently
abandoned for an arrangement whereby the land was to be sold and their
claim paid from the proceeds. This sale was arranged by J. D. McLeod,
a collector for the Massey-Harris Co., who sold to one M. J. McLeod, pro-
curing an assignment of the contract from Bennett to M. J. McLeod. To
procure the acceptance of this assignment the Canadian Pacific R.W. Co.
required the covenant of the assignee to carry out the provisions of the
original contract, and J. D. McLeod proceeded to forge the signature of
M. J. McLeod thereto, and also made a false declaration as to the loss of
the original contract, to which he also forged the name of M. J. McLeod.
By use of these forged documents he succeeded in getting the assignment
approved and accepted while the plaintiff's negotiations with the railway
companv were in progress. M. J. McLeod was innocent of fraud, and no
knowledge on his part of the previous transfer was proved. The plaintiffs
then brought action against M. J. McLeod and the railway company to
have this assisnment set aside as fraudulent and void: —

Held, that the clause in the contract providing that no assignment thereof
should be valid imless approved of by the company was a reasonable pro-
vision and not void as being a restraint on alienation, the vendor having
the right while the contract remains uncompleted to decide with what
persons he shall be brought into contractual relations.

2. That the railwav company ha vine refused to approve of the transfer to
the plaintiff, and the fraud which nad been perpetrated having been per-
petrated upon the railway company, the plaintiffs had no locus standi to
attack the transaction.

This was an action to have an assignment of a contract for
sale of land set aside as fraudulent and void, and was tried before
Wetmore, C.J., at Moose Jaw.

/. F. Frame, for the plaintiff.

TF. B. WiUoughby, for the defendant McLeod.

A. L. Gordon, for the Canadian Pacific R.W. Co.

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SASKATCHEWAN LAW REPORTS.

[vol.

Wetmore, C. J.
1909

SawyeRt-
Massey

~v.
Bennett.

March 29. Wetmore, C.J.: — The defendant Bennett, on the
10th May, 1902, entered into an agreement with the Canadian
Pacific R.W. Co., by which the company agreed to sell to him
and he agreed to purchase from the company the south-west
quarter of 17-19-26, west of the 2nd, he pa3dng $119.85 do\\Ti
and agreeing to pay $100 on the 10th day of May in each year,
beginning 1904 and ending 1912, with interest at 6 per cent, upon
all payments in default. This agreement contained several
covenants upon the part of the purchaser, as, for instance, among
others, that all improvements placed upon the land should remain
thereon and not be removed or destroyed until final pa3rment;
that he would pay the taxes and assessments imposed upon the
land for improvements; that he would cut no timber therefrom
except a sufficient quantity for fuel and fencing for necessary
use thereon and for buildings to be erected thereon; and that
he would, within a year from the date of the agreement, settle
his family upon the land and break up at least one-sixteeuth of
it, or, in lieu of such breaking, erect a substantial fence around
it to the satisfaction of the company's land commissioner; and
that he would furnish satisfactory proof to the commissioner of
such settlement and breaking or fencing T^ithin one year; and
it further provided that if the purchaser or his legal representa-
tives or assigns should pay the monies agreed to be paid pimc-
tually and perform all conditions provided, then he or his ap-
proved assignee would be entitled to a deed of the premises in
fee simple, and then it went on to provide certain remedies that
the company might have if default was made in the payments
and conditions of the contract, and then the. agreement contained
the following clause: —

''No assignment of this contract shall be valid imless the same
shall be for the entire interest of the purchaser and approved
and coxmtersigned by the commissioner of the land department
or other duly authorized person, and no agreement or conditions
or relations between the purchaser and his assignee, or any other
person, acquiring title or interest from or through the purchaser,
shall preclude the company from the right to convey the premises
to said purchaser, on the surrender of this agreement and the
payment of the unpaid portion of the purchase money which
may be due hereunder, unless the assignment hereof be approved

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SASKATCHEWAN LAW REPORTS.

Sawybr-
Masset

Benneit.

and countersigned by the said commissioner or other person as w^tmore, c. j.
aforesaid." 1909

The Massey-Harris Company were the collecting agents of
the plaintiff company in that part of the then North- West Terri-
tories which now forms the Province of Saskatchewan. The
maimer of collecting was that the Massey-Harris Co., by their
agents, collected for the plaintiffs. In May, 1905, the defen-
dant Bennett wad indebted to the plaintiffs in the sum of $3,250,
and one John D. McLeod, an agent of the Massey-Harris Co.,
went out to endeavour to make arrangements for obtaining the
payment of the claim or for further security therefor. This
resulted in Bennett, by an instrument dated the 26th May, 1905,
transferring the quarter-section in question to the plaintiffs. This
instrument alleged that Bennett was registered owner of an estate
in fee simple in possession in the quarter-section of land in ques-
tion, and professed to convey it to the plaintiffs absolutely. The
instrument was in form a transfer of the land as if under the Land
Titles Act (1894). This transfer came into the possession of the
plaintiffs about the end of June or 1st of July, 1905. No action
\vas taken in the matter by them until somewhere about the latter
end of August or Ist of September, 1906, when one McLean, an
agent of the plaintiffs, took the transfer to the land department
office of the Canadian Pacific R.W. Co., and left it with a clerk
in that office, requesting a statement of the amount to be paid
in order to procure a title to the plaintiffs. Hearing nothing
with respect to the matter, on the 22nd September the plaintiffs
wrcrtfe to the railway company, stating that they had heard nothing
in response to their request for a statement of the amount due.
As a matter of fact, a statement had been forwarded by the rail-
way company to the plaintiffs on the 13th September, with a
letter, which was as follows: —

"I send you herewith statement shewing the amoxmt to pay
the company's claim in full against the above land (meaning the
land in question)^ which stands in our books in the name of G. H.
Bennett. If you have acquired his interest in same, it will be
necessary for you to furnish me with assignment papers as per
attached circular. I return herewith transfer covering this land
in your favour, also blank forms."

This was signed by *'F. T. Griffin, land commissioner," and

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SASKATCHEWAN LAW REPORTS.

[vol.

Sawyer-
Massey

Bennett.

wetmore. C.J. a Statement was enclosed in that letter shewing that the amount
1909 outstanding in full as due under Bennett's agreement was $501.55,
and the transfer was also returned therewith. This letter mis-
carried, it having been improperly addressed to Moose Jaw. It
was accordingly some time late in September before the transfer
so returned was received by the plaintiffs. Some further corres-
pondence must have taken place between the parties other than
what I have mentioned, but what the character and nature of it
was the evidence does not disclose. On the 26th September
the plaintiffs wrote to the land commissioner of the railway com-
pany, stating as follows: —

"We wish to explain that we have taken over the above-
mentioned land (meaning the land in question), and will assume
payment of the balance of your account, but it may be difficult
for us to get the form of assignment that you require ns to get,
in view of the fact that Bennett at the present time is out of the
country. We obtained an ordinary transfer from Bennett a
year ag6 or more, which, of course, could not be registered, as
the title to the land stands in the name of your company. We
shall be glad to know if there is any way by which the transfer
can be substituted for the assignment, should it be impossible
for us to get this man Bennett to execute the regular assignment
form prescribed by your company."

And on the 27th Mr. Griffin wrote to the plaintiffs, and in that
letter stated the following: —

"I do not see how we can accept transfer in Ueu of an assign-
ment. A transfer sets forth that the transferee is the owner in
fee simple of the land covered by the transfer, and this was clearly
not the case in this instance. I suggest that you make a renewed
effort to find Mr. Bennett and have him execute an assignment,
and if this ultimately fails, I shall be glad to give the matter further
consideration."

On the 11th October the plaintiffs wrote the land conunissioner
as follows: —

"As intimated in our letter of the 27th September, we have
made another effort to secure the assignment from Bennett in
this case, but the report of a special agent we sent to Moose Jaw
for that purpose is that Bennett, as soon as he learned that the
former transfer he had executed in our behalf was not acceptable

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SASKATCHEWAN LAW REPORTS.

Sawybbt

MA88ET
V,

BENNnrrr,

by your company, went immediately and assigned his contract Wetmore, ex

and gave another transfer as well to one Annable of Moose Jaw. 1909

We submit that our transfer from Bennett, dated the 26th May,

1905, takes priority over any subsequent assignment or transfer

that he may have given and which may be tendered to you for

filing purposes. We are prepared to pay to you the balance

owing tuider the contract according to your statement of the 7th

September, amounting to $501.55, and interest subsequent to

that date, and we are also prepared to give you a l;)ond of indemnity

in regard to any action or proceedings that may be taken in the

matter, if you will accept the transfer that we submitted to you

on the 5th September in Ueu of the regular form of assignment

that you required. We maintain that the transfer executed

by Bennett to us is Virtually a quit claim deed under the Land

Titles Act, although there are no covenants recited in the transfer.

We shall be glad to arrange the matter of indemnity through our

solicitors, Messrs. Aikins, Robson, Loftus & Coyne, at a^y time,

and will close up the transaction with you and pay off the balance

owing under the contract.

"We might also state that we have sent forward a caveat for
registration to the registrar, Regina, to prevent any dealing with
the land until the questions at 4ssue are satisfactorily arranged.

"We called on your soUcitors, Messrs. Tupper, Gait, Tupper &
McTavish, with reference to the matter, and intimated to them
that we would file a caveat against the land in the meantime,
until an amicable adjustment of matters was arrived at.

"Kindly let us know by return mail if you will now accept
our cheque for the balance owing under the contraict made by
Bennett, and we will surrender to you the transfer from Bennett
to ourselves, and also obtain the usual certificates required from
the registrar. Land Titles Office, Regina."

And they also wrote a letter of the same date to Messrs. Tupper,
Gait, Tupper & McTavish, whom, I presume, were the solicitors
for the railway company, as follows: —

"As intimated to you on the 10th inst., we forwarded to the
registrar. Land Titles Office, Regina, a caveat for registration
against the lands referred to in contract No. 18806. We enclose
you herewith a copy of our letter to-day to the land commissionef,
and- we wish to state that we are now prepared to give any in-

7 — VOL. II. 8.L.B.

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[vol.

Sawtbr-
Masset

17.

BENNirrT.

wetanore. C.J. demnity that may be required by the department, as intimated
1909 to Mr. Griffin, upon the transfer from Bennett to ourselves being
accepted, and will pay ofif the balance owing under the contract,
and furnish the usual certificates required, and pay the incidental
costs attending same.

"We submit that the department had notice of our transfer
first, and as the transfer executed in our favour is dated and
executed on the 26th of May, 1905, we maintain that it will take
priority over any subsequent assignment or transfer that may
be executed by Bennett, who has absconded or is about to abscond
from the country."

On the same date, the 11th October, Mr. Griffin, in reply to
the letter to himself, wrote as follows : —

"Under the circumstances of the case I ^sh you would return
to me the transfer executed by Bennett in your favour, together
with abstract and certificate and the original contract, and I will
again submit the papers to our solicitors, together with your
present letter, and advise you later as to whether or not the trans-
fer can be accepted."

On the 16th October the plaintiffs returned the transfer from
Bennett to them to Mr. Griffin by letter of that date, stating also
that the registrar had not yet forwarded the abstracts of title,
and that they would be glad to hear from Mr. Griffin "as soon
as the solicitors are prepared to report," and stating that they
would deposit with him the amount required to pay the contract
off any time he might say; and on the 22nd October Mr. Griffin
wrote the plaintiffs, enclosing this transfer, and stating: —

"I return herewith transfer from George F. Bennett to your-
selves. I find that a satisfactory assignment from Mr. Bennett
to Malcolm John MacLeod of Moose Jaw, Sask., has been filed
here, and has been formally approved, and contract, with approval
endorsed thereon, has been handed to Mr. MacLeod."

The practice in the office of the railway company with respect
to transfers of their land contracts to other persons was to require
an assignment, to which the assignee was a party, and bound
himself to perform the co\'enants in the original contracts to be
performed on behalf of the purchaser. No such covenant or
agreement had been given on the part of the plaintiffs to the rail-
way company, and it also appeared in evidence that, under advice

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SASKATCHEWAN LAW REPORTS.

Sawybr-
Masset

Bennett.

of their counsel, the approval of the assignment by Bennett tp wetmore, c.J.
the plaintiffs was also refused on the ground that the transfer to 1909
the plaintiffs set forth a false statement, namely, that Bennett
was the owner in fee simple of the lands in question. The com-
pany distinctly refused to assent to the transfer or assignment —
whatever it may be called — from Bennett to the plaintiffs. It
will be observed that the plaintiffs delayed a very great length
of time in making application to have the assignment to them
Improved of by the railway company, and the railway company
threatened Bennett with proceedings to enforce their contract.
I do not know that this latter fact is very material, but I draw
attention to it in passing.

Up to this point I am unable to find that the railway company
had done anjrthing to waive the provision in their contract re-
quiring an assignment thereof to be approved by their commis-
sioner before it became valid. It was uiged that the sending
in a statement of the amount due was a waiver of that provision.
I am xmable to come to that conclusion. This was done at the
request of the plaintiff, and with that statement they returned
the transfer. I am of opinion that the railway company never
intended, by handing that statement in or by any of their corres-
pondence, to waive their right to have the assignment approved,
and that, I think, is accentuated by the fact that they so returned
the transfer.

Along about the 15th June, 1906, John D, McLeod went to
Bennett's place for the purpose of obtaining payment of or securing
a claim which the Massey-Harris Co. had against Bennett. The
result was that Bennett executed an assignment to that company
of the contract with the railway company. This instrument was
not under seal. It purported, upon its face, to be an absolute
assignment of the contract and of all benefits thereunder. After
this assignment was executed, John D. McLeod and Bennett pro-
ceeded to discuss the indebtedness to the Massey-Harris Co. and
Bennett's interest in the land in question, and it was verbally
agreed between them that McLeod should endeavour to procure
a purchaser for the land, and out of the purchaser's money the
claim of the Massey-Harris Company should be paid, and that
SI ,000 should be paid to Bennett, and that J. D. McLeod should
have what remained from the proceeds of the sale for his own bene-

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[vol.

Wetmore, C.J.
1909

Sawyer-
Masset

Bennett

fit. Evidently the intention, so far as McLeod and Bennett
were concerned, was to abandon the assignment to the Massey-
Harris Co. John D. McLeod took the assignment to the Masaey-
Harris Co. to Regina, and acquainted Johnson, the collection
agent of the company, and Forsythe, the manager of the com-
pany at Regina, with what he had done. The agents of the
company raised no objection. John D. McLeod made efforts to
secure a purchaser, but without success, until he approached the
defendant Malcolm J. McLeod, who agreed to purchase for $2,400,
and John D. thereupon proposed that the Massey-Harris Co.
should, under the assignment to them, execute an assignment
to Malcolm J. McLeod, as it would avoid his travelling out again
to see Bennett, and he prepared such an assignment for them
to execute, but was informed (which was evidently quite correct)
that an assignment by the company would have to be under their
seal, and it would involve the necessity of sending the documents
to the place where their seal was kept for execution, and the idea,
therefore, of getting the assignment to the purchaser made by
the Massey-Harris Co. was abandoned. John D. thereupon
procured an assignment of the contract to be made by Bennett
to Malcolm J. McLeod, who paid the amotmt agreed to be paid
to the Canadian Pacific R.W. Co., in so far as their claim was con-
cerned, in cash, to the extent of the amount due, retained sufficient
from the purchase money to pay the balance of the amoimt that
might become due imder the contract, and gave notes for the
balance to John D. McLeod. So, therefore, in so far as Malcolm
J. McLeod is concerned, he has paid or secured the whole amount
that was payable in respect to the assignment of the contract to
him.

Down to this point I hold that there was no fraud, actual or
constructive, on the part of Malcolm J. McLeod in connection
with this assignment. John D. McLeod was not his agent in any
sense whatever. If he was the age'nt of any person at all, he
was Bennett's agent. As a matter of fact, I find that he was
acting in the matter entirely on his own behalf. Malcolm J.
McLeod purchased the right to the assignment from John D.
McLeod, and in securing the assignment John D. McLeod in no
sense whatever acted as the agent of Malcolm J. Malcolm McLeod
had no knowledge of the assignment to the Sawjrer-Massey Co.,

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101

Sawykr-
Massey

Bennett

and I see nothing in the evidence to charge him with either actual wetmoro. c. J.
or constructive notice of that assignment. 1909

Having procured the assignment to Malcolm J. McLeod, it
became necessary to obtain the approval of the railway company,
and here fraud and criminal acts were imquestionably perpe-
trated. But the fraud, in my opinion, was upon the Canadian
Pacific R.W. Co. The company required, as I have already
stated, that an assignment of the character in question should
be executed by the assignee, as well as by the original purchaser
of the land. Malcolm J. never executed the assignment in ques-
tion. John D., without any authority whatever, put his name
to it, and deliberately swore to the execution of the instrument
by Malcolm before a conmiissioner .for taking oaths. So the
signature by Malcolm to that instrument was a forgery, and the
aflSdavit of execution was false. I say the signature of Malcolm
was a forgery, because it was done with the intent to lead the
railway company officials to beUeve that Malcolm had really
signed it, and so to induce them to approve of the assignment to
him. For some reason or other, apparently, the railway com-
pany required that Bennett's copy of the original contract of
sale between them and him should be produced. It was not
produced, and John D. McLeod, thinking it necessary that the
non-production of it should be accounted for, prepared a solemn
declaration, purporting to be made by Malcolm J. McLeod, setting
forth that he was the purchaser of the assignment, and that he
had lost the purchaser's copy of the original contract, and that
there was no assignment endorsed on such contract, and that
he had not delivered it to any person for any purpose whatever.
John D. McLeod, without any authority, affixed Malcolm J.
McLeod 's name to this declaration, and then signed a certificate
in his own name, as commissioner for oaths, that the declaration
had been made before him by Malcolm. I hold both these acts
to be criminal acts and therefore fraudulent. John D. McLeod
obtained an approval of the assignment of the contract of sale
from Bennett to Malcolm J. Had it not been for these fraudulent
documents to which I have referred, such approval would not
have been granted. There was, to my mind, therefore, a clear
fraud with respect to the Canadian Pacific R.W. Co. I entirely
acquit Malcolm J. McLeod of being an actual party to these f raudu-

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[vol.

Sawter-
Mabsey

Bennett.

Wetmore, C.J. fent and criminal acts — ^he knew nothing about them. Never-
1909 theless, John D. McLeod, in endeavouring to procure an approval
by the company to this assignment to Malcolm J., was acting
as his agent, and Malcolm must take the consequences of his agent's
acts. But the difficulty I have is in coming to the conclusion
that the plaintiffs have any locus standi to avail themselves of
that fraud. The Canadian Pacific R.W. Co. had refused to recog-
nize them as assignees; they had been informed of that fact, and,
according to the regulations of the railway company in such
matters, the plaintiffs were not in a position to have the assign-
ment to them recognized. In taking an assignment from Bennett
they must take it subject to the provision, which I have above
quoted, requiring the approval of the conmiissioner of their land
department to render it valid. Consequently, as between the
company and the plaintiff, the assignment by Bennett was invalid
unless it was so approved by the company's conmiissioner (what-
ever the plaintiffs' rights may have been as between them and
Bennett), provided, of course, that that clause is good and valid
in law and equity. And if it is valid, it seems to me that the
company would not be bound to give any reasons for not ap-
proving the assignment of the plaintiffs, and, in so far as Malcolm
J. McLeod is concerned, the company having refused to approve
of the assignment to the plaintiffs, and having approved the
assignment to Malcolm J., this last-mentioned assignment is good,
especially as he (Malcolm J.) was not guilty of any fraud in pro-
curing the assignment from Bennett, and had no notice of the
assignment by Bennett to the plaintiffs. I may state that I find
that the railway company had knowledge of the assignment to
the plaintiffs before they approved of the assignmefat to Malcolm
J. McLeod.

We are now brought to the question, is this a valid clause in
the original agreement of sale? It is contended that it is a restraint
upon alienation and against the policy of the law. It would seem
that at common law there may be a restraint upon alienation
under certain circumstances and to a certain extent. Jessel,
M.R., in In re MacLeay (1875), L.R. 20 Eq. 186, 44 L.J. Ch: 441,
32 L.S. 682, deals with the subject, and lie, at p. 188, lays down
the law as follows (the question in that case arose under a will):
'*The law on the subject is very old, and I do not think it can be

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SASKATCHEWAN LAW BBPOBTS.

103

Sawtbr-
Massey

Bennett.

better stated than it is in Coke upon Littleton, in Sheppard's Wetmore,c.j.
Touchstone, and other books of that kind, which treat it in the 1909
same way. Littleton says (1): 'If a feoffment be made upon
this condition, that the feoffee shall not alien the land to any,
this condition is void, because when a man is enfeoffed of lands
or tenements, he hath power to alien them to any person by the
law. For if such a condition should be good, then the condition
should oust him of all the power which the law gives him, which
should be against reason, and therefore such a condition is void.'
Then he says (2): 'But if the condition be such that the feoffee
shall not alien to such a one, naming his name, or to any of his
heirs, or of the issues of such a one, or the like, which conditions
do not take away all power of alienation from the feoffee, then
such condition is good.' So that, according to Littleton, the
test is, does it take away all power of aUenation?" And at
p. 189 he states as follows: *'Now, you may restrict alienation
in many ways. You may restrict alienation by prohibiting a
particular class of alienation, or you may restrict alienation by
prohibiting it to a particular class of individuals, or you may
restrict alienation by restricting it to a particular time." This
is the latest case that I can find on the subject, and it is referred
to with approval, apparently, by Chitty, J., in In re Elliott (1896),
2 Ch., at p. 357. Again, it is no uncommon thing to insert a
clause in a lease that the lessee shall not assign or under-let with-
out the consent of the lessor, and no person ever thinks of ques-
tioning such a provision in a lease. The reason would seem to
me to be very apparent. A landlord has the right, if he wishes
to reserve it, to say who shall, in effect, be his tenants and who
shall not, so by parity of reasoning I see no cause why a vendor
of land should not reserve to himself, while the contract of sale
remains uncompleted, the right to say or to decide who he shall
be brought into contractual relations with and in what manner
he shall be brought into contractual relations with such persons,
especially where, in a case like this, there are covenants for doing
acts other than the mere payment of the purchase money.

I have come to the conclusion, therefore, that the clause is
a valid clause, and that the company having refused to recognize
the assignment to the plaintiffs as a valid one, the plaintiffs, as
assignee of Bennett, have no locus standi to attack this transaction.

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104

SASKATCHEWAN LAW REPORTS.

[vol.

Wetmore, C.J.
1900

Sawter-
Massey

Bennett.

As I stated before, the fraud was on the Canadian Pacific R.W.
Co., and, if they desire to do so, they are at liberty to attack it.

But the plaintiffs also claim by an assignment from the Massey-
Harris Co. to them of the assignment made by Bennett to the
Massey-Hanis Co. of the 15th June, 1906. That assignment, as
I have stated before, was not under seal, and I have no hesita-
tion in holding that it was abandoned by the Massey-Hanis Co.
before it was ever assigned to the plaintiffs — as I have also before
stated, as between John D. McLeod and Bennett, in so far as
John D. McLeod could do it, it was abandoned before it was taken
away from Bennett's house, and a new arrangement substituted.
The Massey-Harris Co.'s agents were informed of what had been
done and what was proposed to be done. They raised no objec-
tion to it. In fact, the evidence shews that they rather assented
to it, because they looked to John D. McLeod to pay them the
amount coming from the purchase money according to the arrange-
ment which he had made with Bennett. The collection agent,
Johnson, was not produced at the trial. Mr. Forsythe was, but
he does not deny what John D. McLeod has sworn to. He states
he has no recollection of it, and at the same time he will not say
that what John D. McLeod has sworn to is not true. Now, while
John D. McLeod is not a person one would be inclined to put very
much confidence in, nevertheless, when he swears to a fact of the
character which I have mentioned, and this is brought to the notice
of these people, and they will not deny it more clearly than what
is contained in the evidence of Mr. Forsythe, I have to give credit
to what he swears, and, moreover, as I have before stated, when
he had procured Malcolm J. McLeod as a purchaser, he purposed
to use the assignment to the Massey-Harris Co. as the means to
pass the assignment of the original contract to Malcolm J., and
prepared assignments with that object. These assignments were
greatly relied upon to shew, the fraud of John D. in this respect,
but, to my mind, they tend more to shew that he is telling the
truth, and the cause he gives for those assignments not having
been executed is a reasonable one. I am of opinion that the
Massey-Harris Co. had practically consented to the abandon-
ment of this assignment by Bennett to them, and that it was only
unearthed for the purpose of assisting the claim of the Sawyer-
Massey Co., with whom evidently the Massey-Harris Co. had

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SASKATCHEWAN LAW REPORTS.

105

very intimate relations. Therefore, in my judgment, the assign-
ment by Bennett to the Massey-Hams Co. does not affect this
question.

I may add that a good deal of argument was had at the trial,
and a good deal of testimony produced also, upon the subject,
namely, that the plaintiffs, by their delay in holding this assign-
ment for over a year without any effort to have it approved by
the railway company, were guilty of conduct on their part which
might reasonably lead Bennett to the conclusion that the com-
pany had abandoned the assignment, and that it was, therefore,
open to him to make such other arrangements as he might please.
I express no opinion upon that, more than to say that I think
the question is worthy of serious consideration.

The conclusion of my judgment is that this action must be
dismissed as against the defendants Malcolm J. McLeod and the
Canadian Pacific R.W. Co., and that the plaintiffs must pay their
costs of ^s action.

In so far as Bennett is concerned, he has not appeared, and
it is claimed that the plaintiffs are entitled to have the claim taken
jiTo confesso as against him. I am of opinion that that is correct,
but just what judgment can be had against him in that respect
I am not prepared to say at present. I will order the claim to
be taken pro confesso as against the defendant Bennett, with costs
as in the case of a judgment by default against him. And in so
far as any relief or further or other relief as against him is con-
cerned, the plaintiffs will be at liberty to apply for further direc-
tions.

Wetmore, C. J.
1909

Sawybr-
Masset

Bennett.

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106 SASKATCHEWAN LAW REPORTS. [vou

[TRIAL.]

1009 White v. Cusak.

March 31

Trespass — Conversion of Goods — Landlord and Tenant — Distress for Rent —
Irregular and Excessive Distress — Sale Without Appraisement — Unreason-
able Delay in Selling.

Plaintiff and one B. carried on business in partnership in premises owned bv
the wife of B. There was a verbal arrangement between B. and plaintiff
b^ which they were to become the joint owners of such premises, out the
wife of B. did not appear to have been a party to such arrangement. It
was also a part of such arrangement that the partnership should assume and
make the payments due imder a mortgage on the property. The partner-
ship was oissolved, plaintiff continuing the business. After the dissolution
defendant became the owner of the premises, and served' a notice on plaintiff
demanding rent at $20 per month, to begin from a date some months previ-
ous to the date of the notice. Plaintiff never agreed to pay anv rent, and
not iMiyii^S same defendant distrained for 8) months' rent, locked up the
premises, and after a delay of nearly three weeks sold the goods of plaintiff
and of other parties which were then on the premises, without appraise-
ment, the defendant himself buying in at a verv low price. The plaintiff
sued for damages for trespass, conversion and illegal distress : —

HMf that to give a right to distress there must be a fixed rent, and there
being no such rent fixed by agreement there was no right of distress

2. That a landlord cannot by notice fix the amount of rent to be paid unless
the amoimt is assented to or fixed by implication.

This was an action for trespass, conversion and illegal dis-
tress, and was tried before Wetmore, C.J., at Areola.
J. F. Frame, for the plaintiff.
Wm. Trant, for the defendant.

March 31. Wetmore, C.J.: — ^This action, as originally started,
was an action for trespass in seizing and taking implements the
property of the plaintiff, and excluding him from the possession
thereof, and was in form the old action of trespass de bonis aapor-
iavit. The defendants justified, setting up, among other things,
that the defendant Cusak was and had been since the 17th July,
1907, the owner of the premises on which the goods and chattels
in question w^ere situated, and that on or about 1st June, 1907,
a partnership, consisting of Horace H. Bilton and H. J. M. White,
the plaintiff — trading under the style and firm of " Bilton & White "
— became his (Cusak's) tenants of such premises at a monthly
rental of S20, and that the rent being in arrears for eight and one-
third months, Cusak issued a distress warrant to the other defen-
dant, who distrained the goods in question, and sold them to
satisfy such arrears of rent and costs of sale. The plaintiff re-

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n.] SASKATCHEWAN LAW REPORTS. 107

plied, among other things, denying that there was any rent in wetmore, c. j.
arrear or that the relation of landlord and tenant ever existed 1909
between the defendant Cusak and either Bilton and himself or ~ —
as a firm; that if the premises were so leased to the firm, or either t,.

of them, the distress was irregular and excessive, and the rent Cusak.
distrained for was not due or payable; that the goods were sold
without any appraisement; that the defendant became a pur-
chaser of a considerable portion of the goods sold, and that the
defendant neglected, after the lapse of five days, to proceed to
sell the same, but remained in possession for an unseasonable
time. I have set out the material portions of the defence. Nothing
turns on the other portions; they were all unquestionably estab-
lished in plaintiff's favour.

The replication set up what seems to be to some extent a de-
parture from the original, statement of claim. However, as no
such question as that was raised at the trial, I do not consider
it necessary to deal with it, and I will endeavour to dispose of
the questions that were really raised at such trial.

There was a good deal of contradictory evidence in this case,
and I will state only what facts I have found under the evidence.
Horace Bilton and the plaintiff were in partnership, dealing in
agricultural implements, some of which were held in the ordinary
course of dealers purchasing from the manufacturers or wholesale
dealers, and selling them, and other goods were placed in their
hands by the owners merely for sale under commission. This
business was carried on in a warehouse situated on the premises
in respect to which the rent is claimed. The partnership was
dissolved on the 27th April, 1907, Bilton retiring, and the plaintiff
continuing the business. And I call attention to the fact that
this was before the 1st June^ 1907, the time alleged in the state-
ment of defence when Bilton and White became Cusak's tenants,
and I also draw attention to the further fact alleged in the defence
that Cusak only became owner of the property on 27th July,
1907, nearly two months after it is alleged that Bilton and White
became his tenants thereof. There seems to have been a great
deal of haziness about this tenancy. Bilton went to British
Columbia for a short period, and on his return he went into the
warehouse and assisted White, for which he was paid. At the
time that Bilton and White went into possession of these premises,

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108 SASKATCHEWAN LAW REPORTS. [vol.

Wetmore.c.j. which was the same time at which they entered into their partner-
1909 ship, the real property was in the name of Maude May Bilton,
-^^j^jp the wife of Horace. There was a verbal arrangement between
V. Bilton and White by which they were to become the joint owners

of these premises. There was no evidence that Mrs. Bilton was
ever a party to this arrangement, but, in order to make the pay-
ments necessary to acquire a title, or some part of it, the partner-
ship concern were to pay the instalments falling due upon a mort-
gage made by Maude May to the Colonial Investment and Loan
Co. These payments amounted to $9.75 per month, and to
the extent of $70 payments were made on this account. It was
sworn by Bilton that there was an arrangement between him-
self and his wife by which $10 a month was to be paid as rent for
these premises, and that this $9.75 was also to be paid to the
loan company. I do not find that* this $9.75 was to be paid as
rent at all. It was to be paid, as before stated, in pursuance
of the arrangement by which the partnership concern was to
obtain the title to the property. I am unable to find that there
was an arrangement between Bilton and his wife by which a rent
of $10 a month was reserved payable to her. It is inconsistent
with the notice, hereinafter set forth, of the 17th December, 1907,
given by the defendant Cusak to the plaintiff. This property
was transferred by Mrs. Bilton to the defendant Cusak on the
20th July, 1907. The defendant Cusak is her father, and she
was living in the same house with him and had been up to a short
time before the distress was made. I do not understand, there-
fore, the defendant Cusak claiming $20 a month from the 1st
September preceding if there had been a letting by Mrs. Bilton
some months previously at $10 a month.
The notice referred to is as follows: —

,,,. T TT lic 1171 x "Manor, Sask., Dec. 17, 1907.

"Mr. J. H. M. White —

"We are instructed by Mr. John Cusak to advise you that, owing

to the fact that the loan on the building situated on lot 20, block 6,

has not been faithfully repaid, he has to chai^ge you a rent at the

rate of $20 a month, beginning with the 1st of September last,

making, therefore, an amoimt of $80 owing by you to him, and

you are hereby requested to pay same forth\^dth.

"Yours truly,

"De Tremaudan & Co."

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n.] SASKATCHEWAN LAW REPORTS. 109

This document was sent by .direction of Cusak, and appears Wetmore, c. J.
to infer that there had been no rent reserved previously, and that 1909
the defendant Cusak was fixing a rent, or endeavouring to do so, y!j^^
because the plaintiff had not kept down the payments on the v.

mortgage to the loan company. This communication was the
first intimation that White had that he was expected to pay rent.
For the same reason I cannot believe that Bilton, while he was
in the partnership, ever agreed to pay the defendant Cusak $20
a month. Again, referring to the alleged agreement to pay rent
to Mrs. Bilton, it is very extraordinary that the plaintiff never
heard of it, and that no payments appear charged in the books
of Bilton & White as having been made on accoimt thereof. The
plaintiff never agreed to pay rent; he never consented to hold
the property upon the tenns set forth in the letter of 17th Decem-
ber, and, that being so, I am not able to find any authority or
right upon the part of the defendants to distrain.

In the first place, in order to give the right to distrain, there
must be a fixed rent — either a fixed amount or an amoimt that
may be reduced to a certainty by calculation. Here there was
no fixed amount of rent. There was none agreed to, and a land-
lord cannot by writing a letter arbitrarily fix the amount of rent
which he is to receive xmless the amoimt is assented to by agree-
ment or by implication. It was not fixed in one way or the other
in this case.

It is quite probable, and, I think, more than probable, that
the defendant Cusak would have had a right of action against
the plaintiff for use and occupation, but that does not give the
right to distrain.

Having reached this conclusion, it is not necessary for me
to go any ftuther, because it seems to me that disposes of the case.

I may add, however, that the proceedings on the part of the
defendants in this case were altogether irregular. In the first
place, they distrained for eight and one-third months' rent on
a warrant issued on the 10th February. The baiUff entered
upon the premises and locked them up on the 13th February,
when there was only five months' rent due, assuming that the
arrears started from 1st September, as per letter of 17th Decem-
ber. He took no w proceedings, however, until the 2nd March,
except to keep the place locked, and kept the plaintiff out of

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110 SASKATCHEWAN LAW REPORTS. [vol.

Wetmore, c. J. possession for 17 days, without any justification or excuse what-
1909 ever, and for an unreasonable length of time, and then the bailiff
-^^j^j. proceeded. Apart from all this, under any view of the evidence,
V. the distraining for the third of a month was irregular and imlaw-

ful, because that was for a current month, and the time for pay-
ment of which had not arrived. Then the bailiff sold the property
without appraisement. He also sold a quantity of property that
was left with the plaintiff for sale under commission, and which,
imder the authorities, was not liable to be distrained. And then
the defendant Gusak purchased in a number of articles at a very
reduced price indeed, which was irregular also.

However, having held that there was no right to distrain at
all, the plaintiff is entitled to recover the whole value of the goods.
The plaintiff was kept out of possession of this property from the
13th February to the 14th March. It interfered with the busi-
ness very seriously, because it was just the time of the year when
sales ^'ere being made, and he is entitled to damages with respect
to that. The fact that he was danmified in that respect has
been proved. The value of the damage in money has not been
proved.

I therefore gi\^ judgment for the plaintiff in respect to the
property taken from him and sold for S441.15, and in respect to
the injury to his business for $300 — in all amounting to $741.15 —
with costs.

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n.] SASKATCHEWAN LAW REPORTS. Ill

[TRIAL.]
Fish v. Bryce. i»09

Trust — Crown Grant to Tmsteea — Sale by Trustee — Subsequent Conveyance to April 1.
Other Trustees — Notice of Agreement to SeU — Issue of Certificate of Title—
Effect of Land Titles Act — Application to Brin^ Under Act — Effect of
False Statement Therein— Fraud — Statule of Limitations — Time — Effect
of Fraud Upon.

By Crown grant certain lands were conveyed to trustees upon certain trusts. '

These trustees entered into an agreement to sell to the plaintiff upon de-
ferred payments. Before such payments were completed the trustees
from the Crovm conveyed to other trustees the deed containing a reference
to the sale to one C, who assigned to the plaintiff. These last mentioned
trustees made application to have the land brought under the Land Titles
Act, filing a declaration that they knew of no interests in the land other
than their own, and upon such application a certificate of title was issued.
Subsequently other trustees were appointed and a new certificate issued.
It appeared that each body of trustees had express notice of the plaintiff's
claims. The plaintiff, after the conveyance by the trustees from the
Crown, paid the balance due and secured a conveyance from the original
trustees m 1896, but on account of the title being vested in the other trustees
he could not register this transfer. The second body of trustees were
registered as owners of the land in question in 1893. The plaintiff took
no action until 1906, when he filed a caveat, and subsequently, the regis-
tered owners refusing to recosnize his claim, he broueht action for a declara-
tion that they held the lana in trust for him. AU the various bodies of
trustees were connected with and held in trust for the Presbyterian Church
in Canada, and in the original grant it was expresslv provided that the
church might at any time change the trust, but subject to all existing
rights: —

Heldf that the trustees claiming under conveyance from the trustees from
the Crown, bein^ voluntary transferees, were subject to the trusts con-
tained in the origmal grant from the Crown, which preserved rights created
by the original trustees.

2. That notwithstanding that the subsequent trustees were reostered owners
of the land, the Court imder its equitable jurisdiction could give relief to
the plaintiff if the certificate of title were obtained by fraud, and the sup-
pression of information by the applicants, when the land was brought
under the Act, as to the rights created in favour of the plaintiff, of which they
were aware, constituted fraud.

3. That under the provisions of sec. 25 of ch. 27, 3 & 4 Wm. IV., the de-
fendants were not entitled to avail themselves of the provisions of the
Real Property Limitations Act, not being transferees for value, and being
tru8t.ees.

• This was an action for a declaration that the plaintiff waa
entitled to be registered as owner of certain land of which certain
of the defendants were registered owners, and was tried before
Johnstone, J., at Prince Albert.

Jos, McKay, K.C., and H. A, RohsoUj for the plaintiff.
F. W, 0. Havltain, K.C., for the trustees from the Crown.
J. H, Lindsay, for the other trustees.

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112

SASKATCHEWAN LAW REPORTS.

[vol.

JohnBtone, J.
1900
Fish

Bryce

April 1. Johnstone, J.: — The facts in this caae, as I find
them, are that by letters patent dated the 24th day of Novem-
ber, 1884, the lands in question herein were granted by the Crown
to George Bryce, William McLaren, Rev. James Robertson, the
Rev. Hugh McKellar, and the Hon. Alexander Morris, trustees
nominated and appointed for that purpose by the General Assembly
of the Presbyterian Church in Canada, in trust and for the pur-
poses mentioned in the grant, namely, upon such trusts and for
such uses, intents and purposes, and to be occupied, sold or leased,
or otherwise dealt with or disposed of as might from time to time
be determined upon by the General Assembly of the Presbyterian
Church in Canada,- by resolution in that behalf duly passed at
any meeting thereof provided, that such lands and rents, issues
and profits thereof until sold and the proceeds thereof when sold
should be used and applied for the use of the Indian Mission of
the Presbyterian Church in Canada, or in otherwise promoting
and advancing religion and religious instruction and education
in the North- West Territories. The grant also made provision^
in the event of any of the trustees or any future trustee dying,
resigning or becoming incapable of acting, or ceasing to be a mem-
ber of the church, in full commimion with the said chureh, for
the appointment of another trustee in the place of such trustees
so dying, etc., and also from time to time for the substitution
of another trustee or trustees for any existing trustee or trustees
as the said assembly might think fit. It was provided, further,
that the said assembly might from time to time revoke, annul,
alter or vary the trusts affecting the said lands or any part thereof,
but so as not to affect any of the lands which might have been
sold or leased or the interests of any purchaser or lessee for valu-
able consideration.

Through the grant the said trustees became and thereafter
remained the owners in fee simple of the said lands so held in
trust as aforesaid up to the 25th November, a.d. 1892, on which
date the lands in question, with other lands, were transferred
by the trustees aforesaid to James McArthur, John Stewart, John
M. Campbell, James F. A. StuU, and Hugh Montgomery, all of
Prince Albert, trustees of the St. Paul's Presbyterian Church
at Prince Albert, and these transferees became the registered
owners thereof, upon the application of John Montgomery, one
of the said trustees.

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n.] SASKATCHEWAN LAW REPORTS. 113

In his application Montgomery represented there were no Johnston©, j.
documents or evidence of title affecting such land in his posses- i900
flion or under his control other than the said transfer; that he j^^
was unaware of any mortgage or encumbrance affecting said v.

land, or that any other person had any estate or interest therein
at law of in equity, in possession, remainder, reversion or expec-
tancy, and, having made such application, directed the certifi-
cate of ownership to issue to the said trustees, James McArthur,
John Stewart, John M. Campbell, James F. A. StuU, and Hugh
John Montgomery, with the words "no survivorship." The
certificate of title accordingly issued on the 17th day of January,
A.D. 1893. This certificate was subsequently cancelled, and a
new certificate. No. 9795, issued to the present defendants on the
13th Jtily, 1905, subject to the caveat lodged by the plaintiff on
the 20th day of September, 1906. This latter certificate of title
was issued in pursuance of the order of the Hon. Mr. Justice New-
lands, of the 8th day of July, 1905, whereby it was ordered that
the present defendants, Samuel McLeod, Robert T. Goodfellow,
James N. Mack, and A. C. Howard, should be registered as owners
of an estate in fee simple, no survivorship, in lieu of James
McArthur, John Stewart, John M. Campbell, and Hugh John
Montgomery. Prior to the transfer from the Crown to the trustees
of the Presbyterian Church in Prince Albert, the lots in question,
together with others, had been sold by the duly authorized agent
of the trustees from the Crown to one Courtland, of the city of
Ottawa. The fact of this sale is established by the evidence
of one Wright and from what transpired subsequently in the
dealings, between the trustees from the Crown and the then trustees
of the Presbyterian Church in Prince Albert.

Under an indenture, dated December 30th, 1891, entered
into between the trustees from the Crown and the trustees of the
church — ^namely, McArthur, Stewart, Campbell, Stull and Mont-
gomeiy — it was recited that the trustees from the Crown had
sold certain lands mentioned in a schedule annexed to said inden-
ture to the parties therein named, in which schedule appears the
name of P. S. Van Courtland as having purchased the lands in
question, together with lots 20 and 21 on the south side of Ninth
street, for the sum of $200. It also appears from an exhibit
produced at the trial, in the handwriting of Montgomery, the

8— VOL. n. 8.LA.

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114 SASKATCHEWAN LAW REPORTS. [vol.

Johnstone. J. trustec, that there was due on lots 58 and 59 (the lots in ques-
1909 tion) the sum of $26, and it further appears that at a meeting
"^IjJ^ of the members of the Presbyterian Church at Prince Albert,
V, held on the 21st January, 1891, that Mr. Montgomery and Mr.

Newlands were appointed to look after the collection of arrears
on lots theretofore sold. The indenture also contains a recital
whereby it appears some of the purchasers (referring to those
contained in the schedule annexed) had paid the purchase money,
and received conveyances of their lands from the trustees from
the Crown, and that certain other lots had been paid for in full
and the conveyance not executed to the different purchasers,
and that there were others for which the trustees from the Crown
had not been paid in full, and it was agreed, with a view of making
pro\dsion for the carrying out of the conditions of the Crown
grant in that behalf, that the trustees from the Crown should
transfer all these lots, whether sold and conveyed or sold and
unconveyed, to the trustees of the Presbyterian Church in Prince
Albert, upon the trusts that such trustees should give to the pur-
chasers who had not paid, reasonable notice to pay the balance
of the purchase money on their respective lots, and, on the pay-
ment of such balance due, should transfer to the said parties the
lots so purchased by them, and such trustees of the Presbyterian
Church in Prince Albert, in consideration of $1, by such inden-
ture covenanted, promised and agreed to and with the trustees
from the Crown and their successors and assigns that they would
well and faithfully perform and fulfil the trusts before mentioned,
and indemnify and save harmless the trustees from the Crown
and their successors, and the Presbyterian Church in Canada
as well, from all loss or damage which might be sustained by thpm
by reason of the transfer by the trustees from the Crown to the
local trustees of the lands contained in the grant from the Crown.

By a further indenture entered into in 1892 (the exact date
of which does not appear), between the trustees from the Crown
and the trustees of the Presbyterian Church in Prince Albert,
it is recited, that the trustees from the Crown, the owners of an
estate and fee simple of lands named, including the lands in ques-
tion herein, did by authority and pursuant to the direction of
the said General Assembly, by transfer dated 2nd day of July,
A.D. 1891, transfer all their estate and interest in such lands to

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the trustees of the Presbjrterian Church at Prince Albert; that Johnstone, j.
long prior to the date of this transfer the lands referred to had 1909
been sold; that it was agreed, in consideration of the transfer T^
by the trustees of the Crown to them by the trustees of the Presby- _ v.
terian Church in Prince Albert, that they should give to the several
purchasers or their representatives reasonable notice to pay the
balance of the purchase money and interest, and upon such pay-
nient transfer the lots to such purchasers, and indemnify and
save harmless the trustees from the Crown. This further docu-
ment was, it is to be presumed, entered into because of the sup-
posed loss of the previously mentioned indenture.

Evidence was given at the trial that the indenture first re-
ferred to, together with the schedule attached, was in the hand-
writing of Mr. Newlands, one of the persons named in the resolu-
tion of January 21st, 1891, and that Mr. Hugh Montgomery, one
of the trustees who signed both declarations of trust, was the
other person mentioned in such resolution. The trustees, there-
fore, of the Presbyterian Church in Canada had express notice
of the sale of the lands in question to Van Courtland.

In the summer of 1896 the interest of Van Courtland in the
lots in question was soH by one Tait, the duly authorized agent
of Van Courtland, to the plaintiff, who paid the balance of the
purchase money due thereon and interest to H. W. Newlands
referred to, who prepared a transfer of such lots from the trustees
from the Crown to Fish, which was afterwards executed by the
then trustees of the Presbyterian Church in Canada — Bryce,
McLeod, Robertson, Cassells, and McKellar. This transfer was
handed to Fish in October, 1896, and has ever since been in his
possession.

The defendants the local trustees having refused to recognize
this transfer or to in any way give effect to the sale made to Court-
land, Fish lodged the caveat hereinbefore mentioned, and brought
this action, alleging that, prior to the year 1893, the said trustees
from the Crown had entered into an agreement to sell to one Van
Coxirtland, for a stated price, lots 58 and 59 in range 5, in river
lot 78, in the Prince Albert settlement, being portion of the lots
referred to in the grant from the Crown; that the interest of Van
Courtland in such lots had been transferred to the plaintiff, who
had paid the balance of the piu'chase money due to the said trus-

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Bryce.

116 SASKATCHEWAN LAW REPORTS. [vol,

Johnstone, J. tees from the Crown, who in due course executed and delivered
1909 to the plaintiff a transfer of the said lands in the form prescribed
~ hy the Land Titles Act, 1894; that in 1893 Bryce and his co-
defendants, notwithstanding their said contract with the said
Van Courtland, transferred the lands to the defendants Stull and
others, the then trustees of the congregation of the Presbyterian
Church, Prince Albert, voluntarily and without consideration,
and that the said last-named trustees procured such instrument
of transfer to them to be registered in the land titles office, and
a certificate of title to the said lands to issue, which title had been
transmitted to the present trustees, McLeod, Mack, Howard,
and Goodfellow, and who now hold a certificate of title to such
lands; that such trustees at all times knew of the interest of Van
Courtland and the plaintiff in the lands, and the defendants, in
fraud of the plaintiff, claim to own the said lands and to hold the
same free from any estate or interest of the plaintiff-

The defendants the trustees from the Crown denied the making
of the agreement with Van Courtland and that Van Courtland
had assigned to the plaintiff; and, further, claimed the full amount
of the purchase price agreed to be paid had not been paid, and,
in the further alternative, that if they did execute the transfer,
that it was executed as an escrow to take effect upon pa)niient
of the purchase money to the trustees entitled to receive the same.
The other defendants, the local trustees, denied the allegations
contained in the statement of claim, and claimed to be purchasers
for value and without notice. These defendants also set up the
Real Property Limitations Act of 1874.

As to the defence of the defendants the trustees from the
Crown, I have already foimd as a fact that such trustees, through
their duly authorized agents, did sell the lands in question to
Van Courtland, and that Van Courtland assigned the same to the
plaintiff, and that the plaintiff paid the balance of the purchase
money and received a transfer of the lands in question from the
said defendants. There was no evidence whatever offered by
the defendants in proof of defence that the transfer was delivered
as an escrow. This portion of the defence was practically aban-
doned at the trial.

As to the other defendants, the local trustees, these are, in
my opinion, in the same position as if they had received the lands

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' directly from the Crown — ^that is,, as far as the carrying out of Tohnstone. j.
the trusts imposed were concerned. The Presbyterian Church 1909
in Canada (the cestui qui trust) is the body; the trustees, both "p^
the trustees from the Crown and the local trustees, are tentacles v.

of that body, and subject to the will and control of the body, and
the lands, whether in the hands of the trustees from the Crown
or in the hands of the trustees of the Presbyterian Church of Prince
Albert, were subject to the trusts contained in the grant from
the Crown, and the lands could not be dealt with by the church
or its trustees, the defendants, in a manner inconsistent with the
grant.

The defendants the trustees of the Presbyterian Church of
Prince Albert, at the time of the transfer to them by the trustees
from the Crown, had full knowledge of the sale to Van Comtland,
and of the trusts upon which the lands were granted by the Crown,
and, with this knowledge and in fraud of the plaintiff, obtained
the certificates of title mentioned to the lands in question to issue.
Furthermore, such defendants are not purchasers for value, but
voluntary transferees, and the certificates so issued are subject
to be declared void and to be cancelled for two reasons — one, for
the reason it was obtained fraudently within the meaning of the
provisions of the Land Titles Acts, and the other because the
trustees were transferees subjected to the burden of carrying
out the trusts contained in the original grant from the Crown.
A declaration cancelling the present certificate of title as to the
lands claimed by the plaintiff, and constituting the defendants
the local trustees trustees for the plaintiff, or ordering them to
convey to the plaintiff, would only be to give effect to the con-
veyance from the Crown.

It was provided by sec. 130 of the Territories R«al Property
Act, an Act in force in 1892, as follows: "Nothing contained in
this Act shall take away or affect the jurisdiction of any com-
petent Court on the ground of actual fraud, or over contracts
for the sale or other disposition of lands or over equitable interests
therein." The procurement of an unqualified certificate of title
by means of suppressio veri is a fraud: RochefovcAuld v. Boustead
(1897), 1 Chy., at 206, 66 L.J. Ch. 74, 75 L.T. 502.

As to what constitutes fraud within the meaning of the Land
Titles Act see Biggs v. McAllister, 14 S.A.L.R. 86 (affirmed

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118 SASKATCHEWAN LAW REPORTS. [vol.

Johmtone. J. in appeal, McAUiater v. Biggs, 8 A.C. 315), and Eaglson
1909 Land Transfer Act of 1890, pp. 282 et seq.; Hogg A.T.S., pp. 834

V. As to the relief which may be granted. There is no distinction

between a proprietor who has got on the register by fraud and
one who has got there under a voluntary transfer as against the
rightful owner. In either case the registered owner may be de-
clared a trustee for the rightful owner. Where land was brought
imder the Act by means of fraudulent representations, and the
true owner proceeded against the registered proprietor before
he had dealt in any way with the land, the latter was ordered to
transfer the land to the true owner: Ogle v. Aedy (1887), 13 V.L.R.
461. A transfer to a mere volunteer, who thus becomes the
registered owner, will not avail against the rightful owiier: Chondey
V. Firebrace (1879), 5 V.L.R. 57; NeiU v. Lindsay (1879), 13
S.A.R. 196. It was laid down in Solicitor-General v. Mere Tir^i
(1899), 17 N.Z.R. 773, that the statute was not passed for the
purpose of enabling a person, not being a purchaser for value
and in good faith, to retain the estate without right or title merely
because he happens to be entered upon the register as owner of
such estate. See also Messer v,.GiM>8 (1891), A.C. 248. These
cases, with others, are referred to in Hogg on the Australian Torrens
System, at p. 825 and following pages. See also Maasey v. Oibson,
7 Man. R. 172; Oniario Bank v. McMicken, 7 Man. R. 218;
JeUet V. WUkie (1895), 2 Terr. L.R. 133.

As to the defence xmder the Real Property Act, 1874, I think
the case clearly comes within sec. 25, ch. 27, of 3 & 4 Wm. IV.
This section reads as follows: —

''Provided always and be it further enacted that when any
land or rent shall be vested in a trustee upon any express trust,
the right of such trust, or any person claiming through him, to
bring suit against the trustee or any person claiming through him
to recover such land or rent, shall be deemed to have first accrued
to the meaning of this Act at and not before the time at which
such land or rent shall have been conveyed to a purchaser for a
valuable consideration, and shall then be deemed to have accrued
only as against such purchaser and any person claiming through
him.

In my judgment, the defendants, Samuel McLeod, James

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119

Fish

Brycb.

Black Hack^ Arthur Charles Howard, James F. A. Stull, and Johnstone, J.
Robert T. Goodfellow, should be and they are hereby declared, 1909
trustees for the plaintiff of the lots in question herein, such defen-
dants to execute a transfer to the plaintiff thereof, and in default
a formal order to issue for cancellation of the present certificate
of title to such lots, and the issue to the plaintiffs of a new certifi-
cate of title.

The plaintiff will be entitled to his costs of this action. There
will be no order as to costs as between the defendants the trustees
from the Crown and the local trustees.

[COURT EN BANC]

Mah Po v. McCarthy.

Landlord and Tenant — Lease for Years — Repair of Premises by Landlord —
Tenani Out of Possession During Repairing— -Right of Landlord to Rent
During Such Period — Consent of Tenant — Distress for Rent — What Con-
stitutes—Detention of Goods.

Plaintiff leased certain premises from the defendant for a period of three ^ears,
and carried on business therein. The premises being out of repair the
plaintiff complained to the defendant of the condition of the premises,
and the defendant thereupon proposed that the plaintiff vacate the premises
for about one month and that he would then have the necessary repairs
made. To this the defendant agreed and moved out. The repairs were
not completed until after about two and one-half months, and the plaintiff
ultimately told the defendant he would not continue in the occupancy of
the premises, and the defendant thereupon re-let them. When the plaintiff
vacated the premises he left a range tnereon. and this he demanded from
the defendant, who refused to give it up until the rent for the two months
during which the repairs were beine made was paid. The plaintiff there-
upon sued for detention, and the defendant counterclaimed for the rent.
Tne learned trial Judge found for the plaintiff and dismissed the counter-
claim. On appeal: —

Heldf that the plaintiff having vacated the premises at the request of the
defendant without an^ compulsion, and apparently without any objection,
the dispossession durmg the period in which the repairs were being made
did not amount to an eviction, and in order to effect a siispension of rent
the dispossession must amount to an eviction, and therefore the defendant
was entitled to rent during such period.

2. That even if the language used by the defendant were sufficient to con-
stitute a seizure for rent, he had not praved that such seizure was made
between sunrise and sunset, and as the onus was upon the defendant to
prove that the seizure was lawfully made, which had not been done, the
plaintiff was entitled to recover on the claim for detention.

This was an appeal by the defendant from the judgment of
Newlands, J., allowing the plaintiff's claim for detention, and

En Bang.
1909

April 7.

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120 SASKATCHEWAN LAW REPORTS. [vol.

EnBahc. diamiming the defendant's counterclaim for rent due, and was
1^^ heard by the Court en banc (Wetmore, C.J., Prendergast, John-
Mah Po stone and Lamont, JJ.) on February 25th, 1909.

McCabtht. /. A. AUan, for the defendant (appellant) : The present case
differs from BuddScott v. Danid (1902), 2 K.B. 351, in that in
that case the tenant was compelled to vacate the premises, while
here the plaintiff requested that the repairs be nuide, and moved
out of his own accord. It is not necessary that the tenant should
expressly assent to the entry by the landlord. Such an entry
may be inferred by conduct: Fergusson v. Troop (1889), 17 S.C.R.
527. He is not excused from paying rent if he voluntarily vacate
the premises to permit repairs: Surplice v. Famsworthy

7 M. & G. 576; Wood v. Pope, 6 C.P. 782; Bud v. Clifford,

8 T.L.R. lOS; Am. & Eng. Enc, 2nd ed., vol. 18, p. 231.
Rent being in arrears, the landlord was entitled to distrain for
arrears of rent upon all goods fotmd on the premises: Fawcett on
Landlord and Tenant, p. 245. Notice is not necessary before
distress is made: Gillingham v. Gvjyn, 16 L.T. 640.

C. E, D, Wood, for plaintiff (respondent): A covenant for
quiet possession is implied from the mere relation of landlord and
tenant: BuddScott v. Danid, 71 L.J.K.B.D. 708, which case is
on all fours with the present, and shews that rent is suspended
while the tenant is out of possession while repairs are being made.
The right to rent being suspended, there was no rent due under
which the defendant could justify detention of goods imder dis-
tress.

April 7. The judgment of the Court was delivered by Lamont,
J.: — This appeal, on the argument, simmered down to two ques-
tions, namely: (1) Was the plaintiff liable for the rent during
the period in which he was deprived of possession of the demised
•premises, while the defendant made the necessary repairs; and
(2), if so, was the defendant entitled to hold the range for the rent.

As to the first question, the learned trial Judge found as a fact
that the plaintiff moved out at the defendant's request to allow
him to make the repairs needed. This fact being proved, does
it work a suspension of the rent for that period? The learned
trial Judge, on the authority of BuddScott v. Daniell (1902), 2 K.B.
351, 71 L.J.K.B. 706, 87 L.T. 392, has held that it did. As I read

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that case, it hardly goes so far as to support the proposition that
a tenant is not liable for rent during the time he is out of occu-
pancy of the premises at the landlord's request, while the landlord
repairs. Budd-Scott v. Danidl was a case in which a fur-
house was let for a year. In the agreement there was,
as in the present case, no express covenant for quiet enjoyment.
By a private Act of Parliament the landlord was bound, during
the year, to paint the outside of the house. Under pressure
from the landlord or her agent, the tenant consented to the paint-
ing being done. The painting necessitated the vacating of the
premises by the tenant for about a fortnight. At the expiration
of the tenancy the landlord sued for dilapidations, and the tenant
counterclaimed for damages for breach of the implied covenant
for quiet enjoyment. The Court held that where there is a letting,
a covenant for quiet enjoyment is implied from the relationship
of the parties, a;nd that the landlord, by doing the painting during
the term, had deprived the tenant of the possession of the house
for that time, and the tenant was therefore entitled to damages.
A breach of the covenant for qiiiet enjoyment, however, although
entitling a tenant to damages, does not, in my opinion, neces-
sarily work a suspension of the rent, even although the damages
to be allowed would at least equal the amoimt of the rent. To
work a suspension of the rent, the acts of the landlord must amount
to an eviction in law. See Ferguson v. Troop (1889), 17 S.C.R.
527, where Gwynne, J., says, ''If there was no e\action, there
was no suspension of the rent as reserved by the lease and payable
by the tenant." In Upton v. Tovmend (1855), 17 C.B. 30,
Williams, J., says: "There clearly are some acts of interference
by the landlord with the tenant's enjoyment of the premises which
do not amount to an eviction, but which may be either mere acts
of trespass or eviction, according to the intention with which
they are done. If those acts amount to a clear indication of
intention on the landlord's part that the tenant shall no longer
continue to hold the premises, they would constitute an evic-
tion." In Ferguson v. Troop^ supra^ Ritchie, C.J., states the law as
follows: **If the subsequent acts of interference with the tenant's
rights rendered it incompatible for him to hold according to the
terms of his demise, and those acts were done with the intention
of not permitting the tenant to enjoy for the time being the premises,

EiT Banc.
1909

Mah Po

McCartht.
Lamont, J.

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En Banc.
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Mah Po

McCarthy.
Lamont, J.

as he was entitled to enjoy them, and they were of a serious and
continuous character, then they would, in my opinion, amount
to an eviction, because the tenant would thereby be deprived of
the occupation of the thing demised, and there would be a sub-
stantial interference in the enjoyment of the premises by the
tenant, whereby he would be deprived of the perfect and con-
venient use of the subject matter of the demise, so as to entitle
him to say he had not had the enjoyment of that to which be
was entitled,"

Bell's Law of Landlord and Tenant, at p. 231, reads: — ''It is
an eviction in law, if the lessor, without the consent of the lessee
and against his will, enters on the demised premises and turns
him out and keeps him out of possession. It is not necessary
that there should be an actual expulsion from the whole or part
of the premises to constitute an eviction. It is sufficient to shew
any act of the landlord, of a continuing character, by which the
tenant is deprived of the use and enjoyment of the demised
piemises."

In Newby v. Sharpe (1878), 8 Ch.D. 39, 47 L.J.Ch. 617, 38
L.T. 583, Thesiger, L.J., says: ''It is a mistake to suppose that a
temporary trespass by a landlord, unaccompanied by any inten-
tion to put an end to the tenancy, is an eviction. ... A
trespass by the lessor will be no suspension of the rent." See also
Foa's Law of Landlord and Tenant, 3rd ed., pp. 152-3.

To amount to an eviction, therefore, which will work a sus-
pension of the rent, the interference by a landlord of his tenant's
right to the quiet enjoyment of the demised premises must be
something more than a mere trespass, involving a temporary
dispossession for the purpose of making repairs. The disposses-
sion to constitute an eviction must be without the tenant's con-
sent, and must be an act of a continuing character, done with
the intention of depriving the tenant of the enjoyment of the
whole or a portion of the demised premises. This intention is
always a question of fact to be decided by looking not merely
at the act of entry, but at all the circumstances of the case and
the intention with which the entry was made: Foa, at p. 153.

The facts of the case, as found by the trial Judge, shew that
the plaintiff went out at the request of the defendant. There is
no finding as to any intention on the part of the defendant to put

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123

an end to the tenancy. On the evidence, I do not think ""any
such intention can be found. The plaintiff had been complaining
that water was coming through the ceiling and injuring his goods.-
The defendant agreed to make the repairs, and requested the
plaintiff to move out, and the plaintiff did so, to allow the neces-
sary repairs to be made. These were to be completed in about
a month, but were not finished until some considerable time later.
During this* time the plaintiff was in and out viewing the repairs,
and on March 1st he went back to take possession, but the building
was not then finished. A short time later he told the defendant
he would not go back, and that he could re-let the premises. Under
these circumstances, I do not think the dispossession of the plain-
tiff amounted to an eviction, consequently there was no suspen-
sion of the rent until the premises were re-let.

The defendant's coimterclaim, therefore, for two months' rent
should be allowed.

As to the rent claimed from March 20th to March 31st, I am
of opinion that this should not be allowed. The defendant re-let
the premises on March 20th, and the tenant went into posses-
sion, although his rent did not begin until April 1st. The re-
letting of the premises put an end to the plaintiff's tenancy, and
the relation of landlord and tenant thereupon ceased.

While, in my opinion, the circumstances of this case shew
that there was no eviction, and therefore no suspension of the
rent, yet under Budd-ScoU v. DaniM it seems to me that a tenant
under the circumstances of this case might possibly be entitled
to damages for breach of the implied covenant for qiiiet enjoy-
ment, at least for being kept out of possession for a period much
longer than the repairs were to take. As, however, there was
no claim made in the pleadings for these damages, they cannot
be given on this appeal, and it is therefore imnecessary that I
should express any decided opinion on the point.

As to the range. There being rent due, the defendant was
entitled to distrain. It was contended, however, on behalf of
the plaintiff, that he did not distrain, and that until he did dis-
train he had no right to hold the range. The evidence shews
that the defendant made no formal seizure. All that took place
was this: the plaintiff went to him and said, '*I want my 'stuff,' "
to which the defendant replied, "You pay the rent," and then

Ex Banc.
1009

Mah Fo

McCarthy.
LamoDt, J.

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Mah Po

McCarthy.
Lamont, J.

refused to let him have the range. Is this a sufficient distress
to entitle the defendant to hold the range?

A distress for rent, even if the language used be sufficient to
constitute a seizure, must be made in the da3rtime; that is, be-
tween sunrise and sunset, and (subject to a few exceptions) on
the premises out of which the rent issues, otherwise the distress
is illegal: Bell's Law of Landlord and Tenant, pp. 266 & 273.
There is nothing in the evidence to shew where the 'above con-
versation took place, nor that it took place between sunrise and
sunset, and as the onus of proving that he was entitled to retain
the range is on the defendant, I hold that he has not shewn him-
self to be so entitled. It was also argued that as landlord the
defendant was entitled to hold the range without distraining at
all. I cannot find any authority for this proposition. The
appeal, so far as the range is concerned, should be dismissed.

The judgment of the learned trial Judge should therefore, in
my opinion, be varied by allowing the defendant, on his coimter-
claim, two months' rent. In all other respects the appeal should
be dismissed.

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n.] SASKATCHEWAN LAW REPORTS. 125

[COURT EN BANC]
Reeves v. Konschur.

En Bang.

Transfer of Land by Way of Security — Assignment of Mortgage Thereon to 1909

Owner of Fee — Effect of — Merger — Intention of Roistered Owner when

Taking Assignment of Mortgage — Effect of Land Titles Act — Equitable April 7.
Jurisdiction of Court to Relieve — Res judicata.

Defendant Konschur was the re@stered owner of a half section of land, subject
to a mortgase to the Mutual Xife Assurance Co., a second mortgage to the
plaintiff, ana an execution recovered at the suit of the defendant Riddell.
The assurance company began to foreclose, and to protect her claim under
the execution the defendsuit Riddell paid ofF the company, taking an
assignment of the mortgage and securing a transfer of the fee simple from
the defendant Konschur, who at the same time signed a memorandimi
acknowledging his indebtedness to her in respect of the amount advanced
to pay off the mortgage. The assignment of the mortgage was then regis-
tered and indorsed on the title. On the same date she also re^tered the
transfer; whereupon the registrar issued a new certificate without any
memorandimi of the mortgage transferred to Riddell, holding that the
mortgage upon registration of the transfer merged in the fee simple, or was
extinguished by the transfer. On the question being referred to the Chief
Justice under the Land Titles Act, he neld. on the e\ddence then before
him, which was simply the documents in the registrar's possession, that
the re^pstrar had acted in accordance with the provisions of the Act. The
plaintiffs then instituted an action for foreclosure or sale under their mort-
gage. The defendant Riddell b^r her defence asked a declaration that she
was entitled to a charge in priority to the plaintiffs' claim for the amount
of the Mutual Life Assurance Co.'s mortgage. The evidence shewed that
the transfer to Riddell of the fee simple was intended as security only for
the moneys advanced and her judgment against Konschur: —

Held, that as, when the defendant Kiddell took and registered the assign-
ment in question, it was her intention to keep alive the security, it was
not extinguished, but remained to her benefit as a valid charge upon land
in priority to the plaintiffs' mortgage.

This was an appeal by the defendant Riddell from the judg-
ment of Johnstone, J. (1 Sask. L.R. 24), for sale of the property
in question under the plaintiffs' mortgage, and was argued before
the Court en banc (Prendergast, Newlands and Lamont, J J.),
on February 23rd, 1909.

E, L. Elwood, for the appellant: The question of whether
or not there has been a merger of the mortgage is entirely a ques-
tion of intention of the parties: Thome v. Cann, 64 L.J. Ch.
1; Liquidation of Estates Purchase Company v. WiUoughbyy 67
L.J. Ch. 251. In determining the question of mei^ger, the prin-
ciple by which the Court is guided is the intention of the parties,
and in the absence of an expression, either documentary or verbal,
of any intention, the Court looks to the benefit of the person
in whom the two estates become vested: Ingler v. Vau^han
Jenkins, 69 L.J. Ch. 618; Capital and Counties Bank v.

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En Banc.
1909

Reeves

V.
KONSCHUR.

Rhodes, 72 L.J. Ch. 169; Adams v. Engell, 46 L.J. Ch. 54;
Enc. Laws Eng., 1st ed., vol. 8, p. 370. The evidence discloses
that it was never the intention of the parties that the mortgage
should be merged in the fee, but it was their intention that it
should remain as a security. The appellant is not precluded
from the relief asked for by the onler of the Chief Justice, which
was merely based on a set of facts presented by the registrar, and
did not touch the merits of the question or the rights of the parties.
There was no evidence before the Chief Justice as to the inten-
tion of the parties. The efifect of sec. 65 of the Land Titles Act,
upon which the Chief Justice based his judgment, was not to
extinguish the mortgage, but merely provides that in every, instru-
ment transferring land there shall be the impUed covenant men-
tioned therein. It does not deprive the parties of the right to
contract out of the statute. An expressed covenant displaces
an implied one: Grosvenor Hotel Co. v. Hamilton (1894), 2 Q.B.
836, at p. 840; Leake on Contracts, 4th ed., p. 8; Am. & Eng.
Enc, 2nd ed., vol. 15, p. 1078.

T. L. Metcalfe (D. MundeU with him), for the respondent:
Much of the evidence given is inadmissible, because the matter
has already been dealt with by the Chief Justice, and no evidence
should be taken in these proceedings. No evidence of intention
as to the effect of the assignment of mortgage is admissible except
such as is evidence of contemporaneous expression of such
intention: Adams v. EngcU, 5 Ch. D. 634. Oral evidence is
inadmissible to vary or alter the legal effect and construction of
a written document. Evidence of expression of intention to keep
the Mutual Life mortgage in force, which expressions were not
shewn to or brought to the attention of the registrar, is irrelevant
and inadmissible. All such evidence should be rejected by the
Appeal Court, whose duty it is to decide the case on legal evidence,
even when such evidence is received in the Court below without
objection : Jacker v. International Cable Co., 5 T.L.R. 13 ;
Ann. Prac. (1907) 810. The implied covenant of Lavina Riddell,
as transferee, to pay off the mortgage shews that she must have
intended not to keep the charge alive against Konschur. The
implied covenant changes the application of intention to the
doctrine of merger: Land Titles Act, sees. 65, 53, 54; Re Riddell
(1908), 7 W.L.R. 301. An impUed cov'enant of indemnity takes

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effect notwithstanding that the mortgage is not noted upon the
transfer: Green v. Scott, 2 Terr. L.R. 339. All the conditions
of merger are present : Enc. Laws of Eng., vol. 8, p. 366-
370; Am. & Eng. Enc. Laws, vol. 20, p. 595. The doctrine of
merger applies to land mider a registration system: Coutlee,
p. 162-3; Hogg's Australian Torrens System, p. 936-7; Gumett
V. Armstrong, 1 Dr. & W. 182; Hirch v. Skelton, 20 Beav.
453. There is no expression of intention to keep the mort-
gage in force, which expression should be contemporaneous :
Adarns v. EngeU, 5 Ch. D. 634. When the owner pays off charges,
it is implied that they will merge : Toulmin v. Scheir, 3
Man. 210; Farrow v. Rees, 4 Beav. 18; Coote, 7th ed., 1456.
The same principle applies to a purchase: Coutlee, 162-3; Capital
and Counties Bank v. Rhodes (1903), 1 Ch. 631.

En Banc.
1909

Reeves

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KONSCHUR.

April 7. Newlands, J.: — ^This is an appeal from a judgment of
my brother Johnstone granting an order for sale under a mortgage
given by the defendant Konschur to the plaintiffs. The learned
Judge also held that the mortgage given by the defendant Kon-
schur to the Mutual Life Assurance Company of Canada, and
assigned by them to the defendant Lavina Riddell, could not
be declared a first charge on the lands in question, and the plain-
tiffs' claim deferred thereto.

The facts are, briefly, that the defendant Konschur was the
registered owner of the south half of 22-2-3 W. 2nd. This land
was subject to a mortgage, first, to the Mutual Life Assurance
Company for $2,000; second, to a mortgage to- the plaintiffs for
to secure certain promissory notes; and, third, to an execution
at the suit of Riddell and Co., of which the defendant Lavina
Riddell was the sole partner. The Mutual Life Assurance Com-
pany, the first mortgagee, brought action to foreclose their said
mortgage, and the defendant Lavina Riddell, acting under the
advice of a clerk in her employment, who was apparently her
legal adviser, took a transfer from the defendant Konschur of this
land, and an assignment from the Mutual Life Assurance Com-
pany of their mortgage. The defendant Konschur also gave to
her a memorandum acknowledging his indebtedness to her for the
amount paid by her to the said assurance company. She then
registered the assignment of mortgage to herself, which was en-

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128 SASKATCHEWAN LAW REPORTS. [vol.

En Banc, doraed upon the defendant Konschur's certificate of title, and

1909 some time afterwards the transfer from Konschiir to her. Upon

Reeves ^^^ registration of the transfer the registrar issued to her a cer-

^' tificate of title, which did not shew the mortgage nor the assign-

AkO N8CH UR .

ment from the Assurance Company's mortgage to her, he being
of the opinion that the said mortgage mei^ged in the fee simple
or was extinguished by the transfer of the land to her. Upon
receiving back her certificate of title shewing" the mortgage to the
plaintiff as a first charge upon the land, she sent the same back
to the registrar, and asked to have the mortgage assigned to her
endorsed thereon as a first charge against the said land. This
the registrar refused to do, but referred the question raised to
the Chief Justice for his direction, under the provisions of the
Land Titles Act. The Chief Justice, being of the opinion that
the mortgage assigned to her was extinguished on the registration
of the transfer of the same land to her, so advised the registrar,
and the mortgage to the plaintiffs remained the first chai^ge against
the land.

The plaintiffs then brought this action for the foreclosure or
sale of the said land, and the defendant Lavina Riddell, in her
defence, asks that the mortgage and assignment to her be declared
to be a first charge against the said land. The learned trial Judge
refused this application, and, referring to the opinion of the Chief
Justice on the reference, held that ''it was open to such defendant
to appeal imder the provisions of sec. 130 of the said Act from
the said judgment, and, not having done so, she is now precluded
from obtaining the desired relief in this action."

The learned trial Judge found that it was not her intention
that the mortgage which the Mutual Life Assurance Company
had assigned to her should be merged or extinguished. I agree
with this finding, as her whole proceedings throughout shew that
she never intended that the mortgage assigned to her should be
extinguished. She took an assignment of the mortgage instead
of a discharge; she asked the registrar to have the same endorsed
upon her certificate of title; and she took an agreement from the
defendant Konschur to pay her the amount she had paid to the
said assurance company. She was evidently acting all thmiigh
imder the advice of her alleged legal adviser that she could in
this way not only receive back the money to be paid to the assur-

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ance company, but also have her judgment against the defen-
dant Konschur satisfied to the exclusion of the second mortgagee.
The idea would have been a good one if it had not been for the
fact that the equitable doctrine of tacking had been abolished,
and that under the Land Titles Act all instruments took priority,
the one over the 6ther, according to the date of their registra-
tion.

Them being, then, no question that her intention was to keep
ah've the mortgage to the Mutual Assurance Company for her
benefit, it is settled, as stated in the case of Thome v. Cann (1895),
A.C. 11, 64 L.J. Ch. 1, 71 L.T. 852, that where the owner of an
equity of redemption pays off a mortgage and takes an assign-
ment of the mortgage, and the documents or circumstances shew
an intention to keep alive the security, it is not extinguished,
but inures for the benefit of the owner of the equity of redemp-
tion. In that case Lord Macnaghten said: "The material facts
in this case are very simple. When Searle agreed to buy the
equity of redemption from Filler's trustee in bankruptcy he became
the owner of the estate, subject to certain charges. The debts
which those charges were intended to secure were not his debts,
nor was he personally liable to pay them. I do not forget the
undertakings which Searle had given. But those imdertakings
did not make the debts his or bind him to pay so that he could
be sued as debtor. There was nothing inconsistent with Searle's
duty to Thome in his performing his undertaking to Miss Arnold.
Nothing, I think, is better settled than this: that when the owner
of an estate pays charges on the estate which he is not personally
liable to pay, the question whether those charges are to be con-
sidered as extinguished or as kept alive for his benefit is simply
a question of intention. You may find the intention in the deed,
or you may fihd it in the circumstances attending the transaction,
or you may presume an intention from considering whether it is
or is not for his benefit that the charge should be kept on foot.
Here, I think, the intention appears plainly on the face of the
deed by which Miss Arnold purported to transfer her mortgage.
There is no release of the debt. Payment is not acknowledged
simply. The power of sale and other powers are kept alive. To
put it shortly, it is a transfer and not a reconveyance."

Unless the law has been changed by the Land Titles Act, the

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defendant Lavina Riddell would be entitled to have the mortga^
assigned to her entered upon her certificate of title as a first chaige
against this land.

In the reference to the judgment of the Chief Justice above
referred to, reported in (1908) 7 W.L.R. 301, considering the
efifect of the provisions of the Land Titles Act, he said: "I am
not prepared to say that there was a merger, but I am of
opinion that the intention of the Land Titles Act in force
at the time Riddell got the transfer and assignment in question
was, in so far as she was concerned, to cause the mortgage
to be extinguished. The Act in force at the time of this
transfer and assignment and registration was the Land Titles
Act, 1894 (Dominion). Section 65 of that Act provides as
follows: *In every instrument transferring land, for which
a certificate of title has been granted, subject to a mortgage or
incumbrance, there shall be implied the following covenant by
the transferee, that is to say, that the transferee will pay the
principal money, interest, annuity or rent chaige secured by the
mortgage or incumbrance, after the rate and at the time specified
in the instrument creating the same, and will indemnify and keep
harmless the transferor from and against the principal sum or
other moneys secured by such instrument, and from and against
the liability in respect of any of the covenants therein contained
or under this Act impUed, on the part of the transferor.* Tlmt
section shews, I think, very clearly that the intention was to pro-
tect the transferor from any covenants that might be contained
in any mortgage or incumbrance upon the land existing at the
time of the transfer. Now, I take it that this property is not
sufficient to satisfy the incumbrances upon it if the mortgage to
the assurance company is allowed to stand, because, if it was,
I can see no object in testing the question which has -been raised
in this case. That means this: if Riddell is allowed to keep alive
the mortgage of the assurance company, she would leave the sub-
sequent mortgagees and execution creditors without remedy
against the land, and cast the burden upon the transferor (Kon-
schur) of paying what was due in respect to such mortgages and
incumbrances; and this section seems to me to point directly
to the fact, possibly not that there is a merger, but that the trans-
feree is expected to pay these incumbrances off, and, if he pay

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an incumbrance off or takes an assignment of it, which is the E^ Banc
same thing, he is only cariying out what the section contemplates ^^Q^
he should do, and, therefore, that he cannot use such payment Reeves
or transfer to prejudice the rights of other mortgagees or incum- konschur
brancers whose securities the Act intends he shall pay off/'

It must be remembered that the above opinion was given by
the Chief Justice upon a reference to him under the Land Titles
Act to direct the registrar as to what his duties were under the
said Act, and I take it that there was no evidence before him as
to the intention pf the parties other than the instruments sub-
mitted to the registrar for registration. In this action we have
evidence of what the intention of the parties was, particularly the
agreement of the defendant Konschur whereby he agrees to pay
to the defendant Lavina Riddell the amount paid by her to the
first mortgagee, the Mutual Assurance Company. As an im-
plied covenant can always be modified or restricted by an express
covenant, this agreement, in my opinion, nullifies the implied
covenant which the learned Chief Justice reUed upon. But, even
if it does not, this implied covenant cannot be extended to make
the debts hers or bind her to pay them so that she could be sued
as debtor; and as the original debtor, the defendant ^Konschur,
has agreed to pay her the amount of the mortgage to the Mutual
Assurance Company, there is, therefore, no liability on her part,
as between Konschur and herself, to pay off this mortgage, or
indemnify him against his liability on the same. The reasons
given by the learned Chief Justice, though applicable to the facts
before him, do not, therefore, apply to this case, the facts before
us being entirely different.

I am therefore of the opinion that the expressed intention
of the parties will control the implied covenants, and that there
has therefore been no change made in the law by the Land Titles
Act, which would affect this case, and that the law as laid down
in Thome v. Cann governs this case.

For the above reasons I am also of the opinion that the case
is not res judicata, as held by the learned trial Judge, and I there-
fore think that the appeal should be allowed with costs.

Lamont, J.:— On September 8th, 1903, Paul Konschur, who
was the owner of the south half of section 22, Tp. 2, Rg. 3,

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W. 3, mortgaged the same to the Mutual Life Assurance Company
of Canada, to secure the repayment of the sum of $2,000 and
interest thereon secured, which mortgage was duly registered.

On July 7th, 1904, he also executed a mortgage of the said
lands to the plaintiffs to secure the payment of $4,87L On
January 3rd, 1905, Riddell & Co. obtained judgment and execu-
tion against Konschur for $443.29, and filed a copy of the execu-
tion with the registrar of land titles. Other executions were sub-
sequently registered by various parties. On February 26th,
1906, the Mutual Life Assurance Company conunenced foreclosure
proceedings under their mortgage. On April 22nd, 1906, Kon-
schur executed a transfer of the said land to Lavina Riddell, who
composed the firm of Riddell & Co. Lavina Riddell then paid
to the Mutual Life Company the amount of their mortgage, interest
and costs, and took an assignment of the same to herself, and also
took from Konschur an acknowledgment in writing, which ac-
knowledgment is in the words following: —

"I, Paul A. Konschur, of the village of Frobisher, in the Pro-
vince of Saskatchewan, hereby acknowledge that the sum of three
thousand two hundred and twenty-eight 55/100 dollars is due
and payable by me to Lavina Riddell, wife of John S. Riddell,
of Frobisher aforesaid, under an assignment of mortgage from
the Mutual Life of Canada in favour of said Lavina Riddell, judg-
ment debt and costs at the suit of Riddell & Co. against P. A.
Konschur, and costs and expenses of the foreclosure proceedings
at the suit of the said Mutual Life Assurance Company against
myself.

"Dated at Frobisher, this 1st day of May, a.d. 1906.

(Sd.) "P. A. Konschur."

After having the assignment of the Mutual Life mortgage,
some correspondence took place between H. A. MacCoU — who
was looking after Mrs. Riddell's business interests — and the plain-
tiffs' solicitors as to the taking over by plaintiffs of Konschur's
indebtedness to Mrs. Riddell.

On September 10th, not having reached an agreement with
the plaintiffs for an assignment of her claim to them, Lavina
Riddell registered her assignment of the Mutual Life mortgage
and the transfer of April 4th, from Konschur to her. When the
certificate of title was forwarded by the registrar to her, objection

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was taken that it had not endorsed thereon the Mutual Life mort-
gage as a first encumbrance. The registrar, however, refused
to enter the mortgage on the certificate, as both the land and the
mortgage were now. in Lavina Riddell. As a result of the objec-
tion, a reference was taken by the registrar to the Chief Justice
of this Court, who upheld the correctness of the registrar's ruUng.

On April 4th, 1907, the plaintiff commenced foreclosure pro-
ceedings on their mortgage, and asked for judgment against Kon-
schur, and, in default of payment, that the lands be sold and the
proceeds applied toward the satisfaction of Konschur's indebted-
ness to them. The defendant Lavina Riddell, in her defence,
sets out the mortgage to the Mutual Life as a first encumbrance
and the assignment of the same to her, intending that it be con-
tinued in full force and effect; also the transfer from Konschur
to herself, and the written acknowledgment of his indebtedness
to her by Konschur, and asks that it be declared that the plain-
tifP^s claim against the said land is subject to the Mutual Life mort-
gage now assigned to her. The trial came on for hearing before
my brother Johnstone, at Areola, and he decided in favour of the
plaintiffs. From this decision Lavina Riddell now appeals to
this Court-

From a perusal of the judgment of the learned trial Judge, it
is evide^it that he felt himself precluded from granting the relief
asked for by Lavina Riddell by the decision of the learned Chief
Justice on the reference, no appeal having been taken from that
decision.

With great deference, I am of opinion that the question now
before this Coxirt was not before the learned Chief Justice. On
the reference the only question before the Chief Justice was whether
or not the action of the registrar was right in refusing to continue
on the certificate of title to Lavina Riddell the Mutual Life mort-
gage. To that question, it seems to me, there could be but one
answer, and that was the answer which the learned Chief Justice
gave; while the question before this Court is, granting the regis-
trar to have been right in issuing the certificate freed from the
mortgage, can this Court, in the exercise of its equitable juris-
diction, continue the existence of the mortgage, if satisfied that
the intention of the parties was that it was not to be extinguished?
E'wen if all the facts now before this Court had been before the

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learned Chief Justice, I am of opinion that he could not, on the
reference, have given the relief sought. In Morris v. Bentley
(1895), 2 Terr. L.R. 253, itr was held that a Judge hearing an appli-
cation under the provisions of the Land Titles Act as to the duty
of the registrar, could not enter into or dispose of any question
affecting the equitable rights of the t)arties, and this view was
sustained in Wilkie v. JelleU (1895), 2 Terr. L.R. 133, 26 S.C.R.
282. Where equitable or beneficial rights are sought to be en-
forced, the equitable jurisdiction of the Court must be invoked
in some cause or matter in the Court, and cannot be raised on a
reference to a Judge as to a registrar's duty. The decision of
the learned Chief Justice, therefore, on the reference, does not,
in my opinion, affect the question to be determined by this Court.

The defendant Riddell supports her appeal on two grounds:
(1) that the transfer taken by her was taken merely as a security,
and is, therefore, not a transfer within the meaning of the Act;
and (2), even if it is held to be a transfer within the meaning of
the Act, that, as the intention when she took the assignment of
the Mutual Life mortgage was that it should be kept alive, there
was no merger in equity.

For the respondent it was contended that Lavina Riddell had
taken a transfer of the land mortgaged and had registered it;
that the Land Titles Act prescribed the effect to be given to the
registration of a transfer under the Act, and that the Court could
not relieve the parties from the effect of that registration.

As to the appellant's first contention — which, I understand,
was not raised at all before the trial Judge — ^that the transfer,
though absolute in form, was taken as a security only, I am of
opinion that the evidence shews that such was the case. Both
Riddell and MacCoU swore that it was taken as security only,
and the written acknowledgment of Konschur, given after the
transfer was taken, that he was still indebted to Lavina Riddell
in the amount not only of the Mutual Life mortgage, but also
of Riddell & Co.'s account, seems to be inconsistent with any
theory other than that the transfer was taken by way of security
only. If the transfer had been taken, as suggested by the respon-
dents, in settlement of Riddell & Co.'s account, we would not
have found Konschur afterwards acknowledging that he still was
indebted in that amount. I am, therefore, satisfied that the

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transfer, although in the statutory form, was intended by all
parties to it to be nothing more than a security. The Court, there-
fore, acting on the well-recognized equitable principles, should
gi\'e effect to it as such, unless the provisions of the Land Titles
Act require a different holding.

As to the appellant's second contention, the learned trial Judge
has found as a fact that it was not the intention of Lavina Riddell,
when she took the assignment of the Mutual Life mortgage, that
it should be merged or extinguished, and the evidence well bears
out his finding. The question whether or not there is a meiiger
is held by the Courts in England to be a question of intention.
In Gryce v. Shaw, 10 Hare 76, Turner, V.-C., laid down the
law as follows: "The general rule, indeed, is clear that, where
a party has an estate in fee and at the same time a charge upon
the estate, the charge will meige . . . but the law does not,
of course, prevent the person entitled to both the estate and the
charge from keeping alive the charge; and the rule, therefore,
yields to the intention whether it is expressed or presumed."
That intention may be expressed in the conveyance itself or in
the circumstances attending the transaction, or it may be pre-
sumed from considering whether or not it is for the benefit of the
owner that the charge should be kept alive. In the ca^ above
referred to, the learned Judge further said: ''If the merger of the
charge would let in other charges in priority, thereby rendering
it in the interest of the owner of the estate to keep alive his charge,
the Court presumes that such was his intention, notwithstanding
the absence of other indications of such intention."

In Thome v. Cann (1895), A.C. 11, the House of Lords held that
where the owner of an equity of redemption pays off a mortgage
and takes an assignment of the mortgage, and the documents
or circumstances shew an intention to keep alive the security, it
is not extinguished, but inures to the benefit of the owner of the
equity of redemption.

In Dean and Chapter v.McArthur, 9 MsLTi. L.R. 391, Taylor, C.J.,
after an exhaustive review of the cases, sums up the law as
follows: "The weight of authority, however, seems to be that
where the owner of an estate in fee pays off a charge or the owner
of a chaige acquires the estate, the result is that the charge merges,
unless an intention to keep it alive is expressed in some way, and

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the onus of proving such intention rests on the party contending
that there has been no merger."

In the present case the learned trial Judge has found that the
intention was that the mortgage should not be extinguished. In
equity, therefore, it would not be deemed to be merged, and by
sec. 31, sub-sec. 3, of the Judicature Act, there is now no merger
by operation of law only of an estate the beneficial interest in
which would not be deemed to be extinguished in equity. In
Capital and Counties Bank v. Rhodes (1903), 1 Ch. D., at p. 653,
72 L.J. Ch. 336, 88 L.T. 255, Cozens-Hardy, L.J., said: "If the
circumstances are such that a court of equity would have held
that there was no merger in equity, there is now no meiiger at
law; and the rights of the parties must be dealt with on that
footing." The result, therefore, is that, unless the provisions
of the Land Titles Act bar the relief sought by the appellant, the
Court, on its equitable jurisdiction being invoked, should deal
with the rights of the parties on the footing of there being no
merger.

Do the provisions of the Land Titles Act bar this relief? The
sections relied on by the respondents are sees. 72, 74, 75, 80, 83,
and 180 of the Provincial Act, which sections are almost identical
with the provisions of the Dominion Land Titles Act in force
prior to September 8th, 1906.

Section 72 provides that in every instrument transferring land
under the Act, subject to a mortgage, there shall be implied a
covenant that the transferee will pay the principal money, interest,
etc., secured by the mortgage, and will indemnify and keep harm-
less the transferor from and against the principal sum or other
monies secured by the mortgage, and from and against the liability
in respect of the covenants therein contained or under the Act
implied on the part of the transferor. Section 74 provides that
upon the registration of any instrument the estate or interest
specified therein shall pass. By sec. 75 the owner of land for
which a certificate of title has been granted shall, except in cer-
tain prescribed ca^es, hold the same absolutely free from all encum-
brances, liens, estates or interests whatsoever, except those en-
dorsed on the certificate of title. Section 80 provides that every
instrument shall, upon registration, become operative according
to the tenour and intent thereof, and shall thereupon create, trans-

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fer, surrender, charge or discharge, as the case may be, the land
or estate or the interest mentioned in such instrument. Section 83
declares that every instrument transferring land shall operate
as an absolute transfer of all such right and title as the transferor
had therein at the time of its execution, unless a contrary inten-
tion is expressed in the transfer, and sec, 180 provides that everj"^
certificate of title shall (except in certain specified cases) be con-
clusive evidence in all Courts, as against His Majesty and all per-
sons whomsoever, that the person named therein is entitled to
the land included in the same for the estate and interest therein
specified, subject to the exceptions and reservations implied under
the provisions of the Act.

In determining the meaning of these provisions, we must keep
in view the object and scope of the Land Titles Act. The main
object of the Act was "to save persons dealing with land from
the trouble and expense of going behind the register to investi-
gate the history of their author's title and to satisfy themselves
of its validity. That end is accomplished by providing that
everyone who bond fide purchases from a registered owner and
enters his transfer or mortgage in the register shall thereby acquire
an indefeasible title.''

In referring to sec. 72 of the Act, the learned Chief Justice,
in Re RiddeU (1908), 7 W.L.R. 301, said: "That section shews,
I think, very clearly that the intention was to protect the trans-
feror from any covenants that might be contained in any mort-
gage or encumbrance upon the land existing at the time of the
transfer." With this interpretation of the section, if I may be
allowed to say so, I entirely agree. In the ordinary case where
a purchaser buys land subject to a mortgage, he assumes the
mortgage, and retains the amount of the same out of the pur-
chase money, and the statute contemplates that he should pay
the mortgage and save the transferor harmless. If it were not
SO) the purchaser woidd be defrauding the vendor by casting on
him the burden of paying off the mortgage, after having retained
the same out of the purchase money. This section seems to me
equivalent to an express covenant in the transfer that the pur-
chaser will pay off the mortgage and interest, and will indemnify
aiul save harmless the vendor therefrom. Assuming for the
moment, therefore, that Lavina RiddeU took the transfer of the

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land as a transfer, she is in the position of having covenanted
with Konschur that she will pay off the mortgages against the
land, and if she does not and he has to pay them, he can call upon
her to indenmify him. The covenant is between the transferee
and the transferor. The evidence shews, however, that, not-
withstanding the transfer, Konschur cannot call upon her to in-
denmify him and save him harmless as respects the Mutual Life
mortgage. His agreement, after the execution of the transfer,
to be responsible for it would be an absolute bar to any such claim.
Could he call upon her to save him harmless from the plaintiff's
mortgage? This would depend upon whether or not there was
any agreement between them which would estop him from relying
in the covenant implied in this section. If not, and he was obliged
by the plaintiffs to pay the mortgage, he could claim the enforce-
ment of the covenant as against Lavina Riddell. But the en-
forcement of the covenants rests with Konschtir; it does not
rest with the plaintiff, as there is no privity of contract between
them and Lavina RiddeU: Australian Deposit and Mortgage Bank
V. Lord, cited in Hunter's Torrens Title Cases, p. 388. The sec-
tion, therefore, does no more than impose a covenant on Lavina
Riddell that she will pay off the mortgages on the land, and gives
Konschur his right of action if she does not. It does not, there-
fore, assist the plaintiff in getting a priority over the Mutual Life
mortgage as respects the land itself.

It was strongly contended, during the argument, that by sec. 83
the transfer operated as an absolute transfer of all the right and
title of the transferor, and that by sec. 180 the certificate of title
was conclusive evidence that the person named therein is entitled
to the land for the estate or interest specified in the certificate.
Whatever difference of opinion may have existed as to the effect
of sec. 180, it must now, it seems to me, since the decision of the
Privy Council in Assets Co,, Ltd,, v. Mere Raihi (1905), A.C. 176,
74 L.J.P.C. 49, 92 L.T. 397, be taken as settled that, save as to
the exceptions specified in the section, the certificate of title of
one who has purchased bond fide, relying upon the register, and
who produces it in Court, and claims the protection of the statute,,
is conclusive evidence that the owner has a valid title to the land
for the estate or interest described in the certificate. In that
case it was held, under an Act of New 7/ealand very similar to

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our own, that as the registration had been obtained bond fide,
the effect thereof was to confer upon the registered owner a title
unimpeachable by the respondents, who were setting up an ad-
verse claim. But, while it is settled that a certificate of title
in the hands of a registered owner, who in good faith purchased,
relying upon the register as conclusive as again^ adverse claimants,
it is not to be understood that the certificate of title cannot be
questioned at all in a Court of law. In WUkie v. Jellet, McGuire,
J., said: "I cannot accept the proposition that a Court exercising
equitable jurisdiction is powerless, when confronted with a cer-
tificate of title, to question the ownership therein set forth," and
he further points out that if, as was contended here, the title of
one who is registered as owner cannot be questioned, any land
held by a person as executor or trustee would be liable to be taken
under execution to satisfy the trustee's debts. I think it will
not be doubted that, where a trustee held a certificate of title
for lands the beneficial ownership of which is in another, the Court,
notwithstanding his certificate of litle, will force him to hold the
lands for the other's benefit, and will give effect to all equities
'to which the beneficial owner may be entitled. But if the trustee
transfer the land to a bond fide purchaser, who buys relying upon
the registered title, the purchaser will obtain an indefeasible
title freed from any equities which might have been enforced
against the trustee, as the object of the Act is to make the title
indefeasible in the hands of such purchaser. Indefeasibihty of
title, however, is secured by the Act only to those who obtain title
relying upon the register. In Messer v. Gibbs (1891), A.C. 248,
Lord Watson, in interpreting the provisions of a Torrens title
system similar to oxirs, said: "The protection which the statute
gives to persons transacting on the faith of the register is limited
to those who actually deal with and derive right from the regis-
tered owner."

Again, while it seems clear that the certificate of title of an
owner acquiring title on the faith of the register is conclusive
evidence of his right, it seems to me to be equally clear that the
conclusiveness of that certificate may be waived or aban-
doned by the registered owner. In Miller v. Moresey, 3 V.R.
(L.) 38, it was held that a plaintiff had waived his right to have
his certificate held as conclusive by putting in evidence contra-

En Banc
1909

Reeves

V.
KONSCHUR.

Lamont, J.

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1909

Reeves

V.
' KONSCHUR.

Lamont, J.

dictory of his title. In Hogg's Australian Torrens System, at
p. 829, the point is dealt with by the learned author as follows:
"A plaintiff is entitled to rely on his own certificate of title if no
further evidence is necessary to prove his case, but if a plaintiff
himself goes behind his certificate of title and gives evidence of
his title anterior to it, the certificate of title is no longer conclu-
sive evidence against the defendant." Therefore, it seems to
me that in a case such as the present, where the registered owner
not only does not claim the protection of the statute arid the con-
clusiveness of her certificate of title, but admits and sets up that,
as between her transferor and herself, it was expressly agreed
that her title was not to be an indefeasible one and not to carry
with it all the incidents of a transfer as provided in the Act, it
would be going much further than I think the Act goes to hold
the certificate of title to be conclusive.

The conclusion, therefore, at which I have arrived is that the
Land Titles Act is only intended to confer indefeasible title on
those who deal with the registered owner and deal with him on
the faith of his registered title. It affords no protection to a
registered owner against equitable rights which he himself has
created, and is no defence when his own title is attacked by a
person rightfully entitled to the land. If, therefore, a person
employed to buy land for another takes the title in his own name,
his certificate of title is no defence against the rightful owner.
He is merely a trustee for him, and the Court wiU enforce the
trusts, unless the rights of the bond fide p^chaser in the mean-
time intervene.

If this conclusion is correct, what are the rights of the plain-
tiff? They took their mortgage expressly subject to the Mutual
Life mortgage. They have done nothing to alter their position.
They have acquired no new right. They have not dealt with
LavJna Riddell as the registered owner nor did they deal on the
strength of her registered title. They do not, therefore, come
within the protection afforded by the Act to one dealing on the
faith of the registered title. The provisions of the Act, therefore,
do not bar the relief asked by the appellant, and as there was no
merger of the Mutual Life mortgage, the plaintiffs' claim is sub-
ject to that mortgage.

The appeal should be allowed with costs, and the order of my

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brother Johnstone should be varied by directing the local registrar En Banc

to take an account also of the amount due under the Mutual Life ^^^

mortgage, which amount will be a first charge on the land, and Reeves

the plaintiffs' foreclosure will be subject thereto. Kon^tjr

Appeal allowed wUh costs.

Lamont, J.

[COURT EN BANC]

Watt v. Watt.

Maater and Servant — Agreement as to Wages — Evidence of — Weight of Evidence
— Direct Contradiction Between Two Witnesses of Equal Credibility.

Plaintiff was employed by defendant for a number of years, entering such
employment without making any agreement as to wages. In an action
for wases the plaintiff swore and the defendant denied that after the plain-
tiff had been in the employment some time the defendant asked what
wages the plaintiff would expect, to which the plaintiff replied ^'$50 per
mbnth/' To this defendant made no reply, and the plaintiff continued
fai his employment. There was no corroborative evidence in support of
this evidence on behalf of either party, and the learned trial Judge found
both parties to be of equal creaibility, and held that according to the
authorities, where one party alleges the occurrence of an incident which
the other denies, both oeing of equal credibility, credit should be given
to him who swears affirmatively; and found the aoove conversation proved,
add gave judgment for the plaintiff. On appeal: —

Held, that, assuming that the testimony of the plaintiff as to the conver^tion
to be true, the learned trial Judge was justified in finding a contract to
pay wages at the rate alleged.

2. That there is no rule of law affecting the question of credibility where the
evidence is evenly balanced, as in this case; but the Judge must deal with
each case as it affects his mind, and the learned trial Judge having found
for the plaintiff and there being evidence to warrant such finding, the
appellate Court should not interfere.

This was an appeal by the defendant from the judgment of
Lamont, J. (1 Sask. L.R. 418), and was heard by the Court en
banc (Wetmore, C.J., Prendergast, Newlands and Johnstone,
JJ.), on February 23rd, 1909.

H. V. BigeloWy for the defendant (appellant): The learned
trial Judge, having found the parties of equal credibility, should
have found for the defendant, the onus of proof being on the plain-
tiff. The words of the Judge, in Law v. Jackson, 20 Beav. 635,
were only obiter dictum, and not applicable to this case. The
weight to be given to evidence of conversation depends altogether

1909
AprU 7.

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1909

Watt

Watt.

on the nature of such conversation and whether the parties would
be likely to remember: Moore on Facts, vol. 2, p. 1308; Jibb v.
Jibby 24 Grant Ch. 492. Whenever a credible witness denies
the occurrence of an event or a conversation which another
witness affirms, the Court will be strongly inclined to credit the
n^ative if the singularity of the conversation must have made
an impression on his mind which he could not forget: Moore on
Facts, p. 1310. The conversation here was so important that
he would be likely to remember it. ' In any event, the conversa-
tion is not sufficient to support a contract, it being no more than
an expression of the plaintiff's wishes without any assent by the
defendant: Anson on Contracts, p. 1*1.

W. B, Scott, for the plaintiff (respondent): On the evidence
the learned trial Judge was warranted in finding for the plaintiff;
and there being evidence to warrant such a finding, the appellate
Court should not interfere.

April 7. The judgment of the Court was delivered by Wet-
more, C.J.: — This is an action for wages for work done by the
plaintiff for the defendant. The particulars claim wages from
the 1st April, 1905, to the 1st June, 1907, at $50 per month, and
from the Ist June until the 5th September, 1907, at $75 per month.
The defendant, by his defence (which seems to be a counterclaim
and statement of defence all mixed together), sets up payment
and that the amount claimed is unreasonable, and a counterclaim
for board, lodging and laundry.

The hiring was not denied at the trial, and the question narrowed
down to the amount that was to be paid for the services and
whether the plaintiff had credited in his particulars all the credits
the defendant was entitled to. And the question of the amount
of the wages was further narrowed down to what was to be paid
for the services from the 1st April, 1905, to the Ist June, 1907.

The learned trial Judge found that the wages from the 1st
June to the 1st September, at $75 per month, was practically
agreed to by the defendant, and the evidence fully warranted
him in coming to that conclusion.

The plaintiff and defendant are brothers, and before the plain-
tiff came out to this country he was residing in Ontario. He
came out here at the instance of the defendant in 1905, and started

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II.] SASKATCHEWAN LAW REPORTS. 143

to woric for him on- or about the Ist April of that year. He con- En Banc.
tinued working for him for some time, no agreement having been l^Q^
made with respect to the amount of wages the plaintiff was to Watt
be paid. The evidence, however, taken altogether, establishes
that he was to be paid wages of some sort for his services. The
plaintiff testified that in September, 1905, he had a conversation
with the defendant about the wages to be paid him, in which
the defendant asked him, "What do you expect?" (for wages),
to which he replied, "$60 a month." To this the defendant
made no answer, and the plaintiff went on working down to the
Ist June, 1907, when his wages at $75 a month commenced.
Apparently no further conversation took place upon the subject
until somewhere in June, 1907. I may say that it was conceded
that up to the 1st June, 1907, the defendant had supplied the
plaintiff with the means for procuring board and lodged him.
The $75 a month agreed on on the 1st June, 1907, covered the
board; the plaintiff was to pay that out of this wage. The de-
fendant absolutely denied the conversation testified to by the
plaintiff as having occurred in September, 1905, and the question
between the two, therefore, was whether the plaintiff was en-
titled to be paid $50 a month, exclusive of board, by virtue of
an implied agreement arising out of this conversation, or whether
he was entitled only to be paid on a quantum meruit.

The action was tried before my brother Lamont, without a
jury, at Regina, he giving judgment for the plaintiff, allowing
him wages down to the Ist June, 1907, at $50 a month, and from
the 1st June to the 1st September, 1907, at $75 a month, and
crediting the defendant with some payments and services over
and above those credited in the plaintiff's particulars. The
learned Judge, in effect, gave credit to the plaintiff's testimony
as to what took place 'in September, 1905, between these parties.
The only persons present at this conversation were the plaintiff
and the defendant, and, therefore, there could be no corrobora-
tive testimony by a third party as to what took place on that
occasion. In delivering judgment, the learned trial Judge laid
down the following: "If the conversation above referred to took
place, I am of the opinion the plaintiff is entitled to $50 per month
to June 1, 1907. In Lefeunteum v. Beaudoin (1898), 28 S.C.R.
89, Taschereau, J., said that it was 'a rule of presumption that

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Wetmope, C.J.

144 SASKATCHEWAN LAW REPORTS. [vol.

En Banc, ordinarily a witness who testifies to an affirmative is to be credited
1909 in preference to one who testifies to a negative, because he who testi-
Watt fies to a negative ma^ have forgotten a thing that did happen,
but it is not possible to remember a thing that never existed.'
And he cited the language of Baron Parke, in Chotodry Deby Persad
V. Chowdry DowlvJt Sing (1846), 3 Moo. Ind. App. 347, where he
said: *In estimating the value of the evidence, the testimony of
a person who swears positively that a certain conversation took
place is of more value than that of one who says that it did not,
because the evidence of the latter may be explained by supposing
that his attention was not drawn to the conversation at the time.'
And he referred to Lane v. Jackson (1855), 20 Beav. 535, wherein
the Master of the Rolls said : ' I have frequently stated that where
the positive fact of a particular conversation is said to have taken
place between two persons of equal credibility, and one states
positively that it took place and the other as positively denies
it, I believe that the words were said, and that the person who
denies their having been said has foi^otten the circumstances.
By this means I give full credit to both parties.' " The learned
Judge then proceeded as follows: "In the case under considera-
tion, so far as I know, the parties are equally credible. Following
the rule laid down in the above cited authorities, I find that the
conversation took place as testified by the plaintiff, and that
the defendant, having retained the plaintiff in his employ after-
wards, the plaintiff is entitled to wages at the rate of $50 a month,
exclusive of board."

It was urged on behalf of the defendant in this appeal, in the
first place, that, assuming the plaintiff's evidence of this con-
versation to be the truth, it did not bear out the learned trial
Judge's conclusion that there was a hiring for $50 a month, inas-
much as there was no evidence that the defendant assented to
the proposition. I am of opinion that the learned trial Judge
was warranted in coming to the conclusion that he did, assuming
that the testimony by the plaintiff in this respect was true. The
plaintiff having informed the defendant of the wage that he ex-
pected to receive or what he considered his services- worth, if the
defendant objected to it, it was his duty to do so at once, and,
not having done so, and having allowed him to go on for nearly
two years without any protest or refusal to agree to it, either

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n.] SASKATCHEWAN LAW REPORTS. 145

express or implied, it was of)en to the Judge of fact to find that En Banc.
the proposition was assented to. It certainly would have been l^OO
open to a jury to have so found if the case had been tried by a Watt
jury, and it was equally open for the trial Judge to find. ^^*

It was also lu^ed that the learned trial Judge reached the
conclusion he did upon a wrong principle: First, because,
having found that the two witnesses were of equal credibility,
he should have given effect to the testimony of the defendant, and
not to that of the plaintiff, inasmuch as the onus of proof was.
upon the plaintiff and not on the defendant; second, there was
no rule of law binding the learned Judge to come to the conclu-
sion he did as to the credibility of the witnesses under the circum-
stances of this case; third, because there was testimony of other
witnesses which affected the improbability of the testimony ka
given by the plaintiff.

As to the first and second contentions above mentioned, I
know of no rule of law, strictly speaking, which affects the ques-
tion. It is merely a matter of fact imder such circumstances
for the jury or Judge, as the case may be, to find upon, and their
findings will be determined according as to whether they give
credit to the one side or to the other. Gray v. Haig (1855), 20
Beav. 219, at p. 229, was cited on behalf of the defendant, in
which Romilly, M.R., is reported as follows: "If the matter
rested here, I should not act upon the testimony of one witness
against a party as to a fact expressly denied by him on his oath."

It will be borne in mind that this is the same Judge who gave
the judgment in Lane v. Jackson, cited by my brother Lamont,
and in which he stated as set forth by that learned Judge.

A number of cases were also referred to, on the part of the
defence, in 6 D^. Eng. Case Law, cols. 900 et seq,, in which it
was held that the testimony of a single witness, unsupported by
corroborative circiunstances, would not be sufficient to grant
relief in the face of a sworn answer of a defendant. The cases
there reported are all in Chancery, and they depend upon a very
peculiar state of the. law as applicable to Chancery proceedings
at Hie time these cases were decided, which did not then prevail
in the common law Courts. To understand them it is necessary
to remember what the practice was at the time these cases were
decided. Proceedings were' commenced in the Court of Chancery

llK-voi.. n. S.LJI.

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146 SASKATCHEWAN LAW REPORTS. [vol.

EwBanc. by the filing of what was called a "Bill," and the defendant put
1909 in his defence by what was called an "Answer." It was the
Watt practice to present interrogatories to the defendant, and his answer
Wato Bright be in response to such interrogatories, and had, in that
case, to be sworn, and the Court of Chancery laid down the rule
that where this was done, inasmuch as the plaintiff had appealed
to the conscience of the defendant, in order to overcome his answer,
there must be the testimony of two witnesses, or of one witness
corroborated by circumstances which tended to contradict the
answer. But this only applied to such part of the answer as
contained positive allegations as to facts responsive to the bill.
Where other facts were alleged in defence or in avoidance, the
rule had no application in so far as those other facts were con-
cerned, I cannot find in any English text-books of the present
day any reference to such rule. In American text-books, such
as a not very recent edition of Greenleaf on Evidence and Storey's
Equity Jurisprudence, I can find a reference to the rule, and I
suppose that is given there because in some parts of the United
States the old practice in the Coxut of Chancery in England still
prevails in the practice there. But even in the late editions of
Storey any reference to the rule seems to be expunged. I appre-
hend that the fact that the law respecting the rights of parties
to give testimony and the practice in the Court of Equity which
substituted a statement of claim for a bill and a statement of
defence for an answer having been introduced, it is now considered
that the practice does not apply. Therefore, the cases men-
tioned in the Digest have no application to this case. I am of
opinion, therefore, that there is no rule affecting the question of
credibility, where there is conflicting testimony of the character
it was in this case, one way or the other. The Judge must deal
with each case as it arises according as the matter of credibility
affects his mind.

As to what was laid down in these cases cited by the learned
trial Judge in his judgment, to which I have referred, I do not
understand the Judges in any of them to lay down a rule by which
a Judge or jury should be governed. If the case had been tried
before my brother Lamont with a jury, he could not have directed
them to have found either one way or the other; he would have
had to refer the question of credibility to the jury, but if, in doing

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n.] SASKATCHEWAN LAW REPORTS. 147

so, he had cited to them what was stated by Parke, B., and En Banc.

Romilly, M.R., and Taschereau, J., it could not have been held i^^^

a misdirection. It seems to me the jury would have been at Watt

liberty to exercise their own judgment, and come to such a con- w^'^r

elusion as they thought they ought to arrive at in view of the

credibility they gave the respective witnesses, and I presume

they would have been so instructed if these cases had been read

to them. That being so, it seems to me that all the learned

Judges in these cases attempted to do was to express what their

own views were upon the subject, and what they considered to

be a reasonable and proper method of arriving at a conclusion

of fact under the circumstances to which they referred. And all

I understand the trial Judge here to have done is to have adopted

the method suggested by those learned Judges for arriving at

the conclusion that he did arrive at. Surely such a method

cannot be considered improper with such high authority to back

it, especially when one is contained in a judgment of the Privy

Council, a Court whose judgment is binding on this Court.

Then, as to the contention that the weight of evidence was
in favour of the defendant because there were witnesses who gave
testimony affecting the improbability of the plaintiff's evidence.
There was evidence and matter on each side in this respect, some
of it, possibly, pointing in the direction that the plaintiff's testi-
mony was probable; other pointing in the direction that it was
not probable. That testimony would simply go to affect the
credibility, one way or the other, of the parties to this suit, the
only persons who testified with respect to what took place in
September, 1905. I presume, in arriving at the fact that these
two witnesses shewed equal credibility, the learned Judge was
influenced by this outside testimony (if I may so call it), and I
am of opinion that this outside testimony was of a character which
would warrant the Judge in coming to the conclusion that the
credibility of these parties was equal, and, having arrived at the
fact that their credibility was equal, as to who told the truth as
to what occurred in September.

Without questioning one moment the power of this Court to
dt in review over the findings of fact in this or any other case, I
am of opinion, to use the language of Girouard, J., in The Village
of Grantyy v. Barnard (1902), 31 S.C.R. 15, at p. 25: "There is

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148 SASKATCHEWAN LAW REPORTS. [vol.

En Banc, ample evidence to warrant the finding of the trial Cotirt," and,

1909 under the authority of that case^ this judgment shotild not be

Watt disturbed.

y^^' The appeal should be dismissed and the judgment of the trial

Judge aflSrmed with costs.

wetmore. C.J. ^^^^^ diimisaed vrUh costs.

[IN CHAMBERS.]

1909 Sawyer Massey v. Carter.

JaD. 5. Practice— Writ of Attachment— Application to Set Aside— Writ Obtained upon
False Affidavita — No Appearance by Applicant — Locus standi — Step in
the Cause — Proceeding Incidental to the Cause,

Defendant movecf to set aside a writ of attachment on the ground that it had
been obtained on affidavits which were false. No appearance had been
entered by the defendant, and it was objected that until an appearance had
been entered he had no hcus standi-, —

Held, that the issue of a writ of attachment is not a step in the cause, but is
entirely incidental thereto, and a motion may be made to set it aside on
the ground of irregularity before appearance.

This was an appUcation in Chambers before Wetmore, C.J.,
to set aside a writ of attachment for irregularity.

T. S, McMorran, for the plaintiff.
W, M, Martin, for the defendant.

January 5. Wetmore, C.J.: — ^This is an application on behalf
of the defendant Carter, by Chamber summons, to set aside a writ
of attachment against personal property issued under rule 417 of
' the Judicature Ordinance. The ground upon which the application
is made is that the affidavits upon which the order for the writ to
issue was obtained contained matters that were false. The Chamber
summons issued on the 15th of December, but no appearance
was filed by Carter or either of the defendants until the 21st of
December, and the objection was raised that Carter had no locus
standi to make this application, not having appeared at the time
he made it; and rule 87 of the Judicatiu^ Ordinance was relied
upon. The practice seems to be clear that a defendant who has
not appeared cannot take a step in the cause, unless it may be to

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Sawyer
Massey

Carter.

set aside the service of the writ upon him, or to discharge or set Wetmor©, c.j.
aside the order authorizing such service, or to set aside the writ 1909
on the ground of irregularity or otherwise, as provided under that
rule.

I am of opinion that the issuing of the writ of attachment is
not a step in the cause. It is true that rule 417 provides that
the application for such writ is to be made after the commencement
of the action. That, however, in my judgment, does not make it
a step in the cause. The proceeding is entirely incidental tp the
cause. It is more, in my opinion, in accord with the old practice
where arrest on mesne process for debt was in vogue. In such
cases an application could be made to set aside the writ or the arrest
for irregularity without 'appearing. There are a number of pro-
ceedings that are incidental to this case, authorized by statute
in some instances, but which are not steps in the cause, and I see
nothing in the practice which prevents an application being made
to have them set aside if they are irregular or issued without author-
ity or the issue of them is an abuse of the process of the Court.
I will not, therefore, dismiss this application on the ground taken,
but as the plaintiff's counsel asked for leave to cross-examine the
parties on their affidavit, I will grant that application.

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150 SASKATCHEWAN LAW REPORTS. [vol.

[IN CHAMBERS ]

1908 Robinson v. Lott.

Jan. 7. Interpleader — Lease of Land — Rent Payable by Delivery of Portion of Crop-
Assignment by Landlord of Interest in Lease — Effect of such Assignment —
Security — Buls of Sale Ordinance — No Change of Possession — Conveyance
not Registered,

Defendant was the owner of a farm which he had leased upon tenns that the
tenant was to deliver one-half the crop grown thereon by way o£ rent.
The 'plaintiff seized this portion under execution. Previously the defendant,
being pressed for payment by the claimants, assigned his interest in the lease
to them by way of security. The assignment was not registered, nor was
there any change of possession, and the crop at the time had not been
wholly cut: —

Held, that the intention of the parties in making and accepting the assign-
ment of lease in question was that it should be by way of security upon a
growing crop, and was therefore, by the provisions of sec. 15 of the Bills of
Sale Ordinance, void as regards the crop uncut at the time of exec\^tion.

2. That the assi^iment of the lease, being intended as a conveyance of the
crop, was as to the portion of the crop cut, void, as such an agreement. was
not registered nor was there any actual or continued change of possession.

This was an application, by way of interpleader by the sheriff,
to determine the ownership of certain grain. By agreement
the matters in issue were determined in a summary way before
the Chief Justice in CJhambers.

0. H, Barr, for the plaintiff.

H. F. Thomson, for the claimant.

W. B, Scott, for the sheriff.

January 7. Wetmore, C.J.: — ^This is an interpleader by the
sheriff. Executions against the goods of the defendant Lott
were placed in the hands of the sheriff at the suit of Bessie Robin-
son, Clara Maria Medjlay and Mutrie and Mutrie respectively.
The first of these executions were placed in the sheriff's hands
on the 19th October last and the last of them on the 27th of that
month. On the 13th November the sheriff seizsed, under such
writs, the interest of the defendant in 600 bushels of wheat situate
on a farm occupied by one Malcolm Gibbons. The clwmants
claimed this property to be theirs, and the sheriff interpleaded.

The defendant was the owner of the farm above mentioned,
and had let the same to Malcolm Gibbons for a term of five years,
to be computed from the 1st day of March, 1907. The lease was
dated 6th December, 1906. The yearly rental or recompense

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n.] SASKATCHEWAN LAW BEPOETS. 151

to be paid to tte defendant for the lease of this land was half ^•^"^Q^^- J*
the crop grown thereon. The grain seized was the defendant's 1008
interest in the crop grown on this land for the year 1908. The robinson
defendant, being indebted to one Emerson on a promissory note v-

made by the defendant in Emerson's favour, and also on a mort-
gage executed by the defendant in Emerson's favour, covering
the land rented to Gibbons, and being pressed to pay the amount
of such indebtedness or to give security, he assigned to Thompson
and Kennedy, as trustee for Emerson, the lease which he had
executed to Gibbons. It is not very usual for a landlord to
assign a lease. The usual course is to transfer the property,
and the lease, of course, would pass to the transferee as incidental
to the transfer. However, I have no doubt that the intention
in this case was to assign simply the position of the landlord,
if I may use the expression, and not to assign any interest in the
land beyond that — ^that is, the right of the assignee would ter-
minate with the expiry of the lease. No question was raised
as to this on either side, and I merely mention it in passing for
the purpose of pointing out what, in my opinion, the nature of
the transfer or assignment was.

At the return of the interpleader summons, it was agreed
by counsel for both plaintiffs and claimants that I should decide
the questions involved in this matter upon the affidavits which
were read at the return of such summons. A good deal of dis-
cussion arose on the argument of the different questions raised
as to whether or not this transaction was affected by sees. 39
et seq. of the Assignments Act, ch. 25, of 1906. In the view I
take of the matter it is not necessary to decide these questions.
It is quite clear that this assignment to the claimants was taken
as a security for the debt due Emerson. The assignment was
made on the 2nd September last, and it was made imder the
following circumstances: Emerson, by himself or through the
claimants, who were his solicitors, had been pressing the defen-
dant to either pay the amount of his indebtedness to Emerson
or to give him security therefor. On the 20th August they wrote
him that if he wanted to save himself the costs incidental to an
action, he would have to make arrangements to meet that indebted-
ness immediately or else to arrange to give Emerson security.
The defendant answered this letter, among other things asking

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1908

Robinson

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what security Emerson would require, and the^claimants again
wrote on the 25th August stating that they were willing to accept
any security which might be conadered reasonable and good,
viewing the same from the view point of a bank or. other financial
corporation, and they further stated: "Thus much, however,
you must fully understand, that Emerson wants either good and
sufficient security or else payment at once." On the 1st Septem-
ber Emerson instructed Harold F. Thompson, who was then in
the office of Thompson & Kennedy, to go to Regina, interview
the defendant, and obtidn from him either payment of his indebted-
ness or security for the payment thereof, and Harold Thompson
came to Regina accordingly and interviewed the defendant, de-
manded of him payment of the indebtedness to Emerson, and,
on the defendant replying that he was unable to pay the same,
he demanded security for the payment thereof, and the defen-
dant agreed to give the assignment of lease as security in ques-
tion, and did give it as such security.

It is clear, therefore, that this assignment was made by way
of security, and it is equally clear that it covered the growing
crop. Section 15 of the Bills of Sale Ordinance provides that
"no . . » transfer or assignment hereafter made, executed
or created, and which is intended to operate and have effect as
security, shall, in so far as the same assumes to bind, comprise,
apply to or affect any growing crop or crop to be grown in future,
in whole or in part, be valid except the same be made, executed
or created as a security for the purchase price and interest thereon
of seed grain." Now, this transfer or assignment of this lease
was intended to apply to and affect the crop then growing, or
so much of it as was growing, and was so intended to apply or
affect it by way of security, and in so doing it was not given, exe-
cuted or created as a security for the price of seed grain or for
any interest thereon.

I hold, therefore, that, in so far as the portion of the grain
which was then growing on this land is concerned, this transfer
was invalid. In so far as the crop is concerned which was not
growing, if any {I am left to grope a good deal with respect to that,
I have nothing to guide me except the statement of one of the
counsel, Mr. Harold Thompson, namely, that part of this crop
had been cut and part was uncut), I hold, if the assignment can

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Robinson

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LOTT.

be construed to mean the grain severed from the land, it is void, Wetmore, c.j.
under sec. 6 of the Ordinance, because the assignment in ques-
tion was not accompanied by an actual and continued change
of possession. Things remained just as they were so far as the
evidence shewed, and there is nothing to shew to the contrary,
and I must assume, therefore, that there was no actual change
of possession, and the conveyance was not registered as provided
by that section.

So, therefore, whether the crop was cut or was not cut, I hold
that the transaction qiMoad the crop in question was invalid and
void.

The result will be that the claimants will be barred.

[TRIAL.]

Caswell v. Western Elevator Co.

Manitoba Grain Act — Storage of Wheat to be Specially Binned — Storage Tickets
Issued — Agents Agreeing to Specially Bin Wheat Contrary to Instructions —
lAobihty of Elevator Company — Delivery of Wheat — Amount to which
Bailor Entitled — Place of Delivery.

Plaintiff delivered a quantity of wheat to defendants' elevators at. Saskatoon
and Osier, receiving tickets or receipts therefor in the form of storage
tickets mentioned in the Manitoba Grain Act. The agent marked the
words "specially binned" on these tickets; but it was shewn he had express
instructions not to accept any wheat to be specially binned. The amount
of wheat shipped from the bins in which plaintiff's wheat was stored was
greater than that mentioned in the tickets, and he claimed this wheat.
The plaintiff also claimed damages by reason of the defendants' failure
to deliver the wheat to him at Palmerston, Ont., the wheat being in fact
delivered at Fort William: —

Held, that the plaintiff having accepted ordinary storage receipts under
the Manitoba Grain Act calling for the delivery to him of the ''above
quantity grade and kind of wheat," could not claim that the wheat was
specially binned under the provisions of the Act, and was entitled only to
delivery in accordance with the provisions of the Act when the grain is
stored under storage tickets.

2. That the indorsement of the words "specially binned" on the ordinary
storage receipt would not give any greater privilege than those to which
the plaintiff was entitled under storage tickets.

3. ^ That the contract between the parties being for delivery of the wheat
in car lots at any terminal elevator in the district, the delivery of the wheat
at Fort William was sufficient compliance with the contract.

This was an action for an account of wheat sold the defen-
dant and for. damages, and was tried before Newlands, J., at
Saskatoon.

1909
Jan. 22.

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J, D, FergiLson, for the plaintiff.
-R. W. Shannon, for the defendant.

January 22. Newlands, J.: — ^The plaintiff claims that in
October, 1902, he delivered to the defendants at Saskatoon cer-
tain wheat that was to be specially binned and shipped to his
order to Palmerston, Ontario. He claims that this wheat was
put into care— viz., 45,430 lbs. in car No. 23',416 and 65,460 lbs.
into oar No. 35,864 — ^that defendants, instead of shipping this
wheat to his order to Palmereton, shipped same to their own
order to Fort William; that these care were there unloaded and
reloaded, and only 40,000 lbs. shipped in car No. 23,418 and
61,050 lbs. in car No. 35,864 to Palmerston; that defendants
took 5,430 lbs. from said care; and, owing to their negligence,
lost a further amount of 4,380 lbs. between Fort William and
Palmerston — ^in all 9,840 lbs. — and he claims the value of that
amoimt of wheat and $14 which he had to pay for storage inspec-
tion and weighing at Fort William. He admits that the defen-
dants afterwards gave him a receipt for 85 bushels and 40 lbs.
of wheat on account of this shipment.

He further claims that in October, 1904, he deUvered to de-
fendants at Osier certain grain to be specially binned; that de-
fendants gave him storage receipts showing 775 bushels of grain
received; . that within 15 days he supplied a car and tendered all
charges to which .they were entitled and demanded that said car
be loaded as agreed, but that they refused to deUver him the said
grain; that subsequently defendants loaded this grain on car
No. 70,020, and received the proceeds of this grain, amounting
to 845 bushels, all of which plaintiff claims belonged to him. He
asks for an account, the repayment to him of the $14 paid for
storage, etc., at Fort William, and $1,000 damages.

The defence is a denial of the contract set out by plaintiff
and an allegation that the contract was that said wheat was re-
ceived by them to be stored, and upon the return of the receipt
therefor and upon payment of all charges for receiving, storing,
insuring, delivering and otherwise hauling said wheat, and upon
request by the holder of such receipt therefor to be delivered
for shipment to the public terminal elevator at Fort WilUam.
They further deny all charges of default, negligence and breach

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of contract, and say that the contract th&t they made with plain-
tiff was well, faithfully and fully performed, that they shipped
said wheat to the public tenninal elevator at Fort William and
delivered to plaintiff all certificates and documents required.

At the trial it was proved that plaintiff received from the
defendant's man in chaiige of their elevator at Saskatoon tickets
for l,778i bushels of wheat, and from their man at Osier tickets
for 775 bushels of wheat. Plaintiff claimed that in both instances
he delivered to defendants' elevator more wheat than the tickets
shewed; that he called the elevator man's attention to this, who
said that it made no difference, as the wheat was being specially
' binned, and that plaintiff would get all the wheat that was put
into his bin. In both instances the elevator man denied this,
and swore that plaintiff received tickets for all the wheat he put
into the elevator. Plaintiff, in support of his contention^ pointed
out that, though he got tickets for 1,778^ bushels from the Saska-
toon elevator, defendants shipped from that bin some 165 bushels
more, and fro^ja the Osier elevator 70 bushels more than he had
received tickets for, and he claims this wheat as his. It was
sworn on the part of the defendants that plaintiff got tickets
for all the wheat he put in, and that it was very easy, even
when wheat was pu^ in a special bin, for other wheat to get
mixed in with it, and that that is what happened in this case.

As to the quantity of wheat that plaintiff delivered to these
elevators, I am not satisfied that he put in any more wheat than
he got tickets for. He cannot swear what amount he put in
in either case, and as defendants' agents swear positively that
plaintiff got tickets for all the wheat he put in, and have explained
how the extra wheat may have got into these bins, I must hold
that this extra wheat belonged to the defendants and not to the
plaintiff. Besides the Manitoba Grain Act makes them guarantee
only the weights and grade as shewn by their tickets, and when
they have delivered that amount to plaintiff they have performed
their part of the contract.

The next question to be decided is, what was the contract
between the parties? The plaintiff claims that the wheat delivered
to defendants at Saskatoon was to be specially binned and delivered
to him at Palmerston, and that the wheat delivered by him at
Osier was to be specially binned and delivered to him there, on

Newlands, J.

1900

Caswell

Weotern

Elevator

Co.

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board a car to be furnished by him. Defendants say that their
agents had no authority to specially bin wheat, and that under
the Manitoba Grain Act they had the right to deliver this wheat
to plaintiff at the terminal elevator at Fort William, which they
did.

As to the contract between the parties, I am of the opinion
that that is shewn by the tickets or receipts for grain given by
the defendants' agents at Saskatoon and Osier to plaintiff. These
agents were general agents at these points in charge of their eleva-
tors, and, as far as third persons are concerned, would be pre-
sumed to have all the authority necessary to carry on the busi-
ness of the defendants in both purchasing and storing grain,
either generally or in special bins, and such third party would
not be affected by any instructions given by the principals to
their agents of which they had no notice. Now, defendants
swear that during the years 1902 and 1904 they were not receiving
any grain at their elevators to be placed in special bins, and that
their agents had instructions to this effect; also .that all grain
stored with them was to be shipped to the terminal elevator at
Fort William and delivered to the owner there. Under the
Manitoba Grain Act, where grain is to be specially binned, a
special form of receipt, which is provided by that Act, is to be
given. This receipt provides: ''Upon return of this receipt
and tender or pa3anent of the above-named charges accruing up
to the time of the said return of this receipt, the identical grain
so received into store will be delivered within the time prescribed,
by law to the person above-named or his order," while the ordinary
storage receipt provides, instead of the "identical grain" being
delivered, that the "above quantity, grade and kind of grain will
be delivered." This latter was the form of receipt given to the
plaintiff in this case, and it was, I think, notice to the plaintiff
that the grain was not specially binned imder the provisions of
the Manitoba Grain Act. This receipt, I think, contains the
contract between the parties, and plaintiff is bound by it. The
fact that the words "specially birnied" were written on the receipt
would not make the contract one for the delivery of the identical
wheat to the plaintiff, and the fact that the defendants' agents
were only provided with ordinary storage receipts would be notice
to the plaintiff that they had no authority to receive wheat to

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be specially binned under the provisions of the Act. Now, if
this wheat was not specially binned, the defendants had the right
under the Manitoba Grain Act, and it was so set out in the re-
ceipts given to the plaintiff, to deliver this wheat to him ''in quan-
tities of not less than car load lots at any terminal elevator in
the inspection district of Manitoba, on same line of railway or
any railway connecting therewith, as soon as the transportation
company delivers the same at the said terminal, and certificates
of grade and weight are returned subject to freight, weighing and
inspection charges at such terminal point, the grade and weight
of such griun to be delivered to be such as will conform to the
grade and as near as possible to the weight first above-mentioned
on government inspection and weighing thereof at such terminal
point." This defendants have always been ready and willing
to do, and as this is all they have contracted to do, I think they
have fully performed their part of the contract.
Judgment for defendants with costs.

Newland0, J.

1909
Gaswgll

Western

Elevator

Co.

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[IN CHAMBERS.]

19Q9 Great West Life Assurance Co. v. Hill.

Feb. 3. Mortgage — SdU Under — Regularity of Sale — Time for Holding Sale — Local

Time — Standard Time.

Certain land was ordered to be sold under mortgage at 12 o'clock noon at
Estevan. In Estevan what is known as local or fast time la observed, such
time bein^ one hour faster than Standard time. The land was offered for
sale and was sold at 12 o'clock noon local time. On application to confirm
the sale: —

HM, that as, under the provisions of sec. 31 of the Interpretation Act, what
is known as Mountain Standard time is declared to be the time for the
Province, the sale should have been held at 12 o'clock noon, Standard
time, and not having been so held, it was irregular.

This was an application to confirm a sale iinder mortgagei
heard by Newlands, J., in Chambers.

P. H. Gordon, for the plaintiff.

r. jS. McMorran, for subsequent encumbrancers.

February 3. Newlands, J.: — ^The advertisement for sale
stated that sale would take place at 12 o'clock noon on Saturday,
November 7th, 1908, at- Estevan. Estevan time is one hour
ahead of Standard time, and the sale took place at Estevan time,
the property being sold for $1,350. D. Murphy swears that he
went to the place of sale at 12 noon Standard time, and was told
that the sale had taken place one hoiir previously. He also swears
he was prepared to bid $1,800 for the property. Mr. N. J. Lockhart
swears that all business transa)ctions in Estevan for the last five
years have been conducted on local time. Under, these circum-
stances should I confirm the sale?

Section 31 of the Interpretation Act is an enacting as well as an
interpreting section, and it provides that the time known as Moun-
tain Standard time shall be the time for this Province. This time
is one hour slower than Estevan local time. Now Standard time
is the time we are to go by. The Courts are opened by Standard
time, no matter what the local time is, and I think that a sale tmder
an order of the Court must be held on Standard time imldGs some
other time is mentioned. Twelve o'clock noon in the advertisement
therefore meant twelve o'clock Standard time, and as the sale was
held one hour earlier than Standard time it was held that much
too soon, and the sale cannot be confirmed. As the first mortgagee
had the conduct of this sale he must be held responsible for costs.

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n.] SASKATCHEWAN LAW EBPORTS. 159

[COURT EN BANC]

Taeger v. Rowe. En Banc.

1909

Detention — Goods Seized under Agreementjor Conditional Sale — Previous Sale

of Same Goods Without Reservation of Propertu — Re-^ale to Original Seller — a pril 7.
Validity of Lien — Change of Possession on He-sale— Sale to innocent Pur- ■
chaser — Intention of Alleged Bailor and Bailee^BiUs of Sale Ordinance —
Ordinance Respecting Hire Receipts and Conditional Sales.

Defendant sold a team of horses to one A., takins promissory notes in pay-
ment. When one of the notes became due he learned that A. would not
likely be able to pay, and made inquiries as to his position, and was advised
that if he could get possession of the horses he could re-sell them to A.,
taking lien notes which would •afford him security. Accordingly he went
to see A., and asked for payment, and on A. stating that he could not pay,
the defendant proposed that he buy back the horses'for the amount due and
he would re-sell them to A., at the same time taking lien notes for the
purpose of securing the purchase price. This arrangement was carried
out, lien notes being given. The horses were at this time in a livery stable,
and there was not any apparent change of possession during the transaction
A. immediately afterwards sold the horses to the plaintiff. The defendant,
learning of the sale, took possession of the horses imder the lien notes, and
the plamtiff sued for detention: —

Heldf that the whole transaction between the defendant and A. was one
devised to evade the provisions of the Ordinance respecting Hire Receipts
and Ck>nditional Sales, and there being no actual bond fide re-sale to the
defendant the lien notes imder which he claimed were not operative, he
having no right, title or interest in the horses in question which could be
retained under an agreement for conditional sale.

2. In any event the transaction was void under the Bills of Sale Ordinance,
because there was at the time of the alleged re-sale no actual or continued
change of possession, nor any memorandum in writing duly registered.

This was an appeal by the plaintiff from a judgment of Lamont,
J. (1 Sask. L.R. 466), dismissing the plaintiff's action for deten-
tion of goods, with costs, and was heard by the Court en banc
(Wetmore, C.J., Prendergast and Johnstone, JJ).

J. F. L. Embury J for appellant : The findings of the learned
trial Judge are not supported by the evidence, and the weight
of evidence is such that the appellate Court would be justi-
fied in over-rulmg such findings: McKay v. Victoria, 9 B.C.R.
37; Fairweather v. Lloyd, 36 N.B.R. 353; Village of Granby
V. Menard (1902), 31 S.C.R. 14; Norlh BrUish v. TourvUle (1896),
25 S.C.R. 192-194; Montreal v. Cadreux (1899), 29 S.C.R. 616;
Debster v. Leuris (1903), 33 S.C.R. 292. The evidence shews that
the sale from Armstrong to Rowe and the resale was not bond
fide. In any event, there was no change of possession on such
sale, and it is therefore void: In re Hoffman, ex p. Venning,
10 L.R. Eq. 62, at p. 71; Boyle v. Lasker, 16^ U.C.C.P., at

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160 SASKATCHEWAN LAW REPORTS. [vol.

En Banc. 275; Wilson v. Kerr, 17 U.C.Q.B., at 170; Howard v. MitcheU,
l»oo 10 U.C.Q.B. 542; McMichad v. Brook (1906), 1 W.L.R. 168;

Taeger Sonar v. Smith, 45 U.C.Q.B. 159; Jackson v. Bari* o/ Nova Scotia,
j^^^,^ 9 M.L.R., at 75; Enc. Laws of Eng., vol. 10, at 228; Mueller v.
Cameron (1905), 2 W.L.R. 534; Goodyear v. Goodyear 10 W.R.
405; Danford v. Danford 8 A.R. 518.

C. £. Z). TTood, for respondent: The appellant, having ad-
mitted the respondent's right to the horses by offering to purchase
them after the respondent had taken possession of them, is
estopped from disputing the respondent's title; Baxendale v.
BenneU (1878), 47 L.J.Q.B. 626; Cababe on Estoppel, pp. 6 & 7;
Ashpittai V. Bryan (1864), 33 L.J.Q.B. 328. It is not necessary,
in order to constitute estoppel, that the facts should be true:
McCance v. London and North-Western R.W, Co. (1865), 34 L.J.Ex.
39. The sale from Armstrong was a bond fide transaction. The
subsequent resale was not in the minds of either party at the
time. It was the intention of the parties that the property should
paas to Rowe, and the Court will be guided by this: Farley v.
Bates (1864), 2 H. & C. 200, 33 L.J.Ex. 43. Under the circum-
stances of this case, the learned trial Judge has found that a reason-
able time for taking possession had not expired when the new sale
was made, and the purchasers being entitled to a reasonable time
to take possession, the Bills of Sale Ordinance does not apply:
Haight v. Munro, 9 U.C.C.P. 462; Jackson v. Bank of Nova Scotia,
9 Man. R. 75. In practically every case where a sale has
been declared void as against a subsequent purchaser, on account
of no change of possession, the property had remained in the pos-
session of the seller on his own premises. In this case the horses
were in a livery bam, and not in the actual possession of the seller,
and under such circumstances the sale would be valid: Barron
on Bills of Sale, 1897 ed., 393.

April 7. The judgment of the Court was delivered by
Wetmore, C.J. : — ^The defendant, about the 26th of August, 1907,
sold to one Fred. J. Armstrong a team of horses and harness for
$570. One hundred dollars was paid in cash on account of the
purchase, and Armstrong gave two notes for $270 and $200 each,
respectively due on the Ist day of December, 1907, and the 26th
of August, 1908, with interest at eight per cent. About the Sid

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n.] SASKATCHEWAN LAW REPOETS. 161

of December, 1907, the defendant met Armstrong at Lumsden, En Banc.
and, according to his statement, Armstrong sold back to him 1^09
these horses for the consideration of his delivering up to Armstrong Taegbr
the two notes before referred to, upon which there was then un-
paid $478. Armstrong, after this transaction was concluded,
expressing a desire to retain the horses, Rowe proposed to sell
them back to him for $478, he giving to him two lien notes for
that amount, and Armstrong agreed to this proposition, and gave
the defendant two lien notes for $208 and $270 each, respectively
payable on the 1st of January and the 1st of October, 1908, which
he took away. Of course, the lien expressed to be given was on
the horses in question, which were a pair of dark bay mares. At
the time this transaction was going on and took place, the mares
were in a livery stable in Lumsden, and remained there. Nothing
whatever was done with respect to them by either Armstrong or
the defendant, and there was no actual change of possession nor
any apparent alteration in the possession which any person could
observe. In fact, there was no pretence of anything of the sort.
Afterwards, on the same day, Armstrong sold these horses, some
harness and a buggy to the plaintiff for $325, the plaintiff paying
on account thereof $50 in cash and a cheque for $150, which was
subsequently presented and duly cashed. It was alleged by
Armstrong that he was drunk at the time he made this sale. Be
that as it may, he went out from Lumsden that night to R^ina,
the following morning cashed the $150 cheque in Hegina, and
proceeded to Ontario. He never came back for the $125 balance
which he was entitled to, and for which the plaintiff was to give
him a note on the morning after the sale.

The plaintiff, after this, used the horses and went driving
them until the 7th of December, keeping them, however, at the
same livery stable. On the 7th December, however, when the
defendant came into Lumsden, he (the plaintiff) removed them
to the stables of one Hall, which, perhaps, was the first actual
change of possession that was made by any person from the time
that Armstrong brought them to the livery stable. Subsequently
the defendant took the mares away to Strassburg, where he lived,
and this action is brought for the purpose of decidmg the question
of ownership of these horses, the plaintiff having replevied them
out of the possession of the defendant.

11 — ^VOL. n. SXJL

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Wetmore, C. J.

162 SASKATCHEWAN LAW BEPOETS. [vou

Bit Bako. The learned trial Judge found that the sale by Armstrong to

1909 the defendant, and by the defendant back to Armstrong, was an
Tabobr honest bond fide proceeding, and without fraud, and, therefore,
^' gave judgm^it in favour of the defendant. I very much regret

that I am imable to agree with the learned trial Judge in that con*
elusion. I do not desire to express an opinion that the defen-
dant was guilty of a fraudulent act, but I do find, on the testi-
mony (and I think the conclusion is, irresistible), that the defen-
dant and Armstrong entered into a scheme with the object of
defeating the intention of the Ordinance respecting Hire Receipts
and Conditional Sales, being ch. 44 of the Consolidated Ordinances,
1898, and that there was no real sale, nor was a real sale ever in-
tended, from Armstrong to the defendant and from the defen-
dant to Armstrong, as stated. In order to explain how I arrive
at that conclusion, it is necessary to go back and see what occurred
before the defendant and Armstrong met at Lumsden. The
defendant had been informed by Armstrong's brother that his
(Armstrong's) crop had been frozen, and that he would have
nothing to pay for the horses, and that the defendant had better
look out for his security. The defendant thereupon consulted
with one Stedman, a conveyancer and real estate dealer, residing
at Strassbuig, and was informed by him that when taking the
horses back and taking the lien notes on them from Armstrong,
th&t the lien notes would be a security. He thereupon came
into Lumsden with blank lien notes in his pocket, apparently pre-
pared to get notes of that character, and, upon meeting Armstrong
in Lumsden, he first asked him if he had sold the team yet, and,
upon being informed that he had not, he asked him if he was pre-
pared to pay anything on the horses that day, to which Armstrong
replied that he had no money, but he thought he would be in
Strassbuiig on Monday night and give him $200 more. The de-
fendant then asked him if he would be willing to give lien notes
on these horses on different conditions, to which Armstrong re-
plied "Yes," and wanted to know what the conditions would be;
and the defendant told him that he would want one lien note for
thirty days and the other one till October next. After this they
went to an hotel, and the arrangement was made there which
I have before described. The defendant stated, on cross-examina-
tion, that when there they talked the matter over for fifteen or

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n.] SASKATCHEWAN LAW REPORTS. 163

twenty minutes, or perhaps half an hour, and at the end of the £2n Banc.
conversation Armstrong signed the lien notes, and he (the defen- 1^^
dant) handed him over the promissory notes; that one was prao- Tabgibb
tically handed over when the other was, and that Armstrong got r^j
the promissory notes after he had signed the lien notes. And,
upon being asked as to what he would have done if Armstrong
had picked up the promissory notes and made for the door, his
reply was that it would be hard to say what he would have done.
Upon being further asked if it would not have been a breach of
faith to walk out with the promissory notes before signing the
lien notes, he replied that there would not have been much busi-
ness about it. The evidence shews that, after the defendant
had got these lien notes, he marked '' renewal" on them. This
was apparently after he had got back to Straasbuig. Now, the
defendant, in my opinion, made a great deal of shuflSing when
interrogated as to why he marked the word "renewal" upon these
notes, and his"" explanation was by no means satisfactory. One
would ordinarily imderstand that he meant a renewal of some
security that he had held in his hand before. If, as he wishes us
to believe, his transaction with Armstrong on the 3rd December
practically wiped out the old sale of August, 1906, and created
a new transaction altogether, these notes would have been in
no sense a renewal of any notes given in consideration of the old
sale. They would stand as representing something new, and
I can only consider his marking them in that way as some evi-
dence, at least, tending in the direction that he considered the
transactions all one and the same. The defendant, in one or
two respects, shewed himself, in my opinion, somewhat ingenious.
For instance, he has stated, in one part of his examination, that
he never had anjrthing to do with a lien note, and knew very little
about it. Further on, however, upon being asked to explain
why he had these blank lien notes with him which he brought
in from Strassbui^, he stated that he had had them in his pocket
for some time, and that he carried this kind of thing with him all
the time. Armstrong was called as a witness, and he seemed
to be able to do better for the defendant than the defendant was
disposed to do for himself, because he swore that the proposition
to sell the horses back was made after his notes were delivered
back to him, and that the defendant had got up, with the notes

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[vol.

Eir Bano.
1909

Taeger

V.
ROWE.

Wetmore, C.J.

in his possession, and was about to leave the room, when he pro-
posed to buy the horses back again. In the first place, this is
utterly at variance with what the defendant states. In the next
place, I am not much disposed to put very much reliance on the
testimony of Mr. Armstrong. His conduct^ at any rate at Limis-
den that day, was by no means creditable to him. It was dis-
honest. In the first place, he went into a store there and pur-
chased an overcoat for $50, which he promised to pay for that
day, and which he never paid for, and at the time he bought it
he had not the means to pay for it, and had no prospective means
in view, unless, of course, he 'intended to sell these horses.
In the next place, when he sold out to the plaintiff, he sold a buggy
which did not belong to him, and which Ta^er had to give up.
And, assuming the sale to the defendant to be valid, he was quite
prepared to defraud the plaintiff of the $200 he had got from
him, and he continued that intention next day, when, I presume,
he was sober, by cashing the cheque. For these reasons I have
reached the conclusion that the sales between the defendant and
Armstrong wero pretences, and wero not real and were not in-
tended to be roal. Of course, under such circumstances, no
property passed, nor could it be held that any property was in-
tended to pass. It remained in Armstrong just as if they had
never attempted an3rthing of the sort, and, consequently, the lien
notes would be of no effect. It was conceded that a lien note
upon property the title and ownership of which had passed out
of the payee of the note before it was made was invalid as a lien
note, and that, in order to hold a lien imder such a note, the payee
must have a title and ownership to retain at the time the note is
made, as, for instance, when the vendor of a chattel, at the time
of sale, retains his right of ownership by such a note until the
payment is made, then the note should be valid, but without
something of that character there would be no such conditional
sale as is contemplated by the Ordinance in question. There-
fore, as lien notes the documents signed on the 3rd of December
were of no use.

But, assuming that I am wrong in finding that the sales be-
tween Armstrong and the defendant of the 3rd December were
pretences, I am of opinion that no title passed .to the .defendant
from Armstrong as against an innocent pimshaser for value, by

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ROWE.

Wetmore^CJ.

n.] SASKATCHEWAN LAW REPORTS. 165

virtue of the Bills of Sale Ordinance, CO. ch. 43, sec. 9, inasmuch Ew Bang.
as there was no actual and continued change of possession of the 1^09
property in question, and there was no conveyance thereof with Tabqbb
the aflSdavits provided for by that section. Now, suppose that
this sale to the defendant by. Armstrong had been bond fide, and
the defendant had left the horses in the ^able just where and as
they were before. There would have been no sale as against
a purchaser for value or a creditor. Therefore, if, after that,
Armstrong had sold those horses to the plaintiff, and the plaintiff
had taken possession of them, as he did in this case, as I have
already stated, the sale to him would have been good. Nor
would the defendant's sale of those horses to some person else,
without a conveyance as provided for by the Ordinance, and with-
out .an immediate delivery followed by an actual or continued
change of possession, have been of any avail as against a pur-
chaser for value from Armstrong. And if it would not, it would
not be in any better position by making a resale to Armstrong,
and Armstrong giving him a lien note. The same evil which the
Bills of Sale Ordinance is intended to provide against still existed,
because the intention is to prevent bond fide purchasers being
deceived by the fact that the apparent possession and ownership
is in one person, while secretly the ownership is in another. The
mere fact of Armstrong giving the lien note upon something which
he also was apparently in possession of will not help them, simply
because Armstrong never had any title to give or consent to as
against a person in the plaintiff's position, a purchaser for value,
nor was he in a position, as against the plaintiff, to consent to
the lien being placed against this property, for the reason I have
stated, that in so far as the plaintiff was concerned, and others
like him, it was always his (Armstrong's) property and not the
defendant's. It has been stated in aigument that, inasmuch as
these mares were at the livery stable and continued there, that
practically the mere act of sale was sufficient change of possession,
and Barron and O'Brien on Bills of Sale (edition of 1897, p. 393)
was cited in support of that proposition. As I read Barron and
O'Brien, it lays down nothing of that sort. In the reference in
Barron and O'Brien which I think is relied upon for the defen-
dant, the vendor of the property was supposed to be the pro-
prietor of the stable, and the horse was supposed to have been

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Wetmore, C.J.

166 SASKATCHEWAN LAW REPORTS. [vol.

Eir Bai^o. taken away by the purchaser and brought back to the stable.
^^Q^ ^ What is laid, down there, too, is the opinion of the author: it is
Tabobr supported by no authority. Ramsay v. MargreU (1894), 2 Q.B.
RowB ^^' ^^ L.J.Q.B. 573, 70 L.T. 788, was also referred to by the de-
fendant, and all that it is necessary to say in respect to that case
is that it came up under an English statute, where the question
was not immediate delivery and actual and continued change of
possession, but was simply a question of what constituted apparent
possession imder the circumstances — ^two very different nuitters.
Something has been stated with reference to the question of the
immediate delivery of these horses. Now, the immediate delivery
and the actual and continued change of possession that was neces-
sary to effect a transfer and make a good title under sec. 9 was
immediate delivery and continued change of possession as .be-
tween Armstrong and the defendant. As between them there
was no immediate delivery and no actual change of possession
whatever, and it was never intended that there should be. The
defendant, when he went home that night with these notes in
his pocket, had no intention of taking these horses again, until,
at any rate, default had been made in the payment of the notes,
and I am unable to bring my mind to the conclusion that, having
sold back to Armstrong, that a dealing with them by Armstrong
which was intended to defeat thef plaintiff's right can be construed
to amount to an immediate delivery or an actual change of pos-
session for the benefit of the defendant.

I am forced, therefore, with all due deference to the learned
trial Judge, to the opinion that this appeal should be allowed
and judgment entered for the plaintiff for $40 and costs, and the
defendant should pay the costs of this appeal.

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n.] SASKATCHEWAN LAW REPORTS. 167

[COURT EN BANC]

In re Ebbing. . En Bano.

1900

Land Titles Act — Caveat — Right of Caveator to Require Registration Before

Issue of Crown Grant for Land — Dvty of Reaistrar — Judicial Discretion — Aiiril 7.
Caveator's Claim Founded on Unregistered Mortgage— No Evidence which
wnM Support Right to Register Mortgage,

The appeUants secured a mortgage from one Ebbing on oertain lands, and
^ptied to the registrar to register a caveat against such land claiming an
interest therein under such mortgage. At the time of such application
grant from the Crown for such land nad not been received, and the appel-
lants produced no evidence that such grant had issued or that the mortgagor
was entitled to mortgage such land. The registrar refused to register such
caveat, and the appellants appealed from his decision: —

Hddf that, as the registrar coula not accept and register the mortmge under
which the caveator claimed until the Crown grant was received oy him or
until he was satisfied by affidavit in form K. to the Land Titles Act that
the mortgagor was entitled to create the mortgage, he could not accept and
register a caveat claiming imder such a mortgage in the absence of the
Crown grant or evidence of the right of the mortgagor to create such mort-
gage.

This was an appeal by the International Harvester Company
from a judgment of Wetmore, C.J.^ sustaining a decision of the
r^istrar of land titles at Prince Albert in refusing to register a
caveat tendered by the company for registration.

N, Mackemie, E.G., for the appellant : The appellant submits
that the r^istrar had not before him any evidence upon which
he coiild act that the land in question was homestead land: Land
Titles Act, sees. 33, 36 and 163; In re Claxton (1890), 1 Terr. L.R.
282, at p. 288. If he had not this information, the appellant's
caveat was r^ular, and they were entitled to have it registered:
Land Titles Act, sec. 137 and Form W., sees. 136, 138, 140 and
141; Wiikie v. JeOeU (1896), 2 Terr. L.R. 133, at pp. 143 and 144;
McMey V. Gthsarij 7 Man. L.R. 172, at p. 179; In re Claxton
(1890), 1 Terr. L,R. 282, at pp. 285 and 288. The registrar can-
not refuse registrations apparently good on their face, because
on some undisclosed ground they may be bad. Even asmiming
that the registrar had properly before him the information that
this was homestead land, a caveat is not a charge on homestead
land: Hardcastle on Construction of Statutes, 3rd ed., p. 119;
MvUins V. CoUina (1874), L.R. 9 Q.B. 294; Union Bank of London
V. Ingram (1882), 20 CD. 465; Land Titles Act, sec. 163, and
tariff thereunder, items 9 and 13. A mortgage is a valid instru-

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[vol.

En Banc.
1909

In re
Ebbing.

ment affecting homestead land^ because sec. 31 Dom. Land Act,
1908, does not apply to a mortgage: Land Titles Act, 1906, sec.
102, copied from Land Titles Act, 1894 (Dom.), sec. 74, copied
from Terr. R.P. Act, R.S.C. 1886, ch. 51, as amended in 1898;
Re Harper, referred to in Flannigan v. Healey (1890), 4 Terr.
L.R. 391, at 396. This distinction must have been in the mind
of the legislature when passing the Dominion Lands Act, 1908,
because an assignment or transfer of a homestead was and is pro-
hibited, and a mortgiage was first identified in this respect with
an assignment or transfer by Land Titles Act, 1898 (Dom.), ch. 32,
sec. 9, and continued by Land Titles Act, 1906, sec. 100, which
statutory identification has been repealed (ch. 29 (1908), Sask.,
sec. 7), and the Dominion Lands Act was passed subsequently
with knowledge of this state of the law. Effect must be given to
the difference in wording between sees. 29 and 31 of the Dominion
Lands Act. Section 29 refers to the validity of instruments
between the homesteader and the Crown: Dominion Lands Act,
R.S.C. 1906, ch. 55y sec. 45 et seq.; Park v. Long (1907), 1 Sask.
L.R. 33; Flannigan v. Healy, 4 Terr. L.R. 391.

Frank Ford, K.C., for the inspector of land titles offices :
The mortgage upon which the caveat is based is void as a
chaige upon a homestead: Dominion Lands Act, 1908, sec.
29; Harris v. Rankin, 4 Man. L.R. 115; Flannigan v. Healy,
4 Terr. L.R. 391; AbeU v. McLaren, 13 Man. L.R. 463; Cum-
mings v. Cummings, 15 Man. L.R. 640; Park v. Long (1907),

7 W.L.R. 309; and is void as an assignment or transfer or an
agreement to assign or transfer homestead land: Dominion Lands
Act, sec. 31; cases cited supra; and Sawyer-Massey v. Dennis
(1908), 7 W.L.R., p. 272; Waterous Engine Co. v. Weaver (1908),

8 W.L.R. 432. If not void, it is at least unregisterable: Dominion
Lands Act (1908), sees. 29 and 31; Land Titles Act, sec. 100;
Re Rivers (1893), 1 Terr. L.R., pp. 472 and 474; Waterous Engine
Co, V. Weaver, supra. The mortgage in question, being created
by a person who is not the registered owner of the lands, does
not convey any interest, and at most is not capable of registra-
tion or protection by caveat: Land Titles Act, sec. 98, sub-sec. 3;
Kelly V. Doddy, 5 S.A.R. 132; McAllister v. Biggs, 8 Ap. Ca.
cited Hunter's Torrens Title Cases, p. 29. The caveat, being
based on a void instrument, discloses no interest in the land

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SASKATCHEWAN LAW REPORTS.

169

as required by sec. 136 of Land Titles Act: Mc Arthur v.
Glass, 6 Man. L.R. 224 and 310; Coutlee R.P.. Stats. 188; and
the r^istrar is justified in refusing to file it: Land Titles Act,
sees. 100 and 136; Coutlee's R.P. Acts 31; Re Webster v. C.P,R.
(1907), 6 W.L.R. 384. The fee simple remains in the Crown until
issue of patent, and the homesteader has at least only the right
of possession, liable to be terminated, and cannolb himself nor
can anyone claiming under him cloud the title: Dominion Lands
Act, sees. 13, 29 and 31; Land Titles Act, sec. 58; Re Rivers,
1 Terr. L.R. 472-4; Balgonie S,D, v. C.P.R. (1901), 5 Terr. L.R.
142; AUaway v. Rural Munidjxdily of Morris (190^, 6 W.L.R.
729. Until the passing of the Dominion Lands Act, 1908, the
mortgagor was entitled, after reconunendation for patent, to en-
cumber the title. No such right now exists: ch. 55, R.S.C. 1906,
sees. 128 and 142; Dominion Lands Act, 1908, sees. 29 and 31.
The land is not yet imder the Act, and until this no caveat can be
filed: Land Titles Act, sec. 58; Shore v. Green, 6 Man. L.R.
327; Hogg on Torrens S3rstem, p. 736. The issue of patent is
its receipt by the registrar for registration: Terr. R.P. Act of
1885, sec. 29; Coutlee, p. 231; In re Irish, 2 Man. L.R. 361;
In re Land TiOes Act (1899), 4 Terr. L.R. 233; In re Thomp-
son, 10 Can. L.T. 44. The legislature of Saskatchewan can-
not validate any transaction relating to Dominion lands for-
bidden by the Dominion Lands Act. The filing of the caveat
would have practically the eflFect of filing the mortgage, and is
contrary to the spirit of the Land Titles Act. It is an attempt
to do indirectly what is forbidden directly: Land Titles Act,
sec. 139; Wd)ster v. C.P.jB., 6 W.L.R. 384. The registrar is
justified in following the provisions of the Dominion Lands Act
in the r^istration or refusal to register instruments afifecting
* Dominion lands before issue of patent: Coutlee, 294. He has
a judicial duty of examining into the validity of instruments
presented for registration: Land Titles Act, sees. 36, sub-sec. 2,
and sees. 60, 151, 158, 159 and 160; In re Land Titles Ad, C.P.R,,
4 Terr. L.R. 233; Hunter's Torrens Title Cases, 257.

Ek Banc.
1909

In RE
Ebbing.

April 7. Prendergast, J.: — The appellants delivered to the
registrar of the Prince Albert land registration district, to be filed,
a caveat in Form W of the Land Titles Act, setting forth that

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170 SASKATCHEWAN LAW REPORTS. [vol.

En Bano. they claimed an interest in a certain quarter-section of land under
IPQP an unregistered mortgage made in their favour by Heniy Ebbing,
hTRB dated 22nd October, 1908, seeming the sum of $245.30."
Ebbing. ^^ ^j^^ ^j^^ ^^ patent for the said land was recorded in the

PrendergMt, J. \qj^^ ii^Iqq oflSce foF the sdd district.

I may say at once that I will deal with this matter on the
assumption that this is all the information that the r^istrar was
possessed of, as I deem it useless to take notice of certain corres-
pondence which he had with the Dominion lands agent at Hum-
boldt.

Having, then, before him this evidence that no patent was
recorded in his office, the registrar refused to register the caveat.

The company then applied by petition to the learned Chief
Justice for an order directing the r^istrar to file the caveat, which
resulted, in due course,' in the action of the registrar being upheld,
and the matter now comes before us by way of appeal from the
decision of the learned Chief Justice.

I will first remark that Form W of the Act, prescribed for
caveats, begins in the following words: —

"Take notice that I, A.B., of (insert the description), claiming
(here state the nature of the estate or interest claimed and the grounds
upon which such jdaim is founded). . . ."

These last words, as I take it, are imperative. It is not
sufficient that the caveator should state that he claims an interest
in the land. He must also state ''the nature of the estate or
interest claimed," and, moreover, "the gix)imds upon which such
claim is founded." That this is tiot an idle matter of form, but
must be complied with strictly, is shewn by the fact that it must
be supported by affidavit, and is further emphasised by the note
at the end of the form, to the effect that " if the affidavit is by an
agent, a copy of the authority or power imder which he claims
to act is to be annexed to the affidavit."

I quite agree that a caveat is not intended to have the com-
pleteness and legal precision of a statement of claim in an action,
and that a registrar would be misconceiving his duties who would
decide on the sufficiency of such a document on grounds involving
subtlety and nicety of distinctions. But, for all that, I am of
opinion that the duties of a registrar in the matter are not merely
■ * * ministerial, in the narrow sense of the word, but also, within cer-

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n.] SASKATCHEWAN LAW REPORTS. 171

tain limits at least, judicial. He has a discretion to exercise. £2n Banc.
He should see to it that altogether idle instruments should not 1^09
be put on record. And, in this particular matter of caveats, In rb
I conceive it to be decidedly one of his duties to ascertain that Ebbimq.
the interest claimed, by ''its natm^" and by "the grounds on Prendergmst. J.
which it is declared to be foimded," is not, on the face of it, one
which the Act forbids to recognize by registration.

In the present case the r^istrar had this before him: 1st,
a caveat wherein the caveators stated that they claimed imder
a mortgage; and, 2nd, the evidence that the patent for the land
in question was not recorded in his office.

This being so, it seems to me that the r^istrar's duty was
plainly indicated to him by sec. 100 of the Act.

This sub-section says in part: —

"... the r^istrar is hereby empowered to refuse to
register any mortgage for land for which the patent is not of record
in the land titles office, unless the applicant for the registration
of such mortgage first satisfies the registrar that he is entitled
to execute such mortgage by affidavit in Form K in the schedule
to this Act. . . ."

And the affidavit prescribed by said Form K, with the notes
accompanying the same, read in part as follows: —

"I claim to be the party rightfully in possession of the said
land and to be entitled to create the said mortgage (or incum-
brance), and that particulars of my possession and title to the
said land are as follows: {here mi^ be given such information as
toiU satisfy the registrar as to the mortgagor's or incumbrancer's right
to create the mortgage or incumbrance, and, in the case of such mort-
gagor or incumbrancer of, land entered for him as a homestead or pre-
emption under the provisions in thai behalf contained in the Dominion
Lands Act, that he has been recomm£nded for patent and has received
his certificate of recommendation in accordance with the said pro-
visions)."

The prohibition contained in sec. 100 (2), as I read it, is general,
and extends to the registration of any mortgage on land for which
the patent is "not of record in the land titles office," whether such
land be homestead, pre-emption, or land of any other class.

Here all that the caveat states that the claim is under is a
mortgage, and the patent is not of record in the land titles office.

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172 SASKATCHEWAN LAW REPORTS. [veu

En Bano. Of course, while the prohibition under sec. 100 (2) is general,

1909 extending to all cases where the patent is not of record and the

Ik bb claim is on a mortgage and nothing more, the applicant may bring

^^°^^* himself within the exception by satisf)ang the requirements with

Prendergast, J. respect to Form E. But that is just what the applicant in this

case has not done, having rested his claim on the mortgage only.

Certain documents, although valid in the sense of securing
substantial interests in land, cannot be registered simply on accoimt
of their not being in compliance with the forms prescribed by the
Act. These are properly the subject of a caveat, and, in due
course, the Court may make such order as will further secure
such interests by registration, although in a different form from
that of the original instrument. This is not so, however, in this
case. Here we have a claim simply based on a mortgage, with-
out (as far as is shewn) the element of possession or other require-
ments of Form K, and sec. 100 (2) is a bar, not only to the regis-
tration of such mortgage by the registrar in the first instance, but
also to the Court making any order for such registration.

As the above reasons seem to me suiEcient to determine the
matter in issue, I will not deal with the broad question raised
as to whether unpatented lands are subject or not to the pro-
visions of the Land Titles Act. I will add, incidentally, that,
although it is clear that no patent was of record in the land titles
office, I am inclined to doubt whether the evidence shews that it
had not issued.

In my opinion, the appeal should be dismissed, but as the
question involved is one of public importance, from the stand-
point of practice in the land titles office, and the inspector of land
titles offices was represented by the Deputy Attorney General,
I think there should be no costs of the appeal.

Lamont, J.: — ^This is an appeal by the International Harvester
Company from a decision of the Chief Justice upholding the refusal
of the registrar of land titles at Prince Albert to register a caveat
against lands the patent for which was not of record in his office.

On October 22nd, 1908, the appellants obtained from Henry
Ebbing a mortgage on the north-east quarter of section 2, tp. 38,
rg. 19, west of the second meridian. They then executed a
caveat, in the statutory form, directed to the registrar of the

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n.] SASKATCHEWAN LAW REPORTS. 173

Piiiice Albert land registration district, claiming an interest in Ey Banc.
the above-mentioned lands by virtue of the said mortgage, and 1»09
forbidding the registration of a transfer or other instrument affect- j^ be
ing such lands or the granting of a certificate of title thereto, except Ebbing.
subject to the claim set put in the caveat. This caveat they Lvnont^J.
forwarded to the r^istrar for registration, but he refused to register
the same on the grounds (1) that the patent from the Crown for
the land was not in his office, and he had no official information
from Ottawa that the same had been issued, and that the onus
of proof was on the applicant to shew that the patent had been
issued; (2) the patent from the Crown for the lands had not been
issued, and his source of information for making the statement
was, as he alleged, a telegram from the Dominion lands agent
at Humboldt, in whose district the land lies, and in which the
land agent informed him that Ebbing had not yet made applica-
tion for patent.

Being dissatisfied with the refusal of the registrar to roister
the caveat, the company mad€ an application, by way of petition,
as provided in sec. 158 of the Land Titles Act, to the Chief Justice
of this Court for an order directing the registrar to register or
file the caveat. On the matter being argued before him, the
learned Chief Justice upheld the refusal of the registrar, and dis-
missed the petition. From that order the company now appeal
to this Court.

The question for our determination is. Is it the duty of a regis-
trar, under our Act, on receiving a caveat in the statutory form,
to file the same against lands the patent for which is not of record
in his office?

I agree with the contention of the counsel for the applicants
that, under our Act, no duty is cast upon the r^istrar to make
inquiries outside of his own office as to whether or not an instru-
ment is a proper one for registration. Nor does our Act, in my
opinion, cast upon him the obligation of determining whether
or not that instrument be valid or invalid imder Dominion legis-
lation. The question whether or not the registrar should accept
a document for registration must be determined by the provisions
of the Land Titles Act alone.

The caveat is foimded on the mortgage made by Henry Ebbing
to the applicants. If the mortgage itself had been presented

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[vol.

Ek Bang.
1909

In rb
Ebbing.

Lamont^ J.

for registration, the duty of the registrar is clear. By sec. 98
provision is made for registration of a mortgage of lands for which
a certificate of title has been issued, and by sec. 99 provision ia
made for the. filing in the office of the registrar of mortgages or
encumbrances prior to the issue of the grant from the Crown upon
certain conditions being complied with. Section 99 reads as
follows: —

"99. There may be filed in the office of the r^istrar any mort-
gage or other encumbrance created by any person rightfully in
possession of land prior to the issue of the grant from the Crown
or prior to the issue of the transfer from the Hudson's Bay Com-
pany, or from any company entitled to a grant of such lands from
the Crown, or to which letters patent from the Crown for such
mortgaged lands have already issued, if there is produced to and
left with the registrar with the mortgage an affidavit made by
the mortgagor in the Form K in the schedule to this Act, and
also, in the case of lands mortgaged prior to the issue of transfer
from the Hudson's Bay Company or other company, as aforesaid,
a certificate from the land commissioner or other proper officer
of the company that the purchase price of such mortgaged lands
has been paid, and that the mortgagor is entitled to a transfer in
fee simple therefor from such company.

"(2) The registrar shall, on roistering the grant of lands so
mortgaged, enter in the register and indorse upon the duplicate
certificate of title before issuing it a memorandum of the mortgage
or encumbrance."

While the legislature thus makes provision for the registration
of a mortgage or encumbrance in these cases upoh the applicant
furnishing to the registrar an affidavit in Form K, there is, by
sec. 100, an additional restriction placed upon the right of a certain
class to register a mortgage prior to the issue of the grant. That
class comprises settlers who have made entry for homestead or
homestead and pre-emption under the Dominion Lands Act.
Section 100 reads as follows: —

"100. Nothing in this Act contained shall entitle a settler
who is entered for a homestead or homestead and pre-emption
under the provisions contained in the Dominion Lands Act to
mortgage the land entered for by him as a homestead or pre-
emption prior to issue of patent to him therefor or imtil he has

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II.] SASKATCHEWAN LAW REPOBTS. 175

been recommended for patent by the local agent and has received Eh Banc.
a certificate of recommendation in accordance with the provisiona ^^^
of the said Act. In rb

" (2) For the purpose of preventing the acceptance and regis- Ebb^q.
tration of any such mortgage, the registrar is hereby empowered TAmont.J,
to refuse to register any mortgage for land for which the patent
is not of record in the land titles office, unless the applicant for
the registration of such mortgage first satisfies the registrar that
he is entitled to execute such mortgage by affidavit in form E
in the schedule to this Act, and to be filed by the registrar with
the mortgage if the latter is accepted and filed or roistered by
him."

In addition, therefore, to what had to be set out in the affidavit
required under sec. 99, a settler, before he is entitled to have a
mortgage registered, is required to include in the affidavit a state-
ment that he had been recommended for patent and had received
his certificate of recommendation in accordance with the provisions
of the Dominion Lands Act. (See Form K.) These restrictions
were embodied in our Act in order to carry into effect a provision
of the Dominion Lands Act which prohibited the assigning or
transferring by a homesteader of his homestead before he had
received the certificate of recommendation for patent. Under
the Lafid Titles Act of 1894 (Dominion) a mortgage was expressly
declared to be an assignment or transfer prohibited by the Dominion
Lands Act. This declaratory clause was carried into the Saskat-
chewan Land Titles Act when it was enacted, but was repealed
by ch. 29, sec. 7, of the Acts of 1908, and the repeal took effect
prior to the taking of the mortgage in question.

The fact that this clause had been repealed was strongly urged
as an intimation on part of the legislature that a mortgage was
no longer to be deemed to come within the prohibition of the
Dominion Lands Act. I do not think any such interpretation
can be placed upon its repeal. When originally passed by the
Pariiament of Canada, which had the power of declaring the mean-
ing of its own l^islation, the clause was a proper one, but when
embodied in provincial legislation the clause may well have been
deemed inappropriate, and its repeal suggests to my mind nothing
Diore than a desire to remove from the Act a clause which, on its
face, presumes to declare the meaning of Dominion legislation.

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[vol.

En BAKa
1909

In rb
Ebbing.

Lamont, J,

Whether repealed or not, the clause could not have had any effect
on this case, as the duty of the r^istrar is to my mind sufficiently
plain without it. Subnsection 2, of sec. 100, above quoted, pre-
scribes the course to be followed by the registrar. Desiring to
prevent the acceptance of registration of a mortgage by a settler
who has made entry for homestead or homestead and pre-emption,
the legislature expressly empowers the registrar to refuse to register
any mortgage for land for which the patent is not of record in his
office, unless the party appl)dng for registration satisfies him by
affidavit that the mortgagor was entitled to execute it. On
receiving a mortgage of land the patent for which is not in his
-office, the r^istrar does not need to make inquiries as to whether
the mortgagor holds the lands as a homestead or not. His duty
is simply to refuse to register the mortgage until he is satisfied
by an affidavit that, under the provisions of the Act, the mortgagor
was entitled to execute it, and the onus of satisfying the registrar
is upon the party applying to have the mortgage registered.

This being the duty of the registrar where a mortgage is pre-
sented for registration, what is his duty where, instead of the
mortgage itself being presented, a caveat foimded upon it is sought
to be filed?

The effect of filing a caveat is set out in sec. 139, which is as
follows: —

"139. So long as any caveat remains in force, the registrar
shall not enter in the register any memorandum of any transfer
or other instrument purporting to transfer, incmnber, or otherwise
deal with or affect the land in respect to which such caveat is
lodged, except subject to the claim of the caveator."

This prevents any dealing with the land except subject to the
caveator's claim under the mortgage, and upon the issuing of a
certificate of title, the owner's title would be subject to that claim.
If, therefore, the mortgage be a valid one, the filing of the caveat
would enable the mortgagee to preserve his claims under the
mortgage, although under the Act he was not allowed to register
his mortgage without the statutory affidavit. If, under the cir-
cumstances of this case, the mortgagees were allowed to file the
caveat, they would, so far as the protection of their claim is con-
cerned, be obtaining practically the registration of the mortgage,
and thus doing indirectly by means of a caveat what was pro-

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177

hibited, under the Act, without the statutory affidavit. That
such was the intention of the legislature should only be held where
the language of the Act is so clear as to leave no room for doubt,
for it is a well-recognized principle of interpretation that **to carry
out effectively the objects of a statute, it must be so construed
as to defeat all attempts to do in an indirect or circuitous manner
that which has been prohibited": Maxwell on Interpretation of
Statutes, 4th ed., p. 171.

Are the provisions of the Act relating to caveats such that
this effect should be given to them? The section chiefly relied
upon is sec. 136. It is as follows: —

" 136. Any person claiming to be interested in any land under
any will, settlement, or trust deed, or under any instrument of
transfer or transmission, or under any unregistered instrument,
or under an execution, where the execution creditor seeks,
to affect land in which the execution debtor is interested
beneficially, but the title to which is registered in the name
of some other person, or otherwise may lodge a caveat with
the registrar to the eflFect that no registration of any transfer or
other instrument affecting the said land shall be made and that
no certificate of title therefor shall be granted until such caveat
has been withdrawn or has lapsed, as hereinafter provided, unless
such instrument or certificate of title is expressed to be subject
to the claim of the caveator as stated in such caveat."

Although the language of the section admits of a pretty wide
interpretation, there is nothing in it to lead to the conclusion
that the legislature intended to give a person a right to file a caveat
based on an instrument the registration of which was prohibited
without being accompanied by the statutory affidavit. Full
effect, it seems to me, can be given to the section without holding
that the l^islature, in one section, prohibits the registration of
a mortgage made except when accompanied by affidavit, and in
a subsequent section allows a caveat to be filed based on the mort-
gage, which caveat, if the mortgage were valid, would, upon the
patent being issued, place the mortgagee in practically the same
position as if the mortgage had been registered. As pointed out
Jjy the learned Chief Justice in the judgment appealed from, such

interpretation is against the whole spirit of the Act. The
ye^istrar, therefore, in my opinion, was right in refusing to register
tiie caveat.

12— VOL. II. S.L.R.

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En Banc.
1900

In re
Ebbing.

Lamont, J.

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178

SASKATCHEWAN LAW REPORTS.

[vol.

En Banc.
1909

In re
Ebbing.

Lamont, J.

Where, therefore, there is presented to the registrar for regis-
tration a mortgage or a caveat founded thereon affecting lands
the patent for which is not of record in his office, the registrar is
entitled to refuse to register the mortgage or file the caveat unless
the applicant first satisfies him by affidavit, in Form K, that the
mortgagor is entitled to create the mortgage, and in case the mort-
gagor mortgages land entered for by him as a homestead or pre-
emption under the Dominion Lands Act, the affidavit must also
state that he has been recommended for patent and has received
his recommendation in accordance with the pro\'isions of the said
Act.

Johnstone, J., concurred.

Appeal dismissed vnthcmt costs.

En Banc.
1909

April 7.

[COURT EN BANC]
Westaway v. Stewart.

Chattel Mortgage — CoUaieral Security for Payment of Promissory Note — Days
of Grace on Notes — Seizure under Mortgage before Expiration of — Right
to Make — Acceleration Clause in Mortgage — Evidence that Mortgagee
Deemed Himself Insecure — Reference to Local Registrar to Ascertain
Damages — Discretion of Judge.

Plaintiff purchased a stock of goods from defendant Stewart, giving promis-
sory notes in payment, and as collateral security to such notes a chattel
mortgage expressed to be payable on the days when the notes were re-
spectively payable, and to be collateral thereto. The mortgage also
contained the usual accelleration clause, and a provision that the mortgagee
deeming the mortgage insecure he might declare it due at any time. The
plaintiff having made default in payment of one of the notes, the defendant
caused the goods mentioned in the mortgage to be seized, the seizure being
made before the expiration of the last day of grace on the note but after
the payment became due as expressed in the mortgage. The plaintiff
sued for damages for unlawful seizure and conversion of the goods: —

Heldf that a mortgage given as collateral security to a promissory note cannot
be enforced for default in payment until after the expiration of the last
day of grace for payment of such note.

2. An action cannot be maintained on a promissory note until the expiration
of the last day of ^ce.

3. That in order to justify entry and seizure before default, under a chattel
mortgage containing a clause providing for entry and seizure, provided
the mortgagee deems the mortgage to be insecure before the sum payable
thereunder is due, it must appear that the mortgagee did actuallv deem
the mortgage insecure at the time he made the entry, and that suck entry
was made on that ground.

4. That it is a matter entirely in the discretion of the trial Judge whether he
assess the damages claimed in an action himself or refer it to the local
registrar to do so.

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179

This was an appeal from a judgment of Johnstone, J. ((1908), En Banc.
(1 Bask. L.R. 200), in an action for wrongful seizure and conversion i^^
of goods by a mortgagee under chattel mortgage, and was argued Wbstaway
before the Court en banc (Wetmore, C.J., Pre^dergast and
Lamont, JJ.), on February 26th, '1909.

Stewart.

Norman MacKenzie, K.C., for the appellant : The proceedings
taken \mder the chattel mortgage were rightfully taken, because
the mortgagee was entitled to take such proceedings under the
acceleration clause in the chattel mortgage: 7 Enc. Laws 10 & 12;
Cline V. Lt66y, 49 N.W.R. 832; Wood v. Gaar ScoU, 53 N.W.R. 14;
Richardson v. Hoffman, 54 N.W.R. 356; Cole v. Shaw, 61 N.W.R.
869; Bechnan v. NoUe, 73 N.W.R. 803; Barron and O'Brien, 1897 ed.,
57-58; Conkeyv.HaH, 14 N.Y. 22; Hare v. Sampson, 35 N.Y. 274.
It is immaterial whether or not, as a matter of fact, the appellants
were insecure, so long as they bond fide believed themselves to
be insecure: Wood v. Gaar Scott, 53 N.W.R. 14. The mortgage
is a separate security apart from the notes, and action can be
taken under any of its clauses apart from any question as to
whether the notes to which the mortgage is collateral are due or
not: Cde v. Shaw, 61 N.W.R. 869. The whole amount was
due under the acceleration clause, and the appellants had the
right to refuse to accept a smaller sum, even if a good tender was
made: McFadden v. Brandon (1904), 8 O.L.R. 610; WaUmgford
v. MvJtual Soc, (1880), 5 A.C. 685, at pp. 696-710; Reeves v. Bvicher
(1891), 1 Q.B. 509; Manitoba Mortgage Co. v. Daly, 10 M.L.R.
425. But no good legal tender was made. The appellant
had good reason to consider the mortgage insecure and to
invoke the accelleration clause: Bingham v. Bettinson, 30 C.P.
438; Whim^seU v. Giffard, 30 R.I., at p. 9; Stevens v. Daley,
1 O.W.R. 622; Didrick v. Ashdovm (1889), 15 S.C.R. 232. There
was no evidence in support of the plaintiff's claim for damages
on the ground of excessive seizure, and it was not, therefore, com-
petent fbr the learned trial Judge to refer it to the clerk to ascer-
tain damages.

A. M, Panton, for respondent : The respondent had the whole
of the last day of grace in which to provide for payment, and the
seizure was made before the expiration of that day, and the mort-
gage being collateral to the note, the seizure was therefore prema-

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180 SASKATCHEWAN LAW REPORTS. [vol.

En Banc, ture and illegal. In any event, the seizure was excessive, because

l^QQ only $1,000 was due on the date of seizure, and goods to the value

Weotaway of over $2,700 were seized. JThe costs charged were in excess

Stew rp ^^ those chargeable under the Extra Judicial Seizure Ordinance,

and, further, the seizure was Dlegal and improper as extending to

the ousting and exclusion of the plaintiff from his premises.

April 7. The judgment of the Court was delivered by Wet-
more, CJ.: — The plaintiff having purchased a general stock of
merchandise from the defendant Stewart for $4,600, on the 18th
of February, 1907, executed four promissory notes — one for $1,500,
payable on the 18th of March; one for $1,000, payable on the 18th
of May; one for $1,000, payable on the 18th of August; and one
for $1,100, payable on the 18th of November, all in the year 1907.
At the same time, by way of collateral security for payment of
such notes, she executed to Stewart a chattel mortgage on the
stock of merchandise. Stewart endorsed these notes over to the
Canadian Bank of Commerce, and left with them the chattel mort-
gage. The chattel mortgage was not assigned by any writing,
but I have no doubt that it was left with the bank as collateral
security for the payment of the notes.

The plaintiff paid the notes falling due on the 18th days of
March and May; and on the 21st of August the defendants, piu--
porting to act under the mortgage, entered the store and seized
the stock of merchandise, and sold a portion of it.

The proviso for payment contained in the mortgage is aS
follows: —

** Provided always that these presents are upon this express
condition that if the mortgagor do and shall well and truly pay
or cause to be paid unto the mortgagee the full sum of four thousand
six hundred ($4,600) dollars, with interest for the same at the
rate of eight per centum per annum, in the following manner,
that is to say: Fifteen hundred ($1,500) dollars on the 18th day
of March, a.d. 1907; one thousand ($1,000) dollars on tlie 18th
day of May, a.d. 1907; one thousand ($1,000) dollars on the 18th
day of August, a.d. 1907; and eleven hundred ($1,100) dollars
on the 18th day of November, a.d. 1907, with interest as afore-
said, being the principal sums, maturity dates and rate of interest
mentioned in four certain promissory notes bearing even date

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herewith, and made by the same mortgagor payable to the mort- En Banc.
gagee, for which and any or all renewal or renewals this mortgage i«^^«
is given as collateral security." Westaway

The mortgage also contained a clause providing that, in case stewart
of default in payment of any of the moneys secured, or if the mort-
gagee did at any time during the currency of the mortgage "deem
himself unsafe" as far as the security of the mortgage was con-
cerned, of which contingency the mortgagee was to be the sole
judge, then in any such case the full amount of principal and
interest, and any other sums which might be added to the same
by virtue of the provisions of the mortgage, should forthwith
become due and payable, and in such case the mortgagee had
the right to enter and sell the goods. It will be observed that
the mortgagees in this case entered upon the premises on the last
day of grace of the note falling due on the 21st of August. It
is quite clear, I think — in fact, it was admitted at the argument
by the appellants' counsel — that an action could not have been
brought on the promissory note so falling due before the expira-
tion of the last day of grace, but it was claimed that, inasmuch
as the mortgage provided on its face that the money should be
paid on the 18th of. August, the mortgagee had the right of entry
at any time after the last-mentioned date. I am of opinion that
that is not correct. It is quite clear that the mortgage was given
as security for these notes, and it seems to me to be contrary to
all reason that that collateral security could be enforced before
the money payable under the principal contract fell due.

Then it was urged that, under the clause providing that if the
mortgagee should deem himself unsafe so far as the mortgage
was concerned, the full amount of principal and interest should
become due and payable, and that the mortgagee could enter
at any time after he so felt himself insecure. Now, I am not
prepared to disagree with that proposition, but I am of opinion
that, in order to avail himself of it, the mortgagee must enter
aod take possession because he deemed himself insecure. That
must be the intention in his mind at the time he made the entry.
It will not do, if he has made the entry on another ground that
is not good, to turn about and endeavour to get behind the clause
he is now relying on. That the mortgagee did not enter because
he deemed his security unsafe is clear. In the first place, Stewart,

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182 SASKATCHEWAN LAW REPORTS, 1vol.

En Banc, the mortgagee, signed the warrant to take possession under the
1909 instructions of the manager of the bank. He did not consider
Westaway himself as actively interested in it at all. He gave the matter
Stew ^^ consideration; he was just willing to do what Mr. Houston,

the manager of the bank, requested him to do. But Mr. Houston
'stated that he deemed the mortgage insecure, and declared it
insecure also. That statement came out under very peculiar
circumstances. The counsel for the defendants put the following
most objectionable question: ''Why did you consider the mort-
gage insecure?*' And the witness then went on to state what
the reasons were. In the first place, the evidence was objection-
able because it assumed that the witness had testified to some-
thing which he never had testified to before — in my judgment,
the most objectionable sort of testimony to present to the Court,
and one which, I think, is very much calculated to make the testi-
mony of the witness unreliable. In the next place, it was a very
leading question, put to an interested party at a very crucial sta^e
of the case; and, in the next place, I am satisfied, it led Mr. Houston
to make a mis-statement which he would never have thought of
making otherwise, and possibly did not appreciate when he made
it, because, as a matter of fact, as far as I can judge from the testi-
mony, he never did declare the mortgage insecure. When he
comes to state that he considered the mortgage insecure, he stated
it in answer to another leading question, which was, ''Did you
consider the mortgage insecure?" As a matter of fact, Mr.
Houston's testimony shews conclusively that they never entered
into possession of this property because they deemed the mort-
gage insecure; the only reason for entering and taking possession
was default in payment of the notes. On cross-examination,
Mr. Houston said: —

"Q. So that the seizure was made by reason of the default
in payment of the notes? A. Yes.

"Q. . . . rather than any claim that the security had
suddenly depreciated? A. It w^as in default of payment — the
whole reason."

I am of opinion that the learned trial Judge was correct in
giving judgment for the plaintiff under such circumstances. With
a view to ascertaining the amount of damages the plaintiff wa^
entitled to apart from the eviction, the learned trial Judge directed

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u.] SASKATCHEWAN LAW REPORTS. 183

a reference to the local registrar to ascertain the value and inquire En Banc.
as to the amount due the defendants on account of the several l^^^
promissory notes and the security herein, and this direction is Westaway
claimed to be erroneous, because the parties came before the stbwvrt
learned trial Judge and produced testimony for the purpose of
establishing or diminishing the amount of damage, as the case
may be. The contention is that, having selected that tribunal,
the learned trial Judge should have made up the amount of damages
himself, and if the testimony was too vague to allow him to do
so, he should have given nominal damages. I am of opinion that
the reference could be made under rule 233 of the Judicature
Ordinance, and it was a matter entirely within the discretion of
the Judge to avail himself of that rule, and therefore this Court
ought not to interfere with it.

I am of opinion, however, that the $200, the amount of damages
awarded for the eviction, was excessive. Fifty dollars would
appear to me, under the circumstances, to be quite sufficient. *In
view of the fact that the defendants could have seized the property
next day, on default in payment, the plaintiff was only in a sense
unlawfully dispossessed for part of a day. It is true he has
attempted to set up a tender, but what he calls a tender was no
tender at all — it was an uncertified cheque, which cannot be called
a tender in any sense of the word or from any standpoint.

The judgment appealed against will therefore be varied by
reducing the damages awarded for the eviction from $200 to $50,
and with that variation the judgment of the trial Judge will be
affirmed. The general costs of this appeal will be taxed to the
plaintiffs (the respondents). The costs of the appeal applicable
solely to the matter of the reduction of the damages for eviction
will be taxed to the defendants (the appellants), and deducted
from the costs hereby awarded to the respondents, and the balance
remaining will be paid by the appellants to the respondents.

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184 SASKATCHEWAN LAW REPORTS. [vou

pN CHAMBERS.]

1909 Gaetz V. Hall.*

April 10. Practice — Summary Judgment — Affidavit Verifying Claim — Sufficiency of —

Time for Making Application — Issue Joined.

Plaintiff applied to strike out appearance and enter judgment against the
defendant under rule 103 of the Judicature Ordinance. The affidavit
filed alleged a judgment recovered against the defendant in the Alberta
Court for a certain sum, but did not set out that he was still indebted to
the plaintiff in that or any siun: —

Held, that the affidavit did not sufficiently establish the cause of action.

This was an application for speedy judgment, argued before
Wetmore, C.J., in Chambers.

T. S. McMorrariy for the plaintiff.
W. B. Scott, for the defendant.

AprD 10. Wetmore, C.J.: — This is an application for summary
' judgment under rule 103 of the Judicature Ordinance.

The proceedings have not been very carefully taken in this
matter. There are several irregularities, as, for instance, the
summons is not addressed to any person, and it does not appear
to be signed by the solicitors, and the copy does not indicate that
the original was sealed. These, however, are matters of very
trifling moment, and I would have no difficulty in amending them,
but I think there is a more serious difficulty arising in the matter.

Rule 103 provides that the *' plaintiff, or one of the plaintiffs,
if more than one, may, on affidavit of himself or any other person
who can swear positively to the facts verifying the cause of action
and the amount claimed, and stating that, in his belief, there is
no defence to the action, apply to the Judge for leave to enter
final judgment for the amount of the claim or the amount so veri-
fied."

The action is brought upon a judgment recovered in the Supreme
Court of Alberta against the defendant, as a contributor^' in the
Red Deer Mill and Elevator Company, Limited, of which the
plaintiffs, Gaetz and Simpson, are liquidators.

The affidavits of Gaetz and Simpson, the plaintiffs, establish
that judgment was entered in the Alberta Court against the de-
fendant for $2,056.44 and S172.98, taxed costs, but neither of them

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verify the amount claimed. On looking at the forms of affidavit Wetmore. c.J.
in such cases, it will be seen that they set forth that the defendant looo

is justly and truly indebted to the plaintiffs in -a specified sum, Gai^.
or by reference to some other document which shews the amount ^'•

claimed. Neither of the affidavits in this case do that. I am
of opinion, therefore, that this application is not brought within
the provision of the rule.

There is another objection raised to this application which,
I think, is worthy of serious consideration. The defendant
pleaded to the action and counterclaimed. The plaintiffs replied
joining issue upon the defence, and setting up a reply and defence
to the counterclaim. This was done nearly a month before the
application was made for the summons herein. The cause was
therefore at issue when the application was made. I doubt very
much if a plaintiff can make such an application after the cause
is at issue. In Hackett v. Ldlorj 2 L.R. (Ir.) 44, Harrison, J.,
held that such an application could not be entertained at that
stage of the proceedings. In a more recent case, however,
McLardy y: Slateum (1890), 24 Q.B.D. 504, 59 L.J.Q.B. 154, 62
L.T. 151, the Court of Queen's Bench held that such an applica-
tion might be made after defence was delivered, but in such case
the plaintiff must shew circumstances which justified his delay.
In the last-mentioned case it would appear that issue had been
joined. I will not express any decided opinion upon this ques-
tion, and merely call attention to it.

It was claimed on behalf of the defence that he had a meri-
torious defence to this action. I do not feel called upon to express
an opinion on that subject, because the defendant has not com-
plied with rule 105, by making the affidavit thereby required in
such cases. Possibly that omission might only apply to the
counterclaim. A good deal of the defence apparently would be
a question of law. Whether it is a good defence or not, I will
not express an opinion.

All that is necessary for me to state is that the plaintiff, not
having complied with rule 103, for the reasons I have already
stated, cannot succeed in this application, and it wdll be dismissed
with costs.

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186 SASKATCHEWAN LAW REPORTS. [vol.

[IN CHAMBERS.]

1909 Rex V. TURNBULL.

April 16. Criminal Lato— Appeal by Way of Stated Case— Failure of Justice to Deliver
Case Within Time Limited — No Particidar Judge Named in Stated Case —
Recognizance — Sufficiency of — Jurisdiction of Court,

Appellant, being convicted before two justices of the peace, applied to the
justices to state a case setting out that the appeal was to the Honourable
the Chief Justice or to such other Judge of the Supreme Court as might
be presiding in Chambers when the appeal should oe heard, and entered
into a personal recognizance in $100 as reauired by the rules. The justices
did not deliver the case within the time limited, but subsequently trans-
mitted it to the Chief Justice: —

Heldf that the appellant, having done all that it was practicable for him to do,
could not lose nis right of appeal by reason of the delay on the part of the
justice.

2. That the personal recognizance of the appellant was sufficient within the
provisions of the Criminal Code.

3. That the onus of shewing that the case was not transmitted to the Court
in a sealed envelope, as required by the rules, was on the respondent, and
in the absence of such evidence the Court would presume that the justices
had complied with the rules in that regard.

4. That the conviction being palpably bad, the matter was a proper one for
appeal by way of stated case.

This was an appeal by way of stated case from a conviction
by two justices of the peace, and was ai^ed before Johnstone,
J., at R^ina.

J. F, Frame, for the appellant.
T. D, Brovm, for the respondent.

April 16. Johnstone, J.: — This is an appeal by way of stated
case by one Thomas Tumbull against a conviction made under
sec. 238 of the Criminal Code. Tumbull was convicted on the
19th day of January, 1909, before Kay and Sautor, justices for
Saskatchewan, for that he (Tumbull), on the 17th day of January,
1908, at Fairlight, in the Province of Saskatchewan, was a dis-
orderly person, and that he did, on the date named, use insulting
language, to wit, "calling the plaintiff Sisley a liar, at the above-
described place, and for which offence he was adjudged to make
full apology to Mr. Sisley within three days" and to pay costs.
Tumbull, on the 23rd January following, made application to
the convicting justices to state and sign a case setting forth the
facts of the case and the grounds on which the proceeding was
questioned, namely, the grounds contained in such application
for a stated case. This application, which was in writing, con-

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SASKATCHEWAN LAW REPORTS.

187-

tained a paragraph that the appeal was to be taken "to the Honour-
able the Chief Justice of the Supreme Court of Saskatchewan,
or to such other Judge of the Supreme Court of Saskatchewan
as might be presiding in Chambers at Regina, in the Province
of Saskatchewan, when the appeal should be heard," provision
for which is made by rule 34 of the Supreme Court rules. This
request was delivered personally to each of the justices on the
date thereof, namely, the 23rd January, when Tumbull appeared
before the said justices, and entered into a recognizance, approved
of by such justices, in the sum. of $100, as required by sec. 752
of the Criminal Code and rule of Court 42. The justices, how-
ever, did not deliver their stated case to the appellant within the
foiu- days prescribed by rule 35, and it was not until the 5th
February, 1909, that such case was delivered. In other respects
the rule referred to was complied with. On the 25th February
an envelope containing the stated case was handed by the appel-
lant to the local r^istrar of the Supreme Court for the judicial
district of Cannington, which envelope was afterwards, on the
26th day of February, opened by the Chief Justice, as appears
by his endorsement to that effect on the envelope. On the applica-
tion of the appellant in Chambers, on the 27th February, Mr.
Justice Lamont fixed Wednesday, the 27th day of March, at
10 a.m., at the Court-house, Regina, as the date and time for the
hearing of the appeal, on which day the matter came before me,
in the presence of coimsel for the appellant and also for the re-
spondent Sisley, when the appeal was heard and judgment re-
served. On the hearing exception was taken by Mr, T. D. Brown,
counsel for the respondent, to the jurisdiction of a Judge in Cham-
bers to hear the appeal, because of certain irregularities, namely,
that the case stated was not delivered by the justices to the appel-
lant within the time prescribed by the rule, four days; that the
application did not, nor did the stated case, name the Judge before
whom the appeal would be heard; that the recognizance was
bad, inasmuch as it was a personal recognizance of the appellant;
that there was no evidence before me of the delivery of the stated
case to the appellant in a sealed envelope, as required by rule 44;
that the objections to the proceedings and conviction set out in
the request to the justices for a stated case were not the subject
of a stated case.

Johnstone, J.
1909

Rex

Turn BULL.

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188

SASKATCHEWAN LAW REPORTS.

[vol.

Johnstone, J.
1909
Rex

Ttjrnbull.

The procedure by way of stated c^e in our Province is pro-
vided for by rules of Court promulgated under the provisions
of the Criminal Code in that behalf, and such rules (rule 35) fix
the time within which the justice shall state, sign, and deliver
a stated case at four days. The case here was not delivered by
the justices to the appellant within that time, as pointed out.
Now, I think there can be no question but that the rules must
be strictly adhered to as far as r^ards the conduct of the parties
themselves: Walker v. Delacombe (1864), 33 L.J.M.C. 77, at p. 40.
But where the appellant has done all that it is practicable for
him to do, he is not to lose his right to appeal. It is very apparent
in this action the utmost precautions were taken by the appellant
in the preparation of all papers in any way connected with the
application, and in following the procedure laid down by the rules
in all subsequent proceedings, and I fail to see where he has made
a mistake or even a slight deviation from strict compliance with
the rules, which, of course, could be remedied as provided by
rule 45. In Hughes y. WaveHree Local Board (1894), 10 T.L.R.
355, Kay, J., held that the latter part of rule 18 only applied
to the acts required to be done by the appellant, and did not apply
to the acts of the justices, and, as regards the latter, it* was merely
directory — that is, "that the case shall be stated within three
calendar months after the date of the application and after the
recognizance shall have been entered into," were words merely
directory, and therefore an application to strike out a case not
stated within the time fixed by this rule, on account of the illness
of the justices was refused. In another case, Mayer v. Hardy
(1867), L.R. 2 Q.B. 410, 16 L.T. 429, where the stated case was
received from the justices on Good Friday, and the rule required
that the case should be transmitted by the appellant to the proper
office within three days, which was not and could not have been
done before the following Wednesday, because the days inter-
vening were public holidays, the Court held that the appellant
had sufficiently complied with the rules. I am therefore of
opinion that I was not precluded from the hearing of this appeal
on this ground.

I think, moreover, that the request was in accordance with
the rule, and also that the recognizance taken before the justices
was a compliance with the provisions of the Code and the rules

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SASKATCHEWAN LAW REPORTS.

189

as well. I have already mentioned the receipt of the case by
the Chief Justice and the fact of the endorsement by him. Under
the circumstances, I think it was with the respondent to shew
the envelope was not sealed when it was handed over to the appel-
lant by the justices. They must be presumed to have done their
duty and to have complied with the law. ' The envelope was
properly endorsee! and sealed when it reached its destination,
and I must hold that rule 44 was complied with.

As to the last exception, I cannot give effect to it. The pro-
ceedings had by and before the justices are open to so many
serious objections, I have no doubt whatever that the case comes
within the provisions of the Criminal Code as to stated cases, and
of my right to deal with the matter. There was no offence dis-
closed in the information. The supposed offence was alleged to
have taken place within the North-West Territories. The de-
fendant was not heard as to his defence. The conviction is bad
for several reasons. It, first of all, contains no offence: The King
V. Code (1908), 7 W.L.R. 819. It imposes a ridiculous penalty.
There is no judgment of forfeiture, and I cannot imagine a case
where the provisions as to stating a case could be more appro-
priately resorted to. A number of cases were cited by ^Ir. Frame,
counsel for the appellant, in support of his argument against the
conviction. This conviction, however, is so clearly bad that I
do not think it necessary to go into the matter further. It seems
to me there is oiily one course which can be adopted, and that
is that the Judgment of the justices be reversed, and an order
be made quashing the conviction, with costs as against the respon-
dent. I make the order accordingly.

Johnstone, J.
1909
Rex

V.
TURNBULL.

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190 SASKATCHEWAN LAW REPORTS. [vol.

[TRIAL.]
29Q9 DOBSON V. DOUMANI.

Vendor and Purchaser — Sale of Land and Business^-DefaiUi in Payment of
Purchase Price — Cancellation of Contract — Notice — Sufficiency of — For-
feiture— Relief Against — Breach of Contract by Purchaser.

Plaintiff agreed to sell defendant a tailoring business, including the premises,
stock-in-trade and tools, part of the purchase price to be paid in cash ana
the balance in instalments. The agreement provided that "the purchaser
to have sixty day?' notice of each of his quarterly payments being due
before the contract can be declared void." The defendant made default
in payment, and the plaintiff eave notice that "unless those notes with
interest are paid in full within the next 60 days I will proceed to foreclose/'
and brought this action for a declaration that the contract was cancelled.
The agreement also contained a provision that the plaintiff would not
carry on business in the vicinity for ten years, and it transpired in evidence
that he had carried on basiness after the sale: —

Heidf that the agreement evidently contemplated that the contract might
be declared void on default, and as the notice substantially complied "mth
the terms of the agreement and sufficiently conveyed the plaintiff's intention
to the defendant it was sufficient to determine the contract, but as the plain-
tiff had himself been guilty of a breach of the contract the Court would
relieve against the forfeiture.

This was an action for a declaration that a contract of sale
was cancelled and for possession of the premises, and was tried
before Wetmore, C.J., at Battleford.

A. M. Panton, for the plaintiff. ^

J. D. Fergussorij for the defendant.

January 13. Wetmore, C.J.: — The plaintiff is a merchant
tailor residing in the town of North Battleford, and on the 15th of
June, 1907, owned a lot of land, with a building thereon, situated
in North Battleford, in which he carried on his tailoring business.
The defendant is a merchant tailor, and was at the same date
resident in North Battleford. The plaintiff on that date agreed
to sell to the defendant the lot of land and his stock of merchandise
in connection with his business, and they entered into the following
agreement: —

*' Memorandum of agreement made this 15th day of June, 1907,
between Walter Dobson of the town of North Battleford in the

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Province of Saskatchewan, merchant-tailor, of the first part, and Wetmore.c.j.
Toufic Donmani of the town of North Battleford aforesaid, merchant- 1909
tailor, of the second part. Dobson

"Walter Dobson agrees to sell and Toufic Doumani agrees to v-

purchase lot twenty-six (26) in block five (5) in the town of North
Battleford for the sum of twenty-five hundred (2,500) dollars, the
purchaser assuming a mortgage of six hundred (600) dollars, the
sum of one thousand (1,000) dollars to be paid in cash and the
balance to be payable as hereinafter set forth. Further the stock
of merchandise at invoice cost with no freight charges to be added
and the following equipment at the prices mentioned, viz.: —
2 sewing machines $75.00

1 cutting-table 5.00

2 work-tables 5.00

Jacks 1 .50 each.

Stove in use 12.00

Irons 10 cents per pound.

Cheese boards 75 cents each.

Mirror 5.00

and any unmentioned equipment at present in use in this business
to be adjusted, paying therefor a note of two hundred and fifty
(250) dollars at thirty (30) days, one note of two hundred and fifty
(250) dollars at sixty (60) days, one note for two hundred and fifty
(250) dollars at three months, one note for two hundred and fifty
(250) dollars at six (6) months, and the balance of purchase price
of real estate, stock and equipment, two hundred and fifty (250)
dollars per quarter, all to bear interest at the rate of 8 per centum
per annum, the purchaser to have the privilege of paying the whole
or any portion of the purchase price at any time without notice
and the' purchaser to have sixty (60) days' notice of each of his
quarterly payments being due before the contract can be declared
void.

"It is mutually agreed that five hundred (500) dollars shall
be deposited this date with J. A. Gregory by the purchaser to make
this memo, of effect.

"The vendor hereby agrees not to carry on a tailoring business
in either the towns of Battleford or North Battleford for the space
of ten years, nor to permit his name to be used in the tailoring
business.

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192 SASKATCHEWAN LAW REPORTS. [vol.

Wetmore.c.J. "Possession to be given to the purchaser on completion of all
1909 orders at present in the shop, and all manufactured suits at present
DoBsoN ^^ ^^® premises to be delivered to the customer, together with all
V. other custom work.

"All orders taken from date to be the custom work of the pur-
chaser, except pressing or repairing.

"Possession to be not later than June 29th, 1907, at ten
o'clock of the evening.''

Immediately after the execution of this agreement the de-
fendant went into this place of business and worked under the
plaintiff until he got full possession of the property agreed to be
sold, somewhere about the 6th of July. In the meanwhile stock
was taken of the merchandise in question by the plaintiff and the
defendant, assisted by a woman whose name does not appear, and
that merchandise was valued at $1,846.65, after allowing a discount
of five per cent. A memorandum was thereupon placed at the
foot of the agreement of sale, as follows: —

"Inventory of stock taken this 2nd day of July, 1907, as follows:

Merchandise 1807.65

5 blinds 8.50

Lamps 5.00

Coal 6.00

Press pad 3.00

Cutting shears ' 12. 50

Square 2.00

Brush 2.00

"In addition to above list. (Sd.) T. Doumani.''

Which was signed by the defendant. This memorandum stat-es
that this $1,846.65 was in addition to the items mentioned in the
original agreement. I find that is not correct, because on going
over the stock-list which was put in evidence I find that all the
articles mentioned in the original agreement are mentioned in the
stock-hst with the exception of the cutting table. The defendant
paid the cash instalment of a thousand dollars, and the first note
for $250 apparently was drawTi so as to be payable on the 4th of
August, 1907. All the notes were apparently dated Ist July, 1907.

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n.] SASKA.TCHEWAN LAW REPORTS. 193

The defendant made default in the note for $250 due on the 4th of Wotmore, c.j.

September, and also the note for $250 due on the 4th of October. 1909

The plaintiff thereupon, on the 7th October, gave the defendant d^^n

j notice, as follows: — ^ ^•

; DOUMANI.

"North Battleford, Sask., October 7th, '07.

"Mr. T. Doumani,

"North Battleford, Sask.

"Dear Sir: .Re your past due notes due September 4, '07, and
October 4, '07, 1 beg to notify you that unless these notes with their
interest are paid in full within the next sixty days following this
notice, I will proceed to foreclose and cause all payments to become

i due and take possession of the business in keeping with contract

j made between us of June 15th, '07.

"Yours truly,

"(Sd.) W. Dobson."

No attention was paid to this notice, and the notes have not
i been paid. The plaintiff therefore brings this action, claiming a

i declaration that the plaintiff is entitled to forfeit the moneys paid

and the possession of the lots, stock, plant and merchandise con-
tained in the agreement, or in the alternative, is entitled to judg-
nient for the whole of the purchase money remaining unpaid and
interest from the 29th July, 1907. His action is somewhat peculiarly
shaped, and the statement of claim strikes me as most embafrassing.
In the first place, the plaintiff alleges in a general way that he and
the defendant entered into an agreement for the sale of the property
in question on the 15th of Jime, 1907, and then he proceeds to state
that there was an agreement that the defendant should sign agree-
ments for sale which were to. be drawn up for that purpose, and
which agreements for sale were to contain the usual covenants
contained in an agreement for sale in this Province, amongst other
covenants being one for the cancellation of the contract and the
declaring of it null and void on a sixty days' notice to the defendant,
and a clause making future payments to accrue due on default of
any payment; in other words, this substituted agreement was to
contain an acceleration clause. And then the statement of claim

15— VOL. n. B.L.B.

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394 SASKATCHEWAN LAW REPORTS. [you

•

Wetmore. C.J. proceeded to state that the entry into this formal agreement was

1909 a condition precedent to the purchase of the property, and that the

j)Q3aQjj defendant is bound by all the covenants proposed to be incorpor-

V. ated therein. Then it proceeds to set up that the plaintiff gave

JvOXJM ANI.

notice of cancellation on the 7th of October, notifjring the defendant
that he would take possession after a period of sixty days unless
the defendant signed an agreement for sale and paid all arrears.
Now, what \mder these allegations is puzzling to me is whether
the plaintiff in giving the sixty days' notice, which I have found
he did give, is rel)dng upon the clause in the original agreement
or is relying upon some clause in the proposed formal agreement
which the defendant was to sign. Because his statement of claim
does not allege that the agreement of the 15th of Jxme contained
such a clause, but it does allege that the formal agreement which
was to be signed was to contain such a clause. The so-called
formal agreements which the plaintiff relies on were prepared and
submitted to the defendant for execution, and he refused to execute
them on the ground that he did not agree to execute any further
agreement. The defendant in his statement of defence denies
that there was any arrangement to execute any formal agreement
as alleged by the plaintiff. He states that he was induced to enter
into the agreement which he did enter into by the misrepresenta-
tions and fraud of the defendant, and he prays that the agreement
may be set aside and that the plaintiff may be ordered to repay
him the moneys that he has paid. He also claims that under the
agreement which was signed he was entitled to sixty days' notice
of his quarterly payment being due before the said contract could
be declared void, and that the said quarterly payments were not
yet due. He also counterclaims for damages by reason of the
plaintiff carr3dng on a tailoring business both in North and South
Battleford, contrary to the terms of the agreement, and for taking
orders in connection with such tailoring business, which were,
according to the agreement, to be the custom work of the defendant.
The evidence does not satisfy me (and the onus of doing so is
on the plaintiff) that there was any understanding or agreecoent
that any other or more formal agreement has to be entered into
than the one of the 15th of June which I have above set out. But
assuming that there was any such agreement, it seems to me to be
quite clear that it could not depart in any essential from what was

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DOUMAXI.

n.] SASKATCHEWAN LAW REPORTS. 195

specially set out in the agreement of the 15th of June. That Wetmore, c. j,
agreement was in writing, and it was binding upon both parties. i909

Now, Mr. Gregory, a land broker there, was acting as the agent Dobsox
for the plaintiflF. He prepared the agreement of the 15th of June
and he prepared two other sets of agreements, one affecting the
personal property and the other affecting the land so agreed to be
sold, and these agreements were tendered to the defendant for
execution. I find that both these sets of agreements were depar-
tures in very essential particulars from the agreement of the 15th
of June. In the first place, the agreement of the 15th of June
provides for a lump sum for the purchase of the whole of this
property, real and personal. The formal agreement (as I will call
it now and hereafter in this judgment), in so far as the personal
property is concerned, specifies the cash payment to be $500 and
the subsequent payments to be divided up into notes of $125 each,
instead of $1,000 cash payment in the whole purchase real and
personal property, and notes of $250 each for subsequent payments.
Then the value of the property is put at $2,058.81 in the formal
agreement, while the original agreement puts it at $1,846.65. In
so far as the formal agreement for the sale of the land is concerned,
the departures from the original agreement are of the most pro-
noxmced character. In the first place, there is an accelerating
clause making the whole principal and interest payable on default
of payment of any instalment of either principal or interest or taxes.
In the next place, there is a clause which instead of entitling the
defendant to a sixty-days' notice of his payments being due before
the contract can be declared void, as provided in the original
agreement, provides that on default of payment of instalments
or performance of the contracts the plaintiff shall be at liberty
at any time after such default, and without notice to the defendant,
either to cancel the contract and declare the same void and to
retain any payments that may have been made on account of or
by way of liquidated damages, and further, giving the plaintiff
permission upon any such default, and without giving any notice
or making any demand, to consider and treat the purchaser as an
overholding tenant without permission or any colour of right, and
to take immediate possession of the premises; and further, it
provides that in case default is made in any of the covenants con-
tained in the proposed agreement and the plaintiff shall see fit to

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SASKATCHEWAN LAW REPORTS.

[vol.

DOBSON

DOUMANI.

wetmore, C.J. declare the contract null and void, such declaration may be made
1909 by notice from the vendor ''addressed to the purchaser at the
post office hereinbefore mentioned." I may say, however, in
connection with this, that no post office is mentioned in the agree-
ment. These two agreements are so essentially different from the
first agreement that the defendant was quite justified in refusing
to sign them, and the fact that he put his refusal to sign them
on the ground that he did not agree to sign any further agreements
does not affect the question; because, I say again, these provisions
are so clearly at variance with anything that the defendant con-
tracted for that no Court would hold him at fault for not signing
them. This is particularly applicable, as the defendant is a Greek
and does not very well understand the English language. The
agreement, therefore, of the 15th June is the only agreement
binding on the parties in existence.

The next question that arises is: Did the plaintiff misrepresent
the business to the defendant, as alleged; that is, did he represent
to the defendant that the business was a steadily increasing business
and that it was of the value of and worth $900 a month? The
defendant has not satisfied me of the truth of this allegation. In
fact, I find that the plaintiff did not make any such representation,
and moreover, if he did make any such representation, that it was
not the inducing cause of the defendant entering into the agree-
ment and purchasing the property. The defendant is a shrewd
man, and when, according to his evidence, the plaintiff, as he
states, alleged that this business was an increasing business and
worth $900 a month, he promptly told him, in effect, that he could
not credit it. He referred to the snuJl size of the town, and at
once stated, in effect, that he could not credit it. I find that the
defendant purchased this property with a fairly accurate knowledge
of what the character of the business really was at the time of the
purchase. He was a tailor of many years' experience; he had
been in North Battleford for some time, and he had been frequently
in the plaintiff's shop and saw what was going on there. He saw
that he had a number of hands who were employed and kept busy,
and during the time between the 15th of Jxme and say the 6th of
July, when the transaction was completed, he had been working
in the shop with the plaintiff and had means of knowing what the
business was. Now, I am satisfied th&t the business did not turn

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n.] SASKATCHEWAN LAW REPORTS. 197

out as well as the defendant expected it would, but I cannot attribute wetmore. c. J.

that to any misrepresentation on the part of the plaintiff or to any 1909

act of his. I attribute the falling of! of the business to two things: dobson

First, a great depression in business — and the evidence shews that ^ ^«

1 . IT 1 1 DOUMANI.

there was a depression in business (that having been established
by testimony). We know that, as a matter of history, along
towards the fall of 1907 there was a very great depression of business
generally throughout the coimtry, and money was scarce. Another
cause I attribute the falling off of the business to was that another
concern, Cameron & Bell, had set up doing a tailoring business in
North Battleford, and I can quite vmderstand that that would
have a great influence in preventing the defendant doing as much
business as he would have done if these people had not set up
business.

The next question is, has the plaintiff taken the proper steps
to determine this contract? I have set out the notice that he
gave to the defendant, and that notice was duly received by him.
Is that notice a substantial compliance with the provisions of the
contract of the 15th of June, because, as I have held, that is the
only agreement between the parties in existence? That agreement
endently contemplates that it may be declared void on default
of payment of any of the instalments of the purchase money,
although it is not very well expressed. Now, the provision is that
the defendant is "to have sixty days' notice of each of his quarterly
payments being due before the contract can be declared void."
I am of opinion that this notice, although it does not follow the
language of the clause, is substantially a notice within its require-
ments. It refers to what notes are past due, namely, September
4th and October 4th, and it notifies the defendant that unless
such notes with interest are paid in full within the next sixty days
following the notice the plaintiff will proceed to foreclose and
cause all payments to become due. Now, so far as that part of
the notice is concerned which states that he would cause all pay-
ments to become due, it is not in accordance with the agreement,
and may be treated as surplusage. But the notice states that
unless the payments are made he (the plaintiff) will proceed to
foreclose and take possession of the business, and that is in keeping
with the contrast. I cannot bring my mind to the conclusion that
the defendant or any other person could have any doubt as to

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198 SASKATCHEWAN LAW REPORTS. [vol.

Wetniore, C.J. what the plaintiff meant by that notice, namely, that it was the
1909 intention of the plaintiff, if the defendant did not comply with it,
DoBsoN *^ proceed practically to have the contract declared void, to enforce
^'- his right — in other words, to have the property restored to him,

and that to attain that end he would take foreclosure proceedings.
I therefore hold that the plaintiff is entitled to relief under his
statement of claim. But this is a case where I am of opinion that,
in view of the fact that the plaintiff has not acted up to his agree-
ment, I ought to relieve against forfeiture, under sub-sec. 5 of sec. 30
of the Judicature Act (ch. 8 of 1907).

As to the defendant's counterclaim, I find that the plaintiff
did carry on a tailoring business contrary to the provisions of the
agreement. I do not mean by that that he opened an establish-
ment and carried on a tailoring business either in Battleford or
North Battleford, but he did solicit tailoring work and did tailoring
work in these towns, or one of them, and in the coimtrj'' contributory
thereto. I read the provision in the agreement that the plaintiff
was not to carry on a tailoring business in these towns as meaning
that he was not to carry on a tailoring business in the countr}-^
about which was contributory to those towns as well. This was
not controverted at the trial. And although he merely solicited
work from this person and work from that person, and sold clothing
to this person and that person, I am of opinion that that was
contrary to the provisions of his agreement, and he is therefore
liable to damages. I am of opinion that his lending money to
Cameron & Bell, the tailors who started business in North Battle-
ford after the sale in question, was not contrary to the agreement.
It does not appear to me that the loan of this small sum of money
was the means of these people starting in any way; they could
have started without it. Also, I find that the sale of some inms
and some machinery to these people was not a breach of the agree-
ment. I may add that the defendant has not shewn that he suffered
any damage by reason of the selling of these last mentioned irons
and machinery. The sales to which I refer, in which I hold the
plaintiff responsible in damages, amount in all to $80.25.

The evidence is that sales of articles of this description would
realize half the amount as profit. 1 will therefore allow as damages
in respect of these sales $40. The plaintiff also sold six fur coats
at $132, and the evidence establishes that the profit upon them

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n.] SASKATCHEWAN LAW REPORTS. 199

was $10. I will add that to the $40, making in all $50. I am of wetmore. c.j.
opinion that I am not warranted in law in awarding any further 1909
damages than have been proved to have been caused by breach dobson
of the contract. I am not quite clear that the sale in question in v.

this case was^ a sale of the goodwill. At the same time I am of
opinion that the defendant was in a position to claim more by
virtue of the plaintiff's agreement not to carry on business than
he would have been entitled to recover if there had been merely
a sale of the goddwill. I would be disposed, if I thought I could
do it, to allow a sum as damages for the soliciting of business, which
I find the plaintiff imdoubtedly did, beyond that for obtaining the
work and selling the goods which I have specified. But on in-
vestigating the authorities I have reached the conclusion that I
would not be warranted in awarding any damages except such which
have actually been proved.

There vnU. therefore be judgment for the defendant on the
counterclaim for $50 damages and costs.

As I have stated, I will relieve the defendant from forfeiture
under the circumstances of this case, but it must be on the terms
hereinafter mentioned. He has got to pay the costs of the action.
The decree of the Court will be that the defendant do pay unto
this Court, on or before the first of May next, the amount then due
in respect of the said agreement, being $2,000, less the amount
awarded to him on his counterclaim and costs, with interest from
the first day of July, 1907, at the rate of eight per cent, per annum,
and the costs of this action, and in default, that the said agreement
be declared void, and the plaintiff be permitted to retain the moneys
paid in respect thereof, and the plaintiff forthwith deliver up
possession of the said property real and personal to the defendant,
and that the plaintiff in the meanwhile be restrained by injunction
from dealing with the said property or any of it, in any way other
than in the usual course of business. In default of the defendant
making such payment as aforesaid into Court, the plaintiff to have
his costs of this action after deducting therefrom the amount
allowed to the defendant and costs on the said counterclaim.

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200 SASKATCHEWAN LAW REPORTS. [vou

[TRIAL.]

1909 Turner v. Clark.

Jan. 16. Vendor and Purchaser — Land Titles Act — Transfer under Power of Attorney —
Subsequent Conveyance by Registered Owner — Action to Set Aside Con-
veyance— Fraud and Collusion.

Defendant C. gave a power of attorney to his wife to sell and convey certain

land, and in pursuance of that authority she did convey to the plaintiff.

She subsequently disappeared and could not be found. The plaintiff did

not take immediate steps to perfect his title, and on applying he was unable

to produce the power of attorney and so secure title. In the meantime

defendant C. conveyed to the defendant M., taking a note in paynaent of the

purchase price, and M. registered his transfer. To procure registration a

new certincate of title had to be procured, and this was done bv order of a

Judge on production of an affidavit which indicated the lo&s of the originals.

It appeared, however, that when this affidavit was made the defendants

were aware of the plaintiff's claim, but no mention of it was made in the

affidavit, nor was it disclosed to the Judge. It also appeared that C. had

told M. of the giving of the power of attorney, and there was also evidence

to lead to the telief that the defendants, when the transfer to M. was made,

were afraid of such outstanding title. The note ffiven for the purchase

price was never paid, nor did it appear that C. had ever made any effort

to collect it. It also appeared that M. had purchased the property without

seeing it, and having no idea of its value: —

Held, that the Land Titles Act preserved to the Court jurisdiction to deal with

. .; questions of fraud and with other equities that may arise affecting land,

\ ' and which would properly be cognizable on the equity side of the Court,

- and, as the evidence indicated fraud and collusion between the defendants,

i the transfer to the defendant M. should be set aside.

This was an action to set aside a transfer of land and cancel a
certificate of title on the ground of fraud and collusion, and was
tried before Wetmore, C.J., at Prince Albert.

A. E. Doak, for the plaintiff.

J. H, Lindsay, for the defendants.

January 16. Wetmore, C.J.:— On the 27th of April, 1905, the.
defendant Clark, being the owner of a lot of land in Saskatoon,
gave a power of attorney to his wife Louisa to sell and convey
such lot. At the time this power of attorney was executed Clark
was living on a homestead at Humboldt, where he had gone, lea\'ing
his wife at Saskatoon, where they had previously resided. I read
between the lines, although it does not appear distinctly in the
evidence, that Clark must have given his wife some verbal authority
or direction to sell this land. However, be that as it may, she
wrote him that she could not convey the land without a power of
attorney, and he accordingly sent the power in question. On the
9th of May, 1905, Louisa, acting under that power of attorney.

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n.] SASKATCHEWAN LAW REPORTS. 201

sold and conveyed the property to the plaintiff for $100, and the Wetmore. c.J.

purchase money was paid to her. At the time of the execution of 1909

the transfer to the plaintiff the duplicate certificate of title in Clark's turner

name was given to the plaintiff. The plaintiff did not take any steps

to have his title registered until 1906 — somewhere, I should judge,

about September. The registrar refused to register it because he

had not the power of attorney, and through some oversight the

plaintiff omitted to lodge a caveat. By thijj time, however, Louisa

Clark had disappeared. The evidence shews she eloped with some

person. Search was made for her, both by her husband and the

plaintiff, and by the sheriff's officer at Saskatoon, but she could

not be foimd. Letters were written by the plaintiff to the defendant

Clark stating in effect that the transfer had been executed to him

by Louisa imder the power, and asking him to execute a new one.

He, however, refused to do this. It is not very clear, however,

that Clark was aware that Louisa had so acted at the time that he

executed the transfer to the defendant Macmillan, as hereinbefore

stated. I must say, however, that I am of opinion, from the

character of the documents that were presented to Judge Prender-

gast as hereinafter stated, and the evidence generally, that he was

either aware that Louisa had acted under the power or had a strong

suspicion that she had done so.

On the 27th November, 1906, Clark executed a transfer of the
lot of land to the defendant Macmillan. The alleged consideration
for this transfer was $500. No cash was paid for this purchase,
but Macmillan gave his note to the defendant Clark for that sum,
payable at six months without interest. Clark stated as his reason
for accepting this note instead of the money or any money that he
was going into the bush for the winter, and he would prefer having
a note to the cash. At the time this transfer was executed the
only instrument registered in respect of the lot was the certificate
of title to Clark. There were no subsequent incumbrances or
transfers registered. Macmillan swore that at the time of the
execution of this transfer he was not aware that any transfer had
been executed by Mrs. Clark, but Clark told him, in effect, that he
had executed a power of attorney in favour of his wife. I say,
"in effect," because Macmillan testifies that he did not tell him
that he had executed a power of attorney, but according to his own
evidence, Clark did tell him what he must have known was a power

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SASKATCHEWAN LAW REPORTS.

[voii.

^Wetmorc. C.J.

1909

Turner

Clark.

of attorney or something that would have the same effect. I do
not think that the evidence brings home to Macmillan any other
knowledge than I have stated. Macmillan searched the registrj"^
office and found the title as I have described it. During the progress
of these transactions — just whether before the execution of the
transfer to him or afterwards, the evidence does not satisfy me —
Macmillan applied to the registrar, producing a statutory declaration
by Clark to the effect that the duplicate certificate of title had been
lost or destroyed, for the issue of a new duplicate certificate to issue
to Clark in lieu of the one so lost or destroyed. This application
was made under sec. 170 of the Land Titles Act. The registrar
refused to grant that application, and Macmillan then applied to
Judge Prendergast, under sec. 41 of that Act, for an order. This
was based on an affidavit of Clark, but the Judge refused to grant
it without notice being given to Mrs. Clark. About the time of
the transfer to him in November, 1906, Macmillan filed a caveat
against the land. Notice was attempted to be given to Mrs. Clark,
but she could not be found, and this having been established to the
satisfaction of the Judge, he made an order on the 16th of May,
1907. This order is as follows: —

'*To the registrar of East Saskatchewan land registration
district.

"On reading the affidavit of Charles Henry Ridsdale Clark
and on hearing advocate for said Charles Henry Ridsdale Clark
it is hereby ordered that a transfer or any other instrument executed
by Louisa Clark wife of said Charles Henry Ridsdale Clark dealing
in any way with lot 18 in block 173 according to a plan of Saskatoon
in the Province of Saskatchewan of record in the land titles office
for the said registration district as plan *Q3' under and by virtue
of a power of attorney given by said Charles Henry Ridsdale Clark
to said Louisa Clark be not registered or given any«eflfect to same
})y virtue of any power conferred on you by Land Titles Act.

''And it is further ordered that a transfer executed by said
Charles Henry Ridsdale Clark, the registered owner of said lot 18
may be registered without the production of dupUcate certificate
No. 8531."

The order is very peculiarly worded in view of the powers
conferred upon a Judge by the Act. It seems to me to go far
beyond what the Act authorized, and is a very strong illustration

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n.] SASKATCHEWAN LAW REPORTS. 203

of the fear entertained of a claim by some person xmder a transfer ^^etnQore,c.J.

by Mrs. Clark. In acting under sec. 41 a Judge is persona designaia; ^^^

he is not acting as a Judge in a proceeding in Court. All sec. 41 Turner

authorizes him to do as such persona designata is to require the qJJrk

registrar to do what he is authorized to do under that section

without the production of the duplicate certificate of title. The

order in question goes further: it orders the registrar not to register

"a transfer or any other instrument executed by Louisa Clark"

under a power of attorney from her husband dealing with the land

in question. That, I must say, with all deference, is more than

sec. 41 authorizes to be done, and in effect, it orders behind the

backs of interested parties, and 'Without notice to them, what would

seem to me can only be ordered as a result of an action.

At the time that this application was made to Judge Prendergast,
in May, 1907, and when he made the order, Macmillan was fully
aware that Turner claimed an interest in the land, and he was
aware also of what the nature of that interest was, because corres-
pondence had taken place between him and Clark which fully ap-
prised him of that fact. He made no mention, however, of that
fact to Judge Prendergast. The title of Macmillan was registered
under this order, and a certificate of title issued to him. This
action was brought to have the registration of the transfer to
Macmillan and the registration thereof set aside and the certficate
of title to Macmillan cancelled, and to have the transfer to the
plaintiff registered and a certificate of ownership issued to him,
on the ground of collusion and fraud between the defendants.
The power of attorney has been obtained, and was produced in
evidence at the trial. On the very day that the title of Macmillan
was registered a caveat was lodged by the plaintiff. The Judge's
order purports, by the indorsement upon it, to have been registered
*t 1.10 p.m. on the 16th of May; the caveat of the plaintiff at 1.20
P-ni. on the same day. As a matter of fact, I am inclined to the
opinion that, according to the practice in the registrar's office, the
plaintiff's caveat was received first and ought to have been registered
first, l>ut no allegation of that sort appears in the statement of
claim, no relief is sought on that ground, and no application was
^^^^e to amend. I, therefore, am not disposed to grant the plaintiff
^ne relief he claims upon that ground. I do not wish to express
^y decided opinion upon the subject, but I am inclined to think,

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204 SASKATCHEWAN LAW REPORTS. [vol.

Wetanore, C.J, under the provisions of the Act, that unless fraud or collusion is

1909 brought home to the defendant Macmillan — that is, if he was a

Turner ^^^^^ ^^ purchaser for value — ^his title would be good. But if

V. there was collusion or fraud, or the conveyance to him was "without

consideration, 1 am of opinion that I have jurisdiction to deal with

the matter notwithstanding the fact that a certificate of title was

issued to him. Section 4 of the Land Titles Act'provides: —

"Nothing contained in this Act shall take away or affect the
jurisdiction of any competent Court on the ground of actual fraud
or over contracts for the sale or other disposition of land for which
a certificate of title has been granted."

Section 162 provides: — .

**In any proceeding respecting land, or in respect of any trans-
action or contract relating thereto, or in respect of any instrument,
caveat, memorandum or entry affecting land, the Judge by decree
or order may direct the registrar to cancel, correct, substitute or
issue any duplicate certificate or make any memorandum or entry
thereon, or on the certificate of title or otherwise to do every act
necessary to give effect to the decree or order."

These sections are intended to preserve the jxuisdiction of the
Court to deal with questions of fraud, and also with other equities
that may arise affecting land and which would be properly cogniz-
able on the equity side of the Court. I have come to the con-
clusion under the evidence that this transaction between the two
defendants is collusive and fraudulent. In the first place, the
defendant Macmillan, as I have pointed out at the start, was
desirous of obtaining the certificate of title to issue to Clark. That,
of course, is by no me^s conclusive: it is merely a circumstance.
He explains that by stating that he did it because he thought it
was the quickest way of effecting a registration of his own title;
namely, when a substitute duplicate was issued to Clark to obtain
a conveyance from him and then register his own title. That
seems plausible, but at the same time I take the fact that he did
seek to have this new certificate issued to Clark as one circumstance
in a chain leading to the conclusion of fraud and collusion. And
1 may just state here that I would rather say I had arrived at the
conclusion that there was collusion between these persons than
fraud. I mean by that that it was never intended that any title
should pass from Clark to Macmillan at all. It was just a scheme
to prevent any title which might uave been given through Louisa

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n.] SASKATCHEWAN LAW REPORTS. 205

Clark from having any effect. Another circumstance in the chain Wetmore. c.J.

of collusion is the fact that the defendants were evidently very 1909

much in fear that Louisa Clark had made a title to some person. turner

The next circumstance is that Macmillan, by his own shewing, v.

purchased this property without knowing an3d}hing about it, without

ever having seen it, merely upon the representation of Clark.

He did not know, apart from what Clark told him, what the value

of it was, whether it was vacant or whether it was not, whether

there were any taxes against it or not, but was just willing to take

it blindfold. And at the time of the trial, more than two years

after his alleged purchase, he had never made any inquiries as to

whether the land was vacant or not, or any other inquiries about i^.

Another circumstance is that he never paid any taxes and never

has paid any taxes on the lot since he got the title, or made any

inquiries about them, or looked after the land in any way whatever.

Then no money passed between these persons. Macmillan gave

his note, and that note is still in the hands of Clark unpaid, and

MacmiUan stated that he does not intend to pay it until after this

matter is settled. The excuse given by Clark for taking the note

instead of cash appears to me to be very thin. The fact that he

was going into the bush would not prevent him getting the money

and leaving it at interest in one of the banks or in the Government

savings bank. It is so very thin that it makes me very suspicious.

Another thing is that the note is long overdue. Clark came out of

the woods in the spring of 1907, about the time the notes became

due, and although it is payable to order he has never seen fit to

attempt to raise any money on it. Then I take the correspondence

between these two defendants. I will not set it out at length;

I will merely state that this correspondence does not bear upon its

face the character which I would expect in a correspondence between

a vendor and purchaser of lands situated as these parties are, but

it does bear to my mind the character of correspondence that

would take place between a client and his soUcitor. And then, at

the last of it, comes a letter of Clark to Macmillan, which Macmillan

does not appear to have repudiated in the slightest degree, in which

Clark says this: "And I do not recognize Mr. T.'s claim, as I who

own the lot have not been paid." There is the statement that he

owns the lot at the date of that letter, the 27th of August, 1907,

nine months after the alleged sale to Macmillan. That is a letter

which the defendants refused to disclose on their affidavit of dis-

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[vol.

Wetmora, C.J.

1900

Turner

Clark.

closure, and which the counsel for the defendants at the trial
objected to produce because it wad a letter passing from one de-
fendant to the other, and was privileged. I overruled the objection,
and the letter was produced. I do not wonder that there was a
strong effort to suppress it. The defendant Macmillan attempted
to get round that expression by stating that it was a retrospective
reference. In view of the other circumstances of this action I
cannot bring my mind to that conclusion. In this connection I
wish to return to the matter of obtaining the order from Judge
Prendergast, and state that I am very strongly of the opinion that
the obtaining of that order was an imposition upon the Judge.
Macmillan was well aware, as I have stated, that Turner was
claiming rights in this property. He had a pretty good knowledge,
too, that he was claiming under a transfer executed by Mrs. Clark.
Turner, he knew, was claiming, and there would be no other person
through whom he could claim, so far as he knew, except it was
upon a transfer or instrument executed by Mrs. Clark under the
power of attorney. He must, being a solicitor, have been also
aware that the probabilities were' that Turner would be the person
who would hold the certificate of title, and not Mrs. Clark, and I am
satisfied if the Judge had been informed that Clark was claiming
this property or rights with respect to it he would inunediately
have conjectured that the duplicate certificate of title would be
with him, and that he would be the proper person to notify of the
application which was made to him; and that being so» that he would
have made no order without notice to Mr. Turner. I do not know
that this, practically speaking, affects the rights of the party, but
to my mind it was so unfair an advantage to take of the learned
Judge that I feel I ought to express my opinion with respect to it.

The judgment will be that the transfer to the defendant Mac-
millan and the registration thereof be set aside, the certificate of
title and duplicate certificate of title to him be cancelled, that the
caveat lodged by him be removed, and that upon the transfer to
the plaintiff \^ith the power of attorney and the duplicate certificate
of title to the land being produced to the registrar therein the title
of the plaintiff be registered and a certificate of title to him be duly
made out, and a duplicate certificate issued to him, and the de-
fendants pay the costs of this action.

Let the promissory note made by the defendant Macmillan
in favour of the defendant Clark be impounded.

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n.] SASKATCHEWAN LAW REPORTS. 207

[IN OHAMBERS.]

Hunter v. Collings and Burley, Garnishee, IWO

Apr0 28.
Attachment of Debt — Judgment Against Qarnishee — Order for Made ex
parte — Application to set aside — Regularity of Order — Bummons to
Set Aside — Grounds of Irregularity not Stated — Leave to Defend —
Merits — Promissory Note not Due — Attachable Debt — Mistake by
Clerk of Court— Effect of— Costs.

ine garnishee not having, so far as the record shewed, disputed his liability
to the defendant, an order was made ew parte giving leave to the plain-
tiff to enter judgment and issue execution against the garnishee, which
was done. The garnishee then moved to set aside the order on the
ground that it was made ew parte, and also on the ground that he had a
good defence on the merits. These grounds were not, however, set out in
the summons: —

Held, that an order, for judgment against the garnishee in default of
appearance may be made ex parte.

2. The grounds of the alleged irregularity not having been stated in the
summons, the application should not be granted on that ground.

3. The garnishee having shewn that he had what might be good ground
for disputing his indebtedness, and having accounted for his apparent
default, should be allowed to dispute his liability.

4. The plaintiff should not be prejudiced by reason of the mistake of the
clerk of the Court in omitting to file with the record a letter written
by the garnishee disputing his liability, and that the garnishee must
therefore pay the costs of the judgment and of the application to secure
the same.

This was an application to set aside a judgment in default
of appearance by a garnishee, and was heard by Wetmore, C.J.,
in Chambers.

H. F. Thomson, for garnishee.
No one contra.

April 28. Wetmore, C.J. : — This is an application to set
aside a judgment entered against the garnishee for default in
entering appearance or filing a suggestion, or any admission
or denial of indebtedness.

The garnishee summons was served on the garnishee about
the 11th July, 1907. On application to me I ordered judgment
to be entered up against the garnishee. This order is claimed
to have been erroneously made, and the judgment thereon ir-
regular because no chamber summons was taken out to shew
cause why such judgment should be entered. Failing that, the

14 — ^VOL. n. S.L.B.

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[vol.

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1909

HUNTEB
V.

Collins

AlTD

Sublet.

garnishee applies for leave to be allowed in to defend on the
merits.

I am of opinion that the judgment was not irregular
on the ground stated because it is not necessary to take out a
chamber summons.

The form of garnishee summons, as provided by the Judica-
ture Ordinance, requires the garnishee within twenty days
from the service of such sunjmons, to notify the clerk by state-
ment in writing whether or not there is any debt due or accru-
ing due from him to the defendant, and, if so, what debt, and
why he, the garnishee, should not pay the same into Court to the
extent of the plaintiff's claim and costs. Then, rule 389 provides
*'that if the garnishee does not pay into Court the amount due
from him to the debtor or an amount equal to the claim or
judgment and costs, and does not dispute the debt due or claimed
to be due from him to such debtor, then the Judge may, after
judgment has been entered against the primary debtor or at once
when the garnishee summons is founded on a judgment already
recovered, order that judgment be entered up against the
garnishee and that execution issue."

Now I am at a loss to iinderstand why, where the garnishee,
as in this case, utterly ignored the requirements of the summons
which was served upon him, a chamber summons should be
issued to shew why such judgment should not be entered.

I therefore hold the order that I made and the judgment
entered thereon to be regular.

But the garnishee has made an affidavit in which he states
what I consider to be sufficient grounds to allow him to defend.
On the 27th July, 1907, the garnishee wrote to the clerk of the
Court in Regina, (this action brought in the Supreme Court
of the North-West Territories, Judicial District of Regina), ad-
vising him that the defendants held the garnishee's promis-
sory notes which did not become due until the Ist December,
1907 and 1911 respectively. This letter was received by the
clerk, but was mislaid or he could not find it on the files. If
that letter had been on the local registrar's files, and had been
brought to my notice, I certainly would not have ordered that
judgment be signed against the garnishee, because I think that

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SASKATCHEWAN LAW REPORTS.

209

such a written statement, although not entitled in the cause,
would be a sufficient statement to comply with the requirements
of a garnishee summons.

The garnishee, since writing that letter, has paid the note
which fell due in December, 1907, to a third person, one P.
Metheral, to whom it was endorsed by the defendant after the
service of the garnishee summons.

The question whether a debt accruing due by virtue of a
promissory note made by the garnishee in favour of the prin-
cipal debtor is attachable or not, to say the least, is not to my
mind very clear. The Ontario authorities very clearly lay it
down that such debt is not attachable before the maturity of the
note. The trend of the English authorities appear to me to be
the other way; therefore, I will not decide the question on this
application. All that is necessary for me to say is that I think
the garnishee has furnished sufficient grounds to enable him
to raise the question of his liability under the garnishee
summons.

There is another objection to granting this application so
far as the alleged irregularity is concerned, because the ground
of the irregularity is not set forth in the chamber summons.

The plaintiff did not appear at the return of the chamber
summons granted on this application although served there-
with, but he is not at all to blame in respect to the proceedings
which he took. The fault is that of the officer of the Court in
mislaying the garnishee's letter,

I cannot, therefore, award any costs against the plaintiff.

The garnishee will be allowed to file a statement denying
his liability, provided that he does so within twenty days from
this date, and pays the pjaintiflf's costs of signing judgment
against him and of his application therefor, and issuing execu-
tion, and the sheriff's fees in connection therewith, if any. Upon
these conditions being complied with within the twenty days,
my order for judgment and the judgment signed thereon against
the garnishee, and the executions issued thereon, will be set
aside.

Upon non-compliance with these terms, this application will
be dismissed without costs to the plaintiff.

Wetmore, C.J.
1909

HUNTEB

V,
COLLIITS

AND
BUBLET.

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210 SASKATCHEWAN LAW REPORTS. [vol.

1909

Heward JViiLLiNG Co. V. Barrett, & Heward School
District, GARjasHEE.

May 27. Attachment of Debts — Amount Due under Building Contract — Failure of
Contractor to Complete Work — Work Completed by Owner — Debt
Due — Condition Precedent to Payment — Effect of.

Defendant had a contract for the erection of a school building for the
garnishees, but abandoned the work before completion. The contract
provided that the proprietor might in such a case take possession of the
premises and complete the work and charge cost against amoimt due
the contractor. It was also provided that the final estimate of 20 per
cent, should not be payable until all liens had been paid and defective
work remedied. The plaintiff after the defendant abandoned the work
gamisheed the balance due him under the contract. After the garnishees
had paid all liens and completed the building, most of which payments
were made after service of the garnishee, there was no surplus remaining:

Held, that the true test as to whether or not there is an attachable debt
is to ascertain whether anything has to be done by the judgment debtor
as a condition precedent to payment, and as the condition precedent to
the payment of the amount due when the garnishee was served was the
completion of the building, wliich was never completed by the contractor,
there was not any attachable debt due from the garnishee to the judg-
ment debtor.

An issue was directed to determine the liability of the garn-
ishee to the judgment debtor, and was tried before Prendergast,
J., at Areola.

J. F. Frame, for the plaintiff.

E. W. F, Harris, for the garnishees.

May 27. Prendergast, J. : — In this action, commenced July
29th, 1907, the plaintiffs caused a garnishee summons to issue
against the Heward School District number 1021, and the
same was duly served on them on November 10th following. On
February 29th, 1908, the garnishees, by a notice filed in the
proceedings, disputed any liability. On March 24th following,
the plaintiffs recovered judgment against the defendant for
$104.00 and costs lo be taxed, which costs were subsequently
allowed at $159.01. The present issue, directed by the learned
Chief Justice, is to determine the liability of the garnishees to
the judgment debtor, and what amount, if any, was attached.

On May 17th, 1907, the defendant entered into a contract
under seal with the garnishees for the erection of a school house

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SASKATCHEWAN LAW REPOETS.

211

for the sum of $10,750.00 to be paid in fortnightly instalments
of 80 per cent, of the work done and material supplied according
to progress estimates to be issued by the architect on the first
of each month. Articles Y., IX. and X. of the contract read,
in part, as follows : —

Art. V. Should the contractor at any time refuse or neglect
to supply a suflSciency of properly skilled workmen, or of
materials of the proper quality, or fail in any respect to prose-
cute the works with promptness and diligence, or fail in the
performance of any of the agreements herein contained, such
refusal, neglect or failure being certified by the architect, the
owner shall be at liberty (after six days' written notice to the
contractor) to provide any such labour or materials, and to deduct
the cost thereof from any money then due or thereafter to become
due to the contractor under this contract ; and if the architect,
with sufficient- justification, shall certify that such refusal, neg-
lect or failure is sufficient ground for such action, the owner
shall also be at liberty to terminate the employment of the con-
tractor for the said works, etc.

Art. IX. The final payment shall be made within thirty-
two days after the contractor has substantially fulfilled this con-
tract, if the contractor shall have given satisfactory evidence
that no mechanics' lien, other than his own, or liens of which
he holds discharges exist in respect of the said works ; otherwise
the final payment shall be made within two days after the time
for filing mechanics' liens has elapsed.

Art. X. No certificate given or payment made under this
contract except the final certificate or final payment shall be
conclusive evidence of the fulfilment of this contract by the con-
tractor, either wholly or in part, and no payment shall be con-
strued to be such an acceptance of defective work or improper
materials as would entitle the contractor to payment therefor.

Barrett seems to have started with the work almost at once.
It also appears, although no formal resolution was passed to that
effect, that it was understood by the three trustees constituting the
board, that two of them — ^being Joseph Dickey (the chairman)
and J. M. Adams (the secretary-treasurer) — should represent
the board generally in the matter.

Prendergutf J*

1909

Hewabd
Milling Co.

Babbett

AND*

Hewabd
School

DiSTBICT.

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SASKATCHEWAN LAW REPORTS.

[vol.

PrendergaBt. J.

1909

Hewabd
MnuNG Co.

Babbett

'and
Hewabd
School

DiSTBICT.

Divers sums were paid by the trustees directly to Barrett
up to September 15th. After that, believing that he was getting
behind in paying the men, the chairman and secretary-treasurer
of the board told Barrett that they would pay out no more money
until the work was completed, except to the men on his orders,
and this was done until November 7th. On this last date, Bar-
rett left for Florida, and did not appear again on the works.
George W. Beach, a sub-contractor, says: **When Barrett left,
he handed over the supervision of the works to all of us, and
he left a power of attorney with me . . . After he quit, he
took no interest in the matter ; so we had a talk about finishing
the building, and the understanding was for me to go ahead and
issue the orders for labour and the carpentering work in particu-
lar, and they would pay them as the work progressed . . .
The reason of this was that Barrett was staying away and taking
no interest, and the building had to be completed." The evi-
dence is also to the effect that the trustees had trouble with the
workmen, who, having experienced difSculty in getting their
pay, intimated that they would quit unless they were guaranteed
their wages, in consequence of which they were assured that they
would be paid upon the production of orders — ^Beach (who had
Barrett's power of attorney) agreeing at the same time to exer-
cise a general supervision of the work until it was completed.

Then the garnishee order was served on the trustees. This
was November 10th. On that date there had been paid out on
the contract the sum of $7,901.00 — from which it would appear,
if such amount represented 80 per cent, of the work done, that
work for a further sum of $1,975.00 was then completed.

From November 10th to December 4th carpentering and
painting were proceeded with, and further orders were issued
and payments made.

On December 4th, the trustees sent a written notice to Bar-
rett in care of Beach, pointing out certain omissions and defects
in the building, and giving him the option of rectifying the
same within five days or forfeiting $200.00 as per estimate of
the architect.

On December 10th, no word being received from Barrett, the
trustees took possession of the building as it was.

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On different dates thereafter, the trustees made further and
the last payments for labour and material, one of them being to
Montjoy Brothers, who had registered a lien on the building.
Deducting $200.00 for defects and omissions as above referred to,
and $40.00 for painting which had yet to be done, it appears
from the evidence not only that the trustees exhausted the whole
amount of the contract, i.e., $10,750.00, but that this amount
fell short of what was actually due for labour and material, and
some of the men were only paid pro rata of their claims out of
what was left on hand.

The judgment creditors rely on articles V. and X. of the
contract. With respect to article V., while it is clear that the
trustees took possession of the building on December 10th, it is
just as clear from the evidence of Joseph Dickey and George W.
Beach, that they did not take over the contract when Barrett
left on November 7th, nor at any other time prior to their letter
of December 4th. As to article X., it seems to me that any
special bearing it can have on the facts of the case must be against
the judgment creditors.

What is attachable under garnishee proceedings is a debt
due or accruing due. J. 0. r. 384, and Form C.

It is well settled that a sum debitum in presenti, sed solven-
dum in futuro, is attachable. It is on this principle that the
principal due under a mortgage may be attached, Barnett v.
Eastman (1898), 67 L.J.Q.B. 517.

But it is not sufficient to look at the general nature of the
debt itself; all the circumstances attaching to the contract creat-
ing the debt must be considered, and in Howel v. Metropolitan
District RaUway (1882), 51 L.J. Ch. 159, and 19 Ch.D. 508, it
was held that **the true test is whether anything else has to be
done by the judgment debtor as a condition precedent to pay-
ment."

The condition precedent to the payment of the $1,975.00
(equal to 20 per cent.) which was being withheld when the
garnishee order was served, was the completion of the contract by
Barrett. That was the very object of article IX. of the contract*
That matter of the completion of the contract by Barrett re-
mained an open question until the trustees put an end to it

Prendergast, J.

1909

Hewabd
Milling Co.

Babbett

Hewabd,
School'

DiSTBICT.

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1909

Hewabd
MnxiiYO Co.

Babbett

AND

Hewabd
School

DiSTBICT.

on December 4th or 10th, by giving him notice and taking posses-
sion; and on that date the state of affairs was such that far from
there being a balance coming to Barrett, the stipulated sum of
$10,750.00 was not enough to meet all demands, and a com-
promise had to be effected with the workmen. This considera-
tion is based on the nature of an attachable debt, and on the
special contract.

But I moreover find that under the Mechanics' Lien Ordin-
ance the trustees had express authority to act as they did.

Section 20, s.s. 3, of the said Ordinance shews that the lien
exists from the moment that any sum is due for work or material,
even before registration. Barrett, although not having regis-
tered the same, had then a lien on the premises at all events in
October, November and December ; and this being so, under sec.
11 of the Ordinance, all persons doing labour for him, who noti-
fied the owner of an unpaid account or demand, became entitled
to a charge therefor pro rata upon any amount payable by such
owner under such lien." And the section provides further:
''And if the owner thereupon pays the amount of such charge
to the person furnishing material and doing labour as aforesaid
such payment shall be deemed in satisfaction pro tanta of such
lien."

This section 11, as I understand it, creates what Mathers, J.,
in Bryson v. Municipality of Rosser (1909), 10 W.L.R. 320,
refers to, with regard to a Manitoba statute, as a statutory assign-
ment. Or in other words, it simply enacts this most equitable
provision, that the owner, when duly notified within the statutory
limit of time, must see that such sums as may be then due to the
contractor are paid out first to the men by whose labour and
material he benefits.

In this case the men were all paid within thirty days after
performing the work or supplying the material, — which also
means, of course, within thirty days of the performance of the
general contract.

There was an exception in the case of Beach, who was paid
$625.63 as late as March 19th, 1908. But that was part of an
order of $1,036.50 (exhibit 2) which he obtained from Barrett
on November 7th, 1907, for work completed within the previous

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thirty days; and this order was not only brought to the know-
ledge of the chairman and secretary-treasurer of the board at
the time, but taken into account by them when they effected their
settlement on a pro rata basis with the other workmen on
November 27th. In other words, although Beach was only paid
the balance coming to him on March 19th, 1908, he was so paid
by virtue of a previous understanding with the trustees arrived
at within the statutory limit of time.

With reference to the action taken by the chairman and
secretary-treasurer of the trustees without any formal resolu-
tion of the Board, see Pim v. The Municipal Council of Ontario,
9 U.C.C.P. 304.

I hold that on the^ date that the garnishee order was served
on the garnishees there was no debt due or accruing due from
them to the primary debtor.

The garnishees will have their costs of this issue.

rrendergMt. J.
104 1»

Hewau)
Milling Co.

Barrett

AND

Heward

School

District.

[IN CHAMBERS.]

Kasindorp v. Hudson's Bay Insurance Company.

Practice — Writ of Summons — Plaintiffs Resident ex juris — Action hy Part-
nership— Action Brought in Firm Name — Motion to Set Aside Writ —
Amendment Allowed — Nullity or Irregularity — Waiver.

Plaintiffs, a partnership not carrying on business in juris /sued in the firm
name. An application was made by defendant, after appearance, to set
aside the writ and service, because the writ was issued in the firm name ;
and on the application leave was given to amend by setting out the
names of the several members of the firm. From this order the defen-
dant appealed: —

Hrid, that the writ was irregular, but not a nullity, and l)eing merely
irregular and not a nullity, the defendant, by appearing, had waived the
irregularity.

This was an appeal to a Judge in Chambers from an order of
the Local Master at Moose Jaw, allowing an amendment of a writ
issued by a foreign partnership in the firm name, and was heard
by Newlands, J., in Chambers.

H, Z>. Pickett, for the plaintiff.
J. A. Allan, for the defendant.

1009
May 31.

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1909

KA-SINDORF
V,

Hudson's

Bay
insubance

Co.

May 31. Newlands, J. : — The plaintiflfs, who are a foreign
firm not carrying on business within the jurisdiction, issued the
writ m this action in their firm name. On an application to set
aside this writ the Local Master at Moose Jaw gave plaintifib
leave to amend by setting out the names of the several partners
of the firm, and from this order the defendants appeal.

Mr. Allan, for the defendants, argued that the writ could not
be amended, that the mistake in suing in the firm name was not
an irregularity that could be cured by the defendants appearing
as they did, but was a nullity and could not be amended, and he
cited in support of this proposition Smurthwaite v. Hannay
(1894), A.C. 494, 63 L.J.Q.B. 737, 71 L.T. 157, where the Lord
Chancellor, Lord Herschell, said (501) : —

**I cannot accede to the argument urged for the respondents,
that even if the joinder of the plaintiflfs in one action was not
warranted by the rule relied on, this was a mere irregularity of
which the plaintiflfs, by virtue of Order LXX. could not now take
advantage. If unwarranted by any enactment or rule, it is, in
my opinion, much more than an irregularity."

It is unnecessary for me to consider whether the proposition is
as wide as there stated, as there is another authority to shew
that it does not apply to this case. Rule 37, which is similar to
Order IX., r. 6, of the English practice, applies equally to plain-
tiflfs as to defendants, or, to state the case more correctly, as
applying to this case, this rule does not authorize a foreign firm
which does not carry on business within the jurisdiction to either
sue or be sued in their firm names. In the Western National
Bank of City of New York v. Perex (1891), 1 Q.B. 304, 60 L.J.
Q.B. 272, 64 L.T. 543, where a foreign firm not carrying on busi-
ness within the jurisdiction was sued by its firm name, the Court
of Appeal refused to set aside the writ as null and void at the
instance of one partner who had been served with the same
whilst temporarily in England. Bowen, L.J., with whose opinion
Lindley, L.J., concurred, said (316) : —

**We are, therefore, I think, bound to apply the same rea-
soning to both cases, and, this being so, we ought to hold, on the
authority of Bussell v. Cambefort, 23 Q.B.D, 526, 58 L.J.Q.B.
498, 61 L.T. 751, that the present writ is incorrectly issued against

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the firm, and cannot be justified as against the firm by Order IX.,
r. 6.'' **It must not be supposed that our decision implies that no
remedy can be had against foreign firms, or such of their mem-
bers as happen to come within the jurisdiction. The law as to
suing and serving them will remain what it always has hitherto
been, though the writ oannot, under Order IX., r. 6, be addressed
against them in the foreign firm's name. The old course will be
still pursued, viz., to insert in the writ the names of the partners
whom it is desired to sue, and such writ so framed may be served
on any of the partners who are found within the jurisdiction.
For service out of the jurisdiction recourse must be had to Order
XI., if the case is one which can be brought within the rules of
that order.

**The law as to actions against foreign firms being thus, ac-
cording to the effect of our present decision, wholly unaltered
and unaffected by Order IX., r. 6, it becomes necessary to apply
ourselves to the second question in this case, viz., whether, as
against the defendant who has appeared, the writ should be set
aside, on the ground of its being directed against his firm. And
it appears to me that, as against the defendant the service of the
writ must, under the circumstances, be upheld. The defendant is
not the less intended to be sued, because he is intended to be sued
with others, who with him are misnamed, and who together with
him are intended to be comprehended (though as we have seen
irregularly) in one firm name. The writ is no doubt irregular,
in that it uses a single firm name to describe the defendant and
others, who are beyond the jurisdiction. This irregularity as
regards the firm must be set right. What has been writ short
must be writ large, for the plaintiff is not entitled to the benefit
of Order IX., r. 6, nor to the advantage of proceeding further as
against the firm in the firm name. But the defendant is really
himself sued together with others, since the plaintiff intends to
include him, and to shew at the trial that he is properly included,
among the members of the firm, and the irregularity of the
nomenclature in the writ the defendant has waived as against
himself by appearance, since he might if he had chosen have
moved, under Order XII. r. 30 to set aside the service upon him-
self and was not obliged to appear to enable him to move.''

Newlands, J.
1909 "

Kasindobf

Hudson's

Bat
Insubance

Co.

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This reasoning I think applies equally to the ease pf plaintiffs
suing in their firm name as to defendants being sued in that way,
and as it is therefore only an irregularity it would be waived by
defendant's appearing and obtaining an order for security for
costs as defendants have done in this case. The appeal will there-
fore be dismissed with costs.

1-909
.hine 18.

[IN CHAMBERS.]
I^ RE ChESSHIRE.

Probate — Application for Ancillary Letters — Evidence in Support — Ex-
emplification Under Seal of High Court of Justice for England.

This was an appeal from the decision of a Judge of the Surrogate Court
refusing a petition for ancillary letters probate upon petition of the
executor supported by an exemplification of letters probate under the
seal of the High Court of Justice for England: —

Held, that the production of an exemplification of probate under the seal
of the High Court of Justice for England, together with the affidavits
under the Succession Duty Ordinance, was sufficient to entitle the executor
to ancillary letters probate.

This was an appeal to a Judge in Chambers from a Judge
of the Surrogate Court, and was heard by Johnstone, J.

T. 8, McMorran, for the petitioner.

June 18. Johnstone, J.: — Section 70 of the Surrogate
Courts Act provides that where any probate, etc., or other legal
document purporting to be of the same nature granted by a
Court of competent jurisdiction in the United Kingdom, etc.,
is produced to, and a copy thereof deposited with the clerk of
any Surrogate Court of this province, and the prescribed fees
are paid as on a grant of probate, the probate or other docu-
ment aforesaid shall under the direction of the Judge be sealed
with the seal of the said Surrogate Court, and shall thereupon
be of like force and effect in Saskatchewan as if the same had
been originally granted by the Court.

Section 71 requires on all such applications affidavits relating

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to succession duties to be filed. No mention is made of the
filing of other aflBdavits, and these are not required by section 70,
and are, therefore, not necessary or called for.

Under section 15 of the Evidence Act, ''Evidence of any pro-
ceeding or record whatsoever of in or before any Court in the
United Kingdom, etc., may be made in any action on proceeding
by an exemplification purporting to be under the seal of such
Court."

Under the latter section production of an exemplification
authorized by the seal of the High Court of Justice (England)
was sufficient for all purposes to entitle the petitioner to a
direction to have the seal of the Surrogate Court for the Judicial
. District of Moosomin attached by the clerk to the copy of the
exemplification produced and filed with the clerk upon payment
of the prescribed fees.

The appeal is, therefore, allowed and the seal of the clerk
directed to be attached upon payment of the necessary fees.

Johnstone, J.
1909

In BE
Chesshibe.

[COURT EN BANC]

MiscHOwsKY V. Hughes.

Criminal Law — Appeal to District Court from Conviction by Two Justices
— Keference by District Court Judge of Question of Law to Court en
ban<>— Jurisdiction of Court.

An appeal from a conviction by two justices of the peace having been
taken to the District Court, and a question having arisen as to the
regularity of the proceedings, the District Court Judge referred such
question to the Court en banc: —

Held, that in such matters the Court appealed to, and in this case the Dis-
trict Court, is the absolute judge of facts and law, and the Court en bano
had no authority to advise in the matters.

This was a reference to the Court en banc by Forbes, D.C.J.
No one appeared.

July 5. The judgment of the Court was delivered by
Wetmore, C.J. : — ^The appellant, Mischowsky, is charged with
unlawfully obstructing the respondent, a sheriff's officer, in the

1909
July 5.

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220 SASKATCHEWAN LAW REPORTS. [vol.

wetmore. cj. lawful execution of his duty, contrary to section 169, sub-section

1909 (&), of the Criminal Code. He was tried by J. C. Klaasen and

MiBOTowsKT ^^^^ ^- Young, Esquires, justices of the peace, and fined $20

«. and costs, to be paid forthwith, or in default, to be imprisoned

for two months in the common jail at Prince Albert, with hard

labour.

A person charged with an offence, under section 169, may
be proceeded against by indictment, or on summary conviction,
and if on summary conviction the proceeding must be before
two justices. Although the reference does not state that the pro-
ceeding was by summary conviction, I presume, inasmuch as the
party was convicted by two justices, that such was the procedure.

The appellant appealed to the District Court at Prince .
Albert. A question of law arose in the mind of the Judge of the
District Court, as to whether the procedure on the appeal was
correct, which he submitted by the reference herein, for the
opinion of this Court. I am unable to discover upon what
authority this reference is made. I presume that this appeal was
taken to the District Court under section 749 of the Criminal
Code. That being so, I know of no provision for a reference to
this Court. Sub-section 752 of the Code provides : —

**That when an appeal against any summary conviction or
order has been lodged in due form, and in compliance with the
requirements of this part, the Court appealed to shall try and
shall be the absolute judge, as well of the facts as of the law, in
respect to such conviction or order.'*

I presume the learned District Court Judge may have been
under the impression, because the question raised was whether
the appeal was lodged in due form and in compliance with the
requirements of the part relating to summary convictions, that a
reference might be made to this Court.

I can find no provisions authorizing this. No person appeared
in this matter for either of the parties concerned. I am of opin-
ion that there was no authority to warrant the reference and no
jurisdiction in this Court to entertain it.

This Court will, therefore, decline to deal with the matter.

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[TRIAL.]

Davis v. Reynolds. i^o^

Promissory Note — Action Upon hy Guardian of Lunatic — Note Oiven for
Sale of Goods before Guardian Appointed — Consideration — Ratification
— Notice of.

The plaintiff, the brother of a lunatic, sold certain property of such
lunatic to defendant, taking a promissory note in payment expressed to
be payable to plaintiff for the lunatic. The note being dishonoured,
plaintiff sued to recover, and the action was dismissed. The plaintiff
was then appointed guardian of the estate and brought a new action as
guardian, but did not notify the defendant of his appointment* or ratify
the transactions occurring prior to his appointment: —

Held, that if the note when given was not valid, the plaintiff could not,
upon being appointed guardian, recover upon it, in any event not unless
he had ratified the sale and notified the defendant of such ratification
and of his appointment.

This was an action to recover the amount of a promissory
note, and was tried before Wetmore, C.J., at Regina.

W. E. Enowlesy for plaintiff.
C. E. D. Wood, for defendant.

July 5. Wetmore, C.J. : — J. W. Davis sold the defendant a
team of horses for $450.00. These horses belonged to J. K.
Davis, who is a person of unsound mind, and Reynolds gave a
note dated the Ist March, 1907, for the amount of the purchase
money, with interest at 6 per cent., payable to J. W. Davis
for J. K. Davis. When the note became due Reynolds did not
pay it, and J. W. Davis brought an action in his own name, to
recover the amount. That action was tried before my brother,
Lamont, who gave judgment for the defendant, on the ground
that J. W. Davis was not the guardian of J. K. Davis, and had
no right to dispose of the property, and could not give a good
title therefor, and that J. K. Davis, on recovering his reason, or
his guardian duly appointed, could claim and recover this
property.

Now the only conclusion that I can draw from this judg-
ment is that the learned trial Judge found that the note was
without consideration. Reynolds had a paragraph in his state-
ment of defence in that action, that he was prepared to deliver

Julys.

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Wctmore, C.J.
1909

Davts

Reynolds.

up the property to whomsoever the Court might direct. That
was, to my mind, of no effect. Certainly the Court, in an action
of the character which I have stated, would make no order
whatsoever in that direction.

Subsequent to this judgment, J. W. Davis was appointed
guardian of the estate of J. K. Davis, and letters of guardian-
ship issued to him, and he thereupon brought this action. No
notice was given to the defendant that J. W. Davis had been
appointed guardian, nor was any notice given to the defendant
that J. W. Davis, as guardian, had ratified the dealings between
J. W. Davis individually, and the defendant, with respect to
the horses.

This action is based entirely upon the note. It claims pay-
ment of the note, or, in the alternative, a return of the iorses
and a sum of money for the use of them since the defendant
obtained possession of them. There is no right whatever alleged
in the statement of claim upon which the plaintiff seeks to re-
cover in this action, except upon this note. As stated before,
the only construction I can put upon the judgment of. my
brother, Lamont, is, that he held the note was without con-
sideration. That being so, if it was not valid, for that reason,
at its inception, it could not be made good by some subsequent
conduct on the part of either J. W. Davis or J. K. Davis. But,
assuming that it could be made good by the ratification of
J. E. Davis's guardian, I am of opinion that the defendant
would be entitled to notice of that ratification before action was
brought. In fact I cannot conceive any action being brought
against the defendant by J. E. Davis, or his guardian, without
the contract being ratified and the defendant being notified of
the fact of ratification. I might conceive of an action being
brought against him for wrongful conversion, without notice of
ratification. I suggested at the trial that possibly this action
might be considered as brought by the guardian of J. E. Davis
for the delivery of J. E. Davis' beneficiary interest in the note,
or contract, but, it seems to me, in the first place, that what I
have before stated is an answer to recovery on that ground, and
in the next place I cannot get over the objection taken by the
learned counsel for the defendant, that the action is not

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brought in that form. So far as the alternative remedy, which
I have stated, is concerned, I cannot see how the plaintiff can
sacceed. He has stated nothing whatever in his statement of
claim which would give him the right to a return of the horses.
I do not, by any means, say that J. K. Davis or his estate is with-
out remedy, in fact I am very clearly of the opinion that they
have a remedy, but the plaintiflE has mistaken that remedy in
this action.

I think it is a matter of very great regret, but this action
must be dismissed. On the first trial the learned Judge dismissed
the action without costs, but I feel that I cannot follow in the
same course. Not that I wish to intimate for a moment that
my brother, Lamont, was in error in doing what he did, but
as the plaintiff has harassed the defendant with two actions, and
has failed in both, he must pay the cost of this last one.

This judgment will not preclude J. K. Davis, or his guardian,
as the case may be, recovering the value of these horses, in an
action properly framed.

There will be judgment for the defendant with costs.

Wetmore, O.J,

1909

Davis

Reynolds.

[TRIAL.]
Manitoba Brewing & Malting Co. v. McDonald.

As9ignment8 and Preferences — Fraudulent Conveyance — Statute of Elizabeth

— Intent,

Defendant McDonald being indebted to the plaintiffs and others, con-
veyed a farm to his co-defendants, his wife and father-in-law, for an
expressed consideration of $4,000.00 to be paid in cash, notes, and by
the proceeds of a loan. The evidence as to payment was contradictory,
but the weight of evidence seemed to shew that $1,400.00 was paid.
Beyond contradictory evidence between the defendants as to the mode of
payment there was no evidence of fraud : —

Held, that no actual and express intent to defraud or delay creditors being
shewn in both parties, the transfer, being for valuable consideration,
ought not to be set aside.

This was an action to set aside a conveyance of land as in
fraud of creditors, and was tried before Lamont, J., at Regina.

Jos Balfour, for the plaintiff.
J. A. Allan, for the defendant.

15 — yoi^ n. 8.L.R,

1909
July 16.

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224 SASKATCHEWAN LAW REPORTS. [vol.

Lament, J. July 15. Lamont, J.: — In this action the plaintiflEs have

1909 claimed against the defendant D. M. McDonald the sum of $180
Manitoba ^^^ goods sold and delivered to him ; also the sum of $H1.41 for
Brewing goods sold to him by G. P. and J. Gait; and the sum of $95.33
Malting CJo. ^or goods sold to him by Blackwoods, Limited, which amounts
McDonald ^^^® ^^^^ assigned to the plaintiffs. The plaintiffs also ask that
a transfer of the north-west quarter of section 10-35-2 w. 3 from
the defendant D. M. McDonald to the defendants Francis Mc-
Donald (the wife of the said D. M. McDonald) and Paul P.
Jones (her father) be set aside on the ground that the same was
a fraudulent preference under the Assignments Act. On the
argument before me counsel for the plaintiffs asked to be allowed
to amend the statement of claim herein by setting up that the
said transfer was also void under 13 Eliz., ch. 5. I allowed the
amendment.

D. M. McDonald did not appear to the writ of summons, and
the plaintiffs signed judgment against him and proceeded to
trial to determine the validity of the transfer. I find the facts
to be as follows : In March, 1907, the defendant D. M. McDonald
sold a hotel in Aberdeen for $14,000 and received for his interest
therein $1,000 cash, the farm in question valued at $4,000, a
num,ber of lots in Saskatoon valued at $2,000, and a mortgage on
the hotel for $3,500 subject to a first mortgage for $3,500. On May
6th, 1907, he transferred the said farm to the defendants Paul P.
Jones and Prancis McDonald. The consideration for the transfer
was $4,000. The arrangement entered into between them was
that the defendant purchasers were to obtain a loan on the land
of $1,200, which, they were assured by Mr. Acheson, who drew
the transfer, could easily be obtained, and which, being obtained,
was to be paid over to the defendant D. M. McDonald, and to
give their notes for the balance. The transfer was executed by
D. M. McDonald. The purchasers paid him $100 in cash and
gave him two promissory notes for $1,400 each, one payable in
six months and the other in twelve months after date ; and they
made an application to Mr. Acheson for a loan of $1,200 and left
the transfer and the title papers with him. The transfer was
registered, but the application for the loan was not accepted.
Having been informed that the loan could not be obtained, the

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defendant purchasers gave D. M. McDonald a note for $1,200, Lament, j.
payable in eighteen months. As to these facts there is no dispute. 1909
There is, however, a conflict of evidence as to the payment of the Manitoba
first $1,400 note. The note was taken up by the purchasers and ^"^^J^®
is now in their possession. On the back of the note there are Malting Co.
endorsed the following receipts: *' Saskatoon, June 1st, '07. Re- McDonald.
ceived from Francis McDonald on the within note six hundred
and fifty dollars and fifty cents. $650.50. D. M. McDonald."
And underneath that the following: "Port Huron. Received
from Francis B. McDonald and Paul F. Jones six hundred and
fifty dollars, $650.00, to apply on within note. D. M. McDonald.'*
The amount of these two receipts, together with the $100 cash
paid by the purchasers when the transfer was given, makes up
the $1,400, and the note was delivered up to the purchasers.

As to the payment of the $650 by Paul F. Jones no question
arises as it is not disputed that he paid the money set out in the
receipt ; but the payment of $650 by Mrs. McDonald is disputed.
Paul F. Jones was examined for discovery and in his examination
he testified that the $650 paid by Mrs. McDonald was not paid
in cash, but by giving her credit for that amount on the note, as
the defendant D. M. McDonald owed her at the time more than
that sum for moneys loaned by her to him. And he further set
out that it was part of their bargain with D. M. McDonald that
she was to be allowed as part of the purchase money this $650,
which was owing to her. On the other hand, both Francis Mc-
Donald and D. M. McDonald state positively in their depositions
that Mrs. McDonald paid him in cash $650 in Saskatoon on June
1st, 1907, and the receipt for the same was there endorsed on the
note. If the evidence of the defendant Jones had not been
impeached otherwise than by the evidence of Mr. and Mrs. Mc-
Donald I would have been inclined to accept it even as against
both of their testimonies, because Mrs. McDonald says that she
had the $650 in the house for near a year before paying it to
her husband, and this seems to me scarcely probable. Other
portions of Jones's evidence, however, shew that it is unreliable.
He swore that after making the first payment, which was the
note of $1,400, that the other $2,600 were to be paid by payments
of $100 per year. This is not only flatly contradicted by both Mr.

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[vol.

Lamont, J.
1009

Manitoba
Brewing

AND

Malting Ck>.
McDonald.

and Mrs. McDonald, but also by the written documents. At the
time the transfer was given the two notes for $1,400 were given
and an application for a loan of $1,200 made to Mr. Aeheson,
and had that loan been made it seems to me there could have
been, on the evidence before me, no grounds for impeaching the
bojid fides of the transfer. The defendant Jones, however, was, I
find, mistaken in this part of his evidence, and that being so I
cannot accept the other portions of his testimony as against the
positive evidence of both the other defendants that Mrs. Mc-
Donald paid the $650 in cash. I must, therefore, hold that she
made this payment in cash.

Under these circumstances are the plaintiffs entitled to set
aside the transfer under either 13 Eliz., ch. 5, or the Assign-
ments Act t

To entitle a creditor to set aside a transfer for valuable con-
sideration imder 13 Eliz., ch. 5, he must prove an actual and
express intent to defraud or delay creditors in both parties to the
transfer, and the onus is upon him. It is not sufficient to shew
that the result of the transfer has been to delay or exclude credi-
tors. Parker on Frauds, pp. 3 and 59. There is no evidence
before me which shews an actual express intent to defraud or
delay creditors on the part of these defendants. Even if the
object of the transfer had been to secure on existing debt due to
Mrs. McDonald that alone would not make it void under 13 Eliz.,
ch. 5. In Mulcahy v. Archibald (1897), 28 S.C.R. 523, Sedge-
wick, J., in giving judgment of the Court, says: —

**The statute of Elizabeth, while making void transfers, the
object of which is to defeat or delay creditors, does not make
void, but expressly protects them in the interest of transferees
who have given valuable consideration therefor, and it has been
decided over and over again that knowledge on the part of such a
transferee of the motive or design of the transferor is not con-
clusive of bad faith or will not preclude him from obtaining the
benefit of his security. So long as there is an existing debt and
the transfer to him is made for the purpose of securing that debt
and he does not either directly or indirectly make himself an
instrument for the purpose of subsequently benefiting the trans-
feror, he is protected and the tranaction cannot be held void."

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227

The transfer in the present case being given for valuable con-
sideration is not void under the statute of Elizabeth, and as the
evidence leads me to the conclusion that the purchasers paid a
portion of the purchase money, i,e,, the first $1,400 note in cash,
and their notes for the balance are now in the hands of third
parties, neither of the purchasers has obtained any preference
which would entitle the plaintiffs to have the transfer set aside
under the Assignments Act. There will, therefore, be judgment
for the defendants with costs in so far as the plaintiffs' claim is
to set aside the transfer.

Lamont, J.

1009

Manitoba
Bbewikg

AND

Mai/tino Co.

McDonald.

[TRIAL.]

Hamilton v. Chisholm.

Real Property — Buildings Placed Thereon — Property in.

An execution debtor placed certain buildings on land, the property of the
defendant in the issue, for which it appeared a ground rent was paid.
These buildings were of wood resting on loose stone foundations
to which they were not afiixed nor were the foundations let into
the earth, but the earth had been levelled to make the foundation level.
A cellar had been dug in the earth under one building. A judgment
creditor seized these buildings, and the defendant, the owner of the fee
simple, claimed them as nart of the freehold, and an issue was directed : —

Held, that to be a parcel of the freehold a building must be affixed to it
or something connected with it, or there' must be evidence to shew that it
was intended that the buildings should be part of the freehold; the
buildings in question not being affixed to the freehold, and there being no
evidence that they should be a part of it, the buildings were the property
of the debtor and liable to seizure.

This was an interpleader issue tried before Newlands, J.

R. B. Earle, for plaintiff.
A. M, Pant on, for defendant.

May 25. Newlands, J.: — This is an interpleader issue to
decide the ownership of a house and stable built by the execu-
tion debtor, A. E. Dunn, upon the land of the claimant, Eva
Chisholm. Neither the claimant nor the execution debtor
gave evidence, so that I have to decide the question of owner-
ship from the evidence of the character of the buildings in
dispute.

1909
May 25.

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NewlAndfl. J.

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Hamilton

Chisholm.

I may say that there was some evidence pointing to the fact
that the execution debtor intended to purchase the land upon
which these buildings were erected from the deceased husband
of the claimant in his lifetime, and that since his death she
had been charging him a ground rent for said land, but this
evidence was not sufficiently definite to shew the intention of
the parties at the time the buildings were erected. The build-
ings themselves are of wood throughout, resting on loose stone
foundations by their own weight, and are not fastened to the
same in any manner. These foundations are not let into the
ground, but the ground was levelled so that the foundations
would be square. There is a square hole dug in the ground
under the house for a cellar, and it is banked around above the
foundation with earth. Both buildings can be removed without
in any way injuring the freehold.

The buildings in this case are very similar to the buildings
in Rex v. Otley (1830), 1 B. & Ad. 161. There the question
was whether a mill was parcel of a tenement. It was held it
was not. Bagley, J., said: '*To be so it must be part and
parcel of the freehold. Now it is not a parcel of the freehold
unless it be affixed to it, or to something previously connected
with it. Here the mill was not affixed to the land, but merely
rested upon a foundation of brick. This is analogous to the
case of a barn set upon pillars, and that is nothing more than a
chattel. The windmill in this case would clearly have gone to
the executor, and not to the heir.''

In Wansbrough v. Maton (1835), 4 A. & E. 884, another
similar case, where a bam consisted of wood resting upon, but
not fastened by mortar or otherwise to, the caps of blocks and
stone fixed into the ground or let into brickwork, the brickwork
being built on and let into the ground in those parts where the
ground was lowest, for the purpose of making an even founda-
tion for the barn to rest on. It was held the bam was not a
fixture, and Rex v. Otley was followed. Lord Denman, C.J.,
said: ''The first question must be whether the erection be a
part of the freehold. If it be not united to the freehold we
cannot say that it is not a part of it; and here it is not so
united, and, therefore, not a fixture.''

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Tested by the rule laid down by Lord Blackburn in Holland
V. Hodgson (1872), 1 L.R. 7 C.P. 328; 41 L.J.C.P. 146; 26 L.T.
709, neither the house nor the barn are to be considered part
of the land, as there is nothing to shew that they were to be
considered as part of the land. In that case Lord Blackburn
said: ** Perhaps the true rule is, that articles not otherwise
attached to the land than by their own weight are not to be
considered as part of the land, unless the circumstances are such
as to shew that they were intended to be part of the land, the
onus of shewing that they were so intended lying on those who
assert that they have ceased to be chattels, and that, on the
contrary, an article which is affixed to the land, even slightly, is
to be considered part of the land, unless the circumstances are
such as to shew that it was intended all along to continue a
chattel, the onus lying on those who contend that it is a chattel."
This rule is also referred to in Hobson v. Oorringe (1897), 1
Ch. 182; 66 L.J. Ch. 114; 75 L.T. 610.

If the house and stable in dispute are not, therefore, part
of the land, they not being affixed to it, but merely resting upon
it b^ their own weight, and there being no evidence to shew
that they were to be considered part of the land, they are not
the property of the claimant, but chattels and the property of
the execution debtor, and were properly seized under the exe-
cution against goods issued by the plaintiffs to this issue against
the execution debtor, Dunn. The plaintiffs will have the costs
of the issue.

NewljMids, J.

1909

Hamilton

r.
Chisholm.

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230 SASKATCHEWAN LAW REPORTS. [vol.

[IN CHAMBERS.]

1909 Taskeb V. Carmqan.

June 1.

Pleading — Amendment — Fraud — No Damages Alleged — Plea Only Open io
Party Immediately Affected,

Plaintiff applied to amend his statement of claim by adding an allegation
that the instrument which he sought to have set aside was executed by
defen4ant Carrigan by the fraud of the other defendant. It was not
alleged that the defendant Carrigan was defrauded or damaged : —

Held, that the plaintiff could not plead such fraud, as it raised an issue
not between the plaintiff and defendant, but between the two defendants.

2. That the plea in any event could not be allowed, aa it was not therein
alleged that the defendant Carrigan was actually defrauded or damaged.

This was an application by the plaintiflE for leave to amend
his statement of claim, and was heard before Newlands, J., in
Chambers.

T. D. Brown, for the plaintiflE.

T. S, McMorrariy for the defendant, the North- West Thresher
Co.

June 1. Newlands, J.: — Plaintiflf asks to amend his state-
ment of claim by adding the following paragraph : —

**The defendant Carrigan was induced to sign the said lien by
the fraud of one Gteorge H. Jenson, the agent of the defendant,
the North- West Thresher Company."

This would be an addition to paragraph 5 of the statement of
claim, which is as follows : —

The defendant Carrigan on the 26th day of April, A.D. 1907,
subsequently to selling the said lands to the plaintiflf as above set
out, executed a lien charging the said land in favour of the de-
fendants, the North- West Thresher Company, for the amount of
$4,100, which lien the defendants, the North-West Thresher Com-
pany, took with full knowledge that the defendant Carrigan had
prior to the execution of the said lien, sold the said lands to the
said plaintiflf under and by virtue of the said agreement bearing
date the 12th day of January, A.D. 1907.

There are two objections to allowing this amendment.

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A9KBR
V.

Carriqan.

1st. It raises an issue, not between the plaintiff and the de- Newundj. j.
fendant, the North- West Thresher Company, but between the
defendant Carrigan and the defendant, the North- West Thresher
Company. Plaintiff has, of course, no right to make such an
Amendment, and it could not conveniently be tried with the issues,
between the plaintiff and defendants; and

2nd. Even if it could be added it does not shew that the
defendant Carrigan. was defrauded; that is, that he was in any
way damaged by executing the lien which it is alleged he w'as
induced to sign by fraud. Before fraud is actionable it must
have caused damage. In this case, if the defendant Carrigan was
justly indebted to the North- West Thresher Company in the
amount of the lien, could it be said that he has been damaged
because he had been induced to give them security for his debt t

I do not know what the facts are in this case, as they are not
set out in the intended amendment, which, as I have pointed out,
does not contain sufficient allegations to make it an actionable
wrong. The application to amend will therefore be dismissed
with costs to defendants in any event.

[COURT EN BANC]

Wessell v. Tudge.

Appeal — Not Perfected — Motion to Dismiss — Practice — Costs.

/Maintiffs having given notice of appeal to the Court en banc, neglected
to perfect the appeal within the time limited, and the defendant moved
to dismiss. It was objected on the authority of Urifpn v. Allen, 11 Ch.D.
913, that no costs of the motion should be allowed, as no demand had
been made for costs of the appeal: —

Held, that Oriffin v. Allen, supra, did not lay down the established practice
in these matters, but merely indicated the course the Court would pursue
in such cases, and no such practice having been established in this Court,
the application should be allowed with cbsts, but the rule in Oriffin v.
AUen was a very proper one, and in the future the Court would not, in
the absence of good cause, allow costs of an application to dismiss for
want of prosecution of an appeal, unless the applicant has made a
previous demand for costs of the appeal, which has not been complied
with.

En Banc.
1909

July 9.

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232 SASKATCHEWAN LAW REPORTS. [vol.

En Banc. This was a motion to the Court en banc to dismiss an appeal

1909 for want of prosecution, and was argued before the Court en
Wessell ^^^^ (Wetmobe, C.J., Prendergast, Newlands, Lamont, and
Johnstons, JJ.), on the 29th of June, 1909.

V.
TUDGE.

C, E. D, Wood, for the lespondent.
J. A. Allan, for the appellant.

July 9. The judgment of the Court was delivered by Wet-
more, C.J. : — This was an application on motion on behalf of the
defendant, Arnold, to dismiss the plaintiff's appeal to this
Court for want of prosecution. The plaintiff appeared by
counsel and opposed the motion on the grounds: —

(1) That the affidavit on which the motion was based did
not set forth when the notice of appeal was served, because, if
not served within the prescribed time, there was no appeal
lodged.

(2) That the affidavit did not state that no previous demand
for payment of the costs of the appeal had been made, and not
complied with.

The affidavit disclosed that notice of appeal had been served,
but did not state the date of service. We are of the opinion
that, as against the appellant this was prima facie sufficient.
We will not presume, for his benefit, that his proceeding was
unwarranted by the practice, and irregular. As a matter of
fact counsel for the plaintiff subsequently admitted on the
hearing of the application, that the notice was served in due
time.

As to the other point, an affidavit on behalf of the plaintiff
was read, and it is quite clear that the intention is to abandon
the appeal.

This Court held, in Cyr v. O'Flynn, decided on the 30th
June, 1908, that a respondent coidd move to dismiss an appeal
for want of prosecution, as it was the only means by which he
could enforce payment of his costs incidental to the appeal,
against the appellant. That, no doubt, was the object in making
this application. No demand was made on the part of the ap-
plicant for the payment of his costs of the appeal. Oriffin v.

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AUen, 11 Ch. Div. 913, was cited on behalf of the appellant.
That ease was not brought under our notice in Cyr v. O^Flynn,
nor was the question which we are now discussing raised in this
case. Jessel, M.R., in delivering judgment in Griffin v. Allen,
states as follows : —

"We wish it to be understood as the rule of this Court that
henceforth the costs of an application for the costs of an
abandoned notice of appeal will not be allowed, unless the appli-
cant has made a previous demand for payment, which has not
been complied with."

The other members of the Court concurred. We do not
understand that judgment to lay down what the established
practice was. It merely stated what course that Court would,
in future, take with respect to applications of the character
mentioned (and this application is practically of the same char-
acter), we apprehend, from the standpoint both of convenience
and equity. We do not look upon it as a judgment which can
affeet the practice of any other Court. This application, there-
fore, must be allowed, and the appeal dismissed with costs, in-
cluding the costs of this application.

We, however, consider the rule laid down in Oriffin v. Allen
to be a very proper one to follow in future, and we, therefore,
state that we wish it to be understood that this Court will not,
unless some good and sufficient reason is given, henceforth allow
the costs of an application to dismiss an appeal on the ground
that the motion of appeal has been abandoned, unless the appli-
cant has made a previous demand for payment of his costs of the
appeal, which has not been complied with.

En Banc.
1909

Wessbll

V.
TUDGE.

Wetmore, C.J,

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234 SASKATCHEWAN LAW REPORTS. [vol.

[IN CHAMBERS.]

1909 In BE GliOBE FiRE INSURANCE COMPANY, LIMITED.

Company — Insolvency — Liquidation — Contributoriea — Settling List of —
Allotment of Shares — Withdrawal of Application Before — Notice of
Withdraioal-— Notice of Allotment — Application Obtained by Fraud —
Liability of Applicant <ia a Contributory — Debt Due by Company to
Shareholder— Right to Set-off.

On the day after signing an application for shares in a company the appli-
cant decided to withdraw and mailed a notice of such intention to the
party who had taken the application, which in the ordinary course of the
mail should have reached him the following day. Tliere was no eyidence
that this letter did reach the party to whom it was addressed on that
day or that he was an agent or officer of the company authorised to
receive such a notice. In the meantime and without notice of with-
drawal the company accepted the application and allotted the shares,
but notice of allotment was not given until twelve days later. On an
application to settle contributories : —

Held, that an application for shares cannot be withdrawn after allotment.

2. That in the absence of a statutory provision or custom of business to
the contrary, a notice sent by mail is not operative in the absence of
evidence that it was actually received.

An applicant for shares resisted the application to place his name on the
list of contributories on the ground that he had been induced to take
the shares by misrepresentation.

Held, that fraud was no answer to the application, as the applicant should
have taken proceedings to have the shares cancelled before winding up.

A shareholder set up that the company was indebted to him in a large
amount, being for amount due under one of the company's policies upon
property destroyed by fire, and claimed the right to set off each amount.

Held, that in view of the provisions of sub-sec. 2 of sec. 44 of the Com-
panies Ordinance and paragraph 2 of sec. 14 of the Winding-up Ordin-
ance, the shareholder was entitled to set o£f such debt.

This was an application to settle the list of contributories in
a company in liquidation and was heard by the Chief Justice in
Chambers.

P. H. Gordon, for the liquidator.
W, B. Scott, for Robertson, a shareholder.
O. H. Barr, for Jarvis, a shareholder.
H. F, Thomson, for Gates, a shareholder.

April 16. Wetmore, C.J. : — This is an application to settle
the list of contributories in this company. The list was settled by
my brother Lamont as regards all the persons on the liquida-
tors' list except as to J. H. AUen, H. Atkin, John F. Jarvis, H.
W. Robertson and John M. Gates. Notice having been given to
Allen and Atkin as provided by the Companies' Winding-up

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Ordinance, 1903, and they not having appeared, they will be
respectively placed on the list as contributories.

As to John F. Jarvis, the evidence shews that on the 1st of
May, 1908, he was approached by F. J. Watson, and he signed
an application in a form which appears to have been used for
that purpose for ten shares in the company, and requested the
company to allot that number of shares to him, and he agreed to
accept the same. He appointed Armstrong Dean and J. R.
Cathcart, or either one of them, as his attorneys to accept such
shares on his behalf. Just what position Watson held does not
appear by the evidence : I presume he was canvasser or solicitor
for shares. On the 2nd of May Jarvis made up his mind to with-
draw his application for these shares, and the ground stated was
that the state of his finances would not permit of his undertaking
the obligations arising from taking such shares, other things not
specified. He stated in his affidavit that there were other reasons,
but he does not set forth what they were. Consequently, on the
2nd of May, he wrote to Watson, directing his letter to Femie,
stating that he had, after careful consideration, found that it
would be imprudent for him to take up shares in the company,
that he had a rather large undertaking on hand in building an
addition to his hotel, and did not wish to be hampered in any
way, and asked Watson to return the notes which he had signed.
This letter was mailed on the 2nd of May, and Jarvis states that
it ought to have reached Fernie in due course on the following
day, the 3rd. No reply, however, was received from Watson by
Jarvis until the 9th of May, when he received a letter of that
date, dated at Femie, in which Watson stated that before getting
Jarvis 's reply his application had been sent in to the head office,
and that he (Watson) had also discounted Jarvis 's notes. On the
4th of May Jarvis 's application for shares came before the Board
of Directors of the company, and ten shares of the capital stock
were allotted to him. No notice was given Jarvis of this allotment
until a letter from the secretary of the company, dated the 16th
May, was received by him, and that letter merely stated that as
requested in his (Jarvis 's) application, ten shares of the capital
stock of the Globe Fire Assurance Company, Limited, had been
allotted to him. The company *s head office appears to have
been in Begina.

Wetmore, C.J.

1009

Inbx

Globe FiBE

Ins. Co.,

LiMITBB.

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[vol.

Wetmore, C.J.
1900

In RE

Globe Fibe

Ins. Co.,

Limited.

I think that the authorities are that a subscriber for shares
can withdraw his application at any time before the shares are
allotted, but not afterwards. Graham, Ex. p., In re Cardiff, etc.
Iron Co, (1861), 3 DeG. P. & J., p. 713, 30 L.J. Ch. 861,
5 L.T. 11, was cited as an authority that the application
could be withdrawn at any time before notice of the allotment
was received. That case does not bear out that contention, as the
withdrawal was received by the company before the allotment was
made. The question arises, therefore. Had the company notice of
withdrawal by Jarvis before the allotment was madet It is
true, a long time elapsed between the 4th of May, when the allot-
ment is said to have been made, and the 16th of May, when the
notice was written by the secretary of the company that the
shares had been allotted, but the testimony is uncontradicted that
the allotment was made on the 4th of May ; it was sworn to by an
officer of the company who was present at the time the allotment
was made. Now there is no evidence that the company had notice
of the withdrawal at that time. In the first place, assuming that
Watson had received notice before the 4th of May, that would
not in my judgment be notice to the company. Whatever
authority Watson may have had to solicit shares, there is not a
particle of evidence he had any authority to receive notice of the
character I am discussing, or that any notice served on him would
be binding on the company, and much less upon creditors of the
company who find Jarvis 's name on the list of shareholders. But
there is no evidence that Watson ever received this notice prior
to the 4th of :\Iay.

It was urged that because Jarvis 's letter addressed to Watson
on the 2nd of May was mailed and postage prepaid on that date,
and ought to have reached him on the 3rd, that I will presume in
the absence of evidence to the contrary that it did so reach him.
I know of no such rule of evidence. There are cases where a
notice is deemed to be properly given when mailed, but in all
those instances there is statutory provision or something of that
nature permitting it, or it is a practice that has arisen out of
the custom of merchants; as, for instance, giving notice of dis-
honour of a bill of exchange or a promissory note. Two cases
were cited to me as supporting the proposition contended for cm
behalf of Jarvis. One is Warren v. Warren (1833), 1 Exeb. Rep.

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250, 4 Tyr. 850, 1 CM. & R. 250, 3 L.J. Ex. 294. The question
that arose there was whether a letter containing a libel was pub-
lished by it being put into the post ofiSce. The language of Parke,
Baron, in delivering judgment was very broad. He says : —

**If a letter is sent by the post it is primd facie proof until
the contrary be proved that the party to whom it is addressed
received it in due course."

There are some cases referred to in the notes at the bottom
of that case, as, for instance, Shipley v. Todhunter (1836), 7 C.
and P. 680, and C alien v. Gaylord, 3 Watts 321, in which it was
held that the posting was a sufficient publication. Now the post-
ing would be a sufficient publication of a libel even if it never
reached the person to whom it was addressed, provided it came to
the hand of anyone else. I am of opinion that Parke, B., was
dealing with the question of a libellous letter being posted, and
was not dealing with the question of service of a notice.
Stocken v. Collin (1855), 7 M. & W. 515, 9 C. & P. 653, was a
case of a notice of dishonour. No question arises with respect to
the mailing of such a notice being sufficient. I am therefore of
opinion that Jarvis has not brought home to the company know-
ledge of the receipt of his letter of withdrawal, either before the
allotment was made or at any time, and he must therefore be
entered as one of the contributories.

Robertson's Case.

On the 11th of May, 1908, Hugh W. Robertson signed and
forwarded to the company an application for fifty shares in the
company. That application is as follows : —

To the Directors of the Globe

Fire Assurance Company, Limited.

I, Hugh W. Robinson, of Nelson, B.C., in the Province of
British Columbia, do hereby apply for fifty shares of the par
value of $50 each, in the above-named company, issued at $50
per share, and I request you to allot or transfer to me that num-
ber of shares, and I hereby agree to accept the same or any
smaller number that may be allotted or transferred to me, and
appoint Armstrong Dean and J. R. Cathcart, or either of them,
my attorney to accept the said shares on my behalf.

Wetmore, C.J.
1909

In BE

Globe Fibe

Ins. Co.,

Limited.

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[vol.

Wetmore, C.J.
190»

In RE

Globe Fire

Inb. Co.,

Limited.

I agree to pay the sum of $2.50 per share on application, and
$2.50 per share in 60 days and four months from the date hereof,
to the company, and I also authorize you to register me as holder
of the said shares.

Dated the 11th day of May, 1909.
Witness : A. May.

Hugh W. Robertson,

Nelson Address.

General Mg. Agent. Occupation.

On the 23rd ]May the directors allotted these shares to Robert-
son, and J. R. Cathcart, one of the persons appointed by Robert-
son in his application, as attorney to accept the shares on his
behalf, accepted them for him. Notice of the allotment was for-
warded to Robertson and received by him, and the certificate of
shares was also forwarded to and received by him. He sent this
certificate back on the 1st June, 1908, to have it properly filled in.
Apparently it was not properly filled in, but just in what respect
does not appear ; and in the letter returning the certificate he re-
quested the company to hold it until they heard from him again,
as he intended taking the matter up again with Mr. Dean when
he came to Nelson. This certificate, however, was sent back to
him — I presume corrected as he required, because Robertson does
not state any\^^here that it was not so corrected; in fact, he
says he did not look at it when it came back to see if it had been
corrected. Robertson was solicited by Armstrong Dean, the pre-
sident and manager of the company, to subscribe for stock in the
company. He seemed to have had at least three interviews with
Mr. Dean before he consented to send in his application: first,
on the 15th of May, 1908, and subsequently a short time after-
wards. Certain propositions were then made by Dean to Robert-
son, neither of which Robertson would accept. The facts that I
have stated are set forth in an affidavit made by Robertson. He
stated that after these two propositions had been made and de-
clined, he and Dean began to discuss the standing of the company,
and Dean represented to him that he had up to that time sold in
the neighbourhood of $110,000 of stock, that the first call thereon
had all been paid up, and that Dean further represented to him
that the company was in a first-class financial position, aU of

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Globe Fibe

Ins. Co.,

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which he states he was informed and believes was and is not the wetmore, c.j.
ease. In so far as the company not being in a first-class position
at the time, I assume it may possibly be inferred (although not
necessarily so), as the winding-up order herein was made on the
14th December, 1908. But as to the other statements so alleged to
have been made by Dean, there is no evidence that they were not
true. He also stated that Dean represented that the company
had re-insuring facilities with some large American or British
company to take at least two-thirds of all the insurance obtained
by the company, but he was informed and believed that that was
not the case. Now that is not evidence, in my opinion, that what
Dean stated to him was untrue. But suppose it was true. The
result would be — ^to put the best construction upon it for Robert-
son that one can put upon it — that Dean was guilty of misrepre-
sentation. But Robertson being registered, he cannot escape
being placed upon the list of contributories upon that ground,
because he ought under such circumstances to have brought an
action to cancel the certificate of shares or to be struck off the
list of shareholders, or some other action of that character. And
I doubt very much whether he would be in a position now, the
winding-up order having been made, to succeed in any such suit.
In re Hull and County Bank, Burgess's Case (1874), 15 Chan.
Div. 507, 43 L.T. 45; 49 L.J. Ch. 541, would seem to establish that
he could not now succeed in any such action. The question comes
down, then, to this: Was Robertson a shareholder; was he pro-
perly put upon the list as such ? In 2nd Lindley on Companies
(6th ed.), p. 1050, I find the following:—

**A person who has agreed with the company to become a
member of it is a contributory, whether he is actually a member
or not ; and on the other hand, a person who is not a member and
has not agreed with the company to become one is not a con-
tributory."

There must be an agreement between the company and the
applicant, and it takes two to make an agreement. An applica-
tion for shares is not an agreement until it is accepted and the
shares allotted. There are a number of cases where there has
been, as stated by Turner, L.J., in Ex parte Pellatt (1867), 36
L.J. Ch. 613, at p. 615, L.R. 2 Ch. 527, 16 L.T. 442, **not a simple

16— VOr* 11. 8.L.B.

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agreement only, but a two-fold agreement" — one by the company
to take something from the party applying for shares for a con-
sideration, and one by the party applying for shares to take them ;
as, for instance, in a case where it was intended to be part of the
agreement on the part of the applicant that the company were
to take certain goods from him in the way of his business, for
which they were of course to pay, and on the part of the appli-
cant, that he was to take the shares. I might state, while I am on
the subject, that I have investigated several cases relating to this
matter, and in all of them I find that there was either some
writing on the part of the company recognizing the fact that the
applicant had made the application for a benefit which he asserted
he desired to receive in case he received the shares, or there
was some writing on the part of the applicant setting forth to a
certain extent what he desired to receive, and that such formed
part of his application. Now in those cases it was held that if
the company allotted the shares, but did not bind themselves in
any way to accede to the request of the applicant, which was for
his benefit, that the allotment was no good, that there was no
agreement (unless, of course, the applicant for shares waived
what he was seeking on his part), because the intended agreement
was not entered into. Only part of it was entered into, and that
would be, on a very well-known principle of law, no agreement
at all. Now let us see if this case comes up to what I have just
stated. Mr. Robertson went on to state in his affidavit — because
the principal part of the evidence in his behalf is contained in
that affidavit — that after these discussions had taken place, it was
arranged that he should subscribe tentatively for fifty shares of
stock, subject to his acceptance of the agency of the company, and
that it was distinctly understood and agreed between him and
Dean that his subscription to the said stock was not a completed
transaction, and that he (Robertson) should not be bound or be
under any liability by reason thereof, if he did not find every-
thing to his satisfaction, and if he did not take an agency for such
company. He then went on to state that he gave a cheque for
five per cent., amounting to $125, to Dean upon Dean promising
that nothing whatever would be done if he (the plaintiff) did
not take the agency of the company, and that he gave that cheque
under that condition, and that he afterwards cancelled the

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cheque. He also states that after that Dean left for Revelstoke
and points on the coast, and it was understood between them that
nothing w^hatever would be done by Dean until he returned from
Nelson, when Robertson was to give him a definite answer as
to whether he would take the agency work. A few days after
that he received a letter from Dean in which he advised him that
he had instructed the head office to forward office and agent's
supplies, which, Robertson says, was not according to their agree-
ment, and he refused in any way, shape, or form to use any of
such supplies. I may just say in passing, however, that I find
that the letter of the 1st June, written by Robertson to the
company, in which he returned the certificate of shares for cor-
rection, was on the company's forms, and had the company's
headings. Robertson goes on to state that after making inquiries
he came to the conclusion from what he could find out that the
company was not a company he could represent, as the general
manager, Dean, did not shew up in a very favourable light. He
went on to state that by reason of these enquiries he found out
certain matters affecting Mr. Dean. These matters were of the
most vague character, but Robertson swears that as a result of his
inquiries he would not feel justified in taking the agency and
issuing policies of the company to his clients. He swears that on
the 5th of June Dean called at his office, that he notified him
then that he was not satisfied and wanted to discuss the matter
with him, but he was busy at that time and made an appointment
for Dean to meet him in the afternoon. Dean did not meet him,
and when he went to his hotel in the evening he found out that
he had gone away. There is no evidence to shew how Robertson's
application for a call got to the company's head office at Regina —
whether it was sent by Dean or whether it was forwarded by
Robertson, but it seems to me it makes no difference, because
either way it must have gone forward at his instance. Moreover,
when he was notified of the allotment, and received the stock
certificate, he raised no objection, but on the contrary recognized
the propriety of what had been done by returning the certificate
for correction.

Now it will be observed that the arrangement, outside the
written application for shares, was not that Robertson was to give
something to the company of the character mentioned in Ex parte

Wetmore, C.J.
1909

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Ins. CO.,

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Pellatt and receive a recompense for supplying it, but it was that
he was to do something for the benefit of the company and him-
self; that is, to assent to act as the company's agent, and the
option of doing that was entirely in his own hands, and there is
nothing in writing from the company or any of its agents in any
way recognizing that the allotment of the shares was in any way
dependent upon his consenting to act as agent for the company,
and if there had been, and it was necessary for the company to
recognize him as agent, it had done so by forwarding to him the
forms, etc., usually forwarded to an agent. Robertson states in his
affidavit that he subscribed tentatively for the shares. Now I really
am at a loss to understand what is meant by this subscribing
** tentatively." There is nothing on the face of the document to
shew that it was tentative. It is a very plain, very clear docu-
ment ; there is no ambiguity about it at all ; and I am of opinion
that this unconditional, clear application having been made, the
shares having been allotted, the allotments having been received
by Mr. Robertson's duly constituted agent, notice having been
given to him besides, and the issue of the certificate of shares
recognized by him, as I have stated, that this case does not come
within what was laid down In re Pellait and other cases of a simi-
lar character. Surely a written document of that character can-
not be subject to be varied, or, I may say, absolutely departed
from, by such very vague assertions as have been rtade by Mr.
Robertson in his affidavit. Robertson 's name will therefore remain
on the list of contributories.

Gates' Case.

Gates applied for twenty shares, which were duly allotted
to him. The only ground on which he claims to be struck oflf
of the list of contributories is that the company is indebted to
him in the sum of $2,000, arising out of two losses by fire, with
respect to which the proofs of claim for loss have been duly put
in and the loss has been adjusted at $1,000 in each loss, the
property destroyed having been covered by policies issued by
the company. This claim is founded on the Companies' Ordin-
ance (section 44, sub-section 2) being chapter 20 of 1901, which
provides that **any shareholder may plead by way of defence in
whole or in part any set-off which he can set up against the

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company, except a claim for unpaid dividends or a salary or
allowance as a president or a director of the company. ' ' Section
44 deals with the liability of shareholders to creditors of the
company. Paragraph 2 of section 14 of the Companies' Wind-
ing-up Ordinance, chapter 13 of 1903, provides that ** every
shareholder or member of .the company or his representative is
liable to contribute the amount unpaid on his shares of the
capital or on his liability to the company or to its members or
creditors as the case may be, under the Ordinance, charter or
instrument of incorporation of the company.'' Now, what is
the amount unpaid by Gates on his liability to the company or
to its members or creditors^ In view of the set-off which is
authorized by the Companies' Ordinance above set forth, his
liability is what is due in respect of his shares after the set-off
of the amiount which the company owes him. It occurred to me
whether this is in accordance with the purview and intention of
the Winding-up Ordinance. I am free to confess that at first
I was not disposed to reach the conclusion which I have just
stated, but when I look at the English Companies Act of 1862,
section 101, and the judgment of the Lord' Chancellor in Zn re
Overend Gurney and Co., Ltd. (1866), 35 L.J. (Ch.) 752, I feel
myself forced to the conclusion which I have above expressed.
The English Companies Act deals with both limited and un-
limited shareholders. Under the Companies' Ordinance share-
holders have a limited liability ; that is, their liability is limited
to the amount of their stock. Section 101 of the Im;perial Act
referred to, allows a set-off to the contributory only where the
company is hot limited, and In re Ovsrend Gurney and Co.y the
Lord Chancellor (page 754) states as follows: —

**The case of a member of a limited company is different
from that of a member of a company of an unlimited liability
as to set-off. This is exemplified in the 101st section, where a
set-off upon an independent contract is allowed to the member
of an unlimited company against a call, although the creditors
have not been paid, evidently because he is liable to contribute
to any amount until all the liabilities of the company are satis-
fied, and, therefore, it signifies nothing to the creditors whether
a set-off is allowed or not."

Wetmore, C.J.

1909

In RE

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Ins. Co.,

Limited.

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Now our Act has allowed a set-off where the liability is
limited. I can quite perceive that the remark of the Lord Chan-
cellor in the same case and at the same page, that '"if a debt
due from the company to one of its members should happen to
be exactly equal to the call made upon him, he would in this way
be paid twenty shillings in the £ upon his debt, while the other
creditors might, perhaps, receive a small dividend, or even no-
thing at all," had a very considerable effect from the standpoint
of even-handed justice, but at the same time I am of opinion
that the Legislature having chosen to give this right of a set-off,
and emphasize it, as I conceive, in section 14, sub-section 2 of
the Companies' Winding-up Ordinance, I must give effect to-
what the Legislature has said. The result will be that Mr. Gatea
will be struck off the list of contributories.

To recapitulate the conclusion in each case: Jarvis and
Robertson will be continued on the list of contributories, and
the amount due from Qates in respect of his shares will be de-
ducted from the amount due from the company to him in respect
of his fire los^s, and Qates' name will be struck off the list of
contributories and he be allowed to rank in the assets of the
company for the balance coming to him in respect of his fire-
losses after such deduction, and the list of contributories filed
by the liquidator, amended by this order, and by the order of
my brother Lamont, will stand settled. The liquidator's costs
with respect to this application will be paid out of the assets of
the company. I know of no authority in these proceedings in
so far as I can discover, to order costs to any other party in the
matter.

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[TRIAL.]

BoiCE V. Anderson. 2909

Last Mountain Election Case.

Controverted Election Act — Protested Election — RegiUarity of Nomination
— Voter— What Constitutes,

The respondent was declared elected as a member of the Legislature,
and a petition was filed against his return. On the trial it was proved
that the respondent had been nominated by four persons, and it was
sought to shew that one of these was not qualified, not being on the
voters' list, and not having resided in the province for one year. The
nominator objected to was called and sworn, and stated that he could
not remember when he came to the province, nor did he know if he was
qualified to vote. The voters' list was also produced and shewed his
name erased: —

Heldf that in an election neld under the provisions of sees. 269 to 284 of the
Saskatchewan Election Act the entry of a voter's name on the list is
not an essential qualification as a voter, and therefore the absence of the
name of the nominator from the list did not in itself disqualify him as
a voter.

2. That the receipt given by the returning officer under the provisions of
sec. 122 is conclusive evidence only as to the matters in sucn receipt
contained, and does not apply to the qualification of the nominators.

3. That the onus of proving lack of qualification being on the petitioner,
in the absence of positive evidence of lack of qualification, the negative
evidence given by the party whose qualification was attacked was not
sufficient to discharge the onus and prove lack of qualification.

This was the trial of an election petition before Prendergast,
J., at R^na.

Alex. Ross, for the petitioner.

J. F, i. Embury, for the respondent.

April 27. Prendergast, J.: — ^At an election held August
14, 1908, for the election of a member of the Legislative As-
sembly of Saskatchewan for the electoral division of Last Moun-
tain, the petitioner and the respondent were candidates, and the
latter was eventually certified to be the person elected at such
election.

The petitioner now seeks, under the Controverted Elections
Act, to have the election of the respondent declared void and
set aside by the Court.

The petition alleges a number of grounds, but, pursuant
to agreement between the parties, the trial proceeded for the

April^27.

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Anderson.

time being only with respect to the first, which is, **That the
nomination filed with the returning oflScer for the said electoral
division purporting to name the said respondent, was not signed
by four or more voters in the said district."

It is shewn that the writ for the election was issued July
21, 1908, and fixed August 7th for nominations; that the peti-
tioner and respondent were nominated as candidates on the
said last date ; that no list of voters having then been completed
and revised under sections 15 to 88 of the Saskatchewan Elec-
tion Act, the provisions contained in sections 269 to 284 thereof
were followed as prescribed by the first of the last mentioned
sections ; that a poll was held for the said election at the required
date, and that the respondent was thereafter certified as the
person elected at said election.

The respondent's nomination paper shews that he was nom-
inated by four persons, one of them being Richard B. Langdon.

The list of voters for polling sub-division No. 17 used at the
election, was also produced. It shews, under No. 63 the follow-
ing: ** Langdon, R. B.— clerk— 14.27.22''— with a line run
through the whole, apparently for the purpose of scoring oflp or
annulling the entry, and followed by the initials **A. C. W.,"
which are those of Arthur C. Wallace, who was enumerator as
well as deputy returning officer for the said polling subdivision.

I may say at once that it is not denied that ** Richard B.
Langdon," who signed the nomination paper, and R. B. Lang-
don whose name was put on and scored off the list of voters, are
one and the same person.

The objection raised by the petitioner is that the said Lang-
don could not validly sign the respondent's nomination paper
because he was not a voter under section 121, and this he rests on
two grounds. First, that he had not resided in the province
for at least one year immediately preceding the date of the
issue of the writ of the election (July 21, 1907), and second,
that his name was not on the voters' list.

If the objection were well founded, it would, of course, be
fatal to the respondent's election as that would leave only tliree
voters on his nomination paper.

I would first observe that the onus is on the petitioner. He
stands in this respect in the position of the plaintiff in a cause,

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and should consequently come within the general rule which I
see no reason to reverse or alter in this case.

Now who is a voter under section 121, which deals with the
signing of the nomination paper?

First of all, the interpretation clause of the Act (section 2,
sub-section 9), says: ** Elector or voter means any person en-
titled to vote at an election under the provisions of this Act.*'

But a person having certain definite qualifications as to
residence, etc., may or may not be a voter according to the pro-
cess followed in making up the list under the Act.

Sections 15 to 88 provide for the making of voters' lists by
a registrar and deputy registrar as well as for their revision
by a district Judge, and in this case, the qualification of the voter
is determined by section 12, which makes registration one of the
essential requisites.

When voters' lists have not been completed and revised in
the above manner (which I would term the normal one con-
templated by the Act), the lists are made up by enumerators
under a more summary process pursuant to sections 269 to 284
as was done in this election, and then the qualification of the
voter is determined by section 285.

Now, under section 285, the entry of one's name on the list
is not at all made an essential qualification of the voter. And it
stands to reason that it could not be otherwise, not at all events,
with reference to his right to nominate a candidate. For, when
the nomination takes place at some central point of the electoral
division, it is only on the previous day (section 274) that the
voters' lists were being posted up in the outlying, andsometimes
very remote polling sub-divisions ; and even then they are subject
to be modified by the enumerator for six days thereafter. (Sec.
275). On nomination day, when sections 269 to 284 have had to
be complied with as in this case, there are no definite lists in
existence; and in such indefinite and incomplete form as they
are, it is utterly impossible for the returning officer receiving
nominations to have them before him at that moment.

Moreover, although the lists are closed two days before poll-
ing day (section 275), as far as the powers of the enumerators
extend, any one not on the voters' list may, on presenting himself

Prendergaat, J.

1909

BOICE
17.

Andebsox.

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at the poll on voting day, cast his ballot, by taking the oath pro-
vided by section 281.

It is clear then under section 285, and the general scheme of
the Act, that for the purposes of nomination at all events, regis-
tration is not one of the qualifications required to constitute a
voter.

It was the respondent's contention, which he based on
section 122, that the receipt given by the returning oflScer of the
respondent's nomination paper was conclusive as to its validity,
and that no evidence should have been taken as .to Langdon's
status. But that section is explicit, and does not say any more
than that, **The said receipt of the returning oflScer shall in
every case be sufScient evidence of the production of the nomin-
ation paper, of the consent of the candidate, and of the pay-
ment therein mentioned." It does not go further than that.

I think it may be reasonably laid down that, unless explicitly
given a broader meaning, a certificate provided to be issued
under a statute is evidence with respect to the matters therein
referred to only as bare facts and conditions.

It was so decided in the three cases relied upon for the re-
spondent. Hanfstaengl v. American Tobacco Company (1895),
1 Q.B. 347, 64 L.J.Q.B. 277; Ystalyfera Iron Co. v. Neath &
Brecon Railway Co. (1874), 43 L.J. Ch. 476, 29 L.T. 662, L.R.
17 Eq. 142, and Lewis v. Leonard et al. (1880), 49 L.J. Ex. 308,
5 Ex. D. 308, 42 L.T. 351, brought respectively under the
Imperial Copyright Act, 1886, the Land Clauses Act and the
Bankruptcy Act, 1869. The certificates issued under the said
Acts were there held to be simply evidence; in the first case of
the production of a copy of the work ; in the second case of the
subscribing of the capital, and in the third case, of the liquida-
tion proceedings. That is as far as those cases go.

The case of Gothard et al. v. Clark et al. (1880), 49 L.J.C.P.
474, 5 C.P.D. 253, 42 L.T. 776, cited for the petitioner, has, how-
ever, some bearing on the present one, inasmuch as although
section 13 of the Ballot Act, 1872 declared **That no election
should be declared invalid by reason of any mistake in the use
of forms," yet, the Court held that **The section had no appli-
cation to the decision of the returning oflScer on the validity
of the nomination papers."

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There just remains the question whether, it is shewn that
on July 21, 1908, the date of the issue of the writ of election,
Langdon had not been a resident in this province for one
year.

Langdon was a clerk in the Northern Crown Bank at Winni-
peg, and in the summer of 1907, came up to take up similar
duties in the branch of the bank, which was about to open at
Govan in this province.

The manager of this branch testified that he came from
Winnipeg to Gh)van after August 15, 1907, that Langdon, was
there at the time, and that the bank may have been open more
than two weeks before he (the witness) got there.

The manager of the Silver Plate Hotel at Govan said that
his building was ready, and that he commenced business on
August 11th, 1907 ; he produced the hotel register shewing that
Langdon had registered there that same day, and stated that he
had seen him around a few days, but would not swear as to
two or three weeks.

R. B. Langdon swears as follows: ** Before registering at the
Silver Plate Hotel (August 11th), I boarded at Carston &
Patterson's restaurant in the same town, perhaps two weeks,
as to three weeks, probably, ... I won't deny that the
bank opened August 1st; I got there some time before the
bank opened ; I went there for the purpose of helping open the
bank. ... I possibly boarded at the restaurant three weeks,
possible four weeks, as to five weeks, I don't know. I won't
swear five weeks, nor four weeks, nor three weeks, nor two
weeks, nor one week, because I don't know, and because I have
no records. When I signed the nomination paper, I thought
I was qualified. My name was put on the enumerators' list.
And then, I didn't know because I was not sure that I had been
there one year. So I didn't vote. Being read the oath in the
Act, I say I wouldn't take the oath because I don't know when
I arrived. I am not prepared to swear that I was in the province
on July 20, 1907."

All this is very vague and indefinite, and there is probably
occasion to wonder that Langdon, who presumably was trained
in the methods of exactness and precision required in a bank,
should find his memory so defective with respect to such an

PiendfliSMt, J.
1909
BOIOB

Andxbson.

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event which had ^ happened just about a year before. And I
have no hesitation in saying that on an application made on
Langdon's behalf to be put on the list, such evidence as the
above would indeed fall very short from establishing a case.
But the question here is quite diflferent. Then, the dispute
bears after all on a margin of time of some eight or twelve days
at the outside, the presumption should be in the direction of
upholding the franchise, and which is the main consideration,
the onus is on the petitioner.

I have held that the voters' list has nothing to do with
Langdon's qualification as a voter from the standpoint of his
right to nominate a candidate. The voters' list for polling sub-
division 17, was, however, allowed to be put in subject to objec-
tion, and I must say that the evidence with respect to it, if
anything, is distinctly favourable to the respondent. That Land-
don's name was at first put on the list by the enumerator is
evident. Then, A. C. Wallace says that it is probable that Lang-
don's name was still unobliterated when he took possession of
the list as deputy returning oflScer for the said polling sub-
division. How the name was subsequently struck oflf by running
a line through it, is not shewn by direct evidence. But the
erasure is followed by the initials of A. C. Wallace; he must
then have made the erasure, and (in that case he) made it as
deputy returning officer, which he had absolutely no right to do
in the circumstances, so that, if this signified anything, I should
have to hold that Langdon's name is still on the list.

The case of Moorhouse v. Linnie (1885), 15 Q.B.D. 273, 53
L.T. 343, does not apply, as there the Act required that the
name of the party signing the nomination paper should appear
on the burgess roll.

Harmon v. Park (1871), 50 L.J.Q.B. 775, 7 Q.B.D. 369, 45
L.T. 174, also cited for the petitioner, is a case under .the Muni-
cipal Election Act, 1875, providing that the nomination paper
must be signed by two enrolled burgesses as proposer and
seconder, and by eight others as assenting to the same, and where
the proposer has changed after the parties assenting had signed
the paper and without their consent to the change. This has ob-
viously no bearing on the present case.

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In my opinion, the petitioner has not shewn that Langdon
was not entitled to sign the nomination paper nor that the latter
is invalid, and I consequently order that the trial proceed on the
other grounds of the petition, with costs to the respondent in
the final issue to be taxed on the determination of the final
issue.

251

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1909

BOICE
17.

Anderson.

[COURT EN BANC]

Canada Permanent Mortgage Corporation v. Jesse.

Mortgage — Sale Proceeding Under — ^o Bid Except by Plaintiff^Land
Sold for Twenty-five Cents — Application to Confirm Sale — Refusal to
Confirm — A'o Consideration,

Plaintiff instituted foreclosure proceedings under a mortgage, and on the
application of one of the defendants an order for sale was made with
leave to the plaintiff to bid. No one appeared to bid at the sale save the
plaintiff's agent, who bid twenty-five cents, and the land was knocked
down to the plaintiff for that sum. On an application to confirm the
sale, the judge before whom the application was made refused to confirm.
The company appealed.

Ueld, that having regard to the nature of the property, the amount bid
and for which the land was knocked down was so puerile that the Court
was warranted in treating it as no sale, and refusing confirmation.

Eeldj also, however, that no substantial bid having been made, the sale
should be treated as abortive, and an order for foreclosure made.

This was an appeal from a judgment of Newlands, J., refus-
ing to confirm a mortgage sale.

N. Mackenzie, K.C., for appellant.

F. W. G. Haultain, K.C., for respondent.

July 9. The judgment of the Court was delivered by Wet-
more, C.J. : — Thi« was a proceeding by originating summons for
foreclosure of a mortgage. The plaintiffs obtained an order nisi
for the sale of the mortgaged premises, they holding the first mort-
gage. The Alameda Farmers Elevator and Trading Company,
who held a subsequent encumbrance, having given an undertak-
ing to pay the costs and expenses incidental to the sale, procured
an order nisi for the sale to be made, instead of an order nisi for
foreclosure.

En Banc
1909

July 9.

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[vol.

BnBakc

1900

Canada
Permanent
mortoaos
Corpora-
tion

Jesse.

Wetmon. a J.

The plaintiflf had leave to bid. Neither the defendant, Jesse,
nor the Alameda Farmers Elevator and Trading Company, nor
any person else bid at the sale.

The amount due on the mortgage on the 18th day of Decem-
ber, 1907, when the decree nisi was made, was $1,134.87, and the
property was ordered to be sold unless that amount with interest
thereon at 8 per cent, and costs were paid before a date stated in
such decree nisi.

The plaintiffs' agent bid the property in at the sale for 25c.
A summons was taken out to confirm this sale, and on the return
the defendant, Jesse, appeared and objeit^ted to the confirmation.
An af&davit by Jesse was read at this return in which he stated
that he was informed by one Ludtke that the plaintiffs had,
before the sale, sold the property to him for $1,600. The pro-
perty consisted of a quarter section of land.

My brother Newlands, before whom the summons to confirm
came on for hearing, refused to confirm same, and the plaintiffs
appealed.

We are of the opinion that the learned Judge was entirely
right. We do not wish, in any way, to narrow the provisions
of the Imperial Act, 30 and 31 Victoria, page 48, sees. 6 and 7,
but we think that the amount that was bid for this property and
for which it was knocked down, 25c., taken as the value of a quar-
ter section in* this country, is so puerile as to warrant the Court
in treating it as no sale at all.

If this transaction were allowed the plaintiffs might be in
a position to recover from the defendant Jesse the full amount
of his covenant in addition to sweeping his land away from
him. This would be so palpably unfair that it would be utterly
incongruous to allow it.

Inasmuch as no person attempted to redeem and the defen-
dant Jesse did not appear at the sale, although he had notice of
the time and place, and the Elevator Company did not appear to
back up their request for a sale, and as the plaintiffs' counsel
stated at the hearing of the appeal that they would be satisfied
with an order for foreclosure, and as that order would have
undoubtedly been made if the Elevator Company had not inter-
vened at the return of the originating summons and asked for a

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253

sale, we think that justice wiU be done in this case by ordering a
decree for foreclosure absolute, to be entered in the Court below.

The order of the Court of Appeal will therefore be, that there
be an order for foreclosure and a vesting order. This order not
to interfere with the plaintiffs' right to proceed against the
Elevator Company under their undertaking, as they may be
advised.

The plaintiffs will pay the appellant Jesse's costs of this
appeal.

Concurred in by Prendergast, Johnstone and Lamont, JJ.

EnBako

1909

Canada

Permanent

Mortgage

cjorpora-

TION

Jbsbe.

WeUnore. C.J.

[TRIAL.]
(JOGAIN v. DrACKETT ET AL.

Conditional Sale of Goods — Alteration of Agreement After Signature —
E^ect of — Letters Changing Order — tyffect on First Order — New
Contract.

PlaijitifT applied to the defendant Jones to purchase certain goods on the
terms that he would pay a certain sum in cash and the balance in
fifteen monthly pa3rment8, the property in the goods to remain in the
seller until payment. Subsequently the defendant Jones found that all
the goods offered could not be supplied, but suggested others in sub-
stitution, and to this the plaintiff agreed. The alteration had the effect
of reducing the price by the sum of $40.00. In shipping the goods an
invoice was sent out wherein the terms of payment were incorrectly stated.
The plaintiff accepted the goods and made the cash payment thereon,
but claimed to pay the balance on the terms as stated in the invoice. It
also appeared that when the order was altered by the plaintiff agreeing
to the substitution of other articles for those ordered, the defendant
Jones had made the necessary corrections in the original order. As a
result of the dispute over the terms of payment the defendants, under
the terms and conditions of the original order, seized and sold the goods.
The plaintiff thereupon brought action for damages alleging the original
contract to be void on account of the alteration, and that a new contract
had been made when the plaintiff accepted the goods on the terms of the
invoice.

Held, that the goods were sold and delivered upon the terms of the original
order, with such changes as were necessary, and to which the plaintiff
had agreed, and as the defendant Jones could not have collected more
than the value of the goods shipped, the altertitions in the order were not
material and did not have the effect of voiding the contract.

This was an action for damages tried before Lamont, J.

1909
Oct. 7.

W. B. Willoughiy, for plaintiff.
/. A. AUan, for defendants.

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254 SASKATCHEWAN LAW REPORTS. [vol.

Lament. J. October 7. Lamont, J. : — The plaintiff, a barber residing at

1909 Moose Jaw, sues the defendant for damages for the wrongful

GoG~iN seizure of the plaintiff's goods.

V. The facts of the ease are as follows: The plaintiff, who had

Drackbtt

been living at Somerset, Manitoba, being desirous of commencing

business in Moose Jaw, went to Winnipeg and interviewed one
Lindsay, an agent of the defendants Jones Brothers & Company,
in reference to the purchase from them of a barber's outfit.
After going over the catalogue with Lindsay the plaintiff signed
a written order, bearing date September 9th, 1907, asking the
defendants, Jones Brothers & Company, to ship to him at Moose
Jaw three No. 2 pedestal hydraulic chairs, a three-chair national
(mirror) case No. 34, two bowl wash stands No. 10, and a com-
^ pressed air outfit, for which he agreed to pay the sum of $614 as
follows: $200 cash (less $50 deposit with order), balance $27.60
per month for 15 months, interest six per cent. The order con-
tained a clause by which it was agreed that the title and pro-
perty of the goods were to remain in Jones Brothers & Company
until payment was made in full, and in case of default of pay-
ment, as above specified, Jones Brothers & Company were at
liberty, without process of law, to take and remove said goods and
any money paid on account was to be considered as rental for the
use of the goods. The plaintiff returned to Somerset, and a short
time afterwards received a letter from the defendants* agent
Lindsay, saying that the defendants could not fill the order as the
case of mirrors they had was not No. 14, but No. 11. On Septem-
ber 19th the plaintiff wrote Lindsay as follows: —

'* Somerset, Man., Sept. 19th, 1907.
**Mr. W. Lindsay.

**Got your letter. Sorry that they cannot ship that case at
once. Well you can let them ship that No. 11 case at once as I
have to get it as soon as possible. Do not delay.

'*E. Gogain/'

The defendants on October 10th shipped the goods mentioned
in the order of September 9th with the substitution of case No.
11 for case No. 14, and at the same time sent the plaintiff an
invoice of the goods for $574 instead of $614, which had been the

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255

price with case No. 14 — case No. 11 being chei^er than case No.
14 — bat the terms of payment set forth in the invoice were as
fidlows: Terms, $50 deposit, $150 cash on delivery, balance $15
monthly payments. On October 11th they mailed a statement of
accoujit to the plaintiff acknowledging deposit of $50, and shew-
ing that they were drawing on him a sight draft for $150 and 15
other drafts, being the balance in 15 equal monthly payments,
with interest at six per cent, added. The plaintiff accepted the
$150 draft, but refused the others, claiming that the amounts
were not correct. Some correspondence took place between the
plaintiff and the defendants in which the plaintiff claimed that
the balance was to be paid in monthly payments of $15 each,
while the defendants claimed that the balance was to be paid in
15 monthly payments as set forth in the order of September 9th.
The plaintiff, as admitted in the statement of defence, had paid
by May l©th, 1908, the sum of $307.81, and on June 3rd the
defendants, through their agent Drackett, seized the said goods
and took them out of the possession of the plaintiff, and the
plaintiff now brings this action for damages. After the defen-
dants received the plaintiff's letter of September 19th agreeing to
the substitution of case No. 11 for case No. 14 they, or some one
of their employees, altered the plaintiff's order of September 9th
by drawing a pen through the figures ^'14" in the words
''national case No. 14" and inserting in place thereof the figures
**11,'* and by drawing a pen through ''$614" and inserting in
place thereof the figures • '$574."

For the defendants it is contended that the plaintiff's letter
of September 19th was a consent on his part to the substitution of
case No. 11 for case No. 14, and that the defendants by shipping
the goods to the plaintiff signified their acceptance of the plain-
tiff's offer, and the order o^ September 9th therefore became a
binding contract, and that the $15 monthly payments mentioned
in the invoice was simply a stenographer's error in inserting the
"$" mark. For the plaintiff, it was contended that the notifica-
tion to the plaintiff that they could not fill his order was a rejec-
tion of his offer of September 9th; that the shipment of the
goods and invoice was the defendants' offer while the plaintiff
accepted by taking the goods into his possession. But even if

17 — ^VOL. n. 8.L.B.

Lamont. J.
1909

GOOAIN

Drackbit.

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[vol.

Lamont, J.
1909

GOOAIN

Drackett.

the offer of September 9th became a contract, that contract
having been altered in a material part while in the possession of
the defendants without the plaintiff's consent, became void as
against him.

The plaintiff's letter of September 19th directing the defen-
dants to send on case No. 11 can, it seems to me, when taken in
connection with his evidence, in which he stated that he was
accepting case No. 11 instead of case No. 14, mean only one
thing, and that is that he was willing that the defendants should
substitute case No. 1] for case No. 14, and fill his order accord-
ingly. The shipping of the goods with the substitution to which
the plaintiff had agreed constituted an acceptance of this offer
on the terms of the original order with such changes as that
agreed substitution necessitated. The only term requiring altera-
tion was the price. The plaintiff did not know the price of case
No. 11, and nothing had been said in reference to it. Where, how-
ever, a person buys goods without anything being said as to the
price the law implies that he will pay what the goods are rea-
sonably worth, and that usually is the market value. In my opin-
ion, therefore, the contract concluded between the plaintiff and
defendants was that the plaintiff purchased the goods at a price
which corresponded with their market value on the terms and sub-
ject to the conditions set out in his original offer. No question is
raised that the amount charged was not a fair and reasonable
price for the goods.

If I am right in concluding that such was the contract, the
next question then is, Did the striking out of the figures **14"
and the substitution therefor of the figures **11," and the strik-
ing out of **$614" and the substitution therefor of ''$574," in
the contract, while it was in the defendants' possession constitute
an alteration of the contract sufficient to vitiate it! It is now
the well-established rule that when an instrument is altered in a
material part by one of the parties thereto without the privity of
the other party, be it by interlineation, erasure, addition or draw-
ing a pen through any material word, the instrument thereby
becomes void: PigoVs Case, 11 Rep. 47; Suffell v. The Bank of
England (1882), 9 Q.B.D. 555, 51 L.J.Q.B. 401, 47 L.T. 146.
What constitutes a material alteration of an instrument T In

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II.] SASKATCHEWAN LAW REPORTS. 257

Cyc. vol. 2, page 177, the nature of a material alteration is defined

as follows : — 1909

**Any change in an instrument which causes it to speak a Gogain
different language in legal effect from what it originally spoke — ^ ^•
which changes the legal identity or character of the instrument
either in its terms or in the relation of the parties to it, is a
material change, or technical alteration, and such a change will
invalidate the instrument as against all the parties not consent-
ing to the change."

But at page 190 the author goes on : —

**It is not every change which will invalidate an instrument,
but only a change which is material according to the principles
above stated. In other words, any change in words or form,
merely even if made by an interested party which leaves the legal
effect and identity of the instrument unimpaired and unaltered,
which in no manner affects the rights, duties or obligations of the
parties and leaves the sense and meaning of the instrument as it
originally stood is not material and will not destroy the instru-
ment or discharge the parties from liability thereon."

In Suffell V. The Bank of England, above cited, Brett, L.J.,
said: —

**Any alteration of an instrument seems to me to be material
which would alter the business effect of the instrument if used for
any ordinary business purpose for which such instrument or any
part of it is used."

And in the same case Jessel, M.R., at page 565, sums up the
result of the cases as follows : —

**But what they did decide was this. They said where the
alteration made merely states that which the law would otherwise
imply, that is not a material alteration. I think there would be
very little diflSculty in acceding to that in the case of ordinary
mercantile documents. Then they said, where the alteration
does affect the contract, either by increasing or decreasing the
amount of the obligation of the contracting party sued, that is a
material alteration; and then, in some cases, they stated where
there is an alteration in a matter which, though it does not
directly affect the contract, still directly does so, that is, affects

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[vol.

Lunont, 7.

1909

GOOAIN
V.

Drackett.

the position of the parties to the contract, that is a 'material
alteration.'*

Prom these authorities it would appear that one of the tests
by which it may be determined whether or not an alteration in an
instrument is material is, Would the rights and obligations of
the parties, if effect were given to the instrument as altered, be
the same as the law would imply if no alterations had taken
place! If so, the alterations are not material, and the parties
are not discharged from their liabilities under the instru-
ment. Apply this test to the present case. The contract, as I
have held, was that the plaintiff took the goods upon the terms
and conditions set out in his order of September 9th with such
changes as were necessitated by the substitution of case No. 11
for case No. 14. Those changes consisted of an alteration in the
price from $614 to $574 with the corresponding lessening of the
monthly payments. If, therefore, no alteration had been made in
the order of September 9th I am of opinion that the amount
which the defendants could have collected from the plaintiff
thereunder, would have been the $574, payable $200 cash and the
balance in 15 monthly payments. But this is the exact legal*
effect which the contract would have if effect were given to it as
altered. In my view, therefore, the alterations made no change
whatever in the rights and obligations of the parties, and conse-
quently they must be held not to be material.

On the claim there will be judgment for the defendants with
costs. There will also be judgment for the defendants with
costs on their counterclaim.

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n.] SASKATCHEWAN LAW REPORTS. 259

[TRIAL.]

CocKsnuTT Pix)w Company v. McLoughry. 1909

Conditional Sale — Windmill and Appurtenances — Machinery attached to
Freehold by Purchaser under Contract for Sale — Cancellation^ by Ven-
dor — Action by Bailor under Conditional Sale against Vendor for
Detention — Fixture — What Constitutes — Intention of Parties — Right of
Bailor to Remove,

Defendant sold certain land to one P. under contract for sale upon de-
ferred payments, and B. went into possession. While so in possession
he purchased from plaintiff a windmill, pump, tank, piping and a saw-
mill for the operation of which shafting was attached to the windmill.

This machinery was not paid for, but was sold upon terms that the pro-
perty therein should not pass until paid for. The machinery was set up
on the land, being affixed by bolts to posts set into the soil and fastened
there, and could not be used unless so fastened. The defendant cancelled
P.'s contract for purchase of the land and took possession. The plaintiff
demanded delivery of the windmill and appurtenances and the defendant
refused, whereupon the plaintiffs brought action for detention: —

Held, that the windmill in question having apparently been intended to be
a permanent improvement and to enhance the value of the premises, and
being affixed thereto, became part of the freehold, and while the contract
whereby the property therein was to remain in the plaintiff until pay-
ment would be enforceable as against P., it was not enforceable as
against the owner of the freehold in possession after P.'s contract had
been cancelled.

.2. That the sawmill being part of the windmill, also went with the land.

This was an action for detention and was tried before John-
stone, J., at Moosomin.

E. L. Elwood, for plaintiff.

/. T. Brown, K.C., for defendant.

May 8. Johnstone, J.; — The facts in this case are brietiy
these: The defendant and his brother Johnston McLoughry
became the owners of certain lands, namely, the east half of sec-
tion 7, township 15, range 31, west of the principal meridian in
the Province of Saskatchewan, on the 3rd day of August, 1904,
and subsequently the interest of Johnson McLoughry was trans-
ferred by him to his brother the defendant. On the 4th July,
1905, Robert McLoughry and Johnston McLoughry entered into
an agreement with one Ralph D. Prittie to sell to him the lands
described above upon certain terms and conditions which it is not
necessary to mention here. Under this agreement Prittie entered

Mays.

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[vol.

JohnBtone, J.
1909

COOKSHTJTT

Plow Co.

V.
MCLOUGHBT.

into possession and, on the 13th July, 1906, in writing, through the
duly authorized agent of the plaintiffs, one Virtue, ordered from
the plaintiffs at their branch in Winnipeg, one 14 ft. New Ideal
Power Windmill, roller and ball bearings, tower and attachments,
and also one pump, one tank, 330 feet of piping, one 26-inch saw
and apparatus amounting in aU to about $530. These orders
contained the usual provision that the title to the goods and
chattels ordered should not pass to the purchaser until full pay-
ment was made of the purchase price. The machinery was
shipped by the plaintiffs and was received by Prittie through
Doman & Company, also the agents of the plaintiffs, in the month
of August and Doman & Company thereupon erected the machin-
ery on the hereinbefore mentioned lands.

The manner of this erection appears from the evidence of
V. C. McCurdy (who was really Doman & Company) and of
James Graham as follows : —

McCurdy: **Q. Describe how the mill is set up on the pro-
perty ? A. The windmill is on a tower : it is anchored to posts in
the ground.

**Q. Tell us what you mean by that? A. On the bottom of
the posts there is a foot and that is bolted on a plank and then
this is filled in with stones or earth.

**Q. These things that are fixed in the ground, what do you
call them ? A. Anchor posts.

**Q. Do they project above the ground or not? A. They come
up about eight inches.

''Q. What is fixed to that? A. The tower.

*'Q. How is that fastened? A. Bolts.

**Q. Can they be undone? A. They can.

**Q. Can the tower be taken down? It can."

Graham: **Q. Shew us how it is erected^ A. It is put up on a
tower fastened to the ground.

**Q. Did you examine the ground? A. Yes.

**Q. How is it fastened? A. It is fastened I think to two by
six planks between four and five feet under the ground.

**Q. Did you dig down to examine it? A. Two by six planks.

**Q. And the anchor post is fastened how? A. Bolted to the
plank and made solid.

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II.] SASKATCHEWAN LAW REPORTS. 261

*'Q. The upright parts are fastened to the anchor posts again Johmtone. j.
by bolts? A. Yes, eight bolts. 1909

"Q. Each leg is fastened by eight bolts with nuts? A. Yes. cockshutt

**Q. And the whole windmill is standing there, is it, at the Plow Co.
present time? A. Yes. MoLouohbt.

**Q. All one piece of machinery? A. All one piece."

Prittie made default in payment of the purchase money for
said lands required to be paid by him under his agreement to pur-
chase and the registered owners, McLoughry Brothers, under a
provision contained in the agreement of sale in that behalf, on the
19th November, 1907, cancelled such sale, and Prittie thereupon
left the premises, the owners taking possession of the land and
also the machinery, the subject of this action which they, upon
demand, refused to deliver up to the plaintiffs and the plaintiffs
brought an action for detention setting forth the purchase and
sale of the machinery to Prittie and the refusal of the defendant
to deliver up possession.

The defendant McLoughry, who was the owner of the premises
at the time this action was brought, sets up his title to the lands
in question, and that the machinery was prior to the commence-
ment of the action placed and erected on the said lands and
became affixed thereto. This defendant also sets up that he was
a bond fide purchaser for value.

I find the defendant was not .a bond fide purchaser for value,
and the only remaining question, therefore, for me to determine
is, as to whether or not the machinery became a fixture.

1 may say that I have had considerable difficulty in arriving
at a conclusion. In Hellatvell v. Eastwood, 6 Ex. 295, the ques-
tion arose as to whether certain machinery used for manufactur-
ing purposes was attached to the freehold so as to exempt from
distress for rent, and it was held that they had never become
part of the freehold. Parke, B., in delivering judgment, says:
**They were attached slightly so as to be capable of removal with-
out the least injury to the fabric of the building or to themselves ;
and the object and purpose of their annexation was, not to
improve the inheritance, but merely to render the machines
steadier and more capable of convenient use as chattels.'* The
rule laid down in this case was acted upon in Huntley v. Russell,

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[vol.

1909
CkKTKSHUTT

PijowOo.

I?.

MoLonoHBT.

13 Q.B. 572, and in Waterfall v. Penistone, 6 E. & B. 876. The
authority of the ease referred to, however, has been questioned
both in England and Canada. The leading authority in England
on the question of what chattels taken on to the land are or are
not fixtures, is the case of Hobson v. Gorringe (1897), 1 Ch. D.
182, followed in Reynolds v. Ashby <fe 8o7^ (1903), 1 K.B. 87.
The rules laid down in the former case and in Holland v. Hodg-
son, L.R. 7 C.P. 328, were approved of in Haggart v. Town of
Brampton (1897), 28 S.C.R. 174. In Holland v. Hodgson it is
said that ''there is no doubt that the general maxim of the law
is that what is annexed to the land becomes part of the land, but
it is very diflScult, if not impossible, to say with precision what
constitutes an annexation sufficient for this purpose. It is a
question which must depend on the circumstances of each ease,
and mainly on two circumstances, as indicating the intention,
namely, the degree of annexation, and the object of annexation."
It is laid down in Haggart v. Town of Brampton as follows : * * The
circumstance that the fastening is merely to steady the machines
when in use is now held not to be inconsistent with the inference
that the object was to permanently improve the freehold," and
Longbottom v. Berry, L.R. 5 Q.B. 123, is referred to where it is
stated: **This fixing was clearly necessary, for they (the
machines) could not otherwise be eflfectually used ; as for the same
reason the fixing was obviously not occasional but permanent. It
is no doubt said in this case (referring to Mather v. Fraser, 2
K. & J. 536), that the object of fixing was to ensure steadiness
and keep the machines in their places when worked ; but the same
thing could probably be said of most trade fixtures from a steam
engine downwards ; and if the effect of this fixing is to cause the
whole set of machines to be effectually used in the manufacture of
wool and cloth, it seems very difficult to avoid coming to the con-
clusion that a necessary consequence is to cause the mill to be put
to a more profitable use as a wool miU than it otherwise would be.
It is also equally difficult to conceive that a machine which at all
times requires to be firmly fixed to the freehold, for the purpose
of being worked, could truly be said never to lose its character as
a moveable chattel."

In Hobson v. Oorringe, as in this case, it was argued that the

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11.] SASKATCHEWAN LAW REPORTS. 263

terms of the hiring and purchase agreement caused the engine to ^°''°***^' '•
remain a chattel notwithstanding its annexation to the soil, 1909
because the intention of the parties who placed it where it was oookshutt
must be considered, and if this consideration shewed that the Pm)wCo.
machinery was not to be a fixture, though actually fixed to the MoLoughbt
freehold, it still remained a chattel. Lord Justice A. L. Smith,
in delivering the judgment of the Court of Appeal refers to the
remarks of Lord Blackburn in Holland v. Hodgson that articles
not otherwise attached to land than by their own weight are not
to be considered as part of the land unless circumstances shew
that they were intended to become such, the onus of proving
which was on the person who asserted that the articles had ceased
to be chattels, but that, on the other hand, an article which
became fixed to the land even slightly was to be considered a part
of the land unless the circumstances were such as to shew that it
was intended it should continue a chattel, the onus of proving
which was with the person who contended it was a chattel, and
says: **The question in each case is whether the circumstances
are sufficient to satisfy the onus. It is said on behalf of the
plaintiff that the hire and purchase agreement shews an intention
on Mr. Hobson's part as also on Mr. King's part, that the gas
engine should remain a chattel until King had paid the stipulated
instalments, which he never did. Now, if the engine had been a
trade fixture, erected by King as tenant, with a limited interest,
we apprehend that when affixed to the soil, as it was, it would
have become a fixture, i.e., part of the soil, and would have
immediately vested in the owner of the soil, subject to the right
of King to remove it during his term. 'Such,' says Lord
Chelmsford in Bain v.. Brand (1876), 1 App. Cas. 762, 772, Ms the
general law. But an exception has been long established in
favour of a tenant erecting fixtures for the purposes of trade,
allowing him the privilege of removing them during the continu-
ance of the term. When he brings any chattel to be used in his
trade and annexes it to the ground it becomes a part of the free-
hold, but with a power as between himself and his landlord of
bringing it back to the state of a chattel again by severing it from
the soil. As the personal character of the chattel ceases when
it is fixed to the freehold, it can never be revived as long as it
continues so annexed. '

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264 SASKATCHEWAN LAW REPORTS. [vol.

johMtone. J. * * It seems to us that the true view of the hiring and purchase

1900 agreement, coupled with the annexation of the engine to the soil
n Zrmw^ which took place in this case, is that the engine became a fixture —
Plow Co. i.e,, part of the soil — ^when it was annexed to the soil by screws
McLouGHBT. ^^^ bolts, subject as between Hobson and King to this, that Hob-
son had the right by contract to unfix it a^d take possession of
it if King failed to pay him the stipulated monthly instalments.
In our opinion, the engine became a fixture — i.e., part of the soil
— subject to this right of Hobson which was given him by con-
tract. But this right was not an easement created by deed, nor
was it conferred by a covenant running with the land. The right,
therefore, to remove the fixture imposed no legal obligation on
any grantee from King of the land. Neither could the right be
enforced in equity against any purchaser of the land without
notice of the right, and the defendant Gorringe is such a pur-
chaser. The plaintiffs' right to remove the chattel if not paid for
cannot be enforced against the defendant, who is not bound either
at law or in equity by King's contract. The plaintiffs* remedy
for the price or for damages for the loss of the chattel is by action
against King, or, he being bankrupt, by proof against his estate."
It is further laid down in the judgment referred to at page 195,
that there was no doubt but that a person could agree to a£Sx a
chattel to the soil of another so that it should become part of that
other's freehold upon the terms that one should be at liberty in
certain events to retake possession, but that a de facto fixture
should become not a fixture as regards a purchaser of land for
value without notice by reason of some bargain between the
affixers was impossible.

In Haggart v. Town of Brampton, we find that in passing
upon the object of the annexation, the purposes to which the
premises are applied may be regarded ; and if the object of setting
up the articles is to enhance the value of the premises or to
improve their usefulness and the articles are affixed to the free-
hold even slightly, but shewing an intention not of occasional, but
of permanent, affixing, then both as to the degree of annexation
and as to the object of it, it may very well be concluded that the
articles are to become part of the realty.

The evidence taken at the trial of this case discloses the fact

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that the windmill in question was put up for the purpose of Johmtone. j.
pumping water for animals, also water for use in the house con- 1909
veyed by piping to the house and for the purpose of sawing wood Ox^^uir
and was apparently intended as a permanent improvement, and ^^^ ^•
the erection of the mill I find as a fact had for its object the MoLouohrt.
enhancing of the value of the premises and the permanent im-
provement thereof, and that the mill when aflSxed became part of
the realty.

In this finding I also include the saw. A portion of the
shafting was erected for the purposes of operating the saw and
this is really part of the fixture. See Elwes v. Maw, 2 Smith's
Leading Cases 189, at page 207 et seq.

There will therefore be judgment for the defendant with
costs.

As to the question of costs. It was contended at the trial
that this question should be governed by the amount still remain-
ing impaid the plaintiffs on account of their lien, an amount less
than $300, and without reference to the value of the mill at the
time the action was brought, that is, as to whether the costs should
be taxed on the higher or the lower scale. This question, 1 think,
is one to be determined by the clerk on taxation and is not one
which the Judge should be called upon to determine unless there
are special circumstances arising in the case which, in the opinion
of the Judge, should prevent the application of the tariff in the
ordinary way.

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266 SASKATCHEWAN LAW REPORTS. [vol.

[COURT EN BANC]

1909 In re The Globe Fire Insurance Company, Ltd.

Robertson's Case.

July 9.

Company in Liquidation — Winding up — Settling List of Contributories — Regis-
ter of Members — Evidence of Membership---Conditi(m Attached to AppUoa-
tion not Stated in Writing — Application in Wriiinq Uncanditional--C<nP'
dition not Communicated to Company — Effect of.

On an application to settle the list of contributories of a company, one Robert-
son, who had made application for shares and whose application had been
accepted, objected that his application was conditional upon his appoint-
ment as agent of the company and his acceptance of that agency. He
also objected that his membership in the company had not been properly
proved, as the register had not been produced: —

Heldf that the register of the company is not conclusive or tl^e only evidence of
membership therein, but membership may be proved without reference
to the register.

2. That the application for shares being an imconditional one, and there being
no evidence that any notice of a condition attached had ever been given to
the company, Robertson's name must be placed on the list of contributories.

This was an appeal by Robertson, alleged to be a shareholder
of the company, from an order of Wetmore, C.J., placing his name
on the list of contributories of the company, and was argued before
the Court en banc (Prendergast, Newlands, Johnstone and
Lamont, JJ.), at Regma.

W. B. Scott, for appellant: The onus of proving that the
alleged shareholder should be a contributory is on the liquidator,
and to establish this it must be shewn that he is entered on the
company's register. See sec. 45, Companies Ordinance, 1903, and
Lindley on Companies, 6th ed., vol. 1, p. 75. No evidence as
to the register having been given, the liquidator must fail. The
evidence shews clearly that Robertson's application was conditional.
The company had knowledge of the condition through Dean,
the general manager. Notice to the agent in the course of his
agency is notice to the company: Atwood v. Small, 6 CI. &
F. 232; Baldwin v. Cassells, L.R. 6 Ex. 325; Bawdem v.
CasseUs, 2 Q.B. 534; Gladstone v. King, 1 M. & S. 35.
A person who is not a member and has not agreed with
the company to become one is not a contributory: Coleman* s
Cafic, 1 De G. J. & Sm. 495; Jackson v. Turgrand, L.R. 4
H.L. 305. If a condition precedent has not been per-
formed and has not been waived, the applicant will not be a con-

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II.] SASKATCHEWAN LAW REPORTS. 267

tributory: Mainvxmng's Case, 2 DeG. M. & S. 66; Roberts En Banc
Case, 3 DeG. & S. 205; In re Rogers, 3 Ch. 633; Ormerod's 1909
Case, 2 Ch. 474. In re the

J. A. Allan, for the respondent : A person who has agreed Globe Fire
with the company to become a member is a contributory whether oo., Ltd.
he is actually a member or not: Lindley on Companies, vol. 2, ^^"™g^^'®
p. 1050. A binding contract to take shares is made when there
is an application, an allotment and notification: In re Scottish
Petroleum Co,, 23 Ch. D. 430. These conditions were
proved in this case. Any right which the appellant might have
to bring an action has been forfeited by delay until winding-up
proceedings were taken: Scottish Petroleum Co., 23 Ch. D.
413, at 434; Etna Insurance Co., L.R. 6 Eq. 315; Oglivie
V. Currie, 37 L.J. Ch. 541; Ashley's Case, L.R. 9 Eq. 263.
Even if the contract was void, the delay is fatal to the appellant's
right to have his name removed from the register: Railvxiy Time
Tables Co., 42 Ch. D. 107. No such application will be
entertained after the winding-up order is made: Oakes Tarquash,
L.R. 2 H.L. 325; In re HuU and County Bank, 15 Ch. D. 511.

July 9. The judgment of the Court was delivered by New-
lands, J.: — ^The liquidator of the above company took out a
summons to settle the list of contributories of said company,
and at the hearing before the learned Chief Justice H. W. Robertson
the above-named appellant was placed upon the list. From this
order he appeals. Two grounds of appeal are taken: First, that
before the appellant's name can be placed upon the list of con-
tributories the register of members of the company must be proved,
and that it was not properly proved in this case; and, second,
that appellant's subscription for stock in the company was con-
ditional upon his appointment as an agent of said company and
his acceptance of such appointment.

As to the first ground of appeal, it is evidently based upon
the assumption that the register of members is the only evidence
of membershipi in the company. This is not the case, and not
only is it not the case, but the register is not conclusive evidence
of membership, as names can be added to it or struck off by the
Judge upon evidence that they were either improperly there or
have been improperly omitted therefrom. In this case the learned

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NewUnds, J.

268 SASKATCHEWAN LAW EBPOETS. [vol.

En Banc Chief Justice had evidence that the appellant had made a written

1909 application for shares; that at a meeting of the director of the

In RE The company shares had been allotted to him, and a certificate for

Globe Fire ^^e same had been forwarded to him. A primd facte case was,

Co., Ltd. therefore, made out to have him placed upon the list of con-

^""TasT^^ tributories.

' As to the second groimd of appeal, that his application for
stock was conditional, admitting the evidence of the appellant
to be true, this case falls within the decision in Harrison's case
(1868), L.R. 3 Ch. 638, 18 L.T. 779. In that case Harrison ap-
plied for shares, which application, he swore, was on condition
that he be appointed a local director of the company. The applica-
tion was sent in by the agent to the directors and the shares were
allotted to him. There was no evidence that the agent who got
the application had informed the directors of the condition, and
the Court of Appeal in Chancery held that his name must be put
on the list of contributories. Sir W. Page Wood, L.J., in giving
judgment, said: "As to Harrison's case, the appellant has not
produced the evidence that Rogers has; in many respects the
circumstances were much the same, but the evidence falls short
in shewing that Stillwrath (the agent who got the application)
sent to the directors the letter as to the application being con-
ditional, which he did in Roger's case." "In truth it was his
business to prove that there was a letter communicated to the
directors containing a conditional application, and I do not see
any cause for his not calling Stillwrath to prove this if it was the
fact. As he has not done so, however unfortunate it may be for
him, I think he has failed to establish his case, and the decision
of the Vice-Chancellor must be affirmed."

In this case the application was unconditional on the face of
it, and there was no evidence that the condition alleged was com-
municated to the directors until after the certificate of shares
was sent to him. On the other hand, there is his own letter of
June 1st to the company, in reply to the letter from the company
in which the certificate of shares was inclosed, in which he makes
no mention of any condition, but tacitly accepts the shares. In
that letter he only says: " I am returning herewith stock certificate,
which is not filled in properly. I would be obliged if you would
hold this certificate until you again hear from me, as I intend

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269

taking the matter up with Mr. Dean when he again comes to
Nelfion," and it is not until a month afterwards that he declines
to accept the stock, which had been returned to him some time
previously, on the ground that his application had been conditional.
I think the appeal should be dismissed with costs.

En Banc
1900

In BE The

Globe Fibe

Insubance

Co., Ltd.

Robebtson's

Case.

Appeal dismissed with costs,

Newlands, J.

[IN CHAMBERS.]

Swan v. Wheeler.

Mortgage — Foreclosure of — Mortgage Oiven to Seoure Performance of
Contract — Covenant to Pay Fixed Bum — Assignment of Mortgage —
Partial Failure of Consideration — Rights of Assignee to Recover Full
Amount — State of Accounts between Mortgagor and Mortgagee—
When Assignee Bound hy — Estoppel — Bow Mortgagor Estopped.

Defendant W. employed one D. to break certain land, and executed a mort-
gage for the contract price to secure payment of the same. The mort-
gage in question was on the face of it absolute, and contained the usual
dause acknowledging receipt of the principal. D. assigned the mortgage
to plaintiff, who proceeded to foreclose the same. It appeared that D.
nad never completed his contract, and of the work done only a small
portion was of any value, and in respect of the balance it was so badly
done that, in another action, the present defendant had recovered
judgment against D. for damages to the land. The plaintiff claimed the
whole amount of the mortgage covenant, and alleged that defendant was
estopped as against the assignee from denying that the full considera-
tion had not been advanced (1) by acknowledging receipt of the princi-
pal sum, and (2) that having recovered judgment on breach of contract
in respect of the breaking, he must look to that for relief: —

Held, that an assignee of a mortgage takes, subject to the state of accounts
existing between the mortgagor and mortgagee at the time of the assign-
ment, and when the mortgagor shews that the amount advanced or the
amount due is less than the face value of the mortgage, the assignee
can only recover the full amount if he shew that he gave full value for
the mortgage without notice that a less amount only was due, and that
the mortgagor has enabled the mortgagee to deceive the assignee or has
led the assignee to believe that the greater amount was due, and this
not being shewn, the assignee could recover only the amount actually
due.

2. That it being the duty of the assignee to enquire into the state of the
accounts, the defendants were not estopped from denying the amount due
unless some act of the mortgagor justified the belief that the full amount
was due, and the mere execution of the acknowledgment in the mortgage
was not sufficient.

3. That the judgment recovered by the mortgagor being for damages to the
land by the work done and not for non-performance, the recovery of such
judgment did notxstop the defendant from claiming a reduction in the
amount payable under the mortgages.

1909
October 8.

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270 SASKATCHEWAN LAW REPORTS. [vol.

1909 This was a motion to foreclose a certain mortgage and was

g^^j^ heard by Lamont, J., in Chambers.

Wheelbe. G. H. Barr, for plaintiff.

H, D, Pickett, for defendant.

October 8. Lamont, J. : — This is an application for an order
nisi foreclosure. On June 22nd, 1908, the defendant Wheeler
entered into an agreement in writing with one Victor Dionne by
which Dionne undertook to break in a farmer-like manner 250
acres of Wheeler's land for the sum of $1,008. As security for
the payment of the said sum Wheeler, at the time the agreement
was entered into, executed and gave to Dionne a mortgage on lot
8, in block 3, in the townsite of McTaggart, for the sum of $1,008
payable October 4th, 1908 ; and gave him also a chattel mortgage
for a like amount, which said mortgages were duly registered.
Dionne did not perform his contract in the manner agreed, and
Wheeler brought an action against him and claimed that the
mortgages should be delivered up to be cancelled, an injunction
restraining Dionne from assigning or otherwise dealing with
them, and damages for the non-performance of his contract.
That action came on for trial before the learned Chief Justice at
Moose Jaw. The evidence taken, which was read on this appli-
cation, shewed that before the action had been brought Dionne
had assigned the mortgages to James G. Swan. The learned
Chief Justice held that, as the mortgages had passed into the
hands of parties who were not before the Court, he could not
order Dionne to deliver them up for cancellation, but he awarded
Wheeler $500 damages and gave judgment for that amount.

On October 26th, 1908, Swan began the present proceedings
by taking out an originating summons for the foreclosure of the
mortgage on lot 8 assigned to him by Dionne, and having served
the parties appearing by the abstract of title to be entitled to
redeem he now makes application for an order nisi. Prior to this
application being made Wheeler sold his equity of redemption to
one Quail, who, however, has been served with a copy of the
originating summons, and he is before the Court opposing
this application.

For the defendants it is contended that the plaintiff, as

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271

assignee of the mortgage, takes the same subject to the state of
accounts between the mortgagor and mortgagee existing at the
date of the assignment, which was the first day of August, 1908,
and that as Dionne, the mortgagee, did not perform the contract
which was the consideration for the mortgage, there was a failure
of consideration to the extent of his non-performance, and that
from the plaintiff's claim, which is for the face value of the
mortgage, there should be deducted on the taking of the accounts
an amount equivalent to the portion of the consideration money
not advanced by the mortgagee.

For the plaintiff it is contended that as the mortgagor
executed and placed in the hands of Dionne a mortgage which
contains the usual acknowledgment of the receipt of the con-
sideration money therein, he is now estopped from saying that
the whole sum was not advanced; and further, that as he
brought action for damages against Dionne for the non-perform-
ance of the contract and obtained judgment against him, he
must look to that judgment for his relief.

In Dixon v. Which (1899), 68 L.J. Ch. 572, Cozens-Hardy,
J., says : —

**It is well settled that when a mortgage is transferred with-
out the privity of the mortgagor the transferee takes subject to
the state of accounts between the mortgagor and mortgagee at
the date of the transfer."

The question here, however, is. What is the true state of
accounts? Should the account be taken on the basis that the
whole of the consideration as set out in the mortgage was ad-
vanced, or at least that the defendants are now estopped from
saying that it was not ; or should the basis be that a portion only
of the consideration was paid and that notwithstanding the
judgment for damages against Dionne the assignee is only en-
titled to succeed to the extent to which the consideration money
was advanced?

In Bickerton v. Walker (1885), 31 Ch. D. 151, 55 L.J. Ch.
227, 53 L.T. 731, the plaintiffs mortgaged to one Bates certain
stocks and policies of insurance for £250. By the mortgage deed
they acknowledged the receipt of the £250, and they also signed
a receipt for the same sum endorsed on the mortgage. Bates

18— VOL. n. S.L.B.

Lunont, J.

1909

Swan

Wheeileb.

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SASKATCHEWAN LAW REPORTS.

[vol.

Lftmont, J.

1909

8WA1«
V.

Wheeleb.

transferred the mortgage to one Hunter, who acted by his solici-
tor Walker. Hunter gave full value for the mortgage as a mort-
gage of £250 without making any enquiry from the mortgagors.
The plaintiflE had only received the sum of £91 17s. 6d. on the
mortgage. In an action brought by the plaintiffs to be allowed
to redeem by paying the amount they had received with interest,
it was held that they were not entitled to do so ; that as against
Hunter, who had paid the full face value of the mortgage with-
out notice that the whole amount had not been advanced, relying
on the acknowledgment in the body of the mortgage and the
receipt endorsed thereon, the amount must be taken on the foot-
ing of the whole amount having been advanced. Pry, L.J., in
giving the judgment of the Court, laid stress upon the fact that
a receipt for the money had been endorsed on the mortgage. At
page 159 he says: —

**The presence of a receipt indorsed upon a deed for the full
amount of the consideration money has always been considered a
highly important circumstance. The importance attached to this
circumstance seems at first sight a little remarkable when it is
remembered that the deed almost always contains a receipt, and
often a release, under the hand and seal of the parties entitled
to the money. But there are circumstances which seem to justify
the view which has prevailed as to its importance. A deed may
be delivered as an escrow, but there is no reason for giving a
receipt till the money is actually received, unless it be to enable
the person taking the receipt to produce faith by it.'*

In French v. Hope (1887), 56 L.J. Ch. 363, 56 L.T. 57, the
plaintiff in order to raise money executed to his solicitor a mort-
gage for £200 and endorsed on the mortgage a receipt for that
sum, but received no money therefor. The solicitor deposited the
mortgage with Shum & Co. and obtained thereon an advance of
£100 for his own use. Shum & Co. had no knowledge of the cir-
cumstances under which the mortgage was obtained by the
solicitor. In an action brought by the plaintiff to have the mort-
gage declared void and delivered up to be cancelled, it was held
that he was not entitled. In this case not only had a receipt been
endorsed upon the mortgage, but, as Eekewich, J., pointed oat,
the plaintiff had given the deed to his solicitor for the very pur-
pose of raising money upon it.

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n.] SASKATCHEWAN LAW REPORTS. 273

In Maidey v. London Loan Company, 23 A.R. 139, which was Lamont, j.
a similar case with this exception, that there it appeared that the i909
assi^ee had notice that all the consideration money had not been swIn
advanced. The Ontario Court of Appeal held that an assignee ^^^

of a mortgage takes it subject to the actual state of the accounts
between mortgagor and mortgagee and cannot, even where the
mortgage contains a formal receipt for the whole mortgage
money, claim more in respect to it than has been advanced, and
the assignee must submit to redemption on the same terms as their
vendors would have been subject to.

These authorities, it seems to me, establish that an assignee
of a mortgage takes the mortgage subject to the state of accounts
existing between the mortgagor and mortgagee at the time of the
assignment. That where the mortgagor shews the amount due
to be less than the face value of the mortgage the assignee can
only recover the amount actually due unless he can bring himself
within the principle laid down in Bickerton v. Walker, supra.
To do this he has to shew not only that he gave full value for the
mortgage without notice that a less amount only was due, but
also that the mortgagor by some act has enabled the mortgagee
to deceive him (the assignee), or has given him reason for infer-
ring that the mortgage was still a security for the larger amount.
Here the assignee produces his mortgage which on the face of it
is a security for $1,008. The onus is then on the mortgagor, or
those claiming under him, to shew that on a true statement of
accounts there is not that amount due. When, however, that is
shewn I am of opinion that the onus is then on the assignee to
shew that notwithstanding the fact that the true state of accounts
shews a less sum than the amount claimed to be due, the mort-
gagor and those claiming under him are estopped from asserting
that the larger amount is not due.

As to the accounts : I find that the breaking of the land in a
farmer-like manner was the consideration for the mortgage;
that Dionne did not break the land as agreed ; that only 60 acres
were broken as per contract ; that the other 190 acres had been
gone over with a steam plough, but owing to the hardness of the
ground the land was not only not properly ploughed, but the
work done thereon was an injury to the land to the extent of

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[vol.

Lamont, J.
1909

Swan

Wheeleb.

$500 ; and that it would take that sum to disc and level the spots
that had been ploughed so that it would be in a condition in
which the whole might then be properly broken. The consideration
for the mortgage therefore failed except as to the breaking of the
60 acres. The price for breaking the 250 acres was $1,008 ; the
value of the breaking of the 60 acres would be $241.92. I there-
fore hold that only $241.92 was advanced upon the mortgage.

This being the state of the accounts when Swan obtained
an assignment of the mortgage, are the defendants estopped from
claiming that only the sum of $241.92 and interest thereon is due
upon the mortgage? I am of opinion that they are not unless
Swan shews that he took -the mortgage without knowledge that
the consideration therefor had not been advanced, that he in good
faith had taken it over at the amount he claims to be entitled to,
and that he was justified by some act of the mortgagor -(which in
my opinion would require to be something more than simply the
execution of a mortgage with the usual receipt clause embodied
thereiir) in inferring that the* larger amount was then due on the
mortgage. It is the duty of the assignee to enquire into the state
of the accounts when taking over a mortgage, and he omits to do
so at his peril, unless he can justify that omission by some act of
the mortgagor from which he is justified in inferring the state
of accounts to be something different from what it actually is.
On this point, however, there is not the slightest evidence. There
is no evidence that Swan paid anything for the assignment, nor
that he did not have full knowledge of the state of the accounts
between the mortgagor and the mortgagee, the only evidence
being the affidavit of default — ^which was not made by the plain-
tiff himself but by his agent — ^which contains the statement that
there is due from the mortgagor to the plaintiff the full mortgage
money and interest. I, therefore, hold that the defendants are
not estopped on this ground from shewing that there is only
$241.92 and interest due on the mortgage.

Are they estopped, as contended by the plaintiff, by Wheeler's
having obtained a judgment for $500 damages against Dionnef
The answer to this question, it seems to me, might depend upon
what the damages were awarded for. As I read the judgment
of the learned Chief Justice, he awarded damages, not for the

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275

non-breaking of the 190 acres, but for the injury done to the
ground by the plaintiff's breaking in patches as they did. The
facts, as found by the learned Chief Justice, shew that not only
was the ploughing on the 190 acres not of advantage to Wheeler,
but that it would take the sum of $500 to disc and level the land
and put it in a condition in which it could then be properly
farmed. The awarding' of damages for the non-breaking of the
190 acres he expressly says he could not award because the
parties to be affected by that award were not before him, but he
intimates that those damages can be taken into consideration in a
proceeding to realize upon the mortgage as in the present appli-
cation. Besides, there is not a particle of evidence to shew that
the $500 damages awarded against Dionne has ever been paid,
and it seems to me that before the judgment can be held to estop
the defendants under the circumstances of the case, it must be
shewn that the judgment has been paid.

I am, therefore, of opinion that all the plaintiff is entitled to
under his mortgage is the sum of $241.92 and interest thereon
at the rate specified in the mortgage. The order therefore will be
that there is due to the plaintiff under the mortgage the sum of
$241.92 and interest thereon, that unless payment of the same
with costs to be taxed be paid by the defendants within six
months from the date of the order, the interest of the defendants
in the said lands shall be absolutely foreclosed.

Lamont, J.

1909

Swan

Wheeleb.

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276 SASKATCHEWAN LAW REPORTS. [vol.

[(X)URT EN BANC]

En Banc Robinson V. LoTT.

1909

Interjdeader— Lease of Land — Rent Payable by Delivery of Portion of Crop-
Apr. 16. Asaignment of Lease by Lessor — Seizure of Crop by S?ieriff under Execution

Against Lessor — Validity of AssignmerU — Growing Crop — Bills of Sale

Ordinance — Property in Crop,

Defendant was the owner of a farm, which he leased on terms that he was to
receive one-half of the crop, when threshed, by way of rent. Being in-
debted to one Eknerson, he executed a deed by way of security whereby he
did ''assign and grant ... all that certain parcel of land . . .
together with the residue unexpired of the said teim of years and the said
lease and all benefit and advantages to be derived therefrom." The sheriff,
under writ of execution of the plaintiff, seized the defendant's half of the
crop which was claimed by Emerson, and the sheriff interpleaded. Whether
the crop was standing or cut, thresned or divided, did not appear by the
material before the Court: —

Heldf rent is a chose in action, and as such is assignable, and the doctrine
applies to future rent as well as past due rent.

2. That until the grain was threshed and divided the property therein re-
mained in the lessee, and in the absence of evidence of division and delivery
there was no evidence that the debtor had any interest in the crop liable to
seizure.

3. That (Johnstone, J., dissenting) the assignment by the lessor of the
benefits of a lease, the rent under which is payable by a portion of a crop,
is not an assignment of a growing crop within the meanmg of the Bills of
Sale Oidinance.

This was an appeal by the claimant in interpleader proceedings
from the order of the Chief Justice (2 Sask. L.R. 150) barring
the claim, and was argued before the Court en banc (Prender-
GAST, Johnstone and Lamont, JJ.), at R^ina.

A. Casey y for the claimant (appellant).

G. H, Barr, for the plaintiff (respondent).

April 16. Lamont, J. : — ^The execution debtor is the owner of the
land on which the crop seized was grown. By a lease bearing date
the 6th day of December, 1906, he demised the same to Malcolm
Givens for a period of five years from March 1st, 1907, at a yearly
rental of half the grain grown on the premises, with the exception
of the grain grown on forty acres, which was to belong to Givens.
After leasing his farm, Lott became indebted to one EmerBon.
In the summer of 1908 Emerson began to press for payment and
threatened action if payment was not made. Lott, being un-
able to pay, offered Emerson an assignment of Givens' lease on
bis farm as security. This was accepted and on September 2nd,
1908, Lott executed an assignment under seal of ''the said lease

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and all benefits and advantages to be derived therefrom." By EnBam
its language the assignment assigns the land as well as the lease, l^M
but it is clear that the parties did not intend to transfer the Ronavson
reversion, but only to assign the rent reserved and the benefit j^*
of the covenants contained in the lease. The assignment was
taken in the names of the claimants as trustees for Emerson,
who, on the assignment being given, extended the time for pay-
ment of the indebtedness thus secured until March 1st, 1909.
On October 19th, 1908, an execution for $383.79, issued in a suit
of Robinson v. Lott, was placed in the hands of the sheriff. Be-
tween that date and November 11th three other executions against
Lott were placed in his hands. On November 13th the Sheriff
seized the interest of Lott in 500 bushels of wheat then on the
land occupied by Malcolm Givens, and the wheat being claimed
by the claimants under their assignment from Lott, the sheriff
applied for and obtained an interpleader summons calling upon
the claimants to appear and support their claim. No inter-
pleader issue was directed, as the claimants and execution creditors
agreed that the learned Chief Justice (before whom the matter
came) should determine the same on the affidavits filed. The
learned Chief Justice held the assignment invalid and barred the
claim of the appellants. From his decision the claimants now
appeal to this Court.

The material contained in the appeal book is of the most
meagre kind. Although the parties agreed to have the matter
determined on the afiidavits filed, the appeal book did not con-
tain the slightest evidence as to the ownership of the grain seized
or in whose possession it was, and it was only by referring to
the affidavits of the sheriff, omitted from the appeal book, that
we are able to ascertain what had been seized. In this affidavit
the sherifF 8a3rs he seized the interest of the execution debtor in
500 bushels of wheat. Assuming that the wheat was seized on
the debtor's farm and in possession of his tenant under the lease,
had Lott an interest therein capable of being taken under an
execution?

By the lease one-half of the grain grown on the place was m-
served to the lessor as rent, and the tenant had to deliver the
lessor's share at an ^vator to be selected by both parties. The
reservation of a portion of the erop as rent does not vest any

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property in any of the crop in the lessor until delivery to him
of his share. In Hayden v. Crawford, 3 U.C.Q.B. (O.S.) 583,
a case in which a lease reserved to the defendant as rent half of
the wheat to be raised on the farm, and provided that the lessee
had to harvest, thresh and deliver at the defendant's granary
his share, Robinson, C.J., said: — "With respect to the points
reserved at the trial on the ground of nonsuit, I am of opinion
that, under this agreement, Crawford and Stone were not partners
in the wheat while it grew in the field; that the relation between
them was simply that of landlord and tenant, the rent being
payable in kind and uncertain in amount,^ instead of a fixed rent
in money; that no l^al property in any wheat raised on the
farm could vest in Crawford till the tenant had threshed and
divided it, and delivered to him his portion. If the tenant should
fail to deliver over half, the landlord would have his remedy as
upon other covenants, but the tenant might, before division,
l^ally alienate the whole, and might maintain trespass against
any one, even against his landlord, who should wrongfully inter-
fere with his possession of the field jor the grain growing on it."
In Campbell v. McKinnon, 14 M.R. 421, the lease reserved

as rent "the share of portion of the whole crop grown

on the demised premises, as hereinafter set forth," and then
provided that the lessee was to deliver the whole of the crop,
•excepting the hay, in the name of the lessor, at an elevator, and
the lessor was to deliver to the lessee a full two-thirds of the pro-
ceeds of the crop stored in the elevator, less any sum retamed
{or taxes or advances made. The lease also contained a clause
that all the crop grown upon the premises should be and remain
the absolute property of the lessor. Before the grain was de-
livered at the elevator, it was seized under an execution against
the tenant. The lessor claimed the grain under the provisions
of his lease. Killam, C.J., in giving the judgment of the Court
en bancy said: "Taking the clause as a whole, it is very clear
that the share intended to be reserved as rental was one-thiid
of the crop of grain; the remaining two-thirds were to be the
security for the advances, etc. I cannot interpret the clause
giving the lessor the property in the crops as operating to pre-
vent the lessee from ever having any property therein. The
land was demised to the execution debtor, and out of the crop

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a certain portion was to be paid over as rent. Primd facie, the
property in the whole until so paid over would be in the lessee.
There is nothing to indicate that he was to cultivate the soil as
the servant, agent, bailee or other instrument of the lessor. The
construction that I would give to the instrument is that the
l^al property was to be in the lessee until delivery at the elevator
for the lessor, but that from that time it was to be in the lessor."

The property in all the grain grown upon the premises was,
thCTefore, in the tenant Givens until he made delivery at the
elevator \mder the terms of the lease or until the grain was divided
and the lessor agreed to accept his share at some place other than
the elevator. There is no evidence before us that any such agree-
ment took place, and the wheat, as it is assumed, being still in
the possession of the tenant, the execution debtor at the time
of the seizure had, even apart from the assignment, no property
in the grain in which any execution could attach.

It was contended by counsel for the execution creditor that,
even if the property in the grain seized was in the tenant at the
time of the seizure, yet the appellants are not entitled to suc-
ceed unless they shew that the grain belongs to them. This
contention, I think, is correct. If an interpleader issue had
been directed, the claimants would probably have been plaintiffs,
as they claim through the execution debtor, and in that case
the onus of establishing their claim affirmatively would have
been on them. I think the same rule should apply here. The
claimants assert that they are entitled under their assignment
of the lease. Does this assignment entitle them to the graifl?

Apart from any statute invalidating such assignment, I think
it is settled law that rent reserved under a lease is assignable.
In BeU's Law of Landlord and Tenant, at p. 511, the learned
author says ''a landlord may assign rent, and since 4 George II.
ch. 28, sec. 5, rent charge or rent seek may be distrained for, and
by one who has not the reversion, as, for instance, the assignee
of the landlord," and he cites the case of White v. Hope, 17
U.C.CP. 52 and 19 U.C.CP. 479.

Foa, in his Law of Landlord and Tenant, at p. 151, says:
""Somewhat analogous is the case where, without assigning his
reversion, the landlord assigns — by writing — the benefit of the
rent as the successive instalments accrue during a certain period

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to a third party to whom he is indebted, for this is an 'absolute
assignment' (within Jud. Act, 1873, sec. 25 (6), and, on notice
of it in writing being given to the tenant, will entitle the assignee
to receive the rent during the term stipulated and to sue the
tenant for it, notwithstanding that the latter may have received
notice from the landlord not to pay further instalments to the
assignee." See also KniU v. Prorvse (1885), 33 W.R. 163; SmUh-
weU V. Scatter (1880), 49 L.J. Ex. 356.

The claimant's assignment is, therefore, a valid one, unless it
is invalidated by our statutes. Its validity was, however, ques-
tioned. It was contended (1) that it amounted to a fraudulent
preference within sec. 38 and 39 of the Assignment Act, and (2)
that it was invalid under the Bills of Sale Ordinance, sees. 9 and 15.
The Assignment Act makes void as against prejudiced or delayed
creditors every conveyance or assignment of goods to or for a
creditor by a person in insolvent circumstances which is made
with intent to defeat, hinder or delay a creditor or to give one
creditor a preference over the others, and the Act provides that
in case the transaction has the effect of giving one creditor a
preference and is impeached within sixty days, it shall be void.
As the assignment in question was not impeached within the
sixty days and as there is not the slightest evidence that it was
made with intent to hinder or delay Lott's creditors or any of
them or to give one creditor a preference over another, I hold
that it is not a fraudulent preference within the Act.

Then, does it come within the Bills of Sales Ordinance? With
very great deference to the learned Chief Justice, I am unable
to see that it does. There is no evidence whatever to shew that
the grain was cut when the assignment was given. It, there-
fore, cannot come within sec. 9. Nor, in my opinion, does it
come within sec. 15, which reads as follows: —

''15. No mortgage, bill of sale, lien, chaige, incumbrance,
conveyance, transfer or assignment hereafter made, executed or
created and which is intended to operate and have effect as a
security shall, in so far as the same assumes to bind, comprise,
apply to or affect any growing crop or crops to be grown in future
in whole or in part, be valid except the same be made, executed
or created as a security for the purchase price and interest thereof
of seed grain."

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This section renders a mortgage or assignment operating as
a security invalid only so far as it binds or assimies to bind growing
crops or crop to be grown in future. Did the assignment bind
the growing crops? If the conclusion arrived at above is correct
that, notwithstanding the provision of the lease, the lessor ob-
tains no property in the crop imtil delivery was made, and that
in the meantime it could be l^ally disposed of by the tenant or
taken imder execution by a creditor of thje tenant, it follows,
I think, that the assignment does not bind the growing crops of
the tenant Givens. The object of the section, it seems to me,
was to prevent farmers from giving any security on their crops
before they were cut, except security given to secure the price
of seed grain. The only one who could give such security would
be the man who has some property in the growing crop, and as
Lott had no property in the crop on which he could give security,
the assignment, in my opinion, is not within the section. The
assignment, I think, may also be held to be valid on another
ground. If Lott had assigned the land, there is no question
but that the rent would be payable to the assignee, no matter
whether the crops were growing at the time of the assignment
or had been cut. If the grain had been cut, and, therefore, had
assumed the character of a chattel, the assignment, even then,
would not, in my opinion, come within the Bills of Sales Ordinance,
because, when the assignee became seized of the property in the
grain, he would obtain it not under a document assigning to
him a chattel, but as an incident of the reversion. In the present
case the assignment was not intended to transfer the reversion,
but it does assign the lease and the benefit of the covenants therein
contained. The assignment, so far as the rent is concerned,
vests in the assignee all the rights of the assignor, even the right
of distress, if the rent is not paid, and he is entitled to receive
the rent, even if paid in kind, as an incident of the lease, and not
by virtue of the assignment to him of a chattel or by virtue of
his holding a security on the growing crop. The Bills of Sales
Ordinance does not, in my opinion, affect the validity of the
assignment.

But, it was contended, that even if the assignment were a
valid one, yet the appellant's claim must be barred because there
was no roit due at the time of the seizure. It is true that the

En Banc
1909

Robinson

Lott.

liamont. J,

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rent was not due and could not be collected from the tenant until
March 1st, 1909, but this is a matter between the tenant and
the assignee. If the tenant is willing that the grain seized should
belong to the claimants as a payment of rent, and the claimants
are willing to accept the same, an execution creditor of Lott, who
has absolutely no interest in the grain, cannot, in my opinion,
be heard to question the assignee's right, and from the fact that
the appellants claim the grain as rent under the assignment and
the tenant, who k the only one who can dispute their claim, does
not dispute it, I think it must be held that the assignee is entitled.
The appeal should be allowed with costs, saving the costs of
and incidental to the preparation of the Appeal Book, as to which
there should be no costs allowed.

Prendergast, J., concurred.

Johnstone, J. (dissenting): — On the 14th December, 1908,
upon the application of the sheriff for this district, supported by
his personal affidavit, a Chamber summons issued calling upon
the plaintiffs, execution creditors, and the claimants to appear
before the presiding Judge in Chambers, and state the nature
and particulars of their respective claims to certain goods and
chattels seized by the sheriff under writs of execution issued in
the several suits of the plaintiffs against the goods and chattels
of the defendant, the first of. which writs had been issued and
placed in the sheriff's hands on the 19th day of October, 1908.
The affidavit referred to is not contained in the appeal book.
I find, however, upon reference to this affidavit or file, that the
sheriff, on the 13th November, 1908, had seized under the said
writs the interest of the defendant in five hundred bushels of
wheat situated on the farm occupied by one Malcolm Givens, of
Kenlis.

Upon the return of the summons, which took place before
the Chief Justice, affidavits and documents were produced aad
filed by the claimants disclosing, or, perhaps, rather purporting
to disclose, the nature and particulars of their claim to the goods
in <]uestion. From these documents it appears that the defen-
dant—who was at the time the owner of the lands upon which
the grain was seized by the sheriff — on the 6th day of Decern-

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ber, 1906, by deed, demised certain lands — ^namely, the north-
west quarter of section 3 and the whole of section 10 in town-
ship 19, range 11, west of the second meridian in the Province
of Saskatchewan — ^to one Givens for the term of five years, the
lessee to yield up to the lessor, by way of rent, Qne-half of the
grain grown on the demised premises during each and every
year of the term granted, the lessor during such term to provide
certain named implements, together with one-half the seed necesr
sary to sow tbe whole of the cultivated lands, also to furnish
binder twine and to bear one-half the expense of threshing the
grain grown. It was also a term of the lease that the lessor
should provide all the granaries necessary for the storing of his
(the lessor's) share of the grain. The lessee agreed to deliver
such share at an elevator to be afterwards named.

This lease contains other numerous mutual covenants, but
these it is unnecessary to enumerate.

On the 2nd day of September, 1908, the lease was assigned
by deed by the defendant to the claimants, as trustees for one
Charles E. Emerson. This assignment recites the lease men-
tioned from the defendant to Givens and also a past due indebted-
ness of the defendant, the lessor, to the said Emerson of $1,675,
and that the defendant then being unable to pay such indebted-
ness, it had been agreed that the lease and the term thereby granted
should be assigned to the claimants, in trust for Emerson, as
collateral security for the payment of the said indebtedness. The
operative part of the assignment reads: — ''That, in consideration
of the premises and the sum of one dollar now paid by the assignees
to the assignor, the assignor doth assign and grant unto the assignees
all that certain part and parcel of land situate, lying and being
(namely, the lands already described), together with the residue
unexpired of the said term of years and the said lease and all
benefits and advantages to be derived therefrom."

It was also provided in and by this assignment that the time
for the payment of said indebtedness should be extended, which
was afterwards carried into effect by writing under seal. It is
clear that rent is a chose in action and is assignable, and this
doctrine applies to future rent as well as to past due rent: Warren,
pp. 6 and 20; Knill v. Prowse (1885), 33 W.R. 163; Ex parU
HaU, In re Whiting (1879), 10 Ch. D. 615, 48 L.J. Bk. 79, 40 L.T.

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JohnitaiMb J*

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179. There was a crop grown upon the demised premises in
the year 1908, of which the grain seized was assumed or treated
by all parties as part thereof. It seems to have been taken for
granted, on the hearing of the interpleader summons, that the
grain so seized by the sheriff was subject to seizure and sale by
the sheriff unless the claimants should be found entitled to take
the crop uilCfer their assignment thereof as security, no claim
having been made thereto other than by the present claimants.

An issue was not directed on the return of the summons, but,
at the request of counsel for the execution creditors and the
claimants, the merits of the application were heard and disposed
of and the material filed in a summary manner and judgment
delivered on January 7, 1909, barring the claim of the claimants
to the wheat seized.

■ In delivering judgment (which was in writing), after referring
to certain facts, the learned Chief Justice, for reasons stated in
his judgment, held that as to the crop growing on the lands on
September 2, the assignment of the lease was invalid, because
of the provisions of sec. 15 of the Bills of Sale Ordinance, and
as to that portion of the crop which was cut, that if the assign-
ment of the lease could be construed to mean the grain severed
from the land, that it was void under the 6th section of the same
ordinance, because the assignment was not accompanied by an
actual and continued change of possession, and that, whether
the crop was cut or not, the transaction quoad the crop in question
was invalid and void. From this judgment the claimants (upon
leave granted in that behalf) appealed to the Court en banc from
those parts of the judgment which held the assignment of the
lease to be governed by the provisions of the Bills of Sale Ordinance,
and therefore in^-^alid and void qy.oad the crop, and in this respect
to have such judgment reversed, on the grounds following: —

(1) That the learned Chief Justice erred in finding that the
said assignment of lease was made by way of security within the
meaning of sec. 15 of the Bills of Sale Ordinance.

(2) That the learned Chief Justice erred in finding that the
said assignment assumed to comprise or bind or affect growing
crop within the meaning of the said Ordinance, and in holding
the said assignment to be governed by the provisions of the Ordi-
nance. The appellants further claimed, in the notice of appeal,

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that the assignment of the lease was an assignment of a chose
in action, and on that account was not within the provisions of
the Bills of Sale Ordinance. Further, that the assignment in
question was an assignment of an interest in land, and therefore
not within the provisions of the Ordinance.

I must say I have experienced considerable difficulty in this
•case in endeavouring to arrive at a conclusion satisfactory to
me. The material in Chambers was of the most flimsy character,
so meagre, in fact, that the learned Chief Justice, in his judg-
ment, complained of its insufficiency. The affidavit referred to
as having been filed on the granting of the sunmions to shew the
nature of the goods and chattels seized — ^namely, five hundred
bushels of wheat — did Bot set forth the condition of this wheat
when seized, that is, whether it had been cut, was in stook or
in stack, or that it had been threshed and divided and delivered
over by th« tenant to the assignees; nor was it shewn where
seized or in whose possession it was at the time of seiziu^, and
evidence was not forthcoming, on the hearing of the sununons,
to remedy these defects. The conditions on the hearing of the
app>eal were even worse. The affidavit referred to, together with
the exhibit therein referred to, consisting of the claim of the
claimant to the goods, in writing, delivered to the sheriflF, under
sec. 432 of the Jud. Ord., was omitted from the appeal book. The
order allowing the appeal and the order dispensing with printed
appeal books and factums and substituting typewritten appeal
books, because of the incompleteness of such appeal books, might
just as well have dispensed with the latter, as in the end resort
had to be had to the papers on file.

To obtain an interpleader summons under our rule 431, the
sheriff is, by our practice, required to produce an affidavit com-
plying with this section, though it is not the piactice in England
under a similar rule: Yearly Practice of 1909, p. 815. On the
return of an interpleader sununons granted under the provisions
of this section, the execution creditor need not produce an affidavit,
but the claimant must do so for the purpose of shewing the nature
or particulars of his claim: DanielPs Chancery Practice, 7th ed.
1283; Encyclop»dia of the Laws of England, vol. 7, p. 376.

According to the latter work, the claimant of goods taken
under execution must, in order to succeed, shew that he him-

En Banc

1909
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self has some title to or interest in the goods seized; that where
the evidence shews that the goods belong to a third person other
than the execution creditor, the claimant fails, and Richards v.
Jenkins (1886), 18 Q.B.D. 451, 56 L.J.Q.B. 293, 36 L.T. 591, b
cited as authority for this statement. In this case it was hell
that, with regard to goods taken in execution, where the eviience
shews the claimant had not any interest in nor the possession
of the goods at the time of seizure, but they belonged to a thiri
person, the execution creditor is entitled to succeed. The nature
of the claimant's claim made to the crops seized under our rule 432
— that is, to the sheriff — does not appear, but a claim under the
assignment of the lease referred to was, on the return, of the
summons, set up and supported by affidavits and documents in
the manner before stated. This evidence, when sifted, plainly
shews, to my mind, want of interest in the claimants. The
assignee of the lease could be in no better position as to the rent
reserved than the landlord would be. No time was mentioned
in the lease as to when the rent should become due and payable.
There would, therefore, be no default in the tenant, and no dis-
tress could take place until the end of the first year of the term
—namely, 6th December, 1908: Woodfall 448. The law as to
the rights of the landlord, under the circumstances of this case,
is stated by Robinson, C.J., in Haydon v, Crawford, 3 U.C.R.
(O.S.) 583, a case on all fours with the one under discussion. The
learned Chief Justice, in his judgment there, says: "No l^al
property in any wheat raised on the farm could vest in Craw-
ford (the landlord) till the tenant had threshed and divided it,
and delivered to him his portion. If the tenant should fail to
deliver over half, the landlord would have his remedy as upon
other covenants, but the tenant might before division l^ally
alienate the whole and might maintain trespass against anyone,
even against his landlord, who should wrongfully interfere with
his possession of the field or the grain grown on it."

No doubt this was and still is good law. I think, however, at
this day the landlord or his assignee could have resort to equitable
relief should the tenant attempt to remove and convert the grain
to his own use, provided, of course, the alignment of the rait
was not one taken as security for a debt, as here.

Reverting to the subject of the material filed on behalf of

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the claimants, it was open to them to shew that the grain which
they claimed had been harvested, threshed and divided (if such
were the fact, which I very much doubt), and that that portion
thereof the subject of this interpleader issue had been set apart
on the 2nd September in the granaries provided by the lessor
for that purpose, in which event it might have been urged that
the property in the wheat had vested in the assignees notwith-
standing non-delivery at the elevator, as provided in the lease.
This delivery, I think, could have been waived, so that the property
in the grain could be made to vest in the assignees at once, j ^ In
my opinion, it cannot be presumed the grain was cut and delivered
to the assignees on the date named. This fact must be proved.
There is nothing to shew that the tenant had ever parted with
or that the claimants, and not he, were in possession immediately
before seizure. Nothing was shewn by the claimants which would
or could be held to entitle them to the grain to the exclusion of
the execution creditor (see Richards v. Jenkins). Moreover, I
think the provisions of sec. 15 of the Bills of Sale Ordinance would
apply to this assignment. This section reads: —

'* 15. No mortgage, bill of sale, lien, chaise, incumbrance, con-
veyance, transfer or assignment hereafter made, executed or
created and which is intended to operate and have effect as a
security shall, insofar as the same assumes to bind, comprise, apply
to or affect any growing crop or crop to be grown in future, in
whole or in part, be valid except the same be made, executed or
created as a security for the purchase price and interest thereon
of seed grain."

This section declares all classes of instruments which in any
manner affect growing grain, when taken as security, invalid as
such in so far as the crop is concerned. I agree, therefore, with
the learned Chief Justice that the assignment referred to was
intended to apply and affect the crop then growing, and that by
way of security for the indebtedness of the defendant to the
claimants, and was for these reasons invalid.

As to both grounds stated I think the claimants would be
properly held to be barred, and that this appeal should be dis-
missed with costs, except as to the costs of and incidental to the
preparation of the appeal book, as to which there should be no

allowance.

Appeal allowed,

19 — YOU n. 8.L.1I.

En Banc
1909

ROBIN^N

LOTT.

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[COURT EN BANC]

En Banc. Lee v. Broley.

1909 ,

Mechanics* Lien — Contract with School District — Right to File Lien Against

Apr. 16. Lands of — Construction of Statute — Enforcing Judgment Against School

District.

A school district duly organized in Saskatchewan and declared to be a cor-
poration let a contract for the erection of a school building. A sub<oon-
tractor filed a mechanics' lien against the buildins, and not being paid
brought action to enforce the lien. It was objected that the lien was not
enforceable against the lands of a school district: —

Heldf that the lands of a school district were liable to be sold under the pro-
visions of the Mechanics' Lien Act.

2. The provisions of sec. 9 of the School Assessment Ordinance providing a
means of realizing the amount of a judgment against a school district do
not exclude other remedies.

This was an appeal from a judgment of Forbes, D.C.J., at
Battleford, and was argued before the Court en banc (Wetmore,
C.J., Prendergast, Newlands, Johnstone and Lamont, JJ.).

A. M. Panton, for the appellant: The Mechanics' Lien Act is
an extraordinary redress given in favour of special classes of people
who obtain their special rights from the Legislature, and these
rights should be strictly construed. Educational institutions
are favoured by the L^islature, apd where the rights of schools and
claimants under the Mechanics' Lien Act conflict and the Act does
not clearly determine their respective rights, the most liberal con-
struction should be given in favour of the school. The relief under
the Mechanics' Lien Act is the sale of the property, but the only
relief in the enforcement of judgments against school districts is by
special assessment. (See sec. 243, Municipal Act.) The appellants
therefore submit it is impossible to grant relief under the Mechanics'
Lien Act, as it conflicts with the Municipal Act. The method of
enforcing collection in Ontario against municipalities and such
buildings as public schools is the same as in this Province, and the
decisions under the Ontario Mechanics' Lien Act have been against
the right of mechanics' lien claimants to file a lien against public
school lands: Armour on Titles, 3rd ed., 242; Robb v. Woodstock
School Board, referred to in Kmg v. Alford, 9 O.R. 643.

N. Mackenzie, K.C., for respondent: The appellant board is
expressly declared to be a body corporate, and a body corporate
is included in the definition of ** owner" in the Mechanics' Lien Act,

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and there is no provision in such Act exempting a school district En Banc
from the provisions thereof, and the Act therefore applies: Moore 1W9
V. Protestant School District 369, 5 M.L.R. 49; McArthur v! j^
Dewar, 3 M.L.R. 72; Brace v. City of Oloversville, 167 N.Y. 452, at ^^^^^^
455 et aeq.; Shagticoke Povxier Co. v. Oreenwich, 183 N.Y. Reports
306. The appellant is not entitled to succeed on grounds of
public policy: Richardson v. Mdlishj 2 Ring. 253.

April 16. The judgment of the Court was delivered by
Wetmore, C.J.: — ^The defendant Broley contracted with the de-
fendants the Board of Trustees for the North Battleford School
District for the erection of a schoolhouse in that district for a
specified price. The plaintiffs entered into a sub-contract with
Broley for installing a heating plant in such schoolhouse. The
plaintiffs did the work which they were employed to do, and duly
filed, a mechanics' lien against the building and the property on
which it was situated for the price of the work which they had
done upon these premises. The action was brought in the District
Court of the Judicial District of Battleford to enforce this lien, and
His Honour Judge Forbes, acting District Judge, gave judgment
holding that the plaintiffs had a right to file such lien against the
land and premises, and to take the steps provided by the Mechanics'
Lien Act to enforce their lien. This judgment was appealed to
this Coiut.

The only question arising upon the appeal is whether a mechan-
ics' lien can be filed and enforced against a school building and the
land upon which it is situated. There are a number of American
cases which hold that such a lien cannot be enforced; that is, that
school buildings cannot be sold under such a lien to satisfy the lien-
holder's claim. These decisions apparently go upon the ground
that it would be against public policy to allow such a lien to attach.
They put buildings of this character in the same category with
municipal buildings held for municipal purposes; that is, that they
are held by the public and for the public, and that legislation which
would operate to enable a private individual to sell such property
and divert it from the public purpose must be clear and explicit;
and not only that, there must be express language to cover the case —
it would not be covered by general words. These are the reasons,
I gather, for the decisions in the American cases.

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The matter has been dealt with to some extent, possibly, by the
Courts in Ontario. In Scott v. The TruBtees of Burgess, 19
U.C.Q.B. 28, it was held that land therein specified and conveyed
to school trustees in trust for the purposes of the school could not
be sold under execution against them. And in that case, Bums, J.,
makes some very pertinent and strong remarks which might be
held to be on accord with the American authorities. But the land
in that case was conveyed to the school trustees in trust, and really
all that was decided was that an execution creditor could not divert
a trust from the purposes for which it was given and sell trust prop-
erty to satisfy a debt.

In Peto V. The Wetland R.W, Co,, 9 Gr. 455, Esten, V.C,
at p. 458, held **that no sale of land or buildings of a railway can be
effected under process of execution." Now, that was a suit to
enforce equitable execution against the lands of a railroad, and the
reason for so holding was that a railway company, being constituted
•by Act of Parliament authorizing them to acquire lands for the
purpose of the railway, and it being quite clear that the sheriff's
vendee, if a sale took place, could not exercise the powers conferred
by the Act upon the corporation, or — in other words — conduct the
railway, it seemed to the learned Judge clear that the Legislature
conferred these powers, and especially the power to acquire lands
for the purpose of the railway, on the understanding and with the
intent that those lands should not be diverted or alienated to any
other purpose through a proceeding in inviium. That case was
followed^ in Breeze v. The Midland R.W. Co,, 26 Gr. 225, in
which Blake, V.-C., held that the plaintiff was not entitled to enforce
a mechanics' lien against the land of the railway company required
for the purpose of their railway.

The next case my attention was called to was King v. Alford^
9 O.K. 643. In that case in the first place it was recognized
that Breeze v. The Midland R.W. Co. was decided on the strength
of what was laid down in Peto v. The Wetland R.W. Co. (see pp.
645 and 646). Now, in King v. Alford it was attempted to enforce
a lien against an engine-house and turntable built for the railway
company and necessary for the proper working of the railway.
The majority of the Court held that such a lien would not attach,
and I think it is very clearly to be deduced from that case that a
majority of the Court considered that land which was required for

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the purpose of a railway could not be attached by execution or by
mechanics' lien. And running through the case seems to be the
idea that where property was exempt from seizure under execution
it would be exempt from seizure also under a mechanics' lien.
Proudfoot, J., dissented from the judgment of the Court in that
case. I can very readily understand how it could be argued with
very considerable force that the lands or buildings of a railway
company, which are being used for the piupose of carrying on and
running the railway, could not be seized under execution or under
a mechanics' lien because the company is chartered for the purpose
of using a great public utility, and if persons who had judgments
against them could take up the roadway or their buildings piecemeal
here and there they could stop the running of the road. That, to
my mind, however, does not apply to a board of school trustees or
the property they control, because if the property of a board of
school trustees is taken from them under execution the most it
can mean is that they have got to build another schoolhouse, and
they are in no worse position in that respect than any other judg-
ment debtor. There is, therefore, no Ontario case, so far as I
can find, that exactly deals with the question which I am dealing
with now', although I must say frankly that the ratio decidendi of
the three cases which I have cited is in the direction that a mechan-
ics' lien would not attach against property of the character of a
schoolhou^.

Of course this Court is not bound by the decisions of the American
Courts or by the decisions of the Court of Ontario, although we are
always prepared to treat them with the greatest respect.

Now, I cannot bring my mind to the opinion (with all due
respect to those cases) that a lien does not attach against a school
building in this country. In the first place, the board of trustees
is a corporation (see the School Ordinance, ch. 29 of 1901, sec. 85).
Subnsection 34 of sec. 6 of the Interpretation Act (ch. 4 of 1907)
provides that "words making any association or number of persons
a corporation or body politic and corporate shall vest in such cor-
poration power to sue and be sued, contract and be contracted
with by their corporate name," etc. Rule 364 of the Judicature
Ordinance provides that " any person who becomes entitled to issue
a writ of execution against goods may, at or after the time of issuing
the same, issue a writ of execution against the lands of the person

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En Banc liable in any juidicial district/' The next section goes on to provide
1909 what steps the sheriff shall take to sell such lands. Under sec. 6,
Lbb sub-sec. 11, of the Interpretation Act, ch. 4 of 1907, "the expression

Bbolby 'P^rsoii' includes any body corporate and politic." Now, in the
absence of evidence to the contrary, it seems to me that there is a
clear expression of intention by the Legislature that the lands be-
longing to school trustees may be sold under execution. The
words of the legislation are general, and there is no exception of
lands of a corporation of the character I am dealing with. Now,
sec. 4 of the Mechanics' Lien Act (ch. 21 of 1907) provides that
" unless he signs an express agreement to the contrary . . . any
person who performs any work or service upon or in respect of, or
places or furnishes any materials to be used in the making, con-
structing, erecting, fitting, altering, improving, or repairing of any
erection, building, land ... for any owner, contractor, or
sub-contractor, shall by virtue thereof have a lien for the price of
such work, service, or materials upon the erection, building . . .
and the lands occupied thereby or enjoyed therewith or upon or in
respect of which the said service is performed . . . limited,
ho\\'ever, in amount to the sum justly due to the person entitled
to the lien . . .'/ Then the Act goes on to provide, ty sec. 7,
that ** the lien shall attach upon the estate or interest of the owner,
as defined by this Act, in the erection, building . . . and the
lands occupied thereby or enjoyed therewith." Then the Act goes
on, in sec. 17, to provide for filing the lien in the land titles office
of the land registration district in which the land is situated. Then
subsequently provisions are made for enforcing the lien. Now,
it will be observed by sec. 4 that the lien is created in respect of
work done and material furnished for any otimer, contractor, or sub-
contractor, and that it is to attach on the erection or building with
respect to which the work is performed or the materials have been
furnished. And, it will be observed, by sec. 7 the lien shall attach
upon the estate or interest of the ovmer as defined by the Act.
Now we turn over to sub-sec. 3 of sec. 2, and there it provides that
''owner" shall extend to or include any ''person, firm, association,
body corporate or politic, having any interest or estate in the lands
upon or in respect of which the work or service is done or the
materials are placed or furnished, at whose request and upon whose
cralit, or on whose behalf or with whose privity or consent, or for

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whose direct benefit any such work or service is performed or
materials are placed or furnished." "Owner" therefore includes
a corporation, and therefore includes a school district. I might
also call attention to sub-sec. 4 of the same section, whereby it is
provided that "person" "shall extend to or include a body politic
or corporate." It is not necessary, however, to refer to that defini-
tion, because it is covered by the paragraph of the General Inter-
pretation Act which I have before quoted.

It seems, therefore, very clear that, in the first place, a school
corporation is liable to be sued and is liable, therefore, to have
judgment against them, and is also liable to have execution realized
with respect to its lands if it has not sufficient personal property
to satisfy such execution. It is equally clear, I think, that a mechan-
ics' lien is in the same position; that is, the school trustees are a
corporation and come within the definition given to the word
"owner" in the Mechanics' Lien Act. A lien, therefore, would
attach against their lands, and the lienholder would have the same
remedy for the purpose of enforcing his lien as he would against
any other owner. Now, it seems to me that, that being so, to lay
down the rule that real property of a school district is exempt from
either execution or attachment under a mechanics' lien would
be disregarding the clear words of the Ordinance and Acts herein-
before referred to and the rules of Court (and these rules of Court
have statutory authority). In fact, in my opinion to do so would
be to legislate.

In Brophy v. 7'he Attorney-General of Manitoba (1895), A.C. 202,
64 L.J.P.C. 70, 72 L.J. 163, the Lord Chancellor, delivering the
judgment of the Judicial Committee of the Privy Council, laid
down the following, at p. 215: "But the question which had to be
determined was the true construction of the language used. The
function of a tribunal is limited to construing the words employed;
it is not justified in forcing into them a meaning which they cannot
reasonably bear. Its duty is to interpret, not to enact. It is true
that the construction put by this board upon the first sub-section
reduced within very narrow limits the protection afforded by that
sub-section in respect of denominational schools. It may be that
those who were acting on behalf of the Roman Catholic community
in Manitoba, and those who either framed or assented to the wording
of that enactment, were under the impression that its scope was

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1909

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Wetmore, C.J.

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wider, and that it afforded protection greater than their Lordships
held to be the case. But such considerations cannot properly
influence the judgment. of those who have judicially to interpret a
statute. The question is, not what may be supposed to have been
intended, but what has been said."

If the Legislating desired to exempt property of a school board
from seizure under execution or from attachment under a lien it
would have been very easy for them to have said so; and they, not
having made the exception, it is not within the province of this
. Court, in my judgment, to do so. I wish it distinctly understood,
however, that I refrain from expressing any opinion with respect
to levying an execution upon railroad property constituted as such
property was in Alford v. King and Peto v. The Wetland R.W. Co.

It has been urged, however, that the Legislature have provided
a special method of levying executions when issued against a school
district. This was done by virtue of sec. 9 of the School Assessment
Ordinance (ch. 30 of 1901). Now, that section provides as follows:

"Any writ of execution against the board of any district may
be indorsed with a direction to the sheriff to levy the amount thereof
by rate, and the proceedings thereon shall be the following:"

The section then goes on to provide practically for the sheriff
making an assessment and striking a rate on the ratepayers of the
district, and having done so, to issue a precept to the treasurer of
the district to cause such rate to be levied. It was contended that
this method of realizing the money under an execution was in
substitution for the ordinary method of realizing it by seizure and
sale of the property. If that contention were correct, possibly it
might affect the conclusion which I have reached, but I am of
opinion that it is not correct. In the first place, the word used
there is "may" — that "the writ may be indorsed with a direction
to the sheriff," etc. Now, that is permissive (see Interpretation
Act, sec. 6, sub-sec. 12). There are cases where the word "may''
must be used as imperative: it may depend upon the context, or
it may depend upon the intention of the Act. And the only question
which arises here is, what was the intention of that section? Was
the intention to make a method of .levying execution on a school
district which would protect the school property and make the
buildings and other property of the district exempt from seizure
and sale, or was it enacted for the benefit of the execution creditor?

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If for the purpose first mentioned, it might be ai^gued that it was
intended in substitution of the general and ordinary method of
levying an execution; if for the benefit of creditors, it simply
provided an alternative method of realizing under execution for
the benefit of the creditor. Now, I can see no reason why this
Court should come to the conclusion that the method of raising the
money was in substitution of the general and ordinary mode.
The language is, ajs I have stated, permissive. I can see just ajs
many reasons why it should be for the benefit of the creditor as I
can see that it should be in substitution and so for the benefit of
the property of the district. In this country most of the school-
houses are small, and not very useful for any other purpose. Nothing
very much could be realized by their sale, and there is, as a rule,
very little other property. In very many instances lai^e sums have
been borrowed on the credit of the district and debentures issued.
I think the balance is in favour of the idea — especially in view of
the language that is used — that the provision is intended for the
benefit of the execution creditor. Moreover, to hold otherwise
would deprive him of his only right, in so far as personal property
is concerned, and that is to issue his execution upon the judgment,
according to the practice of the Court, i.e., by fieri facias execution,
a right which has prevailed for centuries. I think the view I have
taken of this case is supported by the judgment of Killam, J., in
McArthur v. Dewar, 3 Man. L.R. 72, who, according to my
ideas, has worked out his judgment on somewhat similar lines that
I have this one; and further supported by the judgment of Dubuc,
J., in Moore v. Bradley, 5 Man. L.R. 49.

I am therefore of opinion that the judgment of the learned trial
Judge should be affirmed, and this appeal dismissed, with costs.

Appeal dismissed with costs.

EnBaito
1909

Lbb

Brolby.

Wetmore, C.J.

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[COURT EN BANC]

En Banc. Velie V. Hembtrebt.

1909

Bills of Exchange — Action Upon — Bill Drawn to Order of Bank — Not Indorsed —

July 9. Action by Draxoer Upon — Holder of BUI — Pleading.

Plaintiff, the drawer of a bill of exchange accepted by the defendant. brou|rht
action thereon. The bill was drawn payable to the order of the Dominion
Bank, and was not indorsed by the bank, but in the statement of claim
it was alleged that upon dishonour the bill was returned by the bank to the
drawer, who was then the holder thereof. The defendant appeared and
filed a defence which was struck out on a motion for speedy jucfj^ent. On
such motion the defendant filed no affidavit, but relied on the objection that
the bill had not been indorsed to the plaintiff, who could not, therefore,
maintain the action: —

Held (per WET\roRE, C.J., and Johnstone, J.), that as the defendant had, in
answer to the motion, raised a difficult Question of law which might be an
answer to the plaintiff's claim, he should be permitted to defend.

Per Newlands and Prendergast, JJ., that it was not necessary for the
plaintiff in pleading to allege any facts which would be presumed in his
favour, and it was therefore unnecessary to allege that the Dominion Bank
were the holders for value, and it might be presumed that when they re-
turned the bill to the plaintiff they were paid bv him, and it was therefore
unnecessary to allege payment in order to entitle the drawer to recover.

2. That it was not necessary for the Dominion Bank to indorse the bill to the
drawer, as when the bank was paid the bill ceased to be nej^otiable, and the
only right of action which exists is the right of action agamst the acceptor
by the drawer, which he acquires not through the payee but by virtue of
his original position as drawer.

This was an appeal by the defendant from an order of Lament,
J., in Chambers, striking out the defendant's appearance and
defence and giving leave to enter judgment, and was argued before
the Court en banc (Wetmore, C.J., Prendergast, Newlands, and
Johnstone, JJ.) at Regina.

./. A. Allan, for the appellant: The bill being payable to the
Dominion Bank, payment can only be made to the bank or its
indorsee. Payment under the Bills of Exchange Act means pay-
ment to the holder, that is, the payee or indorsee of the bill who is
in possession thereof. The plaintiff is not the payee or indorsee,
and cannot without indorsement of it maintain this action: Harrop
V. Fisher, 30 L.J.C.P. 283; Rose v. Sims, 1 B. & Aid. 52;
Chalmers' Bills of Exchange, 1903 ed., 126. Section 140 of the
Mis of Exchange Act merely entitles the drawer, on payment
of the bill to the payee, to demand its indorsement. In any event
there is no allegation in the statement of claim that the plaintiff
has paid the bank. There is, in any event, a material question oC

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law to be determined^ and that being so the defendant was entitled
to leave to defend.

T. S. McMorran, for the respondent: Indorsement is not
necessary: sec. 140, Bills of Exchange Act; and no allegation of
payment is required: Bullen & Ijeake, 6th ed., 112; Cunningham &
Mattinson's Precedents of Pleading, 168; and therefore proof of
either indorsement or payment is unnecessary. He referred to
Callow V. Lawrence, 3 M. & S. 95; Black v. Strickland, 3 O.K. 217.
There is no fairly arguable point to be determined : Anglo-Italian
Bank v. Davis, 38 L.T. 201.

En. Banc.
1909

Velik

Hemotrebt.

July 9. Wetmore, C.J.: — This action was brought upon three
several bills of exchange, drawn by the plaintiff upon the defendant,
payable at sight, to the order of the Dominion Bank, and accepted
by the defendant. TRe statement of claim sets forth that these
bills were dishonoured, and that the bank thereupon returned
them to the plaintiff, who is the holder of them. The defendant
appeared and pleaded, denying acceptance, and alleging that the
bills were not presented for payment, and that they had not been
indorsed by the Dominion Bank to the plaintiff. Application was
made, and came before my brother Lamont for hearing, for summary
judgment under rule 103 of the Judicature Ordinance, and the
learned Judge granted the application, and the defendant appeals.
No affidavit was produced on behalf of the defendant. He relied
entirely upon the fact, as he claimed, that the statement of claim
did not disclose a good cause of action against him. He set up: —

1. That his agreement, by his acceptance, was to pay the
amount of the bills to the order of the Dominion Hank, and that
the bank, not having indorsed the bills, he was not liable.

2. That sec. 140 of the Bills of Exchange Act, Rev. Stat. ch. 1 19,
did not alter or affect the question. That in order to entitle the
drawer of a bill to recover the Dominion Bank must indoi-se it, and
the drawer become the holder thereof according to the ciefinition
of that term as given in the second section of the Act.

And third, if that is not correct, that the drawer, under the
section of the Act referred to, could only take advantage of it when
he pays the bill, which was not alleged to have been done in this
case.

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298 SASKATCHEWAN LAW REPORTS. [vol.

En Banc. I can find no cases in the books where it has been held that the

1909 drawer of a bill of exchange could bring an action upon it as such,
Velie without its being indorsed by the payee. In Bullen 4 Leake, 6th
ed., p. 112, a form of statement of claim is given in a case such as
that which I am now discussing, and that form is exactly the same
as the statement of claim in this action, only the statement of claim
in this action alleges the plaintiff to be, by reason of the retiun of
the bills, the holder thereof. I look upon the last mentioned
allegation as immaterial, because I think it can be treated as sur-
plusage. I may draw special attention to the fact that the form in
Bullen & Leake does not allege payment; it simply alleges the return
marked "dishonoured," as is done in this case. Still, the question
remains, what authority is there for such an action? I say I have
been unable to discover it.

In Harrop v. Fisher (1861), 10 C.B.N.'S. 196, at p. 203 (30
L.J.C.P. 283), Byles, J., lays down the following, quoting from
Storey on Bills: ''If the bill is originally payable to a person or his
order, there it is properly transferable by indorsement. We say
properly transferable, because in no other way will the transfer
convey the legal title to the holder, so that he can, at law, hold
the other parties liable to him in ex diredo, whatever may be his
remedy in equity."

It has been very well settled that a provision like rule 103 is
not to be used to strike out a defence, unless it is very clear that the
defendant has no substantial defence to present to the Court.

In dealing with similar cases arising imder a similar section of
the English rules, Jessel, M.R., states, in the case of Anglo-Italian
Bank against Wells (1869), 38 L.T.R. 197, at p. 200, as follows:
"When the Judge is satisfied not only that there is no defence, but
no fairly arguable point to be ai^gued on behalf of the defendant, it
is his duty to give effect to this section, and to give judgment for
the plaintiff."

In Feu against Williams, 3 C.L.T., p. 358, dealing with a
similar rule, the Court held that on a motion for judgment the
plaintiff's case must appear as a demonstration, and nothing is
to be supplied by the imagination or rest upon probability Alone.
Therefore, where the defendant set up a matter which might possibly
afford a defence against the plaintiff, the Court refused to criticize

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or enter into the probabilities of the drfence, and refused a'^motion
for judgment." So, in the Ontario Bank v. Burke] 10 P.R. 561,
at p. 564, a question of law arose, and Rose, J., laid down: ''It
is not necessary for me now to express an opinion on the subject; it
is sufficient to say that the question is one open to argument.
I am not at liberty to decide upon this motion."

And, in Electric and Genial Contract Corporation v. Thomson
Houston Electric Co,, 10 T.R., p. 103, Mr. Justice Wills states as
follows: " He did not think that order 14 providing for simimary
judgment applied to cases like this, raising what might turn out to
be a difficult question of law. It was never intended to throw on
the Judge at Chambers such a burden. It was impossible that such
questions could be satisfactorily dealt with at Chambers. This very
case had been so argued as to occupy about two hours, and yet no
time was wasted. Such questions were not meant to be dealt with
summarily at Chambers."

In this last case the question of law appears to have been possibly
a difficult one. In my opinion that does not affect the question,
however. If it is an arguable question it is sufficient. I am of the
opinion that the question raised by the defendant here is arguable,
and that the application was not one that was intended to be
controlled by rule 103.

I am therefore of the opinion that the appeal should be allowed
with costs, and that the order of the learned trial Judge appealed
from be set aside.

En Banc.
1909

Vblib

Hbmstreet.

Wetxaore, C.J.

Johnstone, J., concurred.

Newlands, J.: — ^This is an action by the drawer of a bill of
exchange against the acceptor. The statement of claim set out
that the bill of exchange was payable to the Dominion Bank or
order and was presented for payment at maturity and was dis-
honoured at maturity and returned by them to the drawer. The
defendant appeared to the writ, and afterwards ffied a statement
of defence, and on the 14th January, 1909, the plaintiff took out a
summons under rule 103 to strike out the appearance and to
enter final judgment for the amount of his claim with costs. On
the return of this summons the defendant ffied no affidavit that he
had a defence on the merits, but took the ground that the bill of

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300 SASKATCHEWAN LAW REPORTS. [vol.

En Banc exchange sued on had not been indorsed by the Dominion Bank to

1909 the plaintiff, and as there was no evidence of payment of the bill of

Velib exchange by the plaintiff to the payee, the Dominion Bank, he did

HBMOTRB»r ^^^ come under sec. 140 of the Bill of Exchange Act, and could not

recover against the defendant in this action.

Under the Rules of Court it is unnecessary to allege any
facts that would be presumed in your favour; therefore it
was unnecessary to all^e that the Dominion Bank, which
was the holder of the bill of exchange at maturity, was a
holder in due course, and as it would therefore be presumed
that it gave value for the bill of exchange, it is, I think,
equally to be presimied that when it returned the same to the
plaintiff, the drawer of the bill of exchange, that it was paid
by him. This presumption would arise on the same principle
that a presumption of payment by the acceptor of a bill of exchange
or the maker of a promissory note arises from the possession of the
bill or note by the acceptor or maker, as the case may be, after
maturity, the drawer of a bill being liable to the payee and endorsee
in the event of the acceptor not paying the same at maturity;
hiB possession of the bill after maturity would be primd facie evidence
that he had dischaiiged that liability by pa3rment. This fact being
presumed, it would be unnecessary to all^e it to enable plaintiff to
recover from the acceptor imder sec. 140 of the Bills of Exchange
Act.

The statement of claim in this case follows the form given in
Bullen & Leake, 6th ed., p. 112, with the exception that plaintiff
has added to that form the words, "who is the holder thereof,"
words that were unnecessary, and which can therefore be treated
as surplusage.

As to defendant's contention that the Dominion Bank should
have indorsed this bill to plaintiff, I need only point out that under
the Bills of Exchange Act a bill payable to a third party, as this
was, ceases to be negotiable upon its payment by the drawer to
the holder after maturity, and the only right which exists is the
right of action which the drawer has against the acceptor. This
right he acquires not through the payee but from his original position
as drawer, i.e., the bill is not negotiated to him but is paid by him
as a party liable, leaving him with only his right of action over
against the acceptor.

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The defendant has no defence on the merits, nor has he, in my En Banc.
opinion, raised any question of law which would entitle him to 1^09
defend. Vblib

Prendergast, J., concurred.

V.
HBM0TREET.

The Court being evenly divided^ the appeal
was dismissed imth costs.

[IN CHAMBERS.]

Mathew V. McLean.

Mortgage — Foreclosure — Amending Order Nisi — Payment of Taxes made
after Order — Increasing Amount to he Paid to Redeem — Costs.

Plaintiff obtained an order nisi for foreclosure. After the order had been
made he, under the terms of the mortgage, paid a further sum for taxes.
There was, however, no evidence that such payment was necessary to
protect the security. He now applied for an order increasing the
amount to be paid upon redemption, and fixing a new date for redemp-
tion. The mortgagor had been served but did not appear: —

Heldf that as the mortgagor had not appeared and would in any event be
required to pay the taxes and as reasonableness and convenience should
be the basis of practice an order should be made for a new account and
a new date for redemption.

2. That as it had not been shewn that the payment of taxes was necessary
to protect the security and as the mortgagee could have insisted upon
payment before redemption, the costs of the application should be borne
by the mortgagee.

This was an application by a mortgagee to add an amount
paid for taxes after order nisi made to the amount required to
redeem and to fix a new period of redemption and was heard
by Lamont, J., in Chambers.

P. H. Oordon, for the plaintiff.
No one contra.

1908
Sept 28

September 28. Lamont, J. : — ^This is an application on jwirt
of the plaintiff for an order varying the order nisi herein by
adding thereto the sum of $100.22 the amount the plaintiff has

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[vol.

Lamont, J.
1908

Mathbw

17.

McLean.

paid for taxes levied against the lands sought to be foreclosed in
this action since the order nisi was made. The mortgage con-
tained a clause to the effect that the mortgagee might pay all
taxes and assessments levied against the land. The plaintiff
paid taxes, as alleged, to the amount of $100.22 and then took
out a chamber summons to have the amount added to the order
nisi.

No authority could be produced to me for adding to the
sum fixed by order nisi as due from mortgagor to mortgagee, an
additional claim which arose after the order nisi was made. A
number of decisions were cited in which there was a direction
given for a new account to be taken and a new day fixed for
payment, but these, were all cases in which after the order nisi
had been made, the mortgagee received certain sums which
lessened the amount due, and it was held that he was not en-
titled to a final order foreclosure until a new day had been
fixed for payment and non-payment by that day. I very much
doubt if the mortgagee is entitled to have this additional sum
added to his claim, but as convenience and reasonableness should
be the basis of our practice, and as the mortgagor has been served
with a copy of the summons on which this application is based,
and as he would in any event have to pay the taxes if he re-
deemed, I do not see that he can be prejudiced by my directing
a new day to be fixed for payment and a new account taken.
I therefore refer the matter to the local registrar to take the
accounts anew, with leave to the plaintiffs to file a further aflS-
davit shewing the amount of taxes paid in respect of this land
as the receipts filed do not correspond with the affidavit of
P. H. Gordon, and a new day, fixed as the time within which
the defendant may redeem.

As to costs. The mortgagee must bear the costs of the
application and order. The only case which occurs to me in
which the mortgagee should be called upon to pay costs of an
application of this kind is where the mortgagor is compelled
to make the subsequent payment to protect his security. Here
there is no evidence that the payment of the taxes was neces-
sary to protect the security. Besides the plaintiff has an order
nisi for foreclosure. If the defendant does not redeem plain-

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tiffs will get the land and the application will have been unneces-
sary. If the defendant pays in the money now fixed by the
order nisi, plaintiffs would still be entitled to hold the property
under their mortgage security until all payments (including
taxes) secured thereby were paid. I am, therefore, clearly of
opinion that except where the evidence shews that the subse-
quent payment was necessary to protect the mortgagee *s security
the mortgagor cannot be called upon to pay the costs occasioned
by the mortgagee's action in making payments subsequent to
the order nisi.

Lament, J.

1908
Mathbw

McLean.

[TRIAL.]

McCuLLOUGH V. Defehr & Dyck.

Foreign Judgment — Defendant not in Jurisdiction of Court — Effect of —
Bale of Goods — False Representations — Grounds of Belief in Truth of
— Right of Buyer to Rescind.

1909
Sept. 21.

Defendants ordered certain butter making machines from plaintifif on the
representation that with these machines butter could be made from milk
fresh from the cow. On receiving the machines they found that they
would not make butter as represented and immediately returned them.
The representation in question was made by the plaintiff's agent who
did not give evidence, but it did not appear that he had any ground
for believing the representations to be true. In fact the plaintiffs
own literature shewed the representations to be untrue. The plaintiff
recovered judgment in the Supreme Court of Alberta for the price of the
goods, the defendants not being resident in Alberta and not appearing
and now sued upon the foreign judgment or alternatively for goods sold
and delivered: —

Eeldy that the representation being untrue and the agent having no ground
for believing it to be true the Court could infer that it was fraudulently
made and the defendants were therefore entitled to rescind the contract
and return the goods.

2. (Following Gurdyal Singh v. Rajah of Faridkote (1894), A.C. 670),
the defendants not being residents of or domiciled in Alberta and not
having appeared in the action there the plaintiff could not now recover
upon the foreign judgment recovered by default.

This was an action upon a foreign judgment or alternatively
for goods sold and delivered, tried before Lamont, J., at Moose
Jaw.

O. E. Taylor, for the plaintifif.
H. 8. Lemon, for the defendants.

20 — ^VOL. II. S.L.B.

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umont. J. September 21. Lamont, J. : — The plaintiff, who resides and

1909 carries on business at Calgary, claims against the defendants,

McCotIough ^^^ reside at Herbert, Sask., on a judgment issued out of the

V, Supreme Court of Alberta, and in the alternative for the price

A Dyck. ^^ goods sold and delivered.

On ]May 5th, 1908, the defendants gave to the plaintiff's agent,
Runnions, the following orders: —

''Herbert, May 5th, 1908.
** Messrs. Defehr and J. J. Dyck,

''Bought of Calgary Butter Separator Co.
"Ship freight f.o.b. Calgary •
' ' Terms : i/4 cash 30 days, balance 6 months.

"20 machines, 7 gals. $24.00 $480.00

"J. J. Dyck.
"P. J. Defehr."

On receiving the order from the agent the plaintiff shipped
to the defendants eighteen butter separating machines. When
these machines were examined and tested by the defendants they
were sent back to the plaintiff at Calgary, the defendants claim-
ing that they were not as represented by the plaintiff's agent,
and they refused to pay for them.

The plaintiff, on being notified that the machines had been
returned to him, refused to take them back, and sued the de-
fendants in the Supreme Court of Alberta for the price, and
obtained judgment against them, and he now brings action in
this Court on the said judgment and in the alternative for the
price of the machines.

As the defendants were not, either before or in the course
of the action in which judgment was obtained, residents of or
domiciled in the Province of Alberta, and as they did not appear
to the said action and did not in any way subject themselves to
the jurisdiction of the Alberta Court, the present action, in so
far as it is founded on the judgment of the Supreme Court of
Alberta, must fail: Sirdar Ourdyal Singh v. Rajah of Farid-
kote (1894), A.C. 670.

As to the alternative claim for the price, the defendants
admit that they signed the order for twenty machines, but claim
that they were induced to do so by the false representations of

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the plaintiff's agent, and that upon certain machines being sent Lament, j.
to them by the defendant they tested the machines and, find- 1909
ing that they were not as represented, refused to accept them. McCdlix)ugh

I find on the evidence that the plaintiff's agent, at the time ^•

he took the order for the machines, represented to the defen- k Dyck.
dants that the machines would make butter from fresh milk
within fifteen minutes from the time it was taken from the cow,
that the defendants relied upon the said representation, and
that the said representation was untrue.

The representation being untrue, were the defendants en-
titled to rescind the contract and return the machines, or must
they retain the machines and rely upon their claim for damages
for breach of warranty. The law is well settled that if a false
representation be made with a knowledge of its falsity or with a
reckless disregard as to whether it is true or false, with the
intention that it should be acted upon by the injured party, and
he is induced by the representation to enter into the contract, it
constitutes a fraud and the party* deceived may rescind the
contract.

The evidence satisfies me that not only was the representa-
tion made by the plaintiff's agent untrue, but that it was made
without any honest belief in its truth. The agent wa*s not
called to give evidence, but the plaintiff admitted that the
machines were not intended to make butter from milk freshly
taken from the cow, but from sweet milk at least twelve hours
old; and the literature with which the agent was supplied con-
tains a statement that the machines would not operate success-
fully on milk direct from the cow, until the animal heat had
been removed therefrom. The agent, therefore, had no ground
for believing the truth of his statement, and that fact alone
is evidence which if unexplained entitles the Court to infer
that the representation was fraudulently made : Berry v. Peeke
(1889), 14 A.C. 359; 58 L.J. Ch. 864; 61 L.I. 265. Fraud, how-
ever, was not pleaded in the defence, but simply that the defen-
dants were induced by the false representations of the agent to
enter into the contract and that upon discovering that the re-
presentations were untrue they repudiated the contract and
returned the machines. Apart altogether from the fraud, in my

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Lftxnont, J. opinioD, they were within their rights in doing so. In Derry v.

1909 Peeke, above referred to, Lord Herschell said:—

McCuLLouGH ** Where rescission is claimed it is only necessary to prove

^' that there was misrepresentation. Then, however honestly it

A Dyck. may have been made, however free from blame the person who

made it, the contract, having been obtained by misrepresentation,

cannot stand.''

And the act of the defendants in returning the goods to the
plaintiff with notice to him is a suflScient repudiation of the
contract on their part to put an end to it. (See judgment of
Lord Hatherly in Reese River Silver Mining Company v. Smith
(1869), L.R. 4 H. of L., p. 74).

In **Kerr on Frauds," at page 100, the learned author sums
up the law as follows : —

**From all these cases the principle is obviously deducible
that a misrepresentation, however honestly made, is a ground
for rescission of contract, provided the misrepresentation is
material, or, in other words, so diflferent in substance from what
it was represented to be as to amount to a failure of consideration
or fundamental error."

In the present case the order was for twenty machines.
Parol evidence is admissible to shew what machines were meant.
That evidence shews that what the defendants were ordering were
machines to make butter from milk fresh from the cow. What
they received were machines which not only would not do that,
but which were never intended to do it. Therefore, even with-
out imputing any fraud to the plaintiflP's agent, there was in my
opinion such a difference in substance between what the defen-
dants ordered and what they received as to justify them in
refusing to accept. There will therefore be judgment on the
claim for the defendants, with costs.

The defendants counterclaimed for damages for breach of
warranty and for freight paid. Having refused to accept the
' goods sent to them, they are not entitled to damages for breach
of warranty, but they are entitled to a return of the freight
paid on the machines from Calgary to Herbert. They are not
entitled to the freight paid in returning the machines as there
was no obligation upon them to send them back. All they were

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307

required to do was to notify the plaiDtifb of their refusal tD

accept, and that the machines were at Herbert at the plaintiff's 1909

risk. The freight paid from Calgary to Herbert was $13.00. jj^^T^

There will be judgment on the counterclaim for the defendants r.

for $13.00, and costs. & Dtck.

[TRIAL.]

Baker v. Tedpord and Hossie.

False Imprisonment — Pleading — Xof Guilty by Statute — Amendment by
Pleading — Claiming Benefit of Status without Pleading — Action
Against Justice of the Peace — yotice of — Sufficiency — Pleading Insuffi-
ciency— Probable Cause as a Defence — Malice.

In an action against justices of the peace for false imprisonment the defen-
dant at the trial applied to amend by pleading not guilty by statute: —

Held (following Oesman v. City of Regina, 1 Sask. L.R. 39), that such an
amendment should not be allowed at this stage.

The defendants then claimed to have the right to avail themselves of the
statutes in question without pleading same; particularly as to no notice
of action being given, the notice which had been given being, it was
claimed, defective: —

Held, that this could not be allowed and in any event the defendants not
having pleaded that the notice was defective could not attack the same.

In an action for false imprisonment against two justices of the peace it
appeared that a dispute was pending as to the ownership of a certain
building, to the knowledge of the defendant Tedford. The plaintiff hav-
ing attempted to remove this building the other claimant laid an informa-
tion before the defendant Tedford cliarging the plaintiff with entering
on the premises of the claimant and attempting to remove a house. It
also appeared that before acting on the information Tedford was notified
by the plaintiff that he owned the house in question and there were other
circumstances to his knowledge from which he might reasonably believe
the plaintiff^s claim to be well founded. He was also advised by a police
officer that the dispute was not within his jurisdiction; but notwith-
standing he issued a warrant for the arrest of the plaintiff who was
brought before the two defendants in custody and after various irregular
proceedings was committed to gaol to stand his trial, being released by
the agent of the Attorney-General as soon as possible but not until he had
been subjected to all the indignities attendant on arrest and imprison-
ment. There was no eviaence that the defendant Hossie was aware of
the circumstances set out. in an action for false imprisonment: —

BeJd, that in an. action for malicious prosecution the existence or non-"
existence of probable cause must be determined by the Court although the
facts from which the Judg^e is to draw the iniferences are matters for
the jury, except where the f^ts are not in dispute when the Judge drcidi's
such matters himself. f'

2. That upon the facts set out and undisputed there was no evidoiuv of
reasonable and prooable cause justifying the action of the defendant
Tedford to go to the jury.

1909

Sept. 21.

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[vol.

1909

Baker

Tedford

AND

HossiE.

This was an action for false imprisonment tried before
Prendergast, J., at Moose Jaw.

G. E. Taylor, for the plaintiff.

C. E. Armstrong, for the defendant.

September 21. Prendergast, J. : — This is an action for false
imprisonment wherein the plaintiff claims from the defendants,
who are justices of the peace, the sum of $5,000.00.

The action was tried with a jury.

At the trial the defendants applied to amend their state-
ment of defence by adding thereto the plea of **not guilty"
by statutes 6 Edw. VII. ch. 146 (the Criminal Code) sees. 653-5,
and 1143-8, and 11-12 Vict. ch. 44 (Imp.) being an Act pro-
tecting justices of the peace from vexatious actions. 'I refused
to allow the amendment on the same grounds that my brother
Newlands refused a similar application in Gesman v. City of
Regina (1907), 7 W.L.R. 308; 1 Sask. L.R. 39.

The defendants also claimed at the trial that they could avail
themselves of the said statutes without pleading them specially;
but this would clearly be contrary to rule 113 of the Judicature
Ordinance the object of which is to prevent a defendant from
pleading at the same time not guilty by statute and other de-
fences without special leave.

I may say, moreover, if one month's notice of action was
required as provided by the said statutes, that the evidence is to
the effect that such notice was given. It is true that it does not
comply with the rule laid down in Taylor v. Fentvick, 7 Term. R.
635, and Madden v. Shewer, 2 U.C, C.B. 115; but this defect
should have been specially pleaded by the defendants who, in-
stead, merely sot up in thein defence that **they have not upon
action been notified of the plaintiff's claim."

This action is then the common law action for false imprison-
ment.

In an a(*tion of this kind, the defendant must either prove
that the imprisonment was not his act, or was justified : 5 Ency .
of Laws of Eng. 312. The onus lies upon the defendant to plead
and prove afSrmatively the existence of reasonable cause as his
justification: HicLs v. Faulkner (1881), L.R. 8 Q.B.D. 167; 51

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L.J.Q.B. 268. In an action for false imprisonment, malice is
not, as in an action for malicious prosecution, primarily jm
ingredient; it is, however, matter for the jury to consider, as
it has a bearing on the assessment of damages : Tarlton v. Fisher
(1781), 2 Douglas 674.

In an action for malicious prosecution, the existence or non-
existence of probable cause must be determined by the Court,
although the facts from which the Judge is to draw the infer-
ence are matters for the jury: Lister v. Ferryman (1870), L.R.
4 H.L. 521 : 39 L.J. Ex. 177 ; 23 L.T. 269 ; Abrath v. North East-
em Railway Company (1883), 52 L.J.Q.B. 620; 11 Q.B.D. 440;
Wainwright v. Villelard, 6 Terr. L.R. 189. If, however, the facts
on which the question of reasonable and probable cause depends
are not in dispute there is nothing for the Judge to ask the jury,
and he should decide the matter himself: Brown v. Hawkes
(1891), 2 Q.B. 718; 61 L.J.Q.B. 151; 65 L.T. 108; Archibald
V. McLaren (1892), 21 S.C.R. 588, at p. 593.

The above is with reference to actions for malicious prosecu-
tions ; but it seems that the question of reasonable and probable
cause should be similarly dealt with in an action for false im-
prisonment: 5 Ency. Laws of Eng. 314.

On the above authorities, I submitted to the jury 's considera-
tion the assessment of the damages and the subsidiary question
of malice, upon which they found that defendant Tedford had
acted with malice and defendant Hossie without malice, and
assessed the damages at $600.00.

AVith respect to the facts from which it devolved upon me to
infer the existence or non-existence of reasonable and probable
caa«je, I did not submit the same to the jury, as I considered
that they were not disputed, — in fact, they mostly rested on the
defendants' own admissions, and documentary evidence which
was not impugned.

The defendants have lived at Mortlach for a number of years.

The plaintiflf, who was first an architect and surveyor in
England, had been living at or near Mortlach for nearly three
years at the time of the arrest, and was then manager of a gen-
eral store known as ** Hudson's Limited'' in that village. He
had a wife and family of several children living with him. He

Pr«nderRUt. J.
1909

Baker

Tedford

AND

HossiE.

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Prendergast, J.

1909

Baker

Tedfoud

AND
IIOBSIE.

also had a homestead some short distance from Mortlach. As to
reputation, the evidence of the defendants themselves is that
there is nothing against him and that he is known as a respect-
able and well-behaved man.

Sometime in 1905, the plaintiff built a small house on one
Macdonald's lot in Mortlach, and lived in it up to April, 1906.
The house was next occupied by one Breese as plaintiff's tenant
and moved while in his occupancy to the land of one Damon
in the same village, and said Breese continued to occupy it till
November, 1906. The plaintiff again occupied it with his family
on this last date, and continued to do so till the first days in
December, 1907. The house was then vacant a few days, and on
December 17th Breese went again in possession with his family,
and was still occupying the same on January 2l8t, 1908, when
the plaintiff, with the aid of a contractor, raised the house and
placed skids underneath to remove it from Damon's land.

I should also here state that while in occupation of the
premises on the first occasion, Breese had put up a small addi-
tion to the house with lumber bought from defendant Tedford;
and also that it was a matter of public notoriety that a dispute
with respect to this house had long been standing between
plaintiff and Breese. I may add that Breese appears to have
been a man of no substance, and that he was in defendant Ted-
ford's employ at different times during the spring and summer
of 1907.

A good deal more than this was shewn at the trial on behalf
of the plaintiff; but in making the above statement of facts I
have been careful to limit the same to such facts as were shewn
by undisputed evidence, to have been within the knowledge, if
not of both defendants, at least of defendant Tedford. I will
only add in this respect, that the fact that Breese had attended
to the moving of the house to Damon's lot could not be (and as
I find, was not) considered by Tedford an act of ownership, for
he knew that Breese first occupied the house as plaintiff's tenant,
and that the plaintiff re-occupied it thereafter, so that this
circumstance of the removal of the building could not signify
anything in itself. And, of course, defendant Tedford knew,
as everybody else, of the dispute between the plaintiff and
Breese.

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When the house was raised and put on skids by the plain-
tiff on the morning of January 2l8t, Breese went to defendant
Tedford for the purpose of laying an information, producing
at the same time, it would appear, an agreement for sale from
Damon to him for the lot on which the house stood, or was sup-
posed to stand, — for the uncontradicted evidence of the plaintiff
is that when it was moved, it was by mistake placed, not on
Damon's lot, but on the street adjoining. Tedford, however,
took Breese 's information which is to the effect that *'A. C.
Baker, of Mortlach, on the 21st day of January, A.D. 1908, at
Mortlach, in the said province, did enter on to the premises of
the said L. F. Breese and remove or attempt to remove a house
the property of the said L. F. Breese.*' This is followed by
the words and figures **Sec. 347 of ch. 146 C.C.,'' which I find,
on the evidence, were not there when the complaint was sworn, —
but this, I think, is immaterial. Tedford at the same time issued
against the plaintiff a warrant to apprehend, in which the offence
is stated in the same words as in the information, except that it
contains no reference to the Code.

It is in evidence that after Tedford had agreed with Breese
to receive his information and issue the warrant, but before
the documents were actually drawn, the plaintiff went to him
and told him that Breese was running all over town to have
somebody interfere with his removing the house, but that he
(Tedford) should be careful about what he would do as he knew
the house belonged to him. Speaking of this same occasion, Ted-
ford says in evidence: **I didn't tell him Breese wanted to
l^y an information or that I would issue a warrant. By
Baker's manner at the time, I thought nothing short of a war-
rant would stop him. I did not think it was my place to tell
him about the warrant. I won't force information on any man.
He didn't give me the opportunity to tell him."

It is also shewn that Tedford, who was inexperienced in
his duties as a justice of the peace, was in the habit of consulting
the R. N. W. M. P. ofiScer stationed at Mortlach, and that on
that occasion, the latter, being aware that it was simply a dis-
pute as to civil rights, advised him strongly, as he put it, **tliat
he should have nothing to do with it. ' '

Prendergast, J.

1909

Baker

17.

Tedford

AND

HossiB.

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[vol.

Prendergast. J.

1909

Baker

Tbdpord

AND
HOSSIE.

The warrant to apprehend was however issued, and the plain-
tiff arrested and brought before defendant Tedford, who set
him at liberty after taking his recognizance of bail for $500.00.
The operative part of the condition in the said recognizance reads
as follows: *'. . . That he (Baker) will cease all attempts
at the removal of the aforesaid house until such times as the
question of ownership in dispute is settled by the common pro-
cedure in proper course of law, — or if said A. C. Baker appears
before me the above mentioned justice of the peace or any other
justice or justices of the peace and pleads to the accusation afore-
said, then the said recognizance to be void, otherwise to stand in
full force and virtue.'' Tedford swears that he told the plain-
tiff before he left that the hearing would be on the following
Saturday (25th), which is denied by the plaintiff who says that
no date was fixed. Tedford says further that the police officer
on duty at Mortlach having been called away for a day or two^
it was necessary to change the date first appointed, and the plain-
tiff says that on the Thursday (23rd), Tedford told him that
the hearing would be on Monday (27th).

On the last mentioned date, at 2.45 p.m., the constable told
the plaintiff that the hearing was coming on at 3.00. The latter,
however, having been advised that the proceedings in general
were irregular, and the adjournments in particular a nullity, did
not appear. Tedford then issued a summons commanding the
plaintiff to appear at 3.00 p.m. of that day, which was served
on him a few minutes after that hour. The plaintiff not re-
sponding to this order, Tedford issued a warrant to apprehend
on disobeying summons, upon which the plaintiff was arrested
and brought before the two defendants for hearing.

What happened exactly at the hearing was not made very
clear. The defendants say that, after Breese was examined in
chief, they asked the plaintiff **if he waived preliminary hear-
ing" and that he consented. The plaintiff on the other hand
says that he replied that he waived nothing, that he reserved the
right to examine everybody, and that he required to be sent to
another jurisdiction, — meaning, as I understood, to a Court of
civil jurisdiction. Be that as it may, the plaintiff was committed
to stand trial at the next regular sittings of the Supreme Court

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at Moose Jaw. He was taken in charge by a police oflScer who
took him over as far as Moose Jaw and there delivered him to
another officer already in charge of two prisoners, and taken
with them to the Regina gaol. After being detained there two
days, as I imderstand, he was brought back to Moose Jaw, with
hand-cuffs on his hands, and made to appear at a sitting of the
Supreme Court then being held there; but upon the Crown
prosecutor stating that he had no charge to lay, was discharged
from custody.

The whole proceedings, I may say, almost from beginning
to end, fairly bristle with irregularities. The issue of the war-
rant to apprehend for disobeying summons, amongst other
things, was to my mind clearly irregular and out of order. But
I think it sufficient to deal with the initial proceeding of which
all that followed was the direct result and consequence, and the
question is : Was -it justified ? was there reasonable and pro-
bable cause for it?

The question here is not with respect to the duties of a justice
of the peace who is required to take action on a valid informa-
tion setting out a real offence, whether he extra judicially knows
that the real facts are or are not true ground for complaint,
or not.

In most cases, the magistrate is not of course personally
aware of the facts, and the reasonable and probable cause he
has for taking action, is the information contained in the com-
plaint. In this case, defendant Tedford cannot shield himself
behind the information which discloses no offence, and then he
was cognizant of the essential facts of the case.

The plaintiff, a reputable and well-behaved man, at the head
of a family, a citizen of good standing in a small towTi where the
daily actions of everj'^one could be so easily scrutinized, — was
subjected to extreme indignities. AVas there good and reason-
able cause for this?

Even taking it for granted that the course which he took was
ill-advised, did it call for such extreme measures?

It seems to me that it did not. The plaintiff's general
standing was not that of a thief. The allegations of the com-
plaint, as they are, do not shew him to be a thief. And what

Prendergast, J.
1909

Baker

Tedford

AND
HOSSIE.

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PrendergBflt, J.

1909

Baker

Tedford

AND
HOSSIE.

SASKATCHEWAN LAW REPORTS.

[vol.

Tedford is shewn to have known of the facts of the case did not
point to his being a thief. Tedford knew well the nature of the
dispute between Breese and the plaintiff; and even if he thought
that the matter called for some intervention on his part there
was no reasonable and probable cause for resorting at once to
the extremely harsh and degrading measures that he did.

The element of malice, which it was proper for the jury to
consider as a subsidiary question, and the affirmative finding
which they presumably based upon the evidence of business
rivalry, is not a matter for me to consider. It is sufficient that
I should find that there was no reasonable and probable cause.
(See dictum of Burton, J. A., in Grimes v. Miller, 23 O.A.R., at
p. 768.

There was practically no attempt made at the trial to shew
that those facts of which Tedford was cognizant, were also in
the knowledge of defendant Hossie. That this distinction was
also in the jury's mind is shewn by the fact that on the question
of malice they found affirmatively as to the former, and in the
negative with respect to the latter. I do not think a case was
made against Hossie.

Hossie however was a party to the committal, and seems to
have been willing to follow whatever course was determined
upon by Tedford without sufficiently ascertaining the facts for
himself, and for that reason he should have no costs.

The action will be dismissed as to Hossie, without costs.

There will be judgment for plaintiff against Tedford for
$600.00, with costs.

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n.] SASKATCHEWAN LAW REPORTS. 315

[TRIAL.]

Smith v. Bernhardt & Fry. ^909

Sept. 25.
Mechanic's Lien — Time of Registration — Goods Supplied — Entire Contract
— All Goods of same Class — Notice of Lien of Sub-Contractor to Oumer
— Waiver — Building Contract — Acceptance — Architect's Certificate —
Damages for Non-completion — Right to Set Off Against Lien-Holder.

Defendant B. contracted with defendant F. to build a house for the latter.
Plaintiff supplied at different times during the work hardware and iii-
stalled plumbing and heating apparatus and not being paid filed a lien.
The last work done was on the furnace on January 3rd, the other work
done by plaintiff having been completed and material supplied at an
earlier date. The lien was filed on February 2nd. No formal notice was
given by Smith to Fry of his claim as a sub-contractor but payment of
the account had been discussed between^ them on several occasions,
and Fry had promised to protect Smith. Fry also claimed that the work
had not been finished by Bernhardt in accordance with the contract, that
no architect's certificate had been produced and that he was entitled to
set off certain damages. It appeared however that he had taken posses-
sion of the premises and that accounts had been stated to some extent
and a balance found due: —

Held, that the plumbing, heating and building hardware were all supplied
with the same object by the one party on the one hand to the one party
on the other, standing in the same relationship and were so supplied as
material and labour coming within the scope of the plaintiff's business and
were so bound into one as to form an entire contract and not as separate
contracts or deliveries and the last work on the whole being done on the
3rd of January the lien was filed in time.

2. That the defendant Fry by his conversation with plaintiff and assurance
of protection of the account had waived notice of claim of lien.

3. That by taking possession of the premises, selling the same and stating
accounts with Bernhardt, Fry had accepted the work and waived the
presentation of an architect's certificate.

4. Damages for delay in performance can not be set off kgainst a lien-
holder.

This was an action to enforce a mechanic's lien tried before
Prendergast, J., at Moose Jaw.

W. B. Willoughby and H, D, Pickett, for the plaintiffs.
C. E, Armstrong, for the defendants.

September 25. Prendergast, J.: — This is an action under
the Mechanics' Lien Ordinance first instituted by G. K. Smith,
and J. H. Ashdown as assignee was later added as co-plaintiff.

The defendant Fry, the owner under the Ordinance, entered in-
to an agreement with the defendant Bernhardt, as contractor, some
time in August, 1906, for the building of a house for the sum of

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[vol.

Prendersast. J.

1909
Smith

Bernhardt
&Fry.

$2,825.00. Bernhardt went on with the work and Fry took
possession of the building on January 4th, 1907, when the same
was not quite completed, whatever the cause may have been.

The plaintiff, a hardware merchant also engaged in plumb-
ing and tinsmithing, now brings this action by virtue of having
been employed by the said contractor on the said building, and
claims : for plumbing, $230.00 ; for installing of furnace, $245.00,
and for hardware and tinsmith supplies, $390.10; — in all
$865.10, less $200.00 received, leaving a balance due of $665.10.

Although in no way pretending in the statement of claim to
have had a contract directly with the owner for the said material
and labour, the plaintiff, however, also claims from him under
a distinct promise to pay, the statement of claim alleging that
**the said defendants promised and agreed to pay to the plain-
tiff for the said plumbing . . the installation of the said
furnace . . and the said wares and merchandise . . ."

I may say, so as to fix the correct amount of the claim at once,
that on the plaintiff's own shewing at the trial, there is an over-
charge (see Montgomery's evidence re item of December 3l8t,
1906, in Exhibit **G") of $50.00 with reference to the tank and
conductor pipe, as also (on Bernhardt 's evidence) several other
over-charges in Exhibit **G'' amounting to $30.25; half a barrel
of oil taken away from the building by the contractor need not
be taken into account, as it was not had from Smith and is not
charged for by him. All the other items are shewn to have been
supplied, so that — after deducting the two above over-charges —
the plaintiff's claim stands at $584.85.

The questions raised are : first, whether there was an express
promise to pay by Fry, — the defendant owner, — to Smith the
plaintiff sub-contractor; second, whether the provisions of the
Ordinance were complied with, more particularly with respect
to the time allowed to file a lien, as well as notice to the owner ;
and, third, was there such a performance of the contract as to
entitle the contractor at least to part of the contract price, and
if so, what is the amount so due, what sums were paid by the
owner on the same, and is there a balance still owing the con-
tractor and available to the sub-contractor under his lien!

On the first question, I do not think that there was a distinct

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317

promise to pay to the plaintiflf sub-contractor. It is tnie that he
appears to have been apprehensive that Bernhardt might not be
able to do the job for the price, but so was Fry, as I judge, and
the same reason led them to seek information from one another.
Several of the alleged conversations between Fry and the plain-
tiff's foremen took place before the general contract was let,
and one of them, McWatt, the foreman plumber, says : ** Perhaps
he was taking it (Smith's estimate) as figures so that he could
make an estimate to * * let the contract ' ' — meaning the general con-
tract. It is also shewn that Smith charged everything to contractor
Bernhardt, and not to the owner, Fry, and the bills were also
rendered to Bernhardt only. Bernhardt moreover says: **Mr.
Fry had asked me to patronise Mr. Smith," — but adds, **0f
course I was at liberty to go wherever I wanted." Then, when
Smith asked for money for the first time, on December 7th, he
was told by Fry to get an order from Bernhardt as well as the
architect's approval, to which Smith did not demur. Of course.
Smith asserts that, upon his telling Pry, between the 15th and
20th August, that he would not supply the goods unless he saw
him paid, the latter replied that he would see that he was paid.
But Fry swears that when Smith offered to take those jobs
himself, he replied that he *' would have only one trouble and
give the whole thing to one man," and that with reference to
protecting him, he only said: **I will as far as I can." Smith
also says that Bernhardt could buy wherever he wished. And
I would here again insist on this essential point, that the posi-
tion taken by the plaintiff in his statement of claim is that he was
merely a sub-contractor and not a contractor, although at the
same time relying on this alleged promise. Fry's explanation
of what he did is that he asked Smith for figures on that special
work only to form an estimate of what the total contract-price
should probably be, and that he suggested to Bernhardt to deal
with Smith's firm simply because he considered it a reliable
concern, — ^to which Bernhardt acquiesced, without being, as he
says, bound to do so. With reference to the promise itself. Fry's
denial is just as strong as the plaintiff's assertion. Smith does
not contend that he had any direct contract from Fry, and I
hold that there was no distinct promise by the latter to pay at
all events.

Prendergut. J.
1909

Smith

Bernhardt
AFry.

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Prendeqtaat, J.
1909
Smttb

Bernhardt
&Frt.

On the second question, the first point is whether the lien was
registered within thirty days of the completion of the work.
The evidence is plain, and I understood counsel for Fry to admit
on the argument, that work was done on the furnace at all events
as late as January 3rd, and the lien was registered on February
2nd, which is within the thirty days following. But it was
urged for Fry, that the plumbing, the heating, and supply of
tin and hardware goods were three different contracts, that the
thirty days must be reckoned from the completion of each of
them, and that the lien was not registered in time, at all events
with respect to the plumbing and the supplying of the goods.
With this I cannot agree. The three may not have been ordered
at the same time, but neither were the different articles of hard-
ware ordered at the same time, and yet they would be considered
under the Ordinance as the subject of the one order, or of the
one act of supplying them. And a different price was set on
each class of labour and goods ; but so was a different price set
on the door-knobs and nails, which does not prevent them from
being considered as included in the same contract. The plumb-
ing, heating and goods were all supplied with the same object,
by the one party on the one hand to the one party on the other
standing in the same relationship, and were so supplied as
material and labour coming, as a class, within the scope of the
plaintiff's business, which is that of a hardware merchant with
plumbing and tinsmithing establishment attached, a common
and natural combination of several trades into one, and con-
sidered as one. If Smith happened to own a quarry and had
supplied stone, that might be different. But I will hold here
that the so-called different contracts are bound into one, by the
same reason that binds the different departments of the concern
into one business. I consequently hold that the lien, filed as it
was. within thirty days after the last work on the furnace, was
filed within the statutory limit of time with respect to all the
labour and all the material supplied by Smith.

With respect to notice under section 11 of the Ordinance,
the defendant Fry has admitted having been notified by letter
from the plaintiff's counsel dated January 21st; and I would
moreover say, — referring to Fry's request that Bernhardt should

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deal with Smith, and his many conversations with the latter, as

well as his assurance that he wotdd protect him as far as he 1909

could, — that I can hardly conceive of a stronger case where g~"

notice shoxdd be deemed to have been waived by the owner. v.

Bbrnhardt
On the third question, I do not think that the first point &Fht.

raised thereunder, with respect to the non-completion of the
contract, offers much difficulty. There is no doubt that the con-
tract here was what is termed an entire contract, that the doc-
trine of substantial compliance as broadly recognised in most of
the States of the Union does not obtain here, and that the
sub-contractor cannot recover unless there was something due
the contractor when the lien was filed.

The cases cited by counsel for Pry do not go further than
that. Ooddard et al, v. Coulson et al, 10 O.A.R., p. 1 ; Truax
et al. V. Dixon et al,, 17 O.R., p. 366; Appleby et aL v. Miles,
L.R. 2 C.P., p. 651 ; Briggs v. Lee, 27 Grant, p. 464 ; Holmestead
on Mechanics' Liens, p. 63. There are also the cases of Munro
V. Butt, 8 E. and B., p. 737, and Oldershaw v. Garner, 34
U.C.Q.B., p. 37, which are very emphatic on the point that the
taking possession alone of an incomplete work, when the con-
tract is an entire one, does not entitle the contractor to recover.
But here, there is more than the fact that Fry received the keys
on January 4th, took possession, and sold the house. There is
also the fact that Fry entered into a deed of settlement (Ex-
hibit 0) with contractor Bernhardt, whereby he not only ex-
plicitly accepts the part performance, but acknowledges that he
owes therefor to the contractor a further sum than he had
then received. And it moreover seems, on the evidence, that the
broad lines of this settlement, which was later put in this form
of a deed, had been previously agreed upon by verbal under-
standing.

As to the contractor not being entitled to anything in the
absence of a certificate by the architect, Hudson, in his work on
Building Contracts (p. 431), has the following: —

**The clauses inserted in building contracts as to the pro-
duction of a certificate are for the benefit of the owners of the
bxulding, and they may at their option waive its production
. . . The conditions as to approval of the architect being

21— VOL. n. 8X.B.

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320 SASKATCHEWAN LAW REPORTS. [vol.

also for the benefit of the building owner, without which the

1009 builder cannot recover, the building owner's approval dispenses

Shith therewith." I hold that in this case there was such a waiver of

^- the production of the architect's certificate by Fry accepting the

k Fry. partly-performed contract under the terms of the said settlement.

Contractor Bernhardt will then be entitled to recover for such

work and material as he supplied.

The question of setting ofi^ damages for delay in delivering
possession of the house, although not referred to in the defence,
was raised at the trial. But such damages cannot be taken
into account against the sub-contractor under the amendment
made to the Ordinance by ch. 18, sec. 2, 1903 (second session) :
See Swanson v. Mollison, 6 W.L.R., p. 685, which was decided
when the same Ordinance as our own was in force in the Province
of Alberta, and also Goddard et ol. v. Covlson et al., above re-
ferred to (at p. 9).

I find due the sum of $503.04, for which the plaintiff's lien
should hold.

There will be the usual declaration and order against the
defendant Fry for $503.04, the sale, if any, to take place after
two months, and all moneys whether paid in by Pry or realised
under sale to be deposited into Court subject to further
directions.

With costs to the plaintiffs, including costs of lien.

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n.] SASKATCHEWAN LAW REPORTS. 321

[IN CHAMBERS.]

Wbat V, Canadian Northern Railway Co.

1900

Practice — Order for Security for Coata — Appeal from Local Master — For- Oct. 22.
mal Order not Draton Up or Settled — Stay of Proceedings — Discretion
of Local Master as to.

Defendants secured an order from a local Master requiring the plaintiff
to give security for costs, but he refused to direct a stay of proceedings
meanwhile. Ilie defendants on account of this refusal appealed. No
formal order was taken out before appeal: —

Held, following the English practice, that it is unnecessary to take out the
formal order before appesJing.

2. That the granting of a stay of proceedings is purely a matter of dis-
cretion and the local Master in the exercise of his discretion having
refused a stay for reasons given such discretion should not be interfered
with.

This was an appeal by the defendants from the Local Master
at Battleford who^ on an application by defendants for security
for costs, refused to grant a stay of proceedings; and was
argued before Newlands, J., in Chambers.

r. S, McMorran, for the appellant.
H, v. Bigelow, for the respondent.

October 22. Newlands, J. : — Two objections are taken to the
order made by the Local Master at Battleford to the order for
security for costs made by him on the 1st of October instant ; Ist,
that the order not having been drawn up an appeal will not lie
from it.

As we have no rule or any recognized practice on this subject
under sec. 15 of the Judicature Ordinance, I have to follow the
English practice. That practice, as stated in the 1909 Yearly
Practice, page 742, and Annual Practice, page 795, is that it is
unnecessary for the purposes of appealing to draw up an order.

Second : The second objection is that the Local Master did not •
stay proceedings in the action until the security was given.

It is usual in making orders for security for costs to stay pro-
ceedings, but that is a matter of discretion. Yearly Practice,
1909, page 1001.

The reasons given by the Local Master for not staying pro-
ceedings are reasonable ones and I cannot therefore interfere
with the discretion he has exercised. The appeal will be dis-
missed with costs.

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322 SASKATCHEWAN LAW REPORTS. [vol.

[IN CHAMBERS.]

1909 In re Lano School District Assessment.

Aug. 31.

Asseaament — Personal Property — Aasessmeni of Chartered Bank — Asseas-
meni of Moneys Held on Deposit — Notes and Specie,

A school district assessed a branch of a chartered bank in respect of per-
sonal property including money held on deposit, notes and bills of
exchange held by the bank, the notes of the bank, specie and Dominion
bills.

On an appeal from the assessment: —

Heldj that money held on deposit not being the property of the bank, notes
and bills of exchange representing such moneys, and the bills of the
bank representing no value until issued were not assessable, but that all
fixtures, fittings, specie, bills of other banks. Dominion bills, notes and
bills of exchange representing moneys held otherwise than on deposit
were assessable.

This was an appeal from the Court of Revision of a school
district confirming the assessment of a branch of a chartered
bank and was heard before Prendergast, J., in Chambers.

D. J. Thorn, for the appellant.
Respondent represented by its secretary.

August 31. Prendergast, J.: — This is an appeal from the
Court of Revision by the Union Bank of Canada.

The ground of appeal is stated to be over-valuation, but in-
volves a distinction between the different kinds of property

Village districts cannot impose a business tax. Their
ments and levy must be confined to real and personal property
(section 30).

Section 31, in making certain special provisions, with respect
to stocks-in-trade, does not thereby make them a third class of
taxable property, and such stocks can only be assessed on the
ground that they are personal property.

I admit that the provisions of the Ordinance do not seem to be
quite adequate when made to apply to the assessment of banks;
but these provisions are general, they apply to all real and per-
sonal property by whomsoever held, and I must follow the word-
ing of the Ordinance.

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I do not believe that the sums of money held on deposit by a
bank are assessable because they do not belong to it.

Nor do I believe that a bank's own notes are assessable, be-
cause they represent no value at all as long as they remain in
the bank's possession.

But I am of opinion that the following are properly assess-
able at their actual cash value: Fixtures and fittings, specie,
other banks' bills, Dominion bills, and loans as represented by
bills of exchange, etc., taken as security for the same.

These last, in the present case, amount to $7,400.

I may observe that when a bank advances some part of the
deposit moneys, or of its own bills, on loans, it takes in a cor-
responding amount of promissory notes and other securities,
which are taxable, and in this way, the deposit moneys and the
bank's own bills may be said to become indirectly taxable to the
extent that the bank makes use of them.

PrendezsAst, J.
1909

In re Lang

School

District

Assessment.

[COURT EN BANC]

The Kino v. Dupp.

Criminal Law — Crown Case Reserved^ — Bringing Stolen Property into Can-
ada— Evidence of Theft — Recent Possession — Sufficient Evidence to go
to Jury.

Accused was convicted of bringing stolen property into Canada knowing
it to have been stolen. It was proved that the property was stolen in
North Dakota on the 6th of March, 1909, that on the 12th of the same
month it was found in the possession of the accused in Canada, and
there were circumstances from which the jury might find that the
accused brought the property into Canada. It appeared that the
accused was in the locality where the goods were stolen at the time they
disappeared and he g^ve no account of his possession. On a Crown case
reserved: —

Held, that the evidence was sufficient to warrant the jury in finding that
the accused stole the proi)erty and brought it into Canada.

This was a Crown case reserved upon the conviction of the
accused after trial by jury upon a charge of bringing stolen pro-
perty into Canada knowing it to have been stolen, and was
argued before the Court en banc (Wetmore, C.J., Prendergast,
Newlands, Johnstone and Lamont, JJ.) at Regina.

En Banc.
1909

July 7.

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En Banc.

1909
The King

Duff.

SASKATCHEWAN LAW REPORTS.

Frank Ford, K.C., for the Crown.
W. B, WUlaughby, for the accused.

[vol.

July 7. The judgment of the Court was delivered by
Wetmore, C.J. : — So far as the arguments that have been pre-
sented by counsel are concerned, we are of opinion that the con-
viction must be affirmed.

A team of horses and a set of harness were proved to have
been stolen at Flaxton in the State of North Dakota, by some
person on the night of the 6th March, 1909. The horses were
subsequently found in the possession of the accused at the city of
Regina, about the 12th of that month, and the accused gave no
evidence to account for such possession. There was also evidence
on the part of the Crown to shew that the accused, who lives at
Halbrite, Canada, was at Flaxton on the 5th and 6th of March.

We are of opinion that that would be evidence which would
warrant a jury coming to the conclusion that the property not
being accounted for, was stolen by the prisoner. If the property
was stolen by the prisoner and he had it in Regina on the 12th of
March, he must have known that the property was stolen. It was
stolen, I presume, as a matter of course, in North Dakota, under
circumstances which would amount to a theft in Canada. That
seems clear. All these matters, that the property was stolen in
North Dakota, the fact that he had it in his possession in Canada
knowing it to be stolen, were clearly matters of fact. The cir-
cumstances were such that the jury might reach a conclusion,
first, that the property was stolen; secondly, that it was stolen
by the prisoner, and thirdly, that he had it in his possession
knowing it to have been stolen, and I think I might go further
for there was evidence that they might have found, under the
circumstances, that he brought the property with him into
Canada.

For these reasons we are of opinion that the conviction must
be affirmed and the sentence imposed carried out.

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n.] SASKATCHEWAN LAW REPORTS. 325

[TRIAL.]

Pioneer Fruit Co. v. Litschke. 1909

Sale of Goods — Cancellation of Order before Shipment — Acceptance by ^^* ^^•
Buyer Under Mistake as to Consignor — Conversion — Establishment of
Relation of Bailor and Bailee,

Defendant ordered a car of apples from plaintiff but before shipment
cancelled the order and placed an order elsewhere. The plaintiff shipped
the car originally ordered and this reached the defendant without notice
and he, thinking the car to be the one subsequently ordered, accepted it.
When the second car arrived however he discovered his mistake and
immediately notified the plaintiffs that he held the goods at their risk.
Some of the apples had been sold, and subsequently to prevent loss a
further quantity iwas sold. In an action for conversion or for goods
sold and delivered: —

Held, that there was no conversion, the defendant not being aware that
the car had been shipped by plaintiff, nor was there any sale and the
relation between the parties was merely that of bailor and bailee and
the defendant therefore should account only for moneys actually received
less freight and expense of sale.

This was an action for conversion or, alternatively, for goods
sold and delivered and was tried before Prendergast, J., at
Regina.

D. Mundell, for the plaintiff.
G. H, Barr, for the defendant.

October 13. Prendergast, J. : — This action is for the conver-
sion of a car of apples, valued at $487.50, or, in the alternative,
for goods sold and delivered.

In September, 1908, the defendant put in with the plaintiffs
an order for a car of apples, subject to the condition that he
could cancel the order within a certain time.

On October 1st, the plaintiffs, whose head ofSce is at Brandon,
Manitoba, wrote to A. Mallinson, their purchasing agent in
Toronto, to ship a car of apples to the defendant at Halbrite,
Saskatchewan.

On October 7th, the defendant cancelled the order by letter to
the plaintiffs at Brandon, and ordered another car from one
Roberts.

By letter of October 8th to the defendant, the plaintiffs
accepted the cancellation, and they wrote the same day to Mallin-

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[vol.

Prendfliiaat, J.

1909

Pioneer
Fruit Ck>.

LrrscHKE.

son to cancel the order. I think it is shewn that the car was not
yet in consignment when Mallinson received this last letter.

On October 31st a car of apples, which in fact was shipped
by the plaintiff's agent in Ontario, arrived at Halbrite, consigned
to the defendant. There was no invoice, and the shipping bill
did not shew who was the consignor ; so that the defendant, believ-
ing that the car was sent by Roberts, paid the freight, amount-
ing to $184.39 and took possession of the car.

The defendant was retailing the apples when, on November
11th, the second car came, and this one was in fact shipped by
Roberts. The defendant also took possession of the second car
and says that he kept it separate from the balance of the first car.

On November 26th the plaintiffs wrote to the defendant en-
closing invoice and advising him that they were drawing on him;
and on November 30th the defendant replied as follows : —

''Halbrite, Nov. 30th, 1908.
*'The Pioneer Fruit Co.,
** Brandon.
**Dear Sirs, — We have your letter to hand re the car of
apples you claim to have shipped to us, and in reply beg to state
that this is the first we have heard re who these came from, and
we wish to state that they are at your risk. We had a car coming
from the East, and when these arrived we thought that they were
ours and so unloaded them and as we cancelled the car from you.
Our car arrived just a few days after your car and we have them
both in the cellar at the present time. The first car was the poor,
miserable stock and made up of such poor varieties and badly
mixed we cannot handle them; they are here for your inspec-
tion at any time. However, if you will sell those at right figure
so we could sell them real cheap to the farmers we might be able
to handle them. Let us hear from you soon and oblige.

** Yours truly,

**Fred Litschke."

It appears that there was no market at Halbrite at that time
for two cars of apples, so that the unsold part of the first car
remained in the cellar. A considerable quantity seems to have
decayed and was thrown away in the winter, and in April and

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327

May, which was after suit brought, the defendants sold all the
remainder that were still merchantable.

The plaintiffs cannot succeed for goods sold and delivered,
because there was no contract. Nor do I believe that this is a
case of wrongful conversion ; how could the plaintiffs call ' * wrong-
ful" an act of the defendant which they courted and invited? I
am of opinion that the relations between the parties are simply
those of bailor and bailee. It was not shewn that the defendant
as bailor did not take the usual and ordinary precautions, but of
course he has to account. The statement of sales of the apples
(exhibit 5) shews that, deducting therefrom the freight and
other charges, there remains only about $30 — ^which I think is
but a reasonable compensation for having handled the goods.

But, as just stated, the defendant should have accounted,
which he has neglected and even refused to do up to the time of
the suit.

For this reason, while the action will be dismissed, there will
be no costs.

Prendersut, J.
1909

Pioneer
FRxnrCk).

V.
LiTSCHKE.

[IN CHAMBERS.]

In re Wauchopb School District Assessment.

Assessment — Occupant of Crown Land — Assessmeyit in Respect of — Value
to he Placed Thereon — Assessmetit of Real Property — Actual and Com-
parative Values.

AppeUant was a lessee of Crown land and was assessed therefor by the
respondent for the full cash value. He claimed to be liable for assess-
ment only in respect of the value of his interest therein, and in any
event that the assessment was excessive: —

Held, that in view of the provisions of sec. 26, sub-sec. 2, of the Schools
Assessment Ordinance of 1901, which directs that the occupant of Crown
lands shall be assessed therefor and, as by the only provision respecting
the basis of assessment, section 30 of the same ordinance, it is directed
that real property shall be assessed at the actual cash value thereof it
must be held that the occupant must be assessed for the full cash value.

2. That the adoption of a flat assessment rate per acre throughout a
district does not constitute an equitable assessment, unless it be shewn
that all the land is equally valuable, and that the rate adopted is the
fair casn value of such land, and the land in question not being equally
as valuable as are other lands assessed, it must be assessed at its actual
cash value.

1909

Aug. 26.

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328 SASKATCHEWAN LAW REPORTS. [vol.

1909 This was an appeal from a Court of Revision confirming the

assessment of the occupant of Crown lands and was heard by

Wauchope Prendergast, J., in Chambers.
School
District /
Assessment. E. W. F. Harris, for the appellant.

A. E. Vrooman, for the respondent.

August 26. Prendergast, J. ; — This is an appeal by J. W.
Cunningham from the decision of the Court of Revision of the
said district dismissing his complaint vnth respect to the assess-
ment of certain lands in the assessment roll for the current year.

The appellaixt is entered on the roll as the occupant of a
certain half -section of land there described, and the valuation is
set down at $3,200, which is equal to $10 an acre.

The admitted facts are : That the said lands are held by His
Majesty, and that the appellant occupies same under a grazing
permit issued by the Department of the Interior, good for one
year.

The appellant 's two grounds of appeal are : First, that even if
$10 an acre be the actual cash value of the half -section, he should
not be assessed for such full value, but only for the value of his
limited interest under the grazing permit, which he puts at $3
per acre ; and second, that $10 per acre is in excess of the cash
value of this land.

As to the first objection,* the Act (sec. 26, sub-sec. 2, pars. 1,
2 and 3) provides for just such a case where a person occupies,
otherwise than in an official capacity, property held by His
Majesty, and clearly directs that the occupant shall then be
assessed in respect to such property. As to how such property
or any other should be assessed, there is only one direction given
by the Act in this respect, and that is under section 30, which
provides that ' * real and personal property shall be estimated at
their actual cash value as they would be appraised in payment
of a just debt from a solvent debtor.'* This seems to me quite
clear, and the appellant must fail on this ground. I may say
that an appeal was taken last year by the same appellant, with
respect to the same property, and on the same grounds, before my
learned brother Johnstone, who also dismissed the same.

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On the second ground : are these lands assessed as they are at Pn«dergMt, j.

$10 an acre, estimated at their actual cash value? I would i»09

observe that in appeals of this kind, more especially in a country j^

of rapid changes and developments, it is often difficult and some- Wauchopb

School
times almost impossible to determine accurately the actual cash Distriot

value contemplated by the statute; and for that reason, in Assessment.
attempting to do so, I think it is proper and advisable for the
Court — ^more especially as the main object is above all to obtain
an equitable, which means a proportionate, assessment — to con-
sider also, even if that is not made a separate issue, the general
standard of valuation observed in the making of the roll gener-
ally, as well as the comparative values set upon the lands adjoin-
ing those respecting which the complaint is made.

On the evidence, the appellant's two sons both put on this
half -section a cash value of $9. A third witness called by the
appellant, who, however, admits that he is not quite familiar with
the land, puts this value at $8. But the appellant himself and
the Secretary-Treasurer of the Board both agree upon the same
value of $8 per acre.

It is admitted that a flat valuation of $10 was adopted by the
assessor for all the lands in the district — ^which I most emphati-
cally say is not in compliance with the Act. Several sections
adjoining the half -section in question were also shewn to be worth
more than $10, and it was, moreover, stated in evidence for the
appellant that the average value of the land in that district is
above that figure, which the respondent did not attempt to
disprove.

$10.00 is then neither the actual cash value nor the com-
parative or proportionate value of the said lands.

In my opinion, the evidence shews that the said half-section
should have been assessed at $8.00 and no more.

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330 SASKATCHEWAN LAW REPORTS. [vou

[TRIAL.]

jj^g Perry v. Kidd et al.

Oct. 19. Sale of Oooda — Fraud — Substitution of Other Goods for those Ordered—
Payment of Notes Given Therefor After Knowledge of Fraud — Action
for Damages — Right to Maintain — Measure of Damages,

Plaintiff offered by correspondence to purchase by description a certain
horse. The defendants agreed to sell at the price offered and shipped
a horse to the plaintiff. The horse shipped was not that ordered but
the plaintiff did not know this and accepted the horse as the one
ordered, it being however a very much inferior animal. He shortly
afterwards learned that he had been defrauded, but notwithstanding
retained the horse and continued to use it and paid the notes given for
the purchase price. He now sued for damages: —

Heldf that the plaintiff notwithstanding his retaining the horse and mak-
ing payments after knowledge of the fraud was entitled to maintain an
action for damages for the delivery of an inferior animal in place of that
ordered.

Th^ was an action for damages in respect of a sale of goods
and was tried before Wetmore, C.J., at Regina.

N. B. Craig, for the plaintiff.
J, F, Frame, for the defendants.

October 19. Wetmore, C.J. : — I find the following facts in
this case : —

The plaintiff in the winter of 1904 purchased from Kidd
Brothers, a horse by the name of Carl Klohn. This purchase was
effected through one Thompson, the agent of Kidd Brothers.
The firm of Kidd Brothers was composed of the defendant W. C.
Kidd and Richard T. Kidd, since deceased. Before purchasing
this horse, the plaintiff had seen a letter written by the defendant
W. C. Kidd to one Mackenzie, describing the horse and stating
that he was willing to take $1,000 for him, and that if he kept
him until spring and got him ready for racing, he would want
$3,000 for him. When the plaintiff interviewed Thompson on
the subject he stated that he had seen this letter from W. C
Kidd to MacKenzie and gave him the material contents of it. A
telegram was sent to Kidd Brothers by the plaintiff and Thomp-
son, and a reply was received in answer. The effect of the two
telegrams was that Kidd Brothers offered to sell this horse for

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$1,000 delivered at Regina, and the plaintiff agreed to receive and wetmow. o. j.
pay that amount for him. The horse was to have arrived some- 1900
where about the 12th of March. He did not arrive at that time,
however, but a horse came on the 20th of April, which the plain-
tiff had the right to expect, and which he believed was Carl ^v>d.
Elohn, and he received the horse under that belief. Two notes
were given for the horse for $500 each, dated the 20th of April,
one payable on the 12th of September, 1904, and the other on the
12th March, 1905. The notes were signed by the plaintiff and his
wife, Fanny Perry, and were paid in due course.

It was set up on the part of the defendant that the plaintiff
took delivery of this horse knowing that it was not Carl Klohn,
and that he was informed by Thompson that it was not Carl
Elohn. I find against the defendants in that respect. This horse
was not Carl Elohn. It was a horse that went by the name of
Sousa. It was four or five years older than Carl Elohn, and
was, comparatively speaking, a much inferior horse to what Carl
Elohn was represented to be. Perry did not discover that this
Sousa horse had been foisted upon him until some time after-
wards. I find that it was not very long after he got him that he
discovered that the horse was not the horse he ordered, and I am
inclined to think that he paid both notes with the full knowledge
that he was not the horse. That, in my mind, however, will not
affect his right to recover in this action. I find there was a
deliberate swindle perpetrated upon the plaintiff in this matter.
It seems to me that this is very clear from the evidence, and it
is not necessary for me to analyze it to establish the reason why
I have arrived at the conclusion that this transaction was fraudu-
lent. It is quite suflScient to state that I find that fact, and in my
judgment the evidence will bear that out.

The next matter that I have to deal with is that of the dam-
ages. In the first place I have the right to assume from the state-
ments of the plaintiff in his letter to MacEenzie, and from what
was stated by Thompson and the fact that the defendant Eidd
sold the horse for $1,000, that Carl Elohn was worth that money.
The horse Sousa that the plaintiff got, he subsequently sold for
$300 after keeping him two years and upwards, but he was
<nute as good then as when he got him.

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332 SASKATCHEWAN LAW REPORTS. [vol.

wetmore, C.J. J j^qj^ ^^ plaintiff to be entitled to recover the difference

1909 between the price stated for Carl Klohn and that for which he

j^^^ sold Sousa — or $700. That, in my opinion, is the damage sus-

V. tained by the plaintiff naturally arising out of the transaction.

KiDD.

I have been asked, however, to award large damages for
money that the horse might have won at races if he had really
been Carl Klohn. That unquestionably is too remote. It does
not follow that if the plaintiff had had Carl Klohn that he would
have won first money at these races as he claims he would have
done. Racing is a very uncertain business.

In the next place, I am asked to award damages for the
expense he was at in training this horse for races and carrying
him about to the several race meetings and for expenses of care
and keep. I am of opinion that I would not be justified in
awarding damages of this character. In the first place, the horse
the first season he went out, won second money on one or two
occasions, and he was prevented from racing further that season
by having his knee hurt. The second season he won second money
now and again and third money, but it seems to me that a horse-
man (like Perry is) must have soon discovered (if from no other
reason than from the indications of the age of the horse) that
this was not the five-year-old animal that he had bargained for,
and, as before stated, I think he was pretty well satisfied of that
fact shortly after he got him. Upon such circumstances he choose
to go on training him for races and spending money on his trans-
portation and paying for extra keep that might be occasioned by
such training and transportation, and I am of opinion that the
defendants are not responsible for damages in this action arising
in that way. For somewhat similar reasons I do not feel dis-
posed to award interest in this matter, even assuming I could do
so.

There will be judgment for the plaintiff against the defendant
W. C. Kidd for $700 and costs.

The executors of the estate of Richard T. Kidd were joined
as parties to this action. Probate of the will of Richard T. Kidd
w*as taken out without the jurisdiction of the Surrogate Court of
this province or the Supreme Court of the North- West Terri-
tories, but is was alleged that the executors had collected assets

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in the province belonging to the estate of the testator. It was not wetmow, a j.

shewn that any such assets had been collected, therefore, the i909

action, as against them, will stand dismissed. But, inasmuch as ~~

aU the defendants pleaded jointly, I will allow no costs of the v,

defence to the executors of Richard T. Kidd, merely dismissing ^^^*
the action as against them.

[IN CHAMBERS.]

In be CiOOK. 1909

Administration — Application for Letters of — Deceased Domiciled ew juris — April 17.
Application hy Widow — No Evidence as to Grant of Administration hy
Court of Domicile — Right of Widow to Letters in Absence of this
Evidence.

Deceased in his lifetime resided in the State of North Dakota and died
leaving property in Canada. His widow made application to this Court
for letters of administration, but it did not appear that she was the
person entitled to administration by the law of the place of domicile,
or that any administration had been granted in North Dakota; and on
this ground the Surrogate Judge refused the application. The applicant
appealed : —

Held, that when an intestate dies em juris leaving property in juris the
Court should srant administration to the person clothed by the Court of
the country of domicile with the power and duty of administering the
estate no matter who he may be, and in the absence of evidence of
appointment of an administrator in the place of domicile, or as to the
party entitled there to such administration, the application should be
refused.

This was an appeal by the applicant for letters of adminis-
tration from the refusal of the Surrogate Judge to grant letters
upon the material filed, and was argued before Johnstone, J.,
in Chambers.

T. S. McMorran, for applicant.

April 17. Johnstone, J. : — This matter came up before me
in Chambers by way of appeal from the decision of His Honour
Judge Bimmer refusing grant of letters of administration to the
widow of one Prank L. Cook, deceased. The petition for letters
and the afSdavits annexed thereto set forth that the deceased
died in the city of Minneapolis in the state of Minnesota in the
year 1907, having his chief place of abode at the time of his

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334 SASKATCHEWAN LAW REPORTS. [vou

death at Fairmount in the State of North Dakota; that the

1909 deceased died intestate, leaving him surviving a widow, the peti- I

' tioner, and three infant children, and that the deceased had left j

In rb

Cook. real and personal estate to which letters were sought to be i

granted to the value of $4,400. Except as to certain real estate

named, however, which was valued at $2,400, and situated within

the Province of Saskatchewan, the locus in quo of the estate was

not disclosed.

The material on which the application is based is silent as
to whether or not letters of administration of the intestate in
the United States or letters of guardianship to the infants afore-
said and their estate, had been granted in the United States,
and, moreover, there was no legal proof forthcoming as to the
person or persons who would in the State of North Dakota the
domicile of the deceased, be entitled as next of kin, to share in
the distribution of the estate or who would, according to the
law of the said State, be entitled to administer, or that the widow
was a person to whom the grant of letters of administration
would be there made.

On this and another ground, which I need not mention, the
learned Judge refused the grant.

I think in taking this course, under the circumstances of this
application, the learned Judge pursued the right one. In re ike
Goods of Earl (1869), L.R. 1, 450; 36 L.J.P. 127; 16 L.T. 799.
Sir J. P. Wilde reviews the authorities up to that time (July,
1869), including the Goods of Enohin v. Wylie, 10 H.L.C. 1;
31 L.J. Ch. 402; 6 L.T. 603, in which Lord Westbury, L.C., gave
expression to the words referred to by Judge Rimmer, and of
which Sir J. P. Wilde said :—

''I think that there is strong, good sense in these remarks, and
the practical principle there pointed out is one that ought to be
adhered to. The only question is. In what way ought the Court
to act upon it? There was no power in the old ecclesiastical
Courts to make a grant, except on the direction indicated by the
practice of those Courts. This Court, however, is armed with
a special power by the 73rd section of 20 & 21 Vict. ch. 77. I
think the Court ought to act upon that section, and to make a
grant in all such cases as the present to the person who has been
clothed by the Court of the country of domicile with the power

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and duty of administering the estate, no matter who he is or on JohxmujM, j.
what ground he has been clothed with that power/' And the 1909
learned Judge proceeds to say, **The grant under the 73rd sec- "
tion will describe him (that is the foreign executor) as a person Cook.
having that power," and letters in that case were granted under
the statute referred to, to the person who was entitled to the
grant according to the law of domicile.

Section 73 is as follows: —

LXXIII. Where a person has died or shall die wholly in-
testate as to his personal estate, or leaving a will affecting per-
sonal estate, but without having appointed an executor thereof,
wiUing and competent to take probate, or where the executor
shall at the time of the death of such person be resident out of
the United Kingdom of Great Britain and Ireland, and it shall
appear to the Court to be necessary or convenient in any such
case, by reason of the insolvency of the estate of the deceased,
or other special circumstances, to appoint some person to be
administrator of the personal estate of the deceased, or of any
part of such personal estate, other than the person who, if this
Act had not been passed, would by law have been entitled to a
grant of administration of such personal estate, it shall not be
obligatory upon the Court to grant administration of the per-
sonal estate of such deceased person, to the person who, if this
Act had not been passed would by law have been entitled to a
grant thereof, but it shall be lawful for the Court in its dis-
cretion to appoint such person as the Court shall think fit
to be such administrator upon his giving such security (if any)
as the Court shall direct, and every such administration may
be limited as the Court shall think fit.

It is provided by section 39 of the Surrogate Courts Act, that
unless otherwise provided by this Act or by the rules of Court
the practice of the Surrogate Courts shall so far as the cir-
cumstances will admit be according to the practice in Her
Majesty's Court of Probate in England, as it stood on the 15th
day of July, 1870, so that the law as laid down in In re Earl
and by the Imperial Act, is now the law of Saskatchewan, no
provision having been made by statute or rule regulating the
practice under like circumstances. The appeal from His Honour
Judge Rimmer will, therefore, be dismissed.
22— \0L. n. SX.B.

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SASKATCHEWAN LAW REPORTS. [vol.

[TRIAL.]

1909 Shinn V. McLean.

Sept. 22. (^^ qJ Goods — Action by Foreign Partnership in Firm Name — Action by
Foreign Company — Right to Maintain — Acceptance of Goods — Damages for
Breach of WarranJliy— Evidence of Breach,

Defendant ordered a car of apples, which the plaintiff shipped on tenns that
it should be accepted on delivexy at point of shipment. The car was re-
ceived in due course and unloaded by the defendant, who first complained
that one box was short and one bad, and later that ten boxes were bad,
and at a subsequent date that the whole shipment was bad. There was no
evidence as to the condition of the goods wnen delivered for shipment.

At the trial it was objected that a foreign partnership (the plaintiffs being
resident out of the Province) could not maintain an action in the firm name,
and subsequently, when it transpired that the plaintiff was a corporation,
that being a foreign corporation not registerea they could not maintain
an action. In an action for the price of goods sold and delivered: —

Heldy that defendant, having appeared to the writ of sununons, waived any
objection to the plaintiff's right to bring an action in the firm name if the
plaintiffs were a firm.

2. That the contract being made by correspondence, and delivexy having
taken place out of the Province, the plaintiff could not be said to be a foreign
company carrying on business in the Province.

3. That the defendant not objecting to the condition of the whole shipment
when received, and having taken possession of the car and sold some of the
contents, must be deemed to have accepted the goods.

4. That it was, however, a condition of the sale that the gooda should be in
merchantable condition when delivered for shipment^ and the defendant
could accept the same and sue for breach of warranty if the gooda were not
as ordered.

5. That while the defendant's actions raised a very strong presumption that
the goods were practically satisfactory when delivered, yet as the plaintiff
had given no satisfactory evidence that the goods were in good oonditioD
when shipped, and the defendant having shewn damages, he was entitled
to an allowance for such damages.

This was an action for the price of goods sold and delivered,
and was tried before Prendergast, J., at Moose Jaw.
W, B, WiUoughby, for the plaintiff.
H. S. Lemon, for the defendant.

September 22. Prendergast, J.: — ^This action is for $550,
being the price of 500 boxes of apples alleged to have been sold
and delivered by the plaintiffs to the defendant at Moose Jaw.

The defence is in substance that the said apples were decayed,
unmerchantable and worthless, and the defendant claims damages
for diflference in value, extra freight paid, and cost of labour in
sorting— in all $819.25.

The defendant first took the objection, under rule 37 of the Judi-

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u.] SASKATCHEWAN LAW EEPOBTS. 837

catiire Ordinance, that the plaintiffs (who live at Spokane, Wash- Pwn^«»rt. J.
ington), not being within the jurisdiction cannot bring action under 1909
their partnership name. I would hold that this is a mere irregu- srara
larity which the defendant waived by appearing and taking out an v,

order for security of costs. Such was also the decision of my
brother Newlands in the recent case of Kasindorf & Co. v. The
Hudson Bay Insurance Co,, supra p. 215, which is in every point
similar to the present one.

It was, however, made to appear later on at the trial that the
plaintiffs are not a partnership firm, but a company incorporated
under United States law; and it not being shewn that the said
company was registered in this Province, the defendant objected
that it could not maintain the action under sec. 10 of the Foreign
Companies Ordinance.

It does not appear, however, that the plaintiffs ever shipped to
this Province any other goods than this car of apples; then, the
transaction was wholly initiated by the defendant asking the plain-
tiffs for quotations and later on ordering the apples by correspon-
dence; and finally, as I shall presently state, I find that delivery
was to be at Spokane and not at Moose Jaw. For these reasons,
I hold that the plaintiffs cannot be said, on account of this trans-
action, to be a foreign company carrying on business in this Province
within the meaning of the said Ordinance.

I find that the contract is contained in the following extracts
from the correspondence exchanged between the parties: —

1. Defendant's letter of August 8th: "We want car mixed fruit
at once if prices right. Will (require) car of apples later when
prices right."

2. Plaintiff's letter of August 19th: "We quote you apples
at ; plums and prunes at , &c. The fruit must
be accepted here as we will take no chances on same while in transit.
We will give you good fruit, but when we get the transportation
company's receipt, our responsibility ceases."

3. Plaintiff's letter of August 25th: "We will put in a nice
assortment of fruits to make a minimum car. We will probably
have a straight car of apples to offer about Sept. 1, which we quote
at f 1.10 per box."

4. Defendant's letter of August 28th: "We have decided to
take a car . . . We want mostly good red eating apples with

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[vol.

1009
Shinn

McLean.

^f^ooa^, J. mixture of best kinds. Good eating peare. Silver Italian prunes,
etc. . . . We accept your terms."

5. Plaintiff's letter of August 30th: *' The fore part of next week,
will wire you exactly what we have to offer ... In the mean-
time quote you car of apples, shipment to be from Ist to 10th
September $1.10 per box f.o.b. here, varieties principally Wealthies
and white McMahons. We may have a few pears at $1.50 per box."

6. Defendant's telegram of September 2nd: *'Ship at once car
of apples, few pears, first quality, Wealthy."

7. Plaintiff's letter of September 14th: "We got your car of
apples loaded C.P. car 80286. We did not put any pears in as it
would change the rate . . . This is an extra nice car of apples.
. . . We gave a good supply of Wealthies, Alexandrias, Mc-
Mahons, Wolfords, Pippins and Berthenheimers, as well as a nice
lot of other apples."

The car arrived at Moose Jaw on September 2 Ist, and the de-
fendant took possession of same after paying freight and customs
duty amounting to $342.

The defendant had been advised that the car contained not only
Wealthies and McMahons, but also Wolfords, Pippins, etc., so that
his acceptance disposes of any objection on the ground that the
apples were of other kinds or varieties than he expected.

The defendant states that he found the apples to be totally
valueless for the three-fourths, and that the balance, except for a
small proportion, were depreciated by one-half or even two-thirds
of their value.

Now, if this was so, I must say that the defendant's conduct
was very extraordinary under the circumstances, — so much so,
indeed, as to leave it open to grave suspicion.

What does he do with respect to notifying the plaintiffs, and
how or when does he complain or protest? For, according to his
own evidence, he knew practically at once of the condition of the
apples.

On September 23rd the defendant writes to the plaintiffs that
the car was unloaded on the 21st, and that there is one box short
of the invoice and one box of partly rotten apples and thirds.
The plaintiffs having drawn on him at sight, he also savs, " we will
accept your draft for thirty days."

On October 1st — having in the meantime received from the

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SASKATCHEWAN LAW BBPOBTS.

plaintiffs a letter sa3ang that the transaction was a spot cash one —
the defendant writes to claim a freight overchaige owing to the car
.not having been filled to minimum capacity, and also for said
shortage of one box and one bad cull (in all, S28.52), and winds \xp:
" No draft, please settle this legitimate claim and we will remit you."
But except as to the one box, there is no complaint about the
condition of the apples.

On the same day (October 1st) the defendant seems to have
sent to the plaintiff another letter practically to the same effect,
and equally silent as to the defective condition of the apples.

On October 5th, the plaintiffs having insisted on immediate
payment, the defendant writes: "Before we remit in payment of
car of apples, we shall expect you to pay attention to claim for
allowance of two boxes of apples and for freight overchaiged,"
and he then goes oh complaining that their ag6nt at Calgary had
undertaken to sell him another car of fruit on certain conditions
but changed the conditions afterwards and sold the said car to
another fruit man at Moose Jaw for less than $1.10, and finally
claims a rebate on the car in question in this case, as also a refund
of moneys alleged to have been expended by them in advertising
the second car. But here, again, there is no complaint about the
condition of the apples.

Then, having received a sharp letter from the plaintiffs, the
defendant, on October 18th — that is to say, 27 days after unloading
the car — writes to complain for the first time. He says: **Ten
boxes of your car of apples marked dump and are rotten. This
mark was on when unloaded from car. No sale, not fit for sale.
We charge these boxes against your account," etc. Even then,
he seems to complain only about ten boxes, and had he not seen
this mark "dump" long before?

I find that it was a condition that the apples should be mer-
chantable when put on board at Spokane. I hold that the defendant
had a right to inspect the apples, and that in case he found they did
not comply with the condition, he would have the right, generally
speaking, either to repudiate the contract or treat the breach of
condition as a breach of warranty: Sale of Goods Ordinance,
clause 13.

That the defendant did not repudiate the contract is, of course,

Prendergist, J»

1909

Shikn

McLean.

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McLxAN.

more than plain from the fact that he took possession of the apples,
opened all the boxes, sorted them, threw some away, and sold some.

The defendant must be held to have accepted: C/iapIatn v.
Rogers (1800), 1 East 192, 6 R.R. 249; BlerUdnsop v. Claifion
(1817), 7 Taunton 597, 18 R.R. 602.

The defendant's delay in complaining would of course be con-
sidered extraordinary under all circumstances, and must appear
more so as that exchange of correspondence was going on bet\^een
the parties all the time. But must the defendant on that account
alone be considered to have waived all objection, and is he decidedly
debarred thereby from claiming for the breach of warranty if such
existed?

The point, I think, is one having more to do with the rules
of proof and presumptions, and should be decided on the merits of
the evidence given. It seems to me that the general trend of the
cases on the point does not go further than this, that ''the not
giving notice indeed raises a strong presumption that the article
at the time of the sale corresponded with the warranty and calls
for strict proof of breach of warranty": PouUon v. LaUimore (1829),
9 B. and C, 259, at p. 265.

In this case there was notice, but only when the fruit had been
decaying (if it was decayed when received) for 27 days more in the
defendant's possession.

James Simington, who has been in the fruit business in Moose
Jaw for eight years, says in this respect: "The customary time
allowed in the trade here, is that it is generally inspected on arrival
and reported. It is shorter to inspect boxes, as it is a smaller pack-
age and more visible. 500 boxes should be inspected in two or
three hours. The custom is usually to report losses at once. This
is a world-wide usage, I think."

I will make free to say that if the plaintiffs had given proper
evidence that the fruit was in good condition when put on board
at Spokane, I should probably hold that the defendant's conduct
raises such a presumption that his evidence cannot avail as against
that of the plaintiffs. But the plaintiffs did not give such eviience
of the condition of the apples at Spokane.

I will then entertain the defendant's claim for breach of war-
ranty, but will at the same time weigh the evidence given on his
behalf with the greatest strictness.

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The defendant has produced no books, vouchers, memoranda
or statements shewing what disposition he made of the apples. 1909
At the same time, by his own testimony and that of Stamper and q^^
Houigo, I think he has shewn that some of the apples did not corre- v

spond to the warranty. What that proportion was he did not
support by actual and conclusive figures in detail, nor did he bring
the same within any definite limit of time. And it must not be
foigotten, as I have found, that delivery was to be at Spokane
and not Moose Jaw by plaintiffs' letter of August 19th, and that
this condition of the contract was never varied.

It stands altogether out of reason that I should hold that the
condition of these apples at Spokane must have been the same as
the plaintiff states he found them in when, he says, he inspected
and picked them on the tenth, deventh, twelfth and even as late
as the thirteenth and fourteenth days after they were taken over.

The defendant is shewn to have on two occasions offered in
settlement the simi of $334.95. This is less than the amount
claimed by S215.05, and this difference, as I find, would represent
(together with the proportionate amount of freight and duty for
which he would be entitled to compensation, some $81.00) the loss
of about thirteen boxes, or just one in excess of the loss complained
of in his letter of October 18th, plus one short of invoice as before
reported. Although believing that the damage really sustained
was greater, I do not see anything else that I can confidently rely
on but the above, and the defendant has only himself to blame for
not having placed himself in a position to bring to Court evidence
more definite and less suspicious, for the onus is altogether upon
him, he having accepted the goods.

In the absence of more definite figures to go by, I will allow the
defendant this sum of $215.05. I allow this as representing, be ides
the proper refund of charges, the loss on account of decay, figuring
the same on the basis of $1.10, the contract price.

The measure of damages fixed by sec. 51, sub-sec. 3, of the
Sale of Goods Ordinance, would mean, of course, in this case, the
difference in value by the car lot without reference to retail prices,
and I do not find that there is positive evidence that wholesale
prices went higher than $1.10, say within two or three days after
September 21st, the date when the defendant took possession of
the goods.

There will be judgment for the plaintiffs for $334.95, with costs.

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342 SASKATCHEWAN LAW REPORTS. [vol.

1909

[TRIAL.]
Reinholz v. Cornell & Gaar Scott & Co.

n«f OQ Convernon — Seizure of Goods under Chattel Mortgage — Goods Held by Mori-
Uct. 29. gagor under Agreement for Conditional Sale — Seizure in Good Faith.

Plaintiff delivered a team of horses to his son, under an agreement for con-
ditional sale whereby the property in the horses was reser^ to the plaintiff
until the purchase price was paid. Subsequently the son mort^iged the
horses, and the mortgage came into the hands of the defendant company.
• Default bein^ made, the company authorized its bailiff, the defendant

Cornell, to seize the horse. On the seizure being made the plaintiff notified
the bailiff of his lien and the registration thereof, but^ by reason of a change
in the boundaries of the registration district, mentioned the wrong office
as the place where the note was registered. Search on two occasions at the
office named failed to shew the lien registered, and the defendants thereupon
sold the horses. The note had in fact been property registered before the
changes in the boimdaries. In an action for conversion: —

Held, that although the defendants acted innocently and in good faith in
selling the property in question, there was nevertheless a wrongful con-
version.

This was an action for damages for conversion of a team of
horses, tried before Prendergast, J., at Regina.
W, W, Gttggisbergj for the plaintiff.
J. F. L. Embury^ for the defendant Gaar Scott & Co.
H. A. Archer J for the defendant Cornell.

October 29. Prendergast, J.: — This is an action for con-
version of a team of horses, and the plaintiff claims the value of
the horses, and certain damages; in all, $784.39.

On March 16th, 1907, the plaintiff, who was the owner of a
team of horses, baiigained the same with his son Frederick, receiving
from him as consideration therefor a note of even date for $400,
bearing interest at 8 per cent, and due October 1st following, and
containing the usual clause of lien notes in the words following:
"The title, ownership, and right to the possession of the property
for which this note is given shall remain at my own risk in F. Rein-
holz until this note or a renewed thereof is fully paid with interest,"
etc.

Nothing was ever paid on this note.

Frederick took the horses away from his father's stable to his
own place shortly after the bargain, worked them, and put them
again in charge of his father after some time, as he was going to
work in some other village and there was no one to attend to them
on his own farm. This part of the evidence is rather indefinite.

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but I find, at all events, that the horses from that time, although P'^ndwmt, J.
under the control of the father, were still in the constructive posses- 1909
sion of his son. Re^olz

Now, on July 1st of that year, one Krause bought from one v-

Woods a team of horses on credit, and as Woods required that &

he should have the security of a chattel mortgage on the team he ^-^^J" oo^^^
was selling and on some other team as weU, Krause requested
Frederick Reinholz to join with him in the mortgage and include
therein the team he had bought from his father, the plaintiff — to
which Frederick acquiesced, and the mortgage was executed accord-
ingly and delivered to Woods.

Some time after. Woods being indebted to Gaar Scott & Co.
for some farming implements, turned over to them certain collateral
securities, amongst which was the chattel mortgage in question.

In the following winter (1907-08), not being able to get satisfac-
tion from Woods, M. D. Bacon, collector for the company, went to
the plaintiff's place, where he saw Frederick Reinholz and reminded
him of the chattel mortgage. Bacon says that the father was there
also, and that he did not say that he had a lien on the horses, but
he admits that he may not have heard the conversation.

Bacon, however, returned the following fall (about October 8th,
1908), and the plaintiff then told him that ^e had a lien note on the
horses and that it was roistered at Areola. The fact was that
the note was registered, not at Areola, but at Moosomin.

Bacon consequently went to Areola, and finding no lien note
roistered there, handed over to the defendant Cornell, as bailiff,
the chattel mortgage referred to, with the company's warrant to
distrain thereunder.

The defendant Cornell accordingly proceeded to the plaintiff's
place on October 2l8t, made seizure of the two horses, brought
them to Stoughton, and announced a sale of them to be held on
November 12th.

Cornell having, however, received on that day a letter from
plaintiff's solicitor warning him not to proceed with the sale, and
again stating that the lien note was registered at Areola, postponed
the sale to November 18th and referred the letter to Bacon. The
latter again went to the Clerk's office at Areola, when a more minute
search was apparently made, and again finding no note registered,
ordered the baili.T to proceed with the sale.

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344 SASKATCHEWAN LAW REPORTS. [vol.

prendergMt, J. On November 18th, as soon as the sale was declared open, a

1909 justice of the peace living at Stoughton read out, standing in a

Rbinholz ^^^^^y^ ^ *^® crowd of about two hundred who were present, a

V. notice that there was a lien on the horses about to be sold. The

ft horses were, however, sold, one for $135 and the other for $25.

^^j^r^^ The plaintifif and two other witnesses say that the horses were

worth $200 each; the defendant Cornell says $131 and $100.

Otto Reinholz, another of the plaintiff's sons, eventually bought
back one of the horses from the party to whom it had been sold
by the bailiff for $175.

I may say that the mistake of the plaintiff and his solicitor in
stating that the lien note was roistered in Areola, while it was in
truth registered at Moosomin, was due to the fact that the boun-
daries of the registration district had in the meantime been altered
by order in council.

I hold that there was a wrongful conversion. See Jones v.
Dowler (1842), 11 L.J.Ex. 52, 9 M. & W. 19, and Driffll v. M'FaU,
41 U.C.Q.B. 313, in which the leading cases are reviewed,
and amongst others, The Lancashire Waggon Co. v. FUzHugh
(1861), 6 H. & N. 502, 30 L.J.Ex. 231, 3 L.S. 703, where it was said:
" It is now settled law that the assumption and exereise of dominion
over a chattel for any pujpose or for any person, however innocently
done, if such conduct can be said to be inconsistent with the title
of the true owner, is a conversion."

I would also refer to Jones on Chattel Mortgages, 4th ed., p. 447,
where the principle laid down with reference to mortgaged chattels
will apply to all chattels on which there is a lien.

This is an unfortunate matter, as the defendants acted in
good faith, and even endeavoured to make assurance doubly sure
by going a second time to the Clerk's office at Areola. It did not
occur to them that the registration district might have been altered.
On the other hand, those horses were the plaintiff's, he had a lien
thereon, he had registered his lien, he made repeated demands for
the return of his property, he was equally in good faith, and when
he stated that the note was roistered at Areola it did not occur
to him either, any more than to the company, that there might
have been a change in the boundaries of the district.

I value one of the horses at $200 and the other at $175, which
is the price Otto Reinholz paid for it to the man who had bought
it from the bailiff. The other damages I value at $40.

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[TRIAL.]
Campbell v. MacKinnon. 1909

Sale of Lands — Specific Performance— Tender — Payment Gamisheed — Tender Sept. 29.
ojF Balance — Sufficiency — Laches — Waiver — Tims Essence of Agreement —
intention of Parties,

Plaintiff agreed to purchase certain land from the defendant and made the
first payment thereon, it being also understood that the defendant should
retain possession for some time. Before the second payment became due
the plaintiff was served with a garnishee summons at the instance of a
creditor of defendant, and pursuant to such simunons paid into Court the
amount attached. When the second payment became due plaintiff tendered
the amount less the amount attachea, which defendant refused to accept,
apparently basing his refusal on the deduction of the amoimt paid into
Court. Nothing further was done unto the time came for the defendant
to deliver possession, when several conferences took place, during which
the plaintiff asked for a definite statement from the defendant as to his
intentions, stating that he must have the land or his money back. At the
last of these conferences the defendant, without committing himself, prom-
ised to ^ve an answer later. He never made any further communication.
The plamtiff did not tender the next instalment, and about a year after
the tmae when he should have received possession he brought action for
specific performance. After action brought the defendant served notice
of cancellation. In an action for specific performance: —

Held, that an instalment due under an agreement for sale contaming a coven-
ant by the piurchaser to pay is a debt which is attachable.

2. That tender of the balance of the instalment after deducting the amount
paid into Court was a sufficient tender.

3. That the defendant's conduct in refusing to give a definite refusal to com-

Slete the contract and deliver possession, and promising an answer which
e never gave, would excuse any laches on the part of the plaintiff in claiming
relief.

This was an action for specific performance of a contract for
sale of land, and was tried before Prendergast, J., at Areola.
A. M. McUheson, for the plaintiff.
Jos. Balfour^ for the defendant.

September 29. Prendergast, J.: — ^This is an action for rec-
tification and specific performance of an agreement for the sale
of land.

It is admitted that the words "the south-west quarter" in the
description of the property in the said agreement were intended
to be and should be "the north-west quarter," and that is all that
is sought to be rectified.

In the fall of 1907, the defendant listed for sale the quarter
section on which he lived, with one Naismith, a real estate agent,
at $3,000 nett, the agent to have as commission whatever he could
get over that.

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Campbell

Mac-
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The agent found a purchaser in the plaintiff at $3,120, and the
parties on October 7th signed a memorandum of agreement (exhibit
A), the defendant at the same time receiving ten dollars on accoimt.
The land is therein described as *'the north-west quarter of section
20," etc., which is, it is admitted, the quarter which both parties
had in mind.

On October 14th the parties executed an agreement for sale
under seal, which is the subject of this suit. It is dated October
7th, 1907; the land is therein described as "the south-west quarter"
(instead of "the north-west quarter") of section 20, etc., and the
consideration and conditions of payment are set out as follows:
" ... at and for the price and sum of three thousand one
hundred and twenty dollars of lawful money of Canada payable in
the manner and on the days and times hereinafter, mentioned that
is to say: One hundred and ten dollars (SI 10.00) in cash at the
execution of these papers, the receipt of which is hereby acknow-
ledged. Eight hundred and ninety dollars on December 1st, 1907;
four hundred and eighty dollars on December 1st, 1908; four hundred
and seventy dollars December 1st, 1909; four hundred and seventy
dollars December 1st, 1910. Seven hundred dollars from proceeds
of loan which is being executed with the Trust and Loan Company,
Regina; the repa3rment of which the said John H. Campbell as-
sumes."

There is also a clause declaring time to be of the essence of the
agreement, and providing for rescission by the vendor giving written
notice in case of the purchaser's default in any of the conditions.

Of the cash payment of $110, the receipt of which is acknow-
ledged in the agreement, only ten dollars was actually paid in
money, and the balance in the following manner: the agent, in
consideration of the fact that the instalments in the agreement
were more extended than in the memorandum, reduced his com-
mission from $200 to $100, and allowed this $100 to go in satisfac-
tion of the balance of the cash payment, the defendant hailing
already received ten dollars on signing the memorandum. (This,
I may say, at the same time amounted to a loan that the agent was
making to the plaintiff, and the plaintiff secured him for the same
by a note.) I have no shadow of a doubt that this arrangement,
which was convenient for all parties, was perfectly understood and
agreed to by the defendant, and that he considered that this cash

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payment was made then and there to all intents and purposes,
just as the agent considered that he was then and there being paid
for his commission. This is further shewn by the defendant never
asking thereafter for this first payment, and also by that part«of
his evidence where he sayB that on December 2nd he was willing
to accept the amount of the second payment then falling due with
interest, — meaning evidently that he was ready to accept that in
satisfaction of all that he considered was due up to that date.

Some, time later, on November 30th as I judge, the plaintiff
was served with a garnishee summons for S203.75 in a District
Court action wherein the Moose Mountain Lumber and Hardware
Co. were plaintiffs and the defendant herein defendant.

The second pa3anent, being $890 and interest, is declared in
the agreement to be payable on December 1st, but that was a Sun-
day. On Monday, the 2nd, the plaintiff went to see the defendant.
He did not find him at home, but found him at ten or eleven in the
evening at a neighbour's residence where there was a social gather-
ing. The plaintiff, who was accompanied by one McKee, called
the defendant outside and told him to go and get a light, that he
would pay him his money on the place. The defendant replied
that he would not bother with it that night, and that he would
call at his (the plaintiff's) place next morning. On Tuesday
morning, as agreed, the defendant called on the plaintiff. The
latter explained to him about his having received a garnishee
sunmions from the Moose Moimtain Lumber and Hardware Co.,
and tendered him a certain sum of money as the balance coming
to him on this second payment. The defendant says: "He offered
me one dollar. That is all I saw, and he was quite close to me.
I was willing to take $890 and interest. When Campbell spoke
of the garnishee, I asked him how he was authorized to hold $25Q
of my money." The plaintiff's evidence, on the other hand, is as
follows: "MacKinnon said he would not take it. He said it was
on account of the garnishee that he would not take it, and they
had no business putting that much costs on him. I said that I
would like to have him paid. He said that he would not take the
money; that he would not do anything about it that day. He
did not say when he would do an3rthing about it." The plaintiff
swears that he had got over $800 at the bank at Stoughton the
previous week, and that he tendered the plaintiff that morning

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Mac-
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Oaicfbell

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S645.45; as being the balance left on the payment of December
1st after deducting the amount attached, and adding thereto
interest as called for by the agreement. The plaintiff's evidence
is substantially corroborated by Richard McEee, and I take it,
with all reasonable certainty, to be the correct version of the in-
cidents of that meeting.

The plaintiff, on the*same day, it seems, sent a letter (exhibit 1)
to the defendant, advising him that he was leaving the $645.45
with the Naismith Implement Co. at Heward (which is the post
office address of both parties) to be paid to him on demand, and
that he would pay the balance of $253.75 into Court, which two •
payments the plaintiff made as stated, except that it would perhaps
appear in another part of his evidence that he only paid into Court
$250, which, however, would not affect the issue. What has since
become of the $645.45 does not appear.

Some time later in the course of the same month, probably
about the 15th, upon the error of description in the agreement being
discovered, Naismith saw the defendant to have the matter straight-
ened out; but the latter refused, saying (as one Sullivan was the
owner of the south-west quarter mentioned in the document):
**If I like I can get Sullivan's quarter delivered, but I won't change
it." About the same time, the plaintiff, accompanied by one
Handley, who also gave evidence, went to the defendant and
presented to him for execution an agreement (exhibit C) already
executed by himself, and which is in every particular similar to
the one sued upon except the description reads "the north-west
quarter" instead of 'Hhe south-west quarter," but the defendant
refused to execute it.

Then, some months passed without anything being done. The
plaintiff explains, in this respect, that the defendant had at all
events the use of the buildings tiQ April 1st, 1908. The defendant,
on the other hand, after affirming that the plaintiff asked him to
sign a new agreement only in October, 1908 — ^in which he is mani-
festly wrong — says: "In the winter of 1907-08, I was waiting to
see if he would not take out a new agreement," a phrase which,
when read with the rest of his evidence, will appear at the same
time as both uncandid and senseless, as so many others of his state-
ments.

Some time in March, 1908, the plaintiff was served with another

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garnishee Bummons for $143.04 in a suit of the Massey Harris Co.
against the defendant. The plaintiff says in this respect: ''I
arranged with the Massey Harris to wait until such time as I got
the farm, but they didn't release me."

About April 1st, 1908 — ^the date up to which the defendant had
the privil^e of using the buildings — ^the plaintiff asked him if he
was not going to give him possession of the whole thing; to which
the defendant replied that he was in possession of the farm and
was going to stay on.

Two or three weeks later, however, which would be about April
20th, the defendant went to see the plaintiff at the latter 's place,
and the conversation which took place then was in the presence of
John L. Handley.

The defendant admits that he spoke first by asking the plain-
tiff, "What about the farm?'' but sums up the whole conversation
as follows: "I asked him, 'What about the farm?' He said he
had not heard from Naismith and did not know anything about it.
He asked me to let him know if I was going to let him have the
farm. Later on, he said he did not want the place." It is to be
noted here that, on the defendant's own evidence, it was he who
opened the conversation and that he went to the plaintiff's place
for the purpose, which shews that he had not yet definitely taken
his position as to refusing to give up possession.

The plaintiff's version, which is wholly corroborated by Handley,
is very different. It is as follows: "He came down and said,
'Campbell, how about our deal with this farm?' I said, 'I have
not gone to any trouble, but I want my money back or the farm.'
He said, 'What money have you got?' I said, 'I have the money
in the bank, but if I get the farm I want it in time to put the seed
in.' He said, 'I do not know.' I said I learned his wife did not
want to leave the farm, and if she would not leave, to give me
back my money, but I'd rather have the farm. He said, 'I will be
here again; I am going to work and will let you know' — meaning
if he was going to keep the farm. That is the last I ever heard
about it."

Handley says: "Campbell said he wanted either the place or
his money, and that he wanted time to put in his crop. He said,
'I do not want to take the place from Mrs. MacKinnon if she won't
leave it; but I want my money, or I will pay you your balance. "

Preiidoz8ist« J*

1909
Campbell

Mao-

KiNNOW.

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1909
Campbell

17.

Mac-
Kinnon.

As stated by the plaintiff, that was the last he heard about it.
The defendant has ever since remained in possession of the farm.

Some time in the fall of 1908, the defendant paid S56 as interest
on the mortgage to the Trust and Loan Co. which the plaintiff
assumed under the agreement. He seems, however, to have paid
it with an eye to this suit, for he says in his examination for dis-
covery (p. 14) : *' I sent the money way before it was due." Neither
had he given notice to the plaintiff of that payment, and in fact it
was not shewn to me that any money became payable to the Trust
and Loan Co. before action was brought.

On December 1st, 1908, the third instalment, being $480 and
interest thereon, became payable, and was not paid by the plaintiff.

On February 3rd, 1909, the writ herein was issued, and on the
17th of the same month the plaintiff was served with notice of
cancellation (exhibit 2).

The performance \vhich the plaintiff prays for is delivery of
possession, and he also claims damages and mesne profits.

The defence is that "the plaintiff has failed to carry out the
terms of the said agreement with respect to payment of the pur-
chase price and of the mortgage assumed by the plaintiff, and in
consequence of such default the plaintiff, in accordance with the
said agreement, cancelled the said agreement and declared the
same null and void, and caused notices to that effect to be given
to the plaintiff in the manner provided by the said agreement."
The defence also states that "in view of the said default and of the
delay and laches of the plaintiff, the plaintiff is estopped from
obtaining the relief asked for," and there is also a prayer for a
declaration that the said agreement is cancelled and determined.

First of all, with respect to the cash payment, I have already
commented on the arrangement which was arrived at with respect
to it, and I hold that this payment should to all intents and purposes
be held to have been made.

With respect to the second payment, I hold that it was attach-
able although it was not yet payable. It is a debt accruing due
within the meaning of rule 384 of the Judicature Ordinance. I
can see no distinction in this respect between an instalment under
a mortgage and an instalment under an agreement for the sale of
land. I am inclined to think it would be different with an instal-
ment under an agreement for the sale of land where the vendor

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would bind himself to the usual obligations in such cases, but with-
out any promise to pay on the part of the purchaser. This would
practically be in the nature of an option, and the instalments
thereunder would not be a debt accruing due, for the reason that
it would not be a debt at all, there being on the purchaser's part no
obligation to pay.' But the agreement in the present case is just
the reverse: it binds the purchaser to pay the instalments it provides
for. I consequently hold that in tendering the defendant S645.45
on December 3rd, 1907, and paying into Court $253.75 under the
garnishee, the plaintiff performed all that he was called upon to
do with respect to the second pa3rment.

Now, up to AprQ 1st, 1908, no laches can be attributed to the
plaintiff, and it seems to me that none could be. The defendant
had reserved to himself the right to occupy the buildings until
that date, and besides roaming over the fields in the winter time,
there was no right that I can see that the plamtiff could claim or
exercise.

But when the time came when the defendant should give up
possession, the plaintiff asked him ''if he was going to give up the
whole thing.'' It is true that the defendant at first squarely
replied that he would not; but he evidently thought more of it
afterwards, for about April 20th we see him going to the plaintiff's
place to discuss the matter with him.

I attach the greatest importance to this conversation; in fact,
I think that in a laige measure the case revolves upon it — as far,
at all events, as laches might be otherwise a bar to the relief sought
by the plaintiff. My view of it is, in short, that the plaintiff made
it quite plain on that occasion that he wished for a definite under-
standing on the matter, that he wanted either ''his money back
or to pay him (the defendant) his balance," and that, in con-
sideration of Mrs. MacKinnon being averse to leaving, he left it to
the defendant to choose between the two. If the defendant did
not want to leave the farm, all the plaintiff asked was ''his money
back," which surely is not imreasonable.

The defendant appears to have then answered the plaintiff,
"I will be here again; I am going to work, and will let you know."
But he never sent any answer nor intimated anything to the plaintiff
until after suit, when he served him with cancellation notice.

It was pointed out that from April 20th, 1908, the date of the

23— VOL. n. S.I.B.

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last mentioned conversation, up to February 3rd, 1909, when the
action was instituted, the defendant was all the time in possession,
the plaintiff did not seek relief, and he moreover made default
with respect to the second time payment of $480 and interest due
. December 1st, 1908. '

With respect to the defendant's possession, it does not seem to
me that it was really adverse possession, not at all events at the
beginning, and unless it became so by effluxion of time. It seems
to me it was qualified by the conversation referred to. The de-
fendant, by saying that he would come back to give an answer,
and the plaintiff, by acquiescing to the defendant taking time to
consider, seemed to have put the whole matter for the time being
on neutral groimd, as it were.

It is true that a Court of Equity as a rule refuses relief when
not promptly sought for. But it is also true that the time employed
by the parties in negotiating will not be computed in laches: Sauih-
combe v. Bishop of Exeter (1846), 6 Hare. 213. I think that in
this case, some further time after the conversation in question,
during which the defendant was supposed to be considering his
answer, should be allowed as part of the negotiations. In a case
where the defendant made no reply to the plaintiff's last letter
calling for a distinct answer, the Court overlooked on that account
the plaintiff's delay in seeking relief: Marquis of Hertford v. Boore,
5 Vesey 719. In the present case it was for the defendant
to take the next step by bringing his answer to the plaintiff. The
Court will also the more readily deny the relief, when the defendant
has actually refused to complete, than where ''the matter has
merely slept": Guest v. Homfray, 5 Vesey 518. After April
20th, 1908, the defendant never refused to complete until after
action brought, and it does seem that the parties' position is
that they allowed the matter to sleep. It is also true that the
plaintiff did not make the payment falling due December 1st, 1908.
Probably he should have tendered it. But there are these three
circumstances which, taken together, the Court should make some
allowance for: the defendant had refused to accept the first time
payment, he had refused to rectify the agreement, and the niatter
was left in an indefinite shape by his not bringing in an answer.

The Court should also', of course, take into consideration the
defendant's conduct in passing on the plaintiff's laches. In this

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case the defendant had no grounds to refuse the money tendered
to him by the plaintifiF ajs being all that was payable on the first
time payment; he was wrong in refusing to rectify the agreement;
there was not a particle of reason why he should not deliver up
possession when called on to do so on April 1st, 1908; he did not
act frankly and openly in disregarding his promise to bring an an-
swer to the plaintiff, and he never signified any intention of can-
celling the contract until after the writ was issued. Of course, his
motive seems obvious; he wanted neither of the alternatives which
the plaintiff left to him to choose from; he did not want to deliver
up the land, nor did he want to reimburse the plaintiff the sums
of money that the latter had paid on his account.

In the special aspect of this case, it does not seem to me that
it calls for consideration of the rule that though time may be de-
clared to be the essence of the agreement, the parties nevertheless
will not be bound thereby if it appear by their conduct that their
intention was not that it should really be so: LovMier v. Heaver,
4 Chy. Div. 248; Barhw v. WiUiams (1906), 4 W.L.R. 233. The
.case seems to come rather within the rule laid down in Gnest v.
Homfray just referred to.

The last time, however, that the evidence shews that the parties '
conununicated together, is on April 20th, 1908. When they parted
on that day the proposition was pending as to whether the agree-
ment should be rescinded by the defendant repaying the plaintiff
the money he had been made to pay out on the transaction, or
whether the plaintiff should have possession and the terms of the
agreement be carried out. The choice, as stated, was left with the
defendant. There has not been since then even the slightest in-
timation by the one party to the other of what his intentions
might be; and while it is true that the defendant has remained in
possession, it is also true that it rested with him to make the matter
plain one way or the other, and he did not.

I think substantial justice will be best served by putting the
parties back to the position they occupied on the said 20th of April,
and from which neither gave notice to the other that he intended
to recede.

The defendant will have the option, as he had then, of having
the agreement cancelled by paying the plaintiff his money; and if
the defendant does not choose to do so, then the plaintiff will be

PrendorgMtf J.

1900

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put in possession upon payment of all sums due under the agree-
ment.

In the first contingency, the defendant will have to refund the
cash payment made under the arrangement I have at first explained,
as well as the amount paid under the garnishee summons in the
cause of the Moose Mountain Lumber and Hardware Co. He will
not have to pay the amount of the garnishee order in the suit of the
Massey Harris, as I understand from the plaintiff's evidence that
the said firm have agreed not to press their claim in case he did
not ultimately come into possession of the land. In the second
contingency, I have made allowance neither on the one haud for
the increase in breaking since April 20th, 1908, nor on the other
for mesne profits since the same date, as it is due to the laches of
the parties respectively claiming the same that the question arises, —
and I may moreover say that it appears that the two just about
compensate each other.

There will be an order rectifying the agreement as prayed for.

Upon the defendant depositing within three months into Court,
subject to further directions, the sum of $110 and legal interest
thereon since October 7th, 1907, and paying to the plaintiff the
sum of $253.75 and legal interest thereon since December 1st, 1907,
together with costs of this action, the agreement will be annulled
and rescinded.

And in default of the defendant paying the said sums as afore-
said there will be a reference to the local r^istrar to ascertain
the sums then due by the plaintiff under the said agreement, and
upon the plaintiff depositing into Court within three months the
amount so found to be due, less the taxed costs of this action,
there will be an order that the defendant vacate the premises
described in the agreement as rectified, and that the plaintiff be
put into possession.

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[TRIAL.]

Bell Brothers v. The Hudson's Bay Insurance Co.

Fin Ingunmce— Premium — Payment by Bill of Exchange — Default in Payment
fl/ BiU— Effect of— So Notice of Lom — Notice a Condition Preceient —
Waivg- of Notice — Appointment of Adjueter — Effect of.

Plaintiffs inmired in the defendant company against loss by fire a stock of
eoodfl for $2,000. Ttfe application contained a clause that if the premium
was not paid as agreed the insurance should be void until "such settlement
is iDsde.^' The premium was never paid in cash, but a bill of exchange
was diawn upon plaint ififs and accepted by them, out this was never paid.
The property was shortly afterwanls destroyed by fire. The policy con-
tained one of the statutory conditions, namely, that the insured should
forthwith after loss give notice to the company m writing. No such notice
was ^ven 1^ the insured, although the oompanv's acent gave notice and
told plamtiffs he had done so. It was contended, however, that notice
bad been waived: first, because the company did not draw attention to
the omission; second, because they sent an adjuster to adjust the loss;
and third, because the manager of the company nuide an appointment to
discuss the claim. The policy, however, contained a clause.that no con-
dition should be waived except in writing. The policy also required that
the proofs of loss should shew when and how the nre originated to the best
of the claimant's belief, while in the proof of loss filed the claimant stated
the cause of fire to be unknown, while from his examination for discovery
it appeared that he believed it started from an explosion of the furnace.
In an action to recover the amount of the policy: —

Held, that the defendant, having drawn a bill of exchan^ upon the plain-
tiffs which was by them accepted and became a floatmg security which
ought be passed from hand to hand, must be deemed to have accepted
''settlement" within the meaning of the terms of the application.

2. That compliance with the term of the policy requiring notice of loss was
a condition precedent to the rieht to recover, and while if some sort of notice
had been given which was detective the Court might possibly relieve, yet
no such relief could be granted where there was an aosolute non-compliance.

3. That the acts pleaded in support of waiver were not sufficient to support
the plea, but in any event the policy provided that no waiver should be
effective unless in writing, and there bemff no writing that would constitute
a waiver, the plaintiffs could not succeed on that ground.

4. That the proofs of loss were insufficient, as the statement of the cause of
the fire bemg in the belief of insured unknown, was untrue.

This was an action to recover the amount of a policy of fire
"isurance, and was tried before Wetmore, C.J., at Regina.
J. A. Allan, for the plaintiffs.
G. E. Taylor and Hare, for the defendants.

October 1. Wetmore, C.J.:— This is an action upon a policy
of insurance made by the defendants the Hudson's Bay Insurance
Company Limited (hereinafter called the old company) in favour
of the plaintiffs, Bell Brothers, on a stock of merchandise alleged
to be contained in a two-storied brick-veneered building with metal

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roof occupied by the assured as a general store, and situated on
lot 14, block 20, north side of Derward street, between Fifth and
Sixth streets, in Sintaluta. The amount so insured on this stock
was $2,000. The policy is dated September 17th, 1907, and insured
the property from that date at noon until September 17th, 1908,
against damage by fire. The amount of premium agreed to be
paid was $66.

On November 25th, 1907, the property insured and the buOding
in which it was situated were entirely desfroyed by fire. The
statement of claim sets forth the policy, and that all things had been
done and all times had elapsed and all conditions performed to
entitle the plaintiffs to recover the amoimt of the loss under it.

The defendants the Hudson's Bay Insurance Company (herein-
after called the new company) were incorporated and took over
the assets and liabilities of the old company, including its liability
under this policy. The defendants set up in the first place that the
plaintiffs Bell Brothers had never carried on business at Sintaluta
or elsewhere in the Province of Saskatchewan, and that the de-
fendant Chapman was not the owner or possessed of the real estate
referred to in the statement of claim. The statement of claim
alleges that the policy in question with the right to the money
thereunder was assigned to Chapman. Why the all^ation that
Chapman was not the owner or possessed of the real estate referred
to was made I am utterly at a loss to understand, because it was
not alleged that he was. However, I practically find the whole
of that matter of defence against the defendants. I find that Bdl
Brothers, at the time the insurance was effected, and at the time
of the fire in question, did carry on business at Sintaluta. Whether
Cnapman was the owner or possessed of the real property in question
is immaterial, in so far as that paragraph of the defence is con-
cerned.

In the next place, the defendants pleaded that the Hudson's
Bay Insurance Company, Limited never insured or agreed to insure
the goods and chattels referred to in the statement of claim, or any
goods or chattels on behalf of the plaintiffs Bell Brothers, and never
made or executed the policy of insurance in the statement of claim
referred to. All that it is necessary to say is that I find the issue
joined upon that paragraph of the defence also in favour of the
plaintiffs.

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In the next place they pleaded that if they did make or execute
such policy of insurance the plaintiffs never performed the agree-
ment and conditions contained in the said policy or any of them,
or paid the sum of $66, the premium therein mentioned, and that
the said agreement to insure was made without consideration and
was not binding on the said defendants.

If the defendants by this paragraph intend to set up in a general
way that the condjjtions contained in the policy to be performed
on the part of Bell Brothers were not performed, I hold the pleading
to be, in that respect, too general, and I will therefore limit the
allegation set forth in it to a denial of the payment of the $66
premium.

The application for the policy in question contained a clause
as follows: ''If the premium is not paid as hereinunder agreed, this
insurance to be held void until such settlement is made." The
premium never has been paid in cash, but the defendants, the new
company, who then had charge of the matter in question, after a
considerable amoimt of correspondence upon the subject in which
they were urging Bell Brothers, through their agent Stauffer at
SintaJuta, to pay the premium, eventually, on the 16th October,
1908, drew a draft upon Bell Brothers in favour of the Bank of
Hamilton, Moose Jaw, for $66, the amount of this premium, payable
on November 1st, after date. Bell Brothers accepted this draft,
but the amount was never paid, either at maturity of the draft or
since. The attorney of Bell Brothers, however, after the fire,
tendered the amount with interest to the defendants, who refused
to receive it. The fact of the tender made at that date does not
affect the question which is now being considered, because if the
omission to pay before the loss occurred avoided the policy, a sub-
sequent tender would have no effect whatever, unless, of course,
the amoimt of the tender had been accepted.

It was urged that because this premium had not been paid the
policy was void, and a number of cases were cited alleged to be in
support of that proposition. I have carefully read these cases,
and I am of opinion that they do not bear out the contention for
the defendants. Under these cases there was an express provision,
either in the policy or upon the face of the note, or in some collateral
agreement, that failure to pay any note given for the premium
should avoid the policy. There was no such provision in the policy

Wetmore, O. J.

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in question or in the note which was given, or in any other writing.
The application merely contained the clause which I have quoted
above. I think, reading between the lines in the cases cited by
the defendants, that it can be gathered that if there had not been
such a provision avoiding the policy in case of nonpayment the
giving of a note would have been held equivalent to pa3mient.
I am of opinion that the requirements of the clause to which I
have referred have been filled. Strictly speal^g, perhaps, there
has not been a payment of the premium (although I would hesitate
a good deal before I would hold that there has not), but there has
been unquestionably a settlement. A settlement need not neces-
sarily mean payment. A settlement is an adjustment of the amount
that is due, and the defendants having drawn the draft which was
accepted, and which is a floating security that may be passed from
hand to hand, it seems to me idle to contend that a settlement has
not been made. I therefore find against the defendants on the
third and fourth paragraphs of their defence. I will only add that
the allegation in the fourth paragraph that there was an agreement
that if the premium should not he paid the policy should be void is
not correct — ^the language of the clause in question is as I have stated.

By 'the tenth paragraph of the defence the defendants have
pleaded that no notice of loss was given to the company in writing
forthwith after the said loss. Paragraph (a) of condition 13, one
of the statutory conditions which is contained in the policy, provides
that the insured ''is forthwith after loss to give notice to the company
in writing." It is quite clear this condition was not complied with,
and it is equally clear, in my opinion, that unless the plaintiffs are
assisted by Ordinance, ch. 16, of 1903 (first session), the omission
to give this notice would be fatal to their right to recover. Em-
ployers Liability Assurance Corporation v. Taylor (18d8), 29 S.C.R.
104; The Atlas Assurance Co, v. Brovmell^ Ibid. 537; Commercial
Union Assurance Co, v. Margeson, Ibid. 601, establish that com-
pliance with a condition of that character is a condition precedent
to the right of the insured to recover unless such compliance has
been waived.

It was urged here that there has been a waiver on the part of
the defendants of compliance with this condition (as well as with
other conditions which I will have occasion to refer to hereafter):
first, because the defendants did not notify Bell Brothers of the

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omission ; secondly, because they sent an adjuster to adjust
the loss; thirdly, because the manager of the new company wrote
Bell Brothers stating that he would endeavour to be in Sintaluta
on the Tuesday following the date of the letter to meet them
in relation to the matter of their claim. I cannot bring my mind
to the conclusion that any of these acts or omissions amounted
to waiver. In so far as the first act or omission is concerned,
"waiver cannot be implied from mere silence": Taschereau, C.J.,
in Hyde v. Lefaivre (1902), 32 S.C.R., at p. 478. There were other
insurances upon this property, and an adjuster was appointed by
those other companies to adjust their losses, and the defendant
company through their agent requested the same adjuster to adjust
the loss in so far as they were concerned. That was not a matter,
however, between the defendants and the assured at all. It was
a matter entirely between the defendants and their own officers and
employees. A so-called adjuster, to use the language of Sedgwick, J.,
in The Atlas Assurance Co, v. Brovmell, (1899), 29 S.C.R., at
p. 545, "was simply appointed to make inquiries, investigate and
report to his employers what in his view was the amount of loss
sustained," and such an appointment cannot be construed as
amounting to a waiver. The manager's letter concedes nothing.
It could not possibly alter the situation of Bell Brothers. It was
written over five months after the fire occurred, and over four
months after the proofs of loss had been put in, and merely stated
in effect that he would give the plaintiffs an interview. I cannot
conceive how that could possibly be construed as in any way imply-
ing a waiver. But that which I now propose drawing attention
to is, in my opinion, conclusive on the subject. One of the statutory
conditions (No. 20) of the policy is as follows: "No condition of
the policy either in whole or in part shall be deemed to have been
waived by the company unless the waiver is clearly expressed in
writing signed by an agent of the company." There was no writing
that filled the requirements of that condition. In Logan v. Com-
mercial Union Insurance Co. (1886), 13 S.C.R. 270, there was a
condition in the policy that "no one of the conditions or stipulations
either in whole or in part shall be deemed to have been waived
by or on the part of the company unless the waiver be clearly
expressed in writing by indorsement upon the policy signed by
the agent of the company at Halifax." That provision was similar

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in its general character to condition No. 20 in the policy under di^
cussion. It was attempted to rely upon a waiver in that case, but
Ritchie, C.J., held that the provisions of the condition which I
have just quoted not having been complied with was conclusive
against the alleged waiver, and the other members of the Couit
seemed inclined to the same opinion. In Atlas Insurance Co. v.
BrowneU (cited above), there was a similar condition in the policy.
It was held that the conditions could not be considered waived
unless the waiver was brought within the provisions of that condi-
tion, and that was followed in The Commercial Union Assurance Co.
V. Margeson (1899), 29 S.C.R. 601. I have been referred to Shera
V. The Ocean Accident and Guarantee Corporation, 32 Ont. Rep.
411, as authority for the proposition that compliance with
the paragraph I am discussing respecting notice of loss is not a
condition precedent to the right of recovery in the policy. With
all deference to the eminent Judge who decided that case, I am of
opinion that the decision in that respect is opposed to the decisions
of the Supreme Court of Canada which I have cited. I am there-
fore driven to consider whether, in so far as the omission to give
notice in writing to the defendant is concerned, the plaintiffs are
aided by Ordinance, ch. 16, 1903 (1st session).

I was disposed to think in the first instance that this Ordinance
might assist the plaintiff, but upon a closer reading of it I have
reluctantly come to a different conclusion. Section 2 is as follows:
**2. Where, by reason of necessity, accident or mistake, the con-
ditions of any contract of fire insurance on property in the Terri-
tories, as to the proof to be given to the insurance company after
the occurrence of a fire, have not been strictly complied with, or
where, after a statement or proof of loss has been given in good
faith, by or on behalf of the assured in pursuance of any proviso
or condition of such contract, the company, through its agent or
otherwise, objects to the loss upon other grounds than for imperfect
compliance with such conditions, or does not, within a reasonable
time after receiving such statement or proof, notify the assured
in writing that such statement or preof is objected to, and what
are the particulars in which the same is alleged to be defective and
so from time to time, or where for any other reason the Court or
Judge before whom a question relating to such insurance is tried
or inquired into, considers it inequitable that the insurance should

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be deemed void or forfeited by reason of imperfect compliance with
such conditions, no objection to the sufficiency of such statement or
proof, or amended or supplemental statement or proof, as the case
may be, shall, in any of such cases, be allowed as a discharge of the
liability of the company on such contract of insurance wherever
entered into; but this section shall not apply where the fire has
taken place before the coming into force of this Ordinance."

K some sort of notice had been given by the plaintiffs to the
company and that had been defective, I might possibly see my way
clear to grant relief — that is, to apply the provisions of this section
in aid of the plaintiff's right to recover, but that section seems to me
to require some sort of document, notice, or proof, as the case may
be, to be delivered, and if that document is defective then it might
be cured under the section. But if there is no compliance at all
with the requirement of the condition of the policy, then the section
will not apply, and I am driven to apply the common law principles
under the authorities which I have cited. In this case no notice
of loss was given at all. What did happen was that the defendants'
agent, entirely at his own instance and without any instruction or
direction from the insured, sent notice by telegram and subsequently
by letter to the head office of the loss, and he, it is true, informed the
plaintiff that he had done so. That does not fulfil the requirements
of the condition to which I refer. That condition requires the notice
to be sent by the insured. He is the party to give it, and it is not
satisfied by someone else giving it. This objection may be technical ;
it may create a hardship. All I can say is that it is a statutory
provision which the defendants had a right to put in their policy,
and in my opinion must be complied with.

As I read paragraph (a) of clause 13 of the conditions, it has
reference to one notice which is required to be delivered. Then
by clauses (b) and (c) the insured is called on to deliver another
statement which amounts to proof of loss. One is notice of loss
and the other is proof of loss, and one is entirely independent of the
other. I was referred to The City of Kingston v. Drennan (1896),
27 S.C.R. 46, and Armstrong v. Canada Atlantic R,W. Co, (1902),
4 O.L.R. 560, in support of the proposition that the Ordinance
will permit me to give judgment for the plaintiff if I think sub-
stantial justice requires it notwithstanding the omission to give
notice, but, as I have pointed out, the language of the Ordinance

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not, under the circumstances of this case, permit it. The
authorities referred to in the two cases cited expressly gave the
Judges the power which it is su^ested I have under the Ordinance.
If I am at liberty under the Ordinance to relieve against the omission
to give the notice, then paragraph (a) of clause 13 is practically
a useless clause as a condition precedent to the right of recovery
under the policy, because, in view of the means now available for
disseminating news, a case can hardly arise when immediate know-
ledge of the fact of the fire from other sources than the insured
could not be brought home to the company. The clause in the
policy is authorised by the Ordinance, and I cannot see my way
clear to hold that it is inequitable on the part of the company to .
set up an utter non-compliance with a condition so authorised by
the Legislaturej and which, in my opinion, in the light of decided
cases, I must hold to be a condition precedent to the ri^t to re-
covery under the policy. I have also been referred to Robins v.
The Victorian Muttud Insurance Co,, 6 Ont. App. 427. The
question of the construction to be put on sec. 2 of ch. 162 of
Con. Stat, of Ont. (1877), arose in that case. That section is iden-
tical with sec. 2 of the Ordinance. I distinguish that case from
this because in this case there was no compliance whatever with
the particular condition; in the Ontario case there was an attempt
to comply with the condition, and the decision went in favour of the
plaintiff on the ground that non-compliance with the terms
of the condition waa the result of a mistake or accident. Patterson,
J., at p. 437, divides the operation of the Act into three cases, and
it will be observed that he, as well as the other Judge, question
whether the third case — ^namely, the power of the Judge, if he con-
siders it inequitable, that the insurance should be held void, to
hold it valid — is so far reaching as might at first glance be
supposed.

There is another matter to which I will draw attention, although,
perhaps, it is not necessary for me to do so in view of the conclusion
which I have reached. Paragraphs (b) and (c) of clause 13 require
proof of loss to be furnished with a statutory declaration declaring
that the account is just and true, and also ''when and how the fire
originated so far as the declarant knows or believes." The assured
did furnish what purports to be proof of loss, which was made by
the plaintiff George R. Bell, in which he states that the origin of
the fire is unknown.

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The reason I particularly draw attention to this branch of the
case is that clearly sub-paragraph 2 of paragraph (c) of clause 13
of the statutory conditions was not complied with. The declarant,
Geoiige R. Bell, swore at his examination for discovery, '*the furnace
exploding was the only reason that I could give for it" (that is, for
the fire), and then he testified that he always believed that that
was the cause of the fire, and that he was so satisfied immediately
after the fire. He stated that that was what he said all along,
and that that was correct, and that he always believed that the
fire originated in the furnace and that that was the cause of it.
His statement that the cause of the fire was unknown might be
strictly true, but at the same time he had a belief that it was caused
by an explosion from the furnace, and he must have had that
belief at the time he made the proof of loss, and he did not in that
proof of loss or in the declaration made with respect thereto state
such belief. This is a very serious non-compliance with the con-
ditions of the policy. It is more particularly true in this case be-
cause it was set up at the trial as one of the matters of defence to
this action that the plaintiffs (the declarant particularly) was
aware of the explosive character of the coal he was using, that he
had seen fiames*''gush out," as he expressed it, when he opened
the furnace door, and it was claimed that the plaintiffs could not
recover in this action because of their carelessness with respect
to the manner of dealing with coal of such an explosive nature.
I make no ruling upon the question of this carelessness as a matter
of defence. I merely refer to it for the purpose of shewing what
an important element the statement of George R. BelFs belief in
connection with this matter was in handing in his proof of loss.

It is set up, however, that in so far as this matter is concerned
the defendants, having got proof of loss, did not notify the plaintiffs
that they objected to it by reason of the omission of G. R. Bell's
belief. I am inclined to think that is not just a matter where they
could have given a notification to that effect, because I cannot see
that the defendants were bound to take notice that he had any
belief at all, inasmuch as he did not state it. I think they were
fairly justified in assuming that he had no belief on the subject,
and therefore they were not called upon to ask him what his belief
was. Again, it may be set up that equitable justice would require
that judgment be given for the plaintiff notwithstanding this

Wetmore, O.J.
1900

The
Httdsgn'b

Bay
Ins. bo.

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364 SASKATCHEWAN LAW REPORTS. [vol.

• ^'J" omission because the defendants were not prejudiced by it. In

1909 my opinion this is not a case where that could be applied. These

BkllBbos. statutory conditions mean something, and it seems to me that where

«• a person has omitted from his proof of loss such an important matter

Hudson's ^ this is (an omission which does not suggest an injury), that he

?^^ must take the consequences. I think that, with all the respect

I have for the legislation, there must be a limit. People must not

run away with the idea that no matter how slipshod they make

their proofs, and no matter what they do or omit to do, the Courts

will throw the doors wide open and give them relief.

I draw attention to the fact that had this declarant stated his
belief in this respect, who knows that, with the matter fresh in the
minds of the people in the neighbourhood, what information the
defendants might have got with respect to the carelessness and
• negligence of the plaintiffs in this respect? It is not necessary for
me, having reached this conclusion, to enter into further considera-
tion of the case.

I am of opinion that judgment must be entered for the defendants
with costs, but as they have seen fit to plead a whole lot of matter,
some of which is entirely unnecessary and some of which is untrue,
I will, so far as I have been able to go into them,igive the costs of
these matters against them. I think it quite time that something
should be done to discountenance the practice which is sometimes
followed of lumbering up the pleadings with pleadings false in fact
or immaterial. It only serves to cast unnecessary and useless work
on the Judge trying the cause in sifting out what is really in issue
from the chaff with which it is surroimded.

There will be judgment for the defendants with the general
costs of the action.

The plaintiffs will be allowed the costs exclusively applicable
to the issues arising out of the issues joined in the 1st, 2nd, 3rd,
4th, 8th, 9th, 12th, 13th, 17th and 21st paragraphs of the statement
of defence, and nothing shall be taxed to the defendants arising out
of such paragraphs. The costs so allowed and taxed to the plaintiff
will be set off against those taxed to the defendants, and the de-
fendants shall have execution for the balance.

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n.] SASKATCHEWAN LAW REPORTS. 365

[TRIAL.]

Robertson v. Hopper and Trustees of 1909

Glen Morris School District. OctTTs.

Distress — Arrears of Taxes Dtte School District — UrUawftU and Excessive Dis-
tress— Assessment of Interest of Occupant of Crown Lands — Regularity-^
Distress for a Greater Amount than Actually Due — Regularity of — Excessive
Seizure, »

Plaintiff had been for a number of years an occupant of Crown lands for
which he had been assessed by the school district. No taxes were* paid by
plaintiff y and other parties subsequently assessed for the same land paid
none. In 1908, these taxes being impaid and the plaintiff ha vine 73 head
of horses on the land, the defendant scnool district authorized the defendant
Hopper to seize the goods of plaintiff and the other occupants for such
arrears. In pursuance of such warrant Hopper seized 73 head of horses
belonging to plaintiff and 2 belonging to the other occupants. At most
there was only $200 due for taxes. The proceedings connected with the
seizure appeared to be regular. It was objected, however, that the assess-
ment was irregular, but it nad not been appealed from, nor were any grounds
laid which would invalidate all the assessments. In an action for trespass
and excessive seizure: —

Heldf that while Crown lands cannot be assessed, yet the occupant thereof
can be assessed in respect of his interest therein.

2. That even if certain of the assessments were irregular, some of the taxes
were properly due, and distress for a greater amount than that actually
due is not per se actionable.

3. That the seizure of 73 head of horses to satisfy a debt not exceeding $200
was an excessive distress for which the plaintiff was entitled to damages.

This was an action for wrongful and excessive distress, and
was tried before Prendergast, J., at Areola.
E, W. F. Harris, for the plaintiff.
A. E. VroomaUy for the defendant.

October 15. Prendergast, J.: — This action is based on the
seizure of 73 head of the plaintiff's horses, made by the defendant
Hopper, as bailiff, for the defendant trustees, for school taxes.

Although the action purports by the statement of claim to be
for unlawful seizure only, I shall treat it also as being for excessive
seizure, as this is set out in the plaintiff's reply, and the defendants
did not move to have the same struck out, but joined issue thereon.
• There were two distress warrants addressed to Hopper by the
other defendants on October 20th, 1908, one of them reading as
follows: *' Distrain the goods and chattels of Hume Robertson in
and upon section 29 township 8 range 2 west of the second meridian
in the Province of Saskatchewan and also distrain any goods and

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SASILA.TCHEWAN LAW REPORTS.

[vol..

PranderBBBt. J.

1909
Robertson

V.
HOFFEB.

chattels found upon the said lands and premises the property of
or in the possession of any other occupant of the said lands and
premises for the sum of eighty dollars being the arrears of school
taxes due to Glen Morris school district No. 436 for the years
1902, 1903, 1904 and 1905, by the said Hume Robertson as the
occupant of the said lands, together with legal costs, etc."

The other warrant is in the same words, except that ''Richard
W. Hamill and John Abercrombie" are substituted for "Hume
Robertson," ''$120" for "$80," and "the years 1906, 1907 and
1908" for "the years 1902, 1903, 1904 and 1905."

On October 23rd, pursuant to the said warrants, Hopper pro-
ceeded to the said section and seized all the horses thereon, being
75 head, of which 73 belonged to the plaintiff, by locking up the
gates of the pasture field in which they were. He appears to have
at the same time posted up on the pasture fence two notices of sale
and two inventories (that is to say, one conformably with each
warrant), to have served copies of the same on the same day upon
the plaintiff as well as Hamill and Abercrombie, and to have also
posted up copies of the notices of sale in four public places in the
district.

With reference to having seized the whole band of horses. Hopper
says in evidence: "They were mostly colts . . . they were
wild . . . they were all mixed up and I did not know which
was which, whose they were. If there had been two or three I
could have taken them, but as they were I might have lost some.
I thought I was acting in a way to do the least damage."

At all events, on October 31st the sheriff claimed the horses
under a writ of replevin, and Hopper thereupon delivered them
over to him.

The rolls shew that the plaintiff was assessed for the said section
in the years 1902, 1903, 1904 and 1905, and he appears charged
therein with twenty dollars each year, making a total of $80, which
is the amount claimed in the warrant in which he is named.

The rolls also shew that Hamill and Abercrombie were assessed
for this land in the years 1906 and 1908; and they appear chaiged
in 1906 for $39.93, and in 1908 for $40. (The treasurer of the
district admitted in evidence that Hamill and Abercrombie were
not assessed in 1907.) So that the most that they could owe would

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SASKATCHEWAN LAW REPORTS.

367

be, in round figures, $80, and not $120, as the warrant with refer-
ence to them calls for.

This section of land, I should say, belongs to the Crown.

Now, the plaintiff says that he for the first time put horses on

that land on July 12th, 1902 (which would be about three months

after the closing of the roll), and that he got no assessment notice

for that year; that in 1903 he got notice; but that having gone to

the school house at the time the notice stated the trustees would

be there, he found the place locked, and that in* 1904 and 1905 he

may have had notice but had only a few horses on the place. He

admits, however, having had tax notices for all the years, the last

three shewing arrears besides the current taxes, but says that he

had complained verbally to the trustees, and had been left under

the impression that the matter would be arranged. He says also

that he stated several times that he would not pay the taxes. The

treasurer of the board, on the other hand, says that he repeatedly

promised to pay the taxes, and the chairman says that he promised

to pay them in 1904, but said that he would not in 1906. Be that

as it may, he undoubtedly never took an appeal to a justice of the

peace under sec. 11 of the Ordinance.

For 1906, 1907 and 1908, of course, the plaintiff received no
assessment notice, as the land was then assessed to Hamilland
Abercrombie, but I understand the plaintiff to admit that he had
horses there in 1906 and 1907, and he surely had there in 1908
the 73 head that were seized.

Allowing that the plaintiff should probably not have been
assessed in 1902, he has failed to shew such defects in the pre-
paration of the roll or otherwise as would relieve him of the as-
sessments of 1903, 1904 and 1905, amounting in all to $60. JVIbre-
over, although not personally assessed in 1908, he would be
liable under sec. 16 of the Ordinance, at least for the taxes of
that year, $40, making a total of $100 for which the trustees
could levy upon the horses.

The plaintiff had another objection, which was — as he says he
stated to one of the tnitees — ^that he did not rent the place, but
just paid pasture to the party who rented it. He said that one
Lindsay had the place rented from the Crown in 1902. Who had
the place rented subsequently he did not state; nor did he shew,
nor attempt to shew, that the conditions under which he paid for

24 — ^VOL, n. 8.L.R.

PrendeigBst, J,

1909

ROBBBTSON
V,

Hopper.

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SASKATCHEWAN LAW REPORTS. [vol.

It. J. pasture would not make him an occupant of the land under the
1900 ' Ordinance. There is nothing in all this that is ground to disturb
RoBmwBON ^^ assessment for the years I have referred to.

«. Of course Crown lands cannot be taxed (British North America

Act, sec. 125) ; but it is well settled that one's interest in the same
is assessable although the land itself cannot be sold, and there is
no reason why, under said sec. 16, personal property situate on
Crown lands cannot be seized in satisfaction of the assessment
of an interest in such Crown lands, the same as with personal pro-
perty situate on land of any other class. I may here say that
the present case has no analogy with Osier v. Coltard (1907), 6
W.L.R., p. 536, where the question was whether the taxes im-
posed on the interest of a homesteader who subsequently gives
up his duties attach as a lien on the land against a subsequent
occupant who in due course becomes patentee.

It seems to me that the seizure here, inasmuch as it was con-
ducted in a regular way and there were taxes due — even if all the
taxes claimed were not due — ^was not a nullity. The regularity
of the proceedings in this case distinguishes it at once from The
Canadian Canning Co. v. Fagan (1906), 3 W.L.R. 38.

In Tancred v. Leland (1851), 20 L.J. Q.B. 316, 16 Q.B. 669,
it was laid down that distraining for a greater amount of rent
than is due is not per se actionable. Of course this is for rent,
and the Distress for Rent Act (1837) has given to landlords a
measure of protection which does not extend to distresses other
than for rent. But the reasons given by Parke, B., in the above
judgment do not seemed based at all on the Distress for Rent Act,
and consequently would apply to all kinds of distress.

Nor does the fact that Hopper levied at the same time and by
the one act also, under a warrant against the goods of Hamill and
Abercrombie, render the seizure null or irregular : see The Oover-
nor, etc., of the Poor of the City of Bristol v. Waitt et al, (1834),
3 L.J.M.C., p. 71.

On the other hand, while the sale of two horses, or three at
the very most, would have satisfied the taxes due and costs, the
bailiff seized 75, of which 73 belonged to the plaintiff, and that,
of course, notwithstanding Hopper's explanations and reasons
for proceeding as he says he did, is an excessive seizure.

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SASKATCHEWAN LAW REPORTS.

The plaintiff; then, cannot recover for trespass, but is entitled
to do so for excessive seizure.

I should say, in this respect, that the plaintiff duly made
demand to the bailiff for the return of the horses two or three
days after seizure.

The horses were surrendered to the sheriff after about eight
days, which means that Hopper unlocked the pasture gates. Of
course the plaintiff was deprived of the possession of the horses
for that time; but he has really shewn only the very slightest
damages, if any, and it moreover does not appear that the defen-
dants were actuated by malice. The plaintiff is, however, cer-
tainly entitled to some damages: Chandler v. Doulton et dl,
(1865), 34 L.J. Ex. 89, and I will assess the same at $20.

There will be judgment for the plaintiff for $20 and costs.

Prendwgut, J.
1909

Robertson

Hopper.

LCOURT EN BANC]
Moore Milling Co. v. Laird.

Plaintiffs purchased from defendant by sample a Quantity of wheat to be
shipped. The wheat was duly loaded and the bill made out to defendant,
but some days afterwards the defendant, having been paid for the wheat,
transferred the bill of lading by indorsement. The car was delayed in
shipment, and when it reached its destination the plaintiffs found the wheat
in one end of the car not equal to sample, beinjg badly heated. The plain-
tiffs refused to accept the shipment, and notified defendant, who sent an
agent to inspect it, and as a result of this inspection the agent requested
the plaintiffs to unload the car and make the best p>ossible out of it, which
was done. The plaintiffs then brought action for damages. The defendant's
evidence went to shew that the wheat was in ^ood condition when loaded
in the car, while expert witnesses for the plaintiffs were of the opinion that
it must have been tough when loaded. In explanation of heating it was
^lewn that after the car was loaded and before the door was closed a violent
rainstorm had occurred, and that the wheat in the end of the car which,
from the direction of the wind, would naturally have been reached by the
rain, was that which was damaged. This storm took place before the
indorsement of the bill of lading. The plaintiffs having obtained judgment
for damages, the defendant appealed: —

Held, that the reasonable explanation of the condition of the wheat was, that
it nad become dampened by the rain, and as this took place while the wheat
was still at the risk of the defendant, the plaintiffs were entitled to recover.

2. That the true measure of damages was the difference between the price
agreed to be paid for the good wheat and the amount realized from the
sale of the damaged wheat. ^

En BANa
1909

Sale of Ooods — S<ile of Wheat by Sample — Right of Inspection — Rejection.

July 9

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Laird.

370 SASILA.TCHEWAN LAW REPORTS. [vol.

En Banc. This was an appeal from a judgment for the plaintiffs given

1909 by Lamont, J., and was argued before the Court en banc (Wetmore

Moore C.J., Prendergast, Newlanps and Johnstone, JJ.), at Regina.
Milling Co.

V. /. F, L. Embury J for the appellant: The wheat in question was

shipped in good condition and arrived at its destination in bad
condition. The action, if any, is against the railway company, and
the right to bring such action is in the consignee: Imp. Bills of
Lading Act, 18 & 19 Vict. ch. 11. Delivery was made at R^ina,
and the respondents were responsible for all damage after delivery:
sec. 22, Sales of Goods Act. ^

J, A, Allan, for the respondents: There was no deliver}' until
indorsement of the bill of lading (sec. 21, sub-sec. 2, Sales of Goods
Ordinance), and the respondents had no opportunity of inspecting
and accepting until the arrival of the car at its destination: Sales
of Goods Ordinance, sec. 33. The learned trial Judge has found
that at the time of delivery the wheat was not in good condition,
and the Court of Appeal will not interfere with that finding. The
wheat having been so delivered in bad condition without inspection
or acceptance by the respondents, they are entitled to recover dam-
ages, and the measure thereof is correctly set out by the trial Judge,
as the respondents are entitled to be placed in the same position as
if the contract had been performed: Robinson v. Hanna (1848), 1
Ex. R. 855; Enc. Laws of England, 2nd ed., vol. 4, p. 317 et seq.

July 9. The judgment of the Court was delivered by Wetmore,
C.J.: — The defendant sold to the plaintiffs, by sample, a carload
of wheat, containing, or to contain. No. 2 Northern wheat and No. 3
Northern wheat. The wheat was to be shipped from R^ina to
Qu'Appelle station. It was loaded on a car about the 29th August,
1905. The No. 2 Northern wheat was loaded in a compartment at
the east end of the car, and the No. 3 in a compartment in the west
end. The defendant made the bill of lading out to himself. On
the 1st September, the plaintiffs having paid by a cheque on the
Imperial Bank at R^ina for the amount of grain represented by
the defendant to have been in the car, the bill of lading was trans-
ferred to them by the defendant, by indorsement. Consequently
the wheat was at the risk of the defendimt until the 1st September.
The car and its contents were conveyed by the railway company
to Qu'Appelle station. The conveyance, unexplained, certainly

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SASKATCHEWAN LAW REPORTS.

371

took an unnecessary long time. When the car was opened the
No. 3 wheat was found not to be equal to the sample. It was
badly heated. The plaintiffs immediately notified the defendant
that they refused to receive this wheat. The defendant insisted
that the plaintiffs should receive it, and practically that the grain
was not damaged while it was at his risk. He subsequently sent
Dr. Creamer to inspect the grain, and Dr. Creamer called in two
other persons, whom he considered more experienced than himself,
to assist him in the inspection, and they all agreed that the grain
was in a very bad condition. These three gentlemen arrived at
the conclusion that this damaged wheat should be \mloaded if it
was going to be any good for anything at all, and consequently
Creamer advised the manager of the plaintiff company to unload
the wheat, as he thought it was best to do so. The plaintiffs accord-
ingly imloaded this grain and sold it for the best price they could
get for it. It was only fit for hog feed, and the best price they could
get was forty cents a bushel.

The question that first arises is — ^when was this wheat damaged
so as to get in the condition in which it was when it arrived at
Qu'Appelle? A number of expert witnesses testified that it must
have been tough at the time it was loaded into the car, and it was
conceded that if such was the case that would account for the state
which it was in when it arrived at Qu'Appelle. Other witnesses,
especially the defendant's elevator man, testified positively that
the wheat was not tough when it was loaded, but was in good order.

On the 31st August, and after the wheat was loaded into the car,
there was a very violent rainstorm, and the evidence established
that the door on the north side of the car in which the wheat had
been loaded was not securely fastened and was repeatedly open.
The evidence shewed that the wind, at the time of this rainstorm,
was from the east, possibly a little north of east. The No. 3 wheat,
which was, as stated before, in the west end of the car, was wet
when it arrived at QuAppelle, while the No. 2 wheat, which was
on the east end, was not wet. In view of the direction of the wind,
the wet was found in the grain where it would naturally be expected,
and the evidence shewed that this wet would be sufficient to bring
about the bad condition of the No. 3 wheat presented at Qu Appelle.

Now, I am of the opinion that the cause of this wheat getting
in the condition in which it was in when it arrived at Qu' Appelle

En Banc.
1909

Moore
Milling Co.

Laird.

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872 SASKATCHEWAN LAW EEPOETS. [vol.

Ek Banc, occurred before the 1st of September, when the bill of lading was

1909 indorsed to the plaintiffs. It does not appear to me to be very

Moore material whether it was tough when it was laden, or whether it was

Miixmo Co. (jauged by the rain which took place on the 31st August, as the results

Laird. would be precisely the same. I may say, however, that I have

individually reached the conclusion that the overwhelming weight

of evidence shews that the wheat was so damaged by the rain on

the 31st August, and while it was at the risk of the defendant.

There was also a shortage in both the varieties of wheat when
it arrived at Qu'Appelle. The amount of this shortage is not
disputed, and no question arises upon it.

The plaintiffs made up their damages as follows: They charged
the defendant with the amount of their cheque on the Impmal
Bank of Canada, $696.42. They credited him with 416 bushels and
50 pounds of wheat at 71 cents, being the No. 2 Northern, amount-
ing to $295.96, and with 578 bushels and 30 pounds of No. 3 wheat
(or what ought to have been No. 3 wheat) at 40 cents, amounting
to $231.40, and then they chaiged him also with the freight on the
damaged wheat from Regina, $30.89, and deducting the amount
so credited from the amount so charged, left a balance of $199.95,
and for this amount the learned trial Judge gave judgment in favour
of the plaintiffs.

It was urged that the defendant was not responsible for the
whole amount of this damage, because there had been negligence
on the part of the railway company by reason of the long time
taken to convey the wheat to Qu'Appelle, and that if the company
had used ordinary diligence the wheat would not have arrived
in as bad state as it was, and could have been — at any rate to some
extent — cured by treatment. I am not satisfied that the fact
that it could be so cured at Qu'Appelle was satisfactorily estab-
lished, but I will assume that it was for the purposes of this judg-
ment.

It was also urged that the plaintiffs, having taken possession
of the damaged wheat and sold it, served to emphasize the de-
fendant's contention in this respect.

It was also contended that the measure of damages was the
difference between the actual value of the wheat when it was de-
livered on the 1st September at Regina, and the price agreed to be
paid.

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It is necessary, I think, in order to arrive at a conclusion on this En Bako.
branch of the case, to consider just what the rights of the plaintiffs ^^09
were. Now, it is clear that the plaintiffs had no opportunity to Moorx
inspect this wheat and ascertain whether it was up to sample or not ^^^^nq (3o.
until it arrived at Qu'Appelle. They were not here, nor any person Laird.
on their behalf on the 1st of September, nor was any person ex-
pected to be here on their behalf on that date. Consequently,
they had the right, when the grain arrived at Qu'Appelle, to inspect
it, and having ascertained by inspection that it was not up to
sample, to reject it, and this they did at once, by letter. If the
matter had stopped there the plaintiffs would have had the right
to recover from the defendant the amount paid to him for the
No. 3 wheat.

Now the defendant's agent, Creamer, appears on the scene,
and, it seems to me, dealt very fairly with the matter, and, on
consultation with persons whom he called in, he advised the plain-
tiff's agent to unload this wheat as the only mode of doing anything
with it to any useful purpose, and the plaintiffs, acting upon that
advice, did so. This was done with a view of making the most out
of the property for all parties concerned, and it seems to me that
Creamer, having gone there for the purpose he did, acted prudently
in the interests of all parties, including the defendant, and we may
assume that having been sent there by the defendant for the pur-
poses above stated that he was acting especially in the interests
of the defendant.

Under such circumstances I think that the plaintiffs^would be
entitled to recover the amount that they paid for good wheat, less
the amount they realized by his selling the property under the
circumstances. I am therefore of the opinion that the judgment of
the learned trial Judge was correct, and that his judgment should
be affirmed, and the defendant's appeal dismissed with costs.

Appeal dismissed miih costs

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374 SASKATCHEWAN LAW REPORTS. [vol.

[COURT EN BANC]

Bh Bako. Gaar Scott Company v. Guigere.

1009

_^ Land Titles Act — Caveat — Summons to Continue — Powers of Judge Upon —

Nov. 20. Determination of Rights of Parties — Jurisdiction of Judge — Dismissal of

Summons — Substantial Question in Issue — No Opportunity Given to Bring
Action — Power of Judge to Dismiss — Caveat in Respect of Mortgage of
Crown Land Before Patent — Right to Maintain — Interest in Land — What
is Sufficient to Support Caveat.

The appellant the Gaar Scott Company filed two caveats aeainst the re-
spondent Guigere 's land, one under a mortgage which was imewn to have
been given in respect of Crown lands before the issue of the patent, and the
other under a judgment recovered against the respondent under the name
of Gear as to land of which the respondent was registered as owner under
the name Guigere. The respondent served a notice requiring the with-
drawal of the caveats, and a summons was taken out bv the appellants to
continue them. On the hearing, the Judge in Chambers dismissed the
svmimons, without giving any time for bringing an action to maintain the
rights asserted: —

Heldf that if there is any bond fide question of law or equity to be decided as
to the right of the caveator to the estate or interest claimed under the
caveat, such question should be disposed of in the Supreme Court, and the
caveat should be continued for a sufficient time to allow an action to be
brought in which to decide such question.

2. That (following In re Ebbing (1909), 2 Sask. L.R. 167) as to the claim under
the mortgage, such mortgage being given in respect of Crown lands before
the issue of the patent, and there Being no evidence of the mortgagor's
right to create the mortgage, the registrar should never have accepted the
caveat, and the Judge in Chambers proi)erly refused to continue the caveat.

3. That as to the caveat filed under the judgment against land of which the
debtor was the registered owner under another name, the land could pro-
perly be said to be registered in the name of ''some other person," and
being so registered the appellants had a right to file a caveat, and the
Judge in Chambers shoidd have continued the caveat to give the appel-
lant an opportunity to amend the proceedings so as to charge the land
in question under the judgment.

4. The question of whether or not the land was the homestead of the respond-
ent and not liable to be charged by the appellants' judgment was not such
a question as should properly be determined in sununary proceedings under
the Land Titles Act.

This was an appeal from a judgment of Johnstone, J., in Cham-
bers, dismissing an application by the Gaar Scott Company to
continue two caveats filed against the respondent's land, and was
ai^ed before the Court m banc at Regina.

W. B. Scott J for appellant: The learned Judge in Chambers
erred in disposing of the matters in dispute in a summary way.
The provisions of the Land Titles Act, under which this order was
made, were intended only to pro\ade for the withdrawal of caveats
where there was no contest as to interest or where defects by reason
of non-compliance with the Act were found: Re Riddock and

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375

En Bang.
1909

Company

V.
GUIGERE.

Chadrvick's Contract (1907), 6 W.L.R. 360; Re Webster and Canadian

Pacific R,W. Co. (1907), 6 W.L.R. 384. There being a substantial

question between the parties, the learned Judge should have G\ar Scott

allowed sufficient time for an action to be brought to determine

those rights.

W. B. WiUoiLghby, for respondent: The land in question is
the homestead of the respondent, and the mortgage in respect of
which the first caveat is filed was executed before the issue of the
Crown grant and is void: Dominion Lands Act, 41 Vict. ch. 17,
sec. 42, as amended by 60-61 Vict. ch. 29, sec. 5; Waterous Engine
Works V. Weaver (1908), 8 W.L.R. 432; Park v. Long (1908),
7 W.L.R. 309; Flanrmgan v. Healey, 4 Terr. L.R. 391;
Harris v. Rankin, 4 M.L.R. 115; Sawyer-Massey v. Dennis
(1908), 7 W.L.R. 272; Abdl v. McLaren, 13 Man. L.R. 463;
Cummings v. Cumndngs, 15 Man. L.R. 640. The second caveat
was filed in respect of an execution without any allegation
that the beneficial interest was in the respondent, and is, there-
fore, not within the terms of the Act. In any event, the land
being the homestead of the debtor, the execution would not attach,
and there was no right to maintain the caveat: Bocz v. SpiUer
(1905), 2 W.L.R. 280.

November 20. The judgment of the Court (Wetmore, C.J.,
Prendergast, Newlands and Lamont, JJ.) was delivered by
Newlands, J.: — Prudent Guigere, otherwise known as James Gear,
the respondent, took out a summons, \mder sec. 140 of the Land
Titles Act, calling upon the Gaar Scott Company, the appellants,
to shew cause why two caveats filed by them against the S.W.
36-12-24 W-2 should not be withdrawn. These caveats were filed,
the first, under a certain mortgage made by Prudent Guigere to
the Gaar Scott Company, dated the 10th day of December, 1907,
and the second, under a certain execution for the sum of $1,052.93
issued out of the Supreme Court for the Judicial District of Regina,
on the 30th day of November, 1908, in an action wherein said
Gaar Scott Company were plaintiffs and James Gear was defen-
dant. After hearing the parties and the evidence produced by
them, my brother Johnstone ordered the said caveats to be dis-
chaiged.

From this order the Gaar Scott Company appeal on the
grounds: —

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376 SASKATCHEWAN LAW REPORTS. [vol.

En Banc. 1. That the learned Judge erred in disposing of the matters in

1909 question summarily.
Gaar Scott 2. Because he erred in not allowing the said caveats to remain
Company roistered against said lands imtil the caveators might have an
GuiGERE. opportunity of bringing action to substantiate the claims therein
made; and

3. Because he did not allow the caveators sufficient time to
obtain proper material to substantiate the claims therein made.

As to the first and second grounds of appeal, sec. 140 provides
*'that the Judge may, upon proof that the caveator has been
summoned and upon such evidence as he requires, make such
order in the premises as to him seems fit."

Although thip section gives a very wide discretion to the Judge,
it does not, in my opinion, confer upon him the powers of the
Supreme Court to decide upon legal or equitable rights between
the parties, but only the jurisdiction to decide whether the caveator
had any right to file the caveat in question, and if he had at the
time of filing such right, whether he had at the time of the applica-
tion the right to have the caveat continued against such property.
If there is a bond fide question of law or equity as to the right of
the caveator to the estate or interest which he claims under the
caveat to be decided, the Supreme Court is the proper place for
such question to be disposed of, and the caveat should be con-
tinued a sufficient time to allow an action to be brought in which
to decide such question.

All the cases cited by the appellant bear out this proposition.
In Re Wark (unreported) the Chief Justice said: *'If the
material before me was of such a character as to satisfy me clearly
and beyond all doubt that the caveator had no rights with respect
to the property, I would, I think, be justified in directing that
the caveat be removed; but where there is a fair bond fide ground
for setting up his. alleged right, the Court is the proper jurisdiction
to deal with the question (not a Judge under the proceedings under
the Act) in an action properly instituted for the purpose. I am,
therefore, of the opinion that my duty is to maintain the statii^
quo between the parties and to continue the caveat."

In Re Webster and the Canadian Pacific R.W, Co. ( 1907) , 6 W.L.R.
384, Scott, J., held that the question was so important that he
should not dispose of it on such an application and continued

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377

Company

GuiasRE.

the caveat for one month to allow the necessary proceedings to be En Banc.

taken; and in lie Riddock and Chadvnck's Contract (1907), 6 W.L.R. 1»09

360, Stuart, J., ordered pleadings to be delivered and the applica- Gaar Scoit

tion set down for trial. All these cases go to shew that it is in

the discretion of the Judge as to whether he will dispose of the

matter summarily on an application under sec. 140, or continue

the caveat to allow of an action being brought to determine the

rights and interests of the respective parties, and that the latter

course should be taken where there is any question as to the rights

and interests of the parties.

Here, however, there is no such question. As to the first
caveat, the appellant claims under a mortgage made by the respon-
dent. This mortgage is stated in the caveat to have been made
on the 10th day of December, 1907. It was proved before the
Judge who heard the application that the land contained in this
mortgage was a homestead taken up by the respondent under the
provisions of the Dominion Lands Act, and that the respondent
did not get his patent from the Crown for this land until the 13th
day of February, 1909.

It was decided by this Court en banc, in Re International Har-
vester Co, of America and Ebbing (1909), 11 W.L.R. 29, 2 Sask.
L.R. 167, that the registrar should not roister such a mortgage
by way of caveat. As my brother Lamont, in that case, said
(p. 57): "Where, therefore, there is presented to the registrar for
rc^tration a mortgage or a caveat founded thereon affecting
lands the patent for which is not of record in his office, the registrar
is entitled to refuse to register the mortgage or file the cavtat
unless the applicant first satisfies him by affidavit, in Form K,
that the mortgagor is entitled to create the mortgage, and in case
the mortgagor mortgages land entered for by him as a homestead
or pre-emption under the Dominion Lands Act, the affidavit must
also state that he has been recommended for patent and has
received his reconunendation in accordance with the provisions
of the said Act." In this case there was no evidence either that
such an affidavit was made or that the mortgagor had been recom-
mended for patent, the land being his homestead under the Dominion
Lands Act; and the fact that it had to be registered by way of
caveat shews that the provisions of the Act for filing it were not
complied with. It was, therefore, the duty of the registrar to

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En Banc.
1900

Gaar Scorr
Company

V,
GUIGERE.

have refused to file this caveat, and, that being the case, the learned
Judge was right in summarily disposing of it and ordering its dis-
chaige.

As to the caveat filed under the execution against the land of
the respondent, sec. 136 of the Land Titles Act provides "that
any person claiming to be interested under an execution where
the execution creditor seeks to affect land in which the execution
debtor is interested beneficially, but the title to which is registered
in the name of some other person or othe^\^'ise, may file a caveat."

The land in question was r^;istered in the name of Prudent
Guigere. The execution was against James Gear. The execution
debtor sw^ears that he was known by that name, but that his proper
name was Prudent Guigere. . Now, this land was not, strictly
speaking, registered in the name of some other person, because
James Gear and Prudent Guigere are the same person, but, as far
as the Land Titles Office was concerned, it was registered in the
name of "some other person," as they could not recognize these
two names as belonging to one and the same person, and, therefore,
as to the execution against James Gear, the land which was regis-
tered in the name of Prudent Guigere was registered in the name
of some other person. Besides, the words "or otherwise" must
be given some meaning, so that if in this case the land is not actually
registered in the name of some other person, it seems to me that
these words extend the right to file a caveat to cases where the
execution creditor is interested in land the title to which is regis-
tered otherwise than in the name of some other person which
would make the provision applicable to this case, and give the
Gaar Scott Company the right to file this caveat.

That being the case, I do not think the learned Judge should
have summarily disposed of this application, but should have con-
tinued it long enough to allow the execution creditor to have the
proceedings in the suit of Gdar Scott Company v. James Gear
amended by the insertion of the proper name of the execution
debtor.

The question as to whether it was his homestead and therefore
exempt from execution is not, I think, a question that should be
decided upon such an application, but only in an -action brought
for that purpose, and therefore I have not considered that ques-
tion.

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u.] SASKATCHEWAN LAW REPORTS. 379

The appeal should be allowed with costs as to the caveat filed En Banc.

under the execution, and that caveat continued four weeks to ^^^

allow the execution creditors to amend their proceedings. Gaar Sodit

Company

Order cuxordifigly. Guiqer..

[COURT EN BANC]

In re North-West Telephone Co. Limited. En Banc.

1909

Land Titles Act — Mortgage Against Specific Land — Reference Therein to Un-

specified Land — Refusal of Registrar to Register — Right of Registrar to Nov. 20
Refuse.

The company executed a mortgage of specific lands in the form provided by
the Land Titles Act, but by the covenants contained therein embodied in
and made a part of the mortgage a trust deed whereby the company mort-
gaged generally all its lands, such lands not being specifically described.
This mortgage the Registrar refused to register. On appeal: —

Held, that by embodying the trust deed in the mortgage the mortgagor pur-
ported to mortgage both described and undescribed lands, and this being
contrary to the provisions of the Land Titles Act the Registrar was justified
in refusing to register the instrument.

This was an appeal by the North- West Telephone Co. Limited
from the refusal of the Registrar of Land Titles for the Saskatoon
Registration District, confirmed by the Inspector of Land Titles
Offices, to register a mortgage made by the appellant company,
and was argued before the Court en banc at Regina.

Alex. Ross, for the appellant.

Frank Ford, K.C., Deputy Attorney-General, for the Registrar
of Land Titles.

November 20. The judgment of the Court (Wetmore, C.J.,
Prendergast, Newlands, Lamont and Johnstone, JJ.) was de-
livered by Newlands, J.: — The system of land registration in force
in this Province is a statutory one, the provisions of which are set
forth in the "Land Titles Act." No instrument can therefore be
registered in a land titles office unless it is one of the instruments
whose registration is provided for, and in form and execution con-
forms with the requirements of that Act.

Amongst the instruments whose registration is provided for are
mortgages and encumbrances, and whenever in any such instrument
any land is intended to be charged with, or made security for the

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380 SASKATCHEWAN LAW REPORTS. [vol.

En Banc, payment of an annuity, rent, charge or sum of money in favour of
1909 any encumbrancee, the instrument must contain an accurate state-
In re ment of the estate or interest intended to be mortgaged or en-

tSh^n^ cumbered, and must, for description of the land intended to be
Co. dealt with, refer to the certificate of title on which the estate or

interest is held, or give such other description as is necessary to
identify the land: Land Titles Act, sec. 98, sub-sec. (2), (3).

In this case the instrument offered for r^istration (which the
Inspector of Land Titles Offices directed the R^istrar to refuse
to accept, it not being in compliance with the provisions of the Act,
and from whose decision this appeal was taken) was a mortgage or
encumbrance, it described specifically certain- land and therein
complied with the Act, but by a clause in the same another in-
strument was referred to, called a mortgage trust deed, as being
annexed to and thereby embodied in and made part of such mort-
gage or encumbrance. By this reference this mortgage trust deed
became a part of the instrument offered for r^istration, and it is
therefore necessary to consider whether, taking into consideration
the terms and provisions, the mortgage or encumbrance offered for
registration is such an instrument as the Land Titles Act provides
for being registered.

By the inclusion of this instrument in the mortgage or encum-
brance not only are the lands specifically described made security
for the payment of money, but the mortgagor " (2) . . . doth
hereby grant and convey unto the trustee, its successors and assigns
for ever all and singular the lands and premises of the company
wherever situate, together with all buildings, improvements, fixed
and unfixed machinery, plant, poles, wires, conduits, franchises,
licenses, leases, and fixtures, now or at any time during the con-
tinuance of these presents, in, upon, about or belonging to or, used
in connection with all or any of the said lands and premises, together
with all ways, watercourses, rights, privileges, easements, heredita-
ments and appurtenances whatsoever to all or any of the said lands
and premises or any lands or premises over, upon or imder which
the company has or may hereafter have or acquire any rights or way
or easements of any kind together with all the estate, right, title
and interest whatsoever of the company in and to and upon or under
the said lands and every part thereof and their and every of their
appurtenances to have and to hold all the said lands and premises

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unto and to the use of the trustee, its successors and assigns, forever, En Banc.
but upon and for the trusts and purposes herein contained; subject, ^^^^
however, to the reservations, exceptions and conditions mentioned in re
in the original grant thereof from the Crown. (3) The company x^'^PHONir
do hereby further grant, assign and convey to the trustee, its Co.
successors and assigns, all the freehold and leasehold lands and
hereditaments that may hereafter be acquired by the company
during the continuance of these presents together with- all buildings,
improvements, fixed and unfixed machinery, poles, wires, conduits,
plant and fixtures at any time during the continuance of these
presents in, upon, about or belonging to or used in connection with
the same together with all franchises, licenses and easements that
may be hereafter acquired by the company upon, over or under any
lands or premises upon the same trusts.''

Now there is no question that this instrument (provided that it
is properly executed and that the mortgagor have power to make
same, questions that I do not think it necessary for me to consider)
is a binding and effective instrument between the parties, and that
its intention and effect is to make all the lands of the mortgagors
now owned by them, as well as such they may thereafter acquire
during the continuance of such instrument, security for the payment
of money, and that being the case I need only say that sec. 98 of the*
Land Titles Act has not been complied with, such land not being
given a description by which to identify it, and that therefore the
instrument cannot be registered. It was argued by Mr. Ross, for
the appellant, that the Registrar should ignore the provisions of this
mortgage as to lands not described, as well as after acquired lands,
and only roister the instrument against the lands specifically de-
scribed. This argument resolves itself simply to this, that the
Registrar should ignore the provisions of the Land Titles Act, and
stated in that way it contains its own refutation, the Registrar's
duty being to carry out the provisions of the Act, not to ignore them.

I think it is unnecessary for me to discuss what would be the
effect of the Registrar ignoring the Act and registering an instrument
such as this one. I need only say that for his action the assurance
fund would be responsible, and a subsequent transferee of the
mortgage, if not the mortgagees themselves, might have an action
against that fund because the Registrar did not, when he registered

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1909

SASKATCHEWAN LAW REPORTS.

[vol.

the instrument, register it against all the property of the mortgagors,
in the event of the specifically described lands not being all their
property.

In re

Telw^hone*^ ^^^ these reasons I think the appeal should be dismissed.
Co.
Limited. Appeal dismissed

1909
Nov. 26.

[CHAMBERS.]

Moose Mountain Lumber and Hardware Co. v. Paradis.

Injunction — Restraining Order — Disobedience of — Motion for Attachment for
Contempt — Service of Injunction Order — No Notice under Rule 330 Judi-
cature Ordinance — Necessity for in Orders Restraining— Original Order not
Exhibited to Defendant when Served — Necessity for — Knowledge by De-
fendant of Contents — Delay in Service of Order Continuing — Effect of.

An order was made in this action restraining the defendant from interfering
with the crop on certain land until further order, and a summons was
granted with the order calling on the defendant to appear and shew cause
why the injunction should not be continued until the trial of the action.
A copy of this order was served upon the defendant personally, and he
appeared by counsel on the return, and after hearing the injunction was
continued until trial. The defendant afterwards entered on the land, drove
off the plaintiffs' servants who were threshing the crop, and removed it.
On a motion for attachment it was objected by the aefendant that no
memorandum under rule 380 of the Judicature Ordinance was indorsed on

• the copy of the order served; that it did not appear that a copy of the
original order was exhibited to the defendant wnen service was effected,
and that, as the order continuing the injunction was made on the 25th of
September and was not served until the 21st of October after this alleged
contempt, there was undue delay on the part of the plaintiff: —

Held, that it is not necessary to indorse the memorandum required by rule 330
of the Judicature Ordinance on a restraining order, the provision only
applying to mandatory orders.

2.While inclining to the opinion that it was necessary to exhibit the origioal
order when making service, yet as it appeared that the defendant was aware
of the terms of the injunction order, and as in such cireumstanoes there may
be a contempt without service, the objection was not a valid one.

3. That while the plaintiffs had been guilty of undue delay in serving the
order continuing the injunction, yet, inasmuch as the original order re-
strained the defendant until furtner order it was the duty of the defendant
to ascertain if the order was still in force before interfering with the property.

This was an application for an order for attachment of the
defendant for contempt in disobeying an order of the Court restrain-
ing him from interfering with certain property, and was aiigued
before Wetmore, C.J., in Chambers.

P. H. Gordon, for the plaintiff.

E. W, F. Harris, for the defendant.

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383

November 25. Wetmore, C.J.: — ^This is an application for an
order to commit the defendant for disobedience to an injmiction
order granted in this case. Mr. Harris appeared on behalf of the
defendant at the hearing of the application, and raised a number
of objections.

On the 17th September last an injimction order was granted by
my brother Lamont restraining " the defendant, his servants, work-
men and agents from removing or destroying the buildings erected
on the lands in question herein, namely, the south-west quarter of
section four (4), in township eight (8), in range seven (7), west of
the second meridian in the Province of Saskatchewan, or cutting
or removing or in any way interfering with the crop raised on the
said lands in the year 1909, until Monday the 27ih day of September,
1909, or until the disposition of this motion to be made as hereinafter
mentioned;" and there was embodied in the order a summons
calling upon all parties concerned to attend before the presiding
Judge in Chambers at the courthouse in Regina on the 24th Sep-
tember, at 10 a.m., on the hearing of an application on behalf of
the plaintiff that the injunction order be continued imtil the trial of
the action. A copy of this injunction order, of course including
the Chamber summons referred to, was served upon the defendant
personally on the 20th September, and on the 25th of that month,
after hearing counsel for the plaintiff and Mr. Harris, who then
appeared for the defendant, my brother Lamont made an order that
the interim injunction should be continued until the trial of the
action. This last mentioned order was personally served on the
defendant on the 2l8t of October, together with a copy of the original
interim injimction order. On the 20th October one McKee, who
was employed by the plaintiffs to do so, proceeded to the quarter
section mentioned in the original injimction order, for the purpose
of threshing a quantity of flax then being upon that land. Such
flax was at the time lying in winrows upon the land. Upon reaching
the land and entering it he was forbidden by the defendant to enter
thereon, or to in any way touch or interfere with the flax. McKee
went upon the land, commenced to thresh, and the defendant there-
upon entered with his threshing crew and engine, compelled McKee
to cease his threshing operations, and proceeded to thresh the flax
with his threshing outfit, and having done so loaded the flax so
threshed upon his wagons and removed the same from the land.

25— VOL. n. S.L.B.

Wetmore, O^.

1909

Moose

Mountain

Lumber

AND

Hardware
Co.

Paradib

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1900

Moose

Mountain

Lumber

AND

Hardware
Co.

Paradis.

A number of objections were taken to the order for commitment
going. In the first place it was objected that the copy of the in-
jimction order served was not indorsed with the memorandum
prescribed by rule 330 of the Judicatxu^ Ordinance. That rule is
identical with rule 5 of order XLI. of the English Rules of Court.
That objection is disposed of by Sdons v. Crayden Rural Sanitary
AiUhorUy (1886), 63 L.T.R. 209, and Hudson v. Walker (1895),
64 L.J. (Ch.) 204, where it was held that the rule referred to a man-
datory judgment or order to do something, and did not apply to a
restraining order, as was the injunction order herein.

It was further objected that the affidavits of service did not shew
that the original injunction order was, at the time of service, sheiyn
to the defendant. I incline to the opinion that where there is no
other means of ascertaining that the party served was aware of the
ord^ of the Court, or will be presumed to have been so aware, the
proper practice is to exhibit the original order to the party proposed
to be moved against at the time of the service of the order. Rule 1,
order LXVII., of the English Rules, which I am of opinion is in
force in this Province, provides as follows: "Except in the case of
an order for attachment, it shall not be necessary to the regular
service of an order that the original order be shewn if an office copy
of it be accepted." The author of *'The Yearly Practice for 1909,"
in a note to this rule, states as follows: "The meaning seems to be
except in the case of an order disobedience to which may be punished
by attachment." I incline to the opinion that that is the proper
interpretation to be put upon the rule, but I am further of opinion
that the proceedings in this case clearly shew that the defendant
was aware what the order of the Court was and that the plaintiff
intended to pursue the injunction. My reasons for stating that are,
that Mr. Harris (a solicitor), as I have before stated, appeared to
shew cause against the sununons, and the summons was included
in the injunction order. That order was served upon the defendant,
and Mr. Harris must have got his instructions to appear from him,
and he therefore must have been aroused to the necessity for em-
ploying counsel by reading that order. It is very difficult for me,
under such circumstances, to believe that he was awaro of that part
of the order requiring him to appear at Chambers, and was not
awaro of the restraining part of it. In fact, I find that he was
aware of it.

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385

In the United Tdephane Co. v. Dale (1884), 25 CD. 778, 53
LJ.Ch. 295, 50 L.T. 85, Pearson, J., in dealing with the question
of this character, lays down at p. 787 the following: "The Court
would be to a great extent incapable of doing its duty to itself, as
well as to Her Majesty's subjects, if it were to say that, with perfectly
accurate knowledge of the order of the Court, a defendant is at
liberty to defy the Court's authority and then come to the Court
and say, * You cannot visit me for that breach of your order, because
the order has not been served upon me.' What is the necessity
for serving an order upon a defendant if he knows perfectly well
without that service what it is which he is bound to obey?" If
that is correct in a case where there was no service of any sort,
a fortiori, it is correct where a copy of the order has been served
and the parties served act upon it.

But it was uiged, inasmuch as the order of the 25th September
continuing the injunction order was not served until the 21st
October, and after the alleged breach of the injunction had been
committed, that there was undue delay on the part of the plaintiffs
in serving such continuing order, and therefore on this they cannot
succeed. That application is the only question in this case which
has given me any serious difficulty, but when I consider the pro-
vision of the original injunction order which restrained the de-'
fendant until the 27th September ''or until the disposition of the
motion to be made. as hereinafter m^entioned,^* I have come to the
conclusion that the delay under the circumstances will not warrant
my refusing the application to commit. The defendant must have
been aware of the terms of the order which I have just quoted,
for the reasons before stated. The question that arises is, was the
defendant led to believe by reason of the delay in taking out and
serving the order extending the injunction, that the original order
had been abandoned, and was he justified in so believing? I come
to the conclusion that under the circumstances of this case that he
was not justified in so believing. I think it natural to suppose that
he must have been aware that if the application had been refused
his solicitor would know it and would have advised him, and would
have taken out an order setting the injunction aside or refusing
to continue it. Not having received any notification to that effect,
he ou^ht reasonably to have supposed either that the Judge still
had the matter in deliberation, or that the order continuing had

Wetmore. aj.

1909

MOOSK

MoUNTiON

LUMBBR

Hardw^bx
Co.

PAaAj>».

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[vol.

Wetmore. C.J.

1909

Moose
Mountain

LXTMBBR
AND

Hardware
- Co.

Paradis.

been made. It was not a case where the injunction restrained him
up to a certain date and gave leave to apply at a time before that
date to continue the injunction, but he was restrained until the
disposition of the motion to he made, as mentioned in the summons
which was served upon him. There is no doubt that an imreasonable
delay upon the part of the party taking out the injunction order
and in serving it would be fatal. In the United Telephone Co. v.
Daley supra, at p. 786, Pearson, J., in commenting upon the remarks
of Lord Eldon in Vansandau v. Rose, 2 Jac. & W. 265, states
as follows: "But in giving judgment Lord Eldon said: 'In this
case, if the warrant of committal is sent to me, I think that I shall
not hesitate to sign it. What I have now stated must be subject
to this observation, that there has been no delay in endeavouring
to get the order drawn up, and the injunction imder seal, and serving
it when obtained.' There, again, I think he is merely stating the
general rule that, in any case in which the plaintiflF has been guilty
of such laches thai he may possibly have misled the defendant, this
Court will not interfere if he has not served the order, shewing by
its service that he intends to act upon it. I use the word ' possibly'
in its largest and widest sense, to shew that this Court will never
run the risk of doing that which may be harsh or \mjust to the
defendant in a case of this kind, by committing him to prison for a
breach of an injunction, if there be the slightest doubt whatever that,
owing to the conduct of the plaintiff, he may not have been drawn
into the idea that it never "was the plaintiff's intention to enforce
the injunction. But I do not believe the rule to be, and I shall
not act upon the rule as it has been stated to me, that in no case
will the Court enforce obedience to its injunction by means of a
committal to prison, simply upon the ground that the order has not
been served, when it appears beyond all doubt or dispute that the
defendant is aware that the injunction has been granted, and that
it is the intention of the plaintiff to enforce it."

I am of opinion that that lays down the rule correctly, but I
am also of opinion that the original injimction having been served,
and the defendant having notice of the restraining part of it as I
have stated, and the party having been restrained until the motion
was disposed of, it was incumbent upon the defendant before he
did that which the injunction order restrained him from doing to
ascertain whether or not the motion referred to had been disposed

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387

of. I can quite understand that where a party obtaining an in-
junction order allows a great length of time to elapse without
serving the order continuing the injunction, that the party moved
against might reasonably come to the cdnclusion that it was aban-
doned, but that is not the case here, because the original restraining
order had been served. It is also material to the question under
consideration that the plaintiff's agent, before the defendant entered
on the land to deal with this flax, had entered and actually com-
menced threshing. This ought to have put the defendant on his
guard and apprised him that the plaintiffs were pursuing their
injunction. Nevertheless he actually drove the agent away and
proceeded to thresh and remove the flax himself.

There is another objection that presented itself to my mind, and
that is, there is no direct evidence that the flax which the defendant
removed was a part of the crop grown upon the land in question
for the year 1909, but, in view of the fact, first, that such objection
was not raised by Mr. Harris, and second, that the flax was lying
in winrows, I think I am justified in coming to the conclusion that
it was part of the crop of 1909.

The order will be that the commitment issue, and the defendant
pay the costs of this application.

Wetmoie, aj.

1909

Moose
Mountain
Lumber

AND

Hardware
Co.

Paradis.

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388 SASKATCHEWAN LAW REPORTS. [vol.

En Banc.
1900

[COURT EN BANC]
The King v. Duff (No. 2).

Nov. 20. Criminal Law — Crovm Case Reserved— Charge Preferred Before Supreme Court
by Deputy Attorney-General — No Preliminary Hearing — Leave of Presiding
Judge not Obtained — No Direction from Attorney-General.

After the conviction ^f the accused on a charse preferred against him by the
agent of the Attorney-General, the Deputy Attorney-General, who appeared
in person, without obtaining the leave of the Judge or a direction from the
Attorney-General, no preliminary hearing having been held, preferred a
further charge signed b^r himself against the accusied, on whicn, after trial,
he was convicted. Objection haviQg been ti^en to the charge on the
groimd that the Deputy Attorney-General had no authority to prefer such
charge without leave of the Judgje or direction of the Attorney-General,
and on the groimd that no preliminary hearing had been held, a case was
stated by the presidinjg Judge to the Court en banc.

Held (Johnstone, J., dissenting), that the Deputy Attorney-General is not
an agent of the Attorney-General within the meaning of the term as used
in the Criminal Code, and is not, therefore, authorized to prefer a charge
as agent of the Attorney-General.

2. That while by the General Interpretation Act (Dom.) it is provided that
words directing or empowering any minister to do any act or thing includes
the lawful deputy of such minister, such provision is controlled by the
special interpretation sections of the Criminal Code, and as the deputy is
not referred to therein, it must be held that the Deputy of the Attorney-
General is not by reason of his office authorized to prefer a charge under
the provisions of sec. 873a of the Criminal Code.

3. The Deputy Attorney-General, not being an agent of the Attorney-General
under the provbions of sec. 873a of the Code authorized to prefer a charge,
the conviction of the accused must be quashed, not having been preferred
with the leave or by the order of the Court.

This was a case stated by Lamont, J., upon the conviction of
the accused upon a charge preferred by the Deputy Attorney-
General, and was ai^gued before the Court en banc (Wetmore, C J.,
Prendergast, Newlands, and Johnstone, JJ.) at Regina.

Frank Fordj K.C., for the Crown.
W. B. WiUoughbyj for the accused.

November 20. Wetmore, C.J. : — ^The accused, William L. Duff,
was tried before my brother Lamont at Moose Jaw, for an offence
under sec. 398 of the Criminal Code, and convicted. At the close
of that trial the Deputy Attorney-General of the Province preferred
a charge against him for an offence under sec. 188 of the Code.
The charge was preferred without any consent on the part of the
learned Judge, and without any express direction or written consent
of the Attorney-General, or any direct proof that the Deputy

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389

Attorney-General was the agent of the Attorney-General. No
preliminary trial of the accused had been had before any justice
of the peace, or magistrate. Before pleading to the chaige, the
accused by his counsel raised the following objections: —
* '* 1. That there had been no preliminary hearing, and

"2. That the chaige had not been preferred with the written
consent of the trial Judge, or the Attorney-General, or by the
Attorney-General, or by anyone acting under his direction, or by
any person shewn to have been an agent of thi Attorney-General,
or by any person by order of the trial Judge."

The learned Judge allowed the trial to go on, the accused was
foimd guilty, and a case was stated for the opinion of this Court.

Section 873a of the Code, as enacted by the Criminal Code
Amendment Act of 1907, ch. 8, is as follows: —

*'In the Provinces of Saskatchewan and Alberta, it shall not be
necessarj' to prefer any bill of indictment before a grand jury, but
it ishall be sufficient that the trial of any person charged with a
criminal offence be commenced by a formal chaige in writing setting
forth as in an indictment the offence with which he is chai^ged.

''Such charge may be preferred by the Attorney-General or an
agent of the Attorney-General, or by any person with the written
consent of the Judge of the Court or of the Attorney-General, or by
order of the Court."

The question that arises is whether the Deputy Attorney-
General has the authority to prefer a charge under this section
without the written consent of a Judge of the Court or the Attorney-
General, and without an order of the Court.

In my opinion it is narrowed down to two propositions. First,
is the Deputy Attorney-General an agent of the Attorney-General
within the meaning of the section? Second, is he embraced in the
definition given by the Interpretation Acts for the word "Attorney-
General," or by the language of clauses Z or m of sec. 31 of the
General Interpretation Act (R.S.C.)?

In the first place, I am of the opinion that he is not an agent of
the Attorney-General within the meaning and intention of sec. 873a.
Before this Province was constituted as such, and of course, while
it was embraced in the government of the North-West Territories,
an amendment was made to the North-West Territories Act by
sec. 11 of ch. 22 of the Acts of 1891, as follows:—

En Bang.
1909

The King

Duff

(No. 2).

Wetmore, O.J»

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SASKATCHEWAN LAW REPORTS.

[vol.

En Banc.
1900

The King

V,
DtJPF

(No. 2.)
Wetmore, G.J.

" In lieu of indictments and forms of indictment as provided by
the 'Criminal Procedure Act/ the trial of any person chai^ged with
a criminal offence shall be commenced by a formal chaige in writing,
setting forth, as in an indictment, the offence wherewith he is
charged."

There was no provision as to who might prefer the chaiige under
that provision of the law, but it was customary to do it by persons
who were called Crown prosecutors, and who were appointed by
the Department oi Justice at Ottawa to act at the respective
Courts to which they were appointed. Since provincial autonomy
was granted, however, persons were appointed by the Attorney-
General's Department at R^ina, who perform the same duties and
who are styled "agents of the Attorney-General." After this
change was brought about, the amendment of 1907, which I am
now discussing, was made, and I am of opinion that the expression
^' agent of the Attorney-General" mentioned in the section in
question was intended to cover the person so appointed to attend
to criminal business, and styled "agent of the Attorney-General."
It was not intended to embrace the Deputy Attorney-General,
who is not an agent of the Attorney-General for the purpose em-
braced by the section.

Clauses I and m of sec. 31 of the General Interpretation Act
have not, in my opinion, any application to the question at all.
I am of opinion, for the purposes of considering the language of
the Criminal Code, in so far as the matter under consideration is
concerned, that we must go to the defining provisions of that Code,
and we cannot give the words a more extensive meaning than the
Code permits. That is, if the Code, for instance, gives a limited
meaning to the terra "Attorney-General," we cannot go to the
General Interpretation clause for the purpose of giving it a wider
meaning. Now the interpretation provisions of the Code does
define the term "Attorney-General." Section 2, par. 2, is as
follows: "'Attomey-Generar means the Attorney-General or
Solicitor-General of any Province in Canada in which any proceed-
ings are taken under this Act, and, with respect to the North-West
Territories and the Yukon Territory, the Attorney-General of
Canada."

The Deputy Attorney-General is not brought within that defini-
tion, and if he is not, his general duties as Deputy of the Attomey-

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391

General will not give him the authority, because he is Deputy of
the Atomey-General not for the purpose of anything within the
legislative authority of the Dominion Parliament, but only as to
his duties within the l^islative authority of the local Legislature.
If it is desired to extend his duties and authorities over anything in
the direction claimed, more specific l^islation on the part of Par-
liament will be necessary.

I have therefore arrived at the conclusion that the Deputy
Attorney-General had no authority to lay this charge, and therefore
that the conviction should be quashed.

I do not consider it necessary to express any opinion upon the
question raised as to there not having been any preliminary hearing.

Newlands, J. : — ^Two objections were taken at the trial of this
case by the prisoner's counsel: —

(1) That the charge preferred by Frank Ford, K.C., Deputy
Attorney-General, was preferred without the written consent of
the Judge of the Court, or the Attorney-General, or by order of
the Court; and

(2) That no preliminary examination had been held before a
justice of the peace.

The l^med trial Judge overruled the objections and allowed
the charge to be preferred, upon which the accused pleaded guilty.
The trial Judge then reserved for the opinion of this Court the
question, "Was I right in allowing the indictment to be preferred?"

It was contended on behalf of the Crown that the Deputy At-
torney-General is included in the Attorney-General mentioned in
sec. 873a by virtue of the Interpretation Act, ch. 1, R.S.C. 1906,
sec. 31, sub-sec. (I): ''Words directing or empowering a minister
of the Crow^n to do any act or thing, or otherwise applying to him
by his name of office, include a minister acting for, or, if the office
is vacant, in the place of such minister, under the authority of an
order-in-council, and also his successors in office and his or their
lawful deputy."

Now, by sec. 31, "in every Act, unless the contrary intention
appears," words directing or empowering a minister of the Crown to
do any act or thing include his lawful deputy. This interpretation
must be controlled by the Criminal Code, sec. 2, sub-sec. (2), where
the words Attorney-General, when used in that Act, mean "the

En Banc.
1909

The King

Duff
(No. 2.)

Wetmore, O.J.

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SASKATCHEWAN LAW REPORTS.

[vol.

En Bang.
1909

The Kino

Duff

(No. 2.)

Newbmds, J.

Attorney-General or Solicitor-General of any Province in Canada
in which any proceedings are taken under this Act, and with r&pect
to the North-West Territories and the Yukon Territory the Attorney-
General of Canada." The interpretation to be given to the words
'* Attorney-General" as used in sec. 873 of the Code, which is similar
to 873a under the provisions of which the chaise in this case was
preferred, was considered in Abrahams v. The Queen (1881), 6 S.C.R.
10. In delivering the judgment of the Court, Ritchie, C.J., said:
"In acting under this statute the Attorney or Solicitor-General or
Judge, as the case may be, exercises what is in the nature of a
judicial function, he is judicially to decide whether the indictment
is proper to be presented to or foimd by the grand jury," "and the
duty of exercising this judicial discretion ... is vested in the
Attorney-General or Solicitor-General or Judge to be by them
personally exercised." "I think, therefore, this being a special
statutory power, it must be strictly pursued; the propriety of send-
ing a bill before the grand jury having been confided to the judg-
ment and discretion of the Attorney-General, he cannot extend the
provisions of the Act and delegate to the judgment and discretion
of another the power which the L^islature has authorized him
personally to exercise, no power of substitution having been con-
ferred."

Now, as the words Attorney-General as used in the Code are
interpreted by that Act to mean the Attorney or Solicitor-General
of the Province, and as the powers conferred upon him by this
section are to be personally exercised by him, can the provincial
Legislature by authorizing the appointment of a Deputy Attorney-
General, enlarge the interpretation of Attorney-General as given
in the Code so as to include the Deputy Attorney-General appointed
under the provincial statute? Bouvier's Law Dictionary, at p. 549,
under the word ''deputy," says: "In general ministerial officers
can appoint deputies, Comyns, Dig. Officer (Dl), unless the office
is to be exercised by the ministerial officer in person; and when the
office partakes of a judicial and ministerial character, although a
deputy may be made for the performance of ministerial acts, one
cannot be made for the performance of a judicial act." As the
duties required of the Attorney-General by sec. 873a are judicial
duties, they cannot, in my opinion, be performed by his deputy.

That the Deputy Attorney-General is not included under an

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393

agent of the Attorney-General is, I think, clear, there being an
officer in each judicial district of the Province appointed and acting
as an agent of the Attorney-General, and he is the person referred
to in that section.

As to the second objection that no preliminary examination
was held in this case, it is aigued on behalf of the Crown that under
sec. 873a of the Code neither a preliminary investigation before
a magistrate nor the preferring of a bill of indictment before a grand
jury is required in this Province, but that a chai^ge for any criminal
offence may be preferred by the Attorney-General or an agent of the
Attorney-General direct to the Court having power to try the offence
without either of these preliminary steps having been taken. If these
powers have been conferred upon these officers in this Province
and Alberta they are far in excess of the powers conferred upon the
Attorney-General or Solicitor-General of the other Provinces.
There, in cases of emei^gency, as was pointed out by Gwynne, J., in
Abrahams v. The Queen, supra,, the discretion of the Attorney or
Solicitor-General as officers responsible to the public may be sub-
stituted for the preliminary examination, and the}" may prefer an
indictment to a grand jury.

Sections 871, 872 and 873 of the Code do not apply in this
Province, as they all refer to the preferring of a bill of indictment
to a grand jury. Section 873a is therefore substituted in place of
them, and is the only method by which the trial of a person chained
with a criminal offence can be commenced. That section provides
that in the provinces of Saskatchewan and Alberta it shall not be
necessary to prefer any bill of indictment before a grand jury, but
it shall be sufficient that the trial of any person charged with a
criminal offence be commenced by a formal charge in writing setting
forth, as in an indictment, the offence with which he is chained.
In my opinion that section means that instead of preferring a bill
of indictment to a grand jury it shall be sufficient to commence the
trial with a formal chaise in writing preferred as provided in sub-
sec. 2 of that section.

It is, I think, clear under the Criminal Code that no indictment
can be preferred unless preceded by a preliminary examination
before a magistrate except under the provisions of sec. 873. Now,
if this section does not, as I have pointed out, apply to this Province,
it follows that no charge can be preferred in this Province without

En Bang.
1909

The Kmo

Cf.

Dupp

(No. 2.)

Newlandi, J.

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SASKATCHEWAN LAW REPORTS.

[vol.

En Bang.
1900

The Kino

V,
DUFP

(No 2.)
Newlandt, J.

a preliminary examination, and sec. 873a does not take away that
right, and, as stated by Ritchie, C.J., in Abrahams v. T?ie Queen,
supra, this section, being a special statutory power, must be strictly
construed. To put upon it the construction contended for by the
counsel for the Crown would be to confer upon not only the Attorney-
General but upon each one of his agents throughout the Province
the power to prefer a charge against any person without there
being a preliminary examination before a magistrate or an inves-
tigation by a grand jury. Such wide powers so derogatory to the
rights of the subject could only be conferred by express legislation,
and not by extending the meaning of a section, which, in my opinion,
only confers upon these officers the duties of a grand jury.

Prendergast, J., concurred.

Johnstone, J. (dissenting) : — The accused Duff was tried and
convicted at Moose Jaw before my brother Lamont, with a jur>%
for an offence under sec. 398 of the Criminal Code, after which the
Deputy Attorney-General preferred a further chaige against the
convict for an offence committed contrary to the provisions of sec.
188 of the Code.

Counsel for the accused thereupon objected, as the fact was—

1. That there had been no preliminary hearing, and
. 2. That the indictment chai^ge had not been preferred with the
written consent of the trial Judge or of the Attorney-General, or by
the Attome3'^-General, or by anyone acting under his direction, or
by any person shewn to have been an agent of the Attorney-General,
or by any person by order of the Judge.

The trial of the said charge so preferred by the Deputy Attorney-
General imder the circumstances aforesaid was allowed to proceed,
with the result that the accused person was convicted, whereupon
the learned trial Judge stated a case for the opinion of the Court
en bancy as to whether he was right in allowing such charge to be
preferred.

The procedure as to the preferring of chai^ges under the Criminal
Code in this Province is now regulated by sec. 873a of the Code,
which reads: —

*'In the Provinces of Saskatchewan and Alberta it shall not be
necessary to prefer any bill of indictment before a grand jury, but
it shall be sufficient that the trial of any such person chained with
a criminal offence be commenced by a formal chai^ge in writing

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En Banc.
1909

Duff

(No. 2.)

JohnBtone, J.

setting forth as in an indictment the offence with which he is
chained.

"2. Such chaise may be preferred by the Attorney-General or The Kino
any agent of the Attorney-General, or by any person with the written
consent of the Judge of the Court or of the Attorney-General, or
by order of the Court."

The first question in this case to be determined is whether the
Deputy Attorney-General can, in virtue of his office as lawful
Deputy to the Attorney-General of the Province, prefer a charge
and place upon trial an accused person for having conunitted an
offence against the criminal laws, when such person has been com-
mitted for trial upon a preliminary hearing, where the depositions
taken at such hearing warrant the preferring a charge.

By the Act of Confederation, the administration of justice in
each of the Provinces is entrusted to the Provincial Government,
and it is therefore the provincial law officers of the Crown whose
duty it is to conduct or supervise, as the case may be, criminal
prosecutions such as that conducted against Duff by the Deputy
Attorney-General.

The Deputy Attorney-General is not mentioned in sec. 873a
of the Criminal Code, and in this respect he is in the same position
as the deputy heads of the several departments of the Government
of Canada. In nearly every Act of the Dominion affecting the
various departments of the Government of Canada there is used
the word ''Minister," an interpretation of which word is given at
the front of the Act. Take, for instance, the Goverrunent Railway
Act, the Railways Act, the Public Works Act, the Militia Act, the
Marine Fisheries Act, the Customs Act, there is in each an inter-
pretation in these words: "In this Act, urJess the context otherwise
requires. Minister means the Minister of Railways and Canals," or
as the case may be. The word "Minister" is used throughout each
Act, and no reference is made to the deputy head of the department.
This official in each department of the Government service does a
great deal towards the control and management of the departmental
business. This is because he is empowered to do so by virtue of
sub-sec. / of sec. 31 of the Dominion Interpretation Act. These
sections read: —

**(l) Words directing or empowering a Minister of the Crown
to do any act or thing, or otherwise applying to him by his name

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SASKATCHEWAN LAW REPORTS.

[vol.

Bn Banc.
1909

The Kino

Duff
(No. 2.)

Johnstoiie, J.

of office, include a Minister acting for, or, if the office is vacant, in
the place of such Minister, under the authority of an order-in-coun-
cil, and also his successors in such office, and his or their lawful
deputy;

"Sub-section (m). Words directing or empowering any other
public officer or functionary to do any act or thing, or otherwise
applying to him by his name of office, include his successors in such
office, and his or their lawful deputy."

Upon reference to the Criminal Code, we find legislation very
similar to that already pointed out as to the word "Minister."
This is in sub-sec. 2 of sec. 2 of the Criminal Code, which provides
that in the Act, "Attorney-General means the Attorney-General
or Solicitor-General of any Province in Canada in which any pro-
ceedings are taken under this Act." I fail to see why a different
and stricter interpretation should be given to the words "Attorney-
General" in sec. 873a than that which would be given to the word
"Minister," so as to exclude the lawful deputy in the one case and
include him in the other.

The words used in sec. 31 of the Interpretation Act, "In every
Act, unless a contrary intention appears," are certainly very clear,
and they must mean such contrary intention shall appear in the
Act the provisions of which are to be construed.

There is no intention, as far as I can see, appearing in any of
the provisions of the Criminal Code that sub-section (m) of sec. 31
shall not apply and thereby exclude the lawful Deputy of the
Attorney-General, one of the provincial officers of the Croii^Ti.
In view of these sub-sections, if I should be right, one would expect
to find words in sec. 873a excluding from its application the deputy
to shew only a contrary intention. To hold that no one, other than
the persons mentioned in sec. 873a, or persons named by the Par-
liament of Canada, may prefer a chaige and thereby have the
conduct of criminal prosecution in the Provinces, has, to me, the
appearance of extending to the Dominion Parliament powers
intended by the British North America Act to have been conferred
upon the provincial legislative bodies.

This is not a question of the power in the Attorney-General to
delegate to another the performance of his duties, but a question
as to whether or not that other has been named by legislation; in
other words, whether the Deputy Attorney-General of this Province
is the lawful Deputy of the Attorney-General within the meaning

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397

of sec. 31, and under a similar provision contained in the Provincial
Interpretation Act. In my opinion he is. To my mind the Qiieen
V. Abrahams is not an authority to the contrary. All that was
held and could be held in that case, which would be binding upon
this Court, was that a Crown counsel could not, of his own mere
motion alone, prefer a bill of indictment before a grand jury; that
counsel had not the power to do so. He could not be said to be a
lawful deputy within the meaning of sec. 31.

As to the other objection raised by counsel for the accused —
that no preliminary hearirig upon the charge had been held before a
magistrate — there is no law that a preliminary hearing shall take
place before a chaige can be preferred. It has been of common
occurrence in this Province in the past, and in the Territories forming
the Provinces of Saskatchewan and Alberta for years before the
foundation of these Provinces, to commence the prosecution of
persons for criminal offences without first having had a preliminary
hearing before a justice of the peace. It is said in The Queen v.
Lepine (1900), 4 Can. Crim. Cas. 145, at p. 152: "Prior
to the adoption of the Criminal Code, it was permissible
to lay a chaige before a grand jury and to ask and obtain
indictments without any preliminary commitment or even inquiry.
As a previous investigation before a magistrate was not an essential
condition . . . Since the Code (in the Provinces of Canada
other than Saskatchewan and Alberta), this section of which re-
quires a previous conunitment or the order of the Attorney-General
or the consent of the Judge is an essential preliminary condition
before a chaige can be laid before a grand jury."

It is provided by sec. 873a, before referred to, that in Saskatche-
wan and Alberta it shall not be necessary to prefer a bill of indict-
ment before a grand jury, but it shall be sufficient that the trial
of a person chaiged with a criminal offence shall be commenced by
a formal chaige in writing setting forth, as in an indictment, the
chaige and the offence. The provisions of sub-sec. 4 of sec. 873,
" that except as in this part previously provided no bill or indict-
ment shall be preferred in any Province of Canada,'* can have no
application to the Provinces named in sec. 873a. Section 873a, as
to Saskatchewan, takes the place of sees. 870, 1, 2 and 3, of the
Code, sections relating to other Provinces.

I think the question submitted by the learned Judge, in his
stated case, should be answered in the affirmative.

Conviction quashed.

En Bang.
1900

The Kino

Duff
(No. 2).

JohnstoiM, J*

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SASKATCHEWAN LAW REPORTS. [vol.

[COURT EN BANC]

En Banc. Canada Life Assurance Co. v. Vance.

1009

^ Mortgage — Foreclosure — Order for Sale on Apvlication fjor Foreclosure — Juris-

Oct. 20. * diction of Judge to Make WithoiU Application by Party.

The plaintiff instituted prooeedines under a mortgagei for foreclosure. On
the hearing of the application tne Judge in Ch&mbers made an order for
sale. None of the defendants applied for sale or offered to guarantee costs.
On appeal: —

Held, that, except in a few cases such as in case of infants, the mortgagee has
a strict right to foreclosure unless the mortgagor, a subseauent encum-
brancer, or some person claiming through or under him or them, appears
and asks for sale, and deposits such sum as may be determined as security
for the performance of any terms such as security for costs which the Court
may impose on granting ^e.

This was an appeal by the plaintifiF from an order of Lamont, J.,
made in Chambers, on the return of an originating summons for
foreclosure of a mortgage, whereby sale was directed instead of
foreclosure, and was heard by the Court en banc (Wetmore, C.J.,
Prendergast, Newlands and Johnstone, JJ.)

H. V. BigeloWj for the appellant: The question in this case is
whether the doctrine in Excelsior v. Prestniak (1908), 8 W.L.R.
780, will extend to the extent of supporting the order for sale
herein. Foreclosure is a necessary incident of every mortgage:
Robbins on Mortgages (1897 ed.), p. 14; and the Court will give the
benefit of foreclosure in every case where money is lent on mortgage:
Robbins, p. 999. The only authority the Court has to order a sale
is derived from the Chancery Amendment Act, 15 & 16 Vict. ch. 86,
sec. 48. By that section a sale can only be ordered upon application
of a party to the proceedings who is willing to guarantee the costs.
There being no such application here, the learned Judge erred in
making such order.

No one contra.

October 20. The judgment of the Court was delivered by
Johnstone, J. : — The appellants, mortgagees under the Land Titles
Act of 1904 of the defendant Vance, who was then in default, on
the 23rd December, 1908, obtained an originating summons in
Chambers calling upon the mortgagor and his co-defendant, a
creditor, to appear on an application to be made in Chambers on

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399

the appellant's behalf for an order foreclosing the interest of the
defendant covered by the lands in question.

From the affidavit of one Young, the plaintiff's manager in
Winnip^, which affidavit was used in support of the application
for the originating summons, it appears there was then due the
plaintiffs less than $1,000, and the lands covered by the mortgage
were worth $1,850.

On the return of this sunmions the learned Judge refused to
order foreclosure, and made an order that in default of payment
of principal, interest and costs, at the date fixed for the payment
thereof, the lands be sold at public auction. From this order the
plaintiffs appealed.

There was no request by the mortgagees or any subsequent en-
cumbrancer of the mortgagor, or of any person claiming under
them, to the Judge, at the hearing, to direct a sale instead of fore-
closure.

As required by the Chancery Act of 1852, 15 & 16 Vict. ch. 86,
sec. 48, that section provides: "It shall be lawful for the Court in
any suit for the foreclosure of the equity of redemption in any
mortgaged property, upon the request of the mortgagee, or of any
subsequent incumbrancer, or of the mortgagor, or any person
claiming under them respectively, to direct a sale of such property,
instead of a foreclosure of such equity of redemption, on such terms
as the Court may think fit to direct, and if the Court shall so think
fit, without previously determining the priorities of incumbrancers,
or giving the usual or any time to redeem; provided that if such
request shall be made by any such subsequent incumbrancer, or by
the mortgagor, or by any person claiming under them resi)ectively,
the Court shall not direct any such sale, without the consent of
the mortgagee or the persons claiming under him, unless the party
making such request shall deposit' in Court a reasonable sum of
money, to be fixed by the Court, for the purpose of securing the
performance of such terms as the Court may think fit to impose
on the party making such request.''

Subject to the provisions of this section, the mortgagee had,
except in a few cases where, by reason of the existence of special
circumstances, as, for instance, in the case of infants, a strict right
to foreclosure.

28 — ^voL. n. SX.B.

En Bang.
1909

Canada

Line

Assurance

Co.

Vance.

JohoBtone, J.

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400

SASKATCHEWAN LAW REPORTS.

[vol.

En Bano.
1909

Canada

Life

Absurancb

Co.

Vance.

johmtone, J.

Under the section referred to, the request from some one of the
persons named for a sale instead of foreclosure was a condition pre-
cedent to the making of the order.

I think the appeal should be allowed with costs, such costs to
be added to the appellant's claim.

Appeal allowed wUh costs.

Bn Bang.
1909

Nov. 20.

ICOURT EN BANC]
Wood & McCausland v. Barker.

Master and Servant — Assignment of Wages Earned — Hiring at Monthly Wage —
Gross Immoral Conditct by Servant — Seduction of Master's Infant Daughter
—Continuing Offence — Right of Servant to Recover Wages.

Defendant employed a servant for the season at a monthly wage. During the
term of his employment the servant seduced the master's fourteen-year-old
daughter, and it appeared that such offence had been conmiitted during
every month of the hiring. The master did not become aware of the
servant's conduct imtil the expiration of the term, and immediately laid
an information against the servant and caused his arrest, and he was subse-
quently convicted. The servant assigned his wages to the plaintiffs, who
brought action against the master to recover the amount alleged to be due
The claim was dismissed, and the assignees appealed: —

Held J that a servant who is, during his term of service, guilty of grossly immoral
conduct affecting his master is not entitled to recover wages for the period
in which he was guilty of such conduct, and the conduct of the servant m
this case was such as to debar him from recovering the wages earned.

2. That while the wages were due monthly, yet as the servant had during
each and every month of his employment been guilty of unmoral conduct,
no wages ever became due to him.

3. The fact that the master was not aware of the servant's conduct until after
the expiration of the term does not entitle the servant to recover.

This was an appeal by plaintiffs from the judgment of Rinmier,
D.C.J. , dismissing the plaintiff's claim for moneys due by defendant
to his servant and by the servant assigned to the plaintiffs, and was
aligned before the Court en banc.

N. MacKenzie, K.C., for the appellant (plaintiff): The only
substantial matter of defence is pleaded by way of counterclaim,
and that being dismissed and no appeal taken, the defendant cannot
now open it. The claim for set-off of damages cannot be pleaded:
Odgers on Pleading, 6th ed., 231-234; Ann. Prac. (1909), p. 299;
Young v. Kerchin, 3 Ex.D. 127; Oovemment of Newfoundland v.
Newfoundland R.W. Co., 13 A.C. 199; LUtle v. Thomas, 1 W.L.R.

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n.] SASKATCHEWAN LAW REPORTS. 401

467. There was no l^al forfeiture of wages, because the contract En Banc.
was completed and the servant was not dismissed prior to com- ^^^
pletion of contract, and if there was any forfeiture it could be for Wood *
one month's wages only: Robertson v. Jenner, 15 L.T. 574. McCaubland

J. T, Broim, K.C., for the respondent (defendant): The gross Barker.
and habitual misconduct of Holloway affords ground for dismissal,
and constitutes a bar to recovery of wages even though otherwise
the wages were due and the contract at an end: Smith on Master
and Servant, 6th ed., p. 105; Brovm v. Croft, 6 C. & P. 16;
Turner v. Kcfnwenhoven, 100 N.Y. 115.

The judgment of the Court (Wetmore, C.J., Prendergast,
Newlands, Johnstone, and Lamont, JJ.) was delivered by —

November 20. Newlands, J.: — In this action the plaintiffs
sue as assignees of one Holloway, who was employed as a farm
servant by the defendant for the season of 1908 at $25 per month
and 50 cents per day extra for the time he was threshing. The
defence is the gross inunoral conduct of the servant, by the seduction
of the defendant's infant daughter during said term of service, and
which only came to the defendant's knowledge on the 23rd October,
1908, when the servant was leaving the defendant's employment
at the completion of his term of service. The District Court Judge,
before whom the action was tried, held that the servant had forfeited
all right to his wages by such conduct, and gave judgment for
defendant. From this judgment the plaintiffs appeal.

The following proposition, which is laid down in 26 Cyc, p. 1040,
is, I think, a correct statement of the law as applicable to cases of
this kind: "A breach of the contract of employment other than
by quitting the service may prevent a recovery of any wages there-
imder, as where the employee embezzles the money of his employer,
or commits other criminal offences, although not immediately
injurious to the person or property of the employer."

In CaUo V. Brauncker (1831), 4 Car. & P. 517, where a yearly
servant was dismissed before the expiration of the year and the
servant sued for his wages, Parke, J., told the jury "that there was
an implied agreement that, if there was any moral misconduct,
either pecuniary or otherwise, wilful disobedience or habitual
n^lect, the defendant should be at liberty to part with the plain-
tiff."

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402 SASKATCHEWAN LAW REPORTS. [vol.

En Banc. The same principle is laid down by Lord Tenterden, C.J., in

1909 Atkins V. Adon (1830), 4 Car. & P. 208; and in Turner v. Rolnnsan

W^ ft (1833), 6 Car. 4 P. 15; Cunningham v. Fanblanque (1833), 6 Car. &

McCausland p 44^ j^j numerous other cases, all going to shew that gross im-

Barker. moral conduct on the part of the servant is a breach of his contract

Newundt. J. which entitles the master to dismiss him.

In this case the servant was not dismissed, because the master
(the defendant) knew nothing of the seduction of his daughter
until after the completion of his term of service. This, however,
makes no diflference, because, as found by the District Judge,
"the defendant in no way condoned the offence or waii'ed the
forfeiture. So soon as he discovered the offence he laid an informa-
tion." Nor does the fact that the wages were due periodically
make any difference, as the District Judge has also found that the
immoral acts of the servant commenced in the winter of 1907 and
1908, and continued to July, 1908, at least, and that there never
was a time from the date the service commenced on March 23rdy
1908, to the date Hollo way left that he was not liable to be dis-
missed for cause.

Gross immoral conduct is, as I have said, a breach of the contract
of service, and I know of no immorality on the part of a ser\'aQt
more gross nor more detrimental to the interests of his master than
the seduction of his daughter, who, in this case, was only fourteen
years of age. The servant having broken his contract, and that
breach not having been waived, he cannot recover, and as the gross
• immoral conduct was continued during the whole term of sendee,

it is a defence to his whole claim for wages, that is, he broke his
contract each month, and therefore never earned a month's or any
wages.

In Brovm v. Croft (1833), 6 Car. & P. 174 N., Lord Tenterton,
C.J., ruled that if a ser\'ant habitually embezzled his master's
property the amount embezzled is wholly immaterial; and, although
the arrear of wages sought to be recovered may exceed the amount
embezzled, the servant is not entitled to anything, shewing, I think,
that damages for the embezzlement are not to be set off against the
wages that would otherwise be due, but that no wages were due at
all, on account of the breach of contract by the servant.

An American case was cited on the ailment where the law laid
down is similar to what I have stated, and as Brown v. Croft is

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n.] SASKATCHEWAN LAW REPORTS. 403

given ^ the authority for the proposition there contained, it bears ^n Bano.
out the interpretatioi) I have put on that oafle. This cajse is Turner ^^^
V. Koutpenhoven, 100 N.Y.E. 116, at p. 119, where Miller, J., wood*
says: ''The rule is well settled in this State that if the master, McCausland
for good and sufficient cause, discharge the servant before the Barkbr.
expiration of the term of service, or if the servant, without good Newiandi.!.
cause, quit service before the end of the term, he can recover nothing
for the part of the term past, nor for the future. But where the
servant has served his full term this rule has no application and
has never been upheld by the decisions of the Courts. Cases may,
no doubt, arise where the dishonesty of the servant is of such a
character as would justify the conclusion that his contract had
been violated in a most material and substantial part and to an
extent which would bar any recovery whatever, but the act in such
cases, to bar a recoveiy, must be misconduct and unfaithfulness,
which substantially violates the contract of service."

In another American case, Peterson v. Mayer, 46 Minn. R.,
468, Mitchell, J., says: ''The allegations of the complaint are
that the plaintiff performed labour and work for defendant for
seven and a fraction months at an agreed sum per month, payable
at the end of each month. The answer admits the employment
at the sum alleged for each and every month that plaintiff should
work for defendant, and that the plaintiff worked the length of
time stated, but alleges, by way of defence, that during aU the time
of his service the plaintiff stole and appropriated to his own use
laige sums of defendant's money which came into his hands in the
course of his employment, and that, as soon as defendant discovered
the fact, he dischaiged the plaintiff from his service. While the
whole services were not performed under one entire contract, yet,
as to each and every month by itself, the contract was an entire
one, viz., to work an entire month for an entire price. A contract
to pay a certain sum for a month's service is as entire in its con-
sideration as is a contract to pay a certain sum for a single chattel:
Beach v. MvUin; 34 N.J. Law 343. Therefore, to entitle plain-
tiff to recover the specified wages for one month, he must
have substantially performed the contract of service for that month.
According to the settled doctrine of this Court, had plaintiff, before
the expiration of the month, abandoned the service without excuse,
and by his own wilful fault, he could have recovered nothing for

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404 SASKATCHEWAN LAW REPORTS. [vol.

En Banc, the portion of the month he worked, because he would not in

1909 such case have performed his contract: Ndiehka v. Esterlyj 29

W^* Minn. 146 (12 N.W. Rep. 457); Kohn v. Fandd, 29 Minn. 470

McCausland (23 ifYf^ j^gp 904). The same result would have foUowed, and

Barker, on the same ground, had the defendant during the month, for

NewUndB, J. good and sufficient cause, dischaiged the plaintiff from his service.

BiU it was an implied condition of the contract that plaintiff should

serve the defendant faithfully and honestly. Although only implied^

this was as much a part of the contract as was the express condition

as to the time of service, and the breach of the one was just as much

• a failure to perform the contract as would have been a breach of the

other, and the consequences in both cases would be the same.

Indeed, if there is any case of non-performance of an entire contract

which should prevent a recovery, it is where a servant has been

habitually embezzling his master's money which came into his

hands in the course of his employment; for, in such cases, not

only is the breach the result of positive dishonesty, but it goes to

the very root of the subject-matter of the contract of service."

The law being the same in this Province, the above reasons apply
equally to this case, and I am therefore of the opinion that Holloway
never earned any wages and that there was nothing for him to assign
to the plaintiff, and that the judgment of the District Court Judge
should be affirmed with costs.

Appeal dismissed.

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n.] SASKATCHEWAN LAW BEPOBTS. 405

ICOURT EN BANC]
Anderson v. Olson. En BAsa

1900

Pleadina— Amendment at Tried — Embarrassing — Allowance of — Material Facta

— What Necessary to Make Good Plea — No Defence to Amended Plea — jr^- OQ
Finding by Trial Judge on Improper Plea— -Effect of, ' '

Plaintiff sued to recover oommission alleged to be due under an agreement
whereby he assigned an agency held by nim to the defendant. After action
brought, and upon the examination of the defendant for disco veiy, it
transpired that after making the contract with the plaintiff he retired from
business, and his business was acquired by a concern which secured the
agency in question. Plaintiff thereupon applied at the trial to amend by
pleading alternatively that if the deffendant gave up the agency he did so
of his own accord and in violation o the expressed and implied terms of
the contract, whereby the plaintiff suffered damage. No facts were set
out in su|)port of the plea. The trial Judge on the trial allowed the amend-
ment subject to objection.

No defence was delivered to the amended plea. After trial, and in his judg-
ment, the trial Judge decided that the amendment should not have been
allowed, and dismissed the plaintiff's original claim, but found for him on
a breach of contract, notwithstanding his finding that the amendment was
an improper one. On appeal: —

Held, that the proposed amendment, lacking as it did any alle^tion Of fact
to support it, should have been disallowed, and the plaintiff, therefore,
could not recover.

2. That an embarrassing plea should not be allowed by way of amendment.

3. That no defence havmg been pleaded to the amended plea, there was no
issue before the Court.

This was an appeal by the defendant from a judgment of the
District Court Judge, at Saskatoon, allowing the plaintiff's claim
on an amendment made at the trial, and was ai^ed before the
Court en banc at R^ina.

F.W.G,HauUain, K.C., for the appellant (defendant): The
amendment of the plaintiff's claim allowed at the trial should not
have been allowed, as the amendments are evasive and embar-
rassing and do not disclose sufficient facts to justify the relief
claimed, and should be disallowed: Newley v. Sharp ^ 8 CD. 39,
at pp. 49-51; Raleigh v. Goschen (1898), 1 Ch. 73; Edwain v.
Baker J 41 CD. 563. If the amendment is disallowed there is no
evidence to support the original claim, and the action should be
dismissed.

W. M, Martin, for the respondent (plaintiff) : The amendment
in question was properly allowed, being necessary to properly de-
termine the matters in dispute between the parties, and the amend-
. ment being allowed there was evidence to support the findings of
the trial Judge thereon.

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406

SAKKATOHBWAN LAW BBPOBTS.

[vol.

En Banc.
1909

Andsrson

V.
Ol^ON.

Wetxnore. O.J.

November 20. The judgment of the Court (Wetmore, C.J.,
Johnstone, and Lamont, JJ.) was delivered by Wetmore, C.J.:—
This is an appeal from the judgment of the District Court Judge
for the Judicial District of Saskatoon.

The plaintiff's statement of claim is as follows: —

'*1. The plaintiff is a merchant residing at Saskatoon, and the
defendant is a merchant residing at Dundum.

"2. The plaintiff had the agency for the sale of binder twine
known as the Plymouth twine, and the plaintiff transferred this
agency to the defendant 0. T. Olson, and the defendant O. T. Olson
Agreed to pay to the plaintiff for the transfer of the said agency of
the said Plymouth twine half a cent a pound for all twine sold by
the defendant during the year 1908, and to be paid on or before the
31st day of December, 1908, to the plaintiff.

"3. The agreement hereunder was made in writing bearing date
October 31st, 1907, signed by both parties.

"4. During the year 1908 the defendant sold 35,500 pounds of
said binder twine, for which he agreed to pay the plaintiff under
the said agreement the sum of half a cent a pound.

*'5. There was also about 3,000 pounds on hand at the time the
contract sued on hereunder was made, and the defendant also agreed
to pay half a cent a pound on this twine on its sale, but has failed
and neglected to do so, although defendant has sold same.

"6. The plaintiff claims in all —

" (1) One-half a c«it a pound on 35,500 pounds, being $177.50,
-with interest from the 31st December, 1908, till payment or judg-
ment.

" (2) One-half cent a pound on 3,000 pounds, being $15.00, the
plaintiff having refused to pay the said amounts or any part thereof.

''The plaintiff claims in all the sum of $192.50, and interest from
December 31st, 190^, as aforesaid, and costs."

The defendant, by his plea, admitted paragraphs 1, 2 and 3 of
the statement of claim, but denied that he sold 35,500 pounds, or
any amount whatever, of such binder twine or any other binder
twine, or that any person sold binder twine on his behalf during
the season of 1908, and that he had not contracted with any person
to receive any commission for the sale of binder twine during that
iieason.

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SASKATCHEWAN LAW REPORTS.

407

He admitted paragraph 5 of the statement of claim, and paid
S20 into Court in settlement thereof on the 1st March, 1909.

In the meanwhile, but before the trial, the defendant had been
examined for discovery, and it there appeared that before the
season for selling twine had arrived the defendant retired from
business, and a concern known as the Home Lumber Company, of
which the defendant was manager, secured from the manufacturers
the privil^e of selling twine, and the defendant sold no twine
himself during the season, and there was no evidence to establish
that he had sold twine during that season. It may possibly be
gathered from the defendant's testimony that he handed over to
th% company the agency for selling this twine for which the plaintiff
had previously been the agent, and which had been assigned to
him, the defendant, and thereby put it in a position to acquire the
agency which it did acquire. I do not consider it necessary, in
view of the conclusion I have reached, to express any opinion on
that question.

After such examination, I presume, and before the trial, the
plaintiff gave notice to amend the statement of claim by adding
thereto three paragraphs to be numbered 5a, 56 and 5c. What the
•contents of the proposed paragraph 56 were does not appear in the
appeal book, the learned Judge having refused to allow the amend-
ment as to that clause, but 5a and 5c are as follows: —

'*5a. The plaintiff says that if the defendant gave up the agency
for Plymouth twine in the month of June, 1908, that he did so of
his ow^n accord and without notice to the plaintiff, in violation of
the provisions of the agreement, express and implied, sued on
herein, and therefore committed a breach of agreement and caused
damage to the plaintiff.

"5c. The plaintiff, in addition to the claim in paragraph sLx,
claims the sum of $250 for breach of contract by the defendant by
reason of the facts set forth herein."

And by the proposed amendment the plaintiff also claimed by
way of relief "that the defendant should be made to account to
the plaintiff for all Plymouth twine sold by him or by the Home
Lumber Company Limited during the year 1908, and that the de-
fendant be made to account to the plaintiff for all twine sold by the
Home Lumber Company Limited in the same manner as if sold by

En Bang.
1909

Anderson

Olson.

Wetmore, O.J.

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408

SASKATCHEWAN LAW REPORTS.

[vol.

En Banc.
1909

Anderson

V.
OlJSON.

Wetmore, G.J.

the defendant and for which the defendant is liable to pay half a
cent a pound on agreement sued on herein."

Application accordingly was made to the trial Judge to allow
such amendment, and he allowed paragraphs 5a and 5c thereof, and
I presume also the prayer for relief which I have quoted.

The trial Judge states in his judgment that there was no serious
objection raised to this amendment, and therefore he allowed those
paragraphs, but goes on to state 'Hhat in looking into the matter
further he was clearly of opinion that he was in error in so doing."

I'he minutes of trial shew distinctly that the amendment was
objected to by the defendant. The objection was serious enough
to be noted, and that being so, I am of opinion that the defen<^t
is entitled to the benefit of his objection if it was well taken. I am
of opinion that the objection was well taken. The proposed amend-
ment lacked any allegation of fact to support it. Looking at the
pleading as it would stand if amended, as allowed by the Judge,
and looking at it as a record, it would not be very easy to under-
stand it. In fact, were it not for the examination for discovery
of the defendant, it would be utterly incomprehensible. Looking
at it from the standpoint of a pleading, it must be of such a character
as amended as to make it a good pleading without having resort
to some other document or transaction. How could the plaintiff
bring an action based on a contingent all^ation — ^that if a person
did so and so he would be liable to damages? I never knew of such
a pleading. I could understand a pleading in the alternative,
alleging as a matter of fact that the defendant, in contravention of
the implied agreement set out in the third paragraph of the claim,
had committed a breach of such implied agreement, but the way it
is allied here, to my mind, is contrary to the rules of pleading.
Consequently, the proposed amendment was bad, and to say the
least was embarrassing, and I am of opinion that a Judge ought
not to allow an embarrassing pleading by way of amendment.
If such a pleading had been made in the first instance and not by
amendment, the defendant could have moved to have it struck out
as embarrassing, and it most undoubtedly would have been struck
out, and I am of opinion that a pleading which would be bad if
originally pleaded and which would be struck out as embarrassing
ought not to be allowed at the trial.

Another objection to the amendment is that the learned trial

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Wetmon, O J.

n.] SASKATCHEWAN LAW REPORTS. 409

Judge went on aaid dealt with the case without any defence being En Banc.
pleaded to it. The defence pleaded to the original cause of action 1^^^
clearly is not applicable to the claim as raised by the amendment. Anderson
I may ask then, what issue did the learned trial Judge try out? Qlson
If no answer is given to the allegations in a statement of defence,
the matter is at issue, but the allegations in the statement of claim
are not at issue, because no defence has been entered to them.

The appeal book does not disclose what objections were raised
to this proposed amendment at the trial, but the notice of appeal
raises the objections that I have disclosed, and I did not undepstand
it to be claimed that such notice was, in that respect, improper or
irr^ular.

Although the learned trial Judge held, after consideration, that
he was in error in allowing the amendment, he still proceeded to
give judgment holding that the original cause of action was not
proved, but that the cause of action set up by the amendment was.
I will not follow him in his judgment in that respect, because I
consider it unnecessary to do so. The amendment ought not to
have been allowed, and if the ameodment ought not to have been
allowed it was not within his province to pronounce judgment
upon it.

The cause of action set forth in the fifth paragraph of the claim
was admitted by the defence, and the defendant paid into Court
$20 in settlement thereof.

The appeal therefore should be allowed with costs; the order
authorizing the amendment and the amendment made thereon
struck out; the judgment of the trial Judge set aside, and judgment
entered for the defendant on the issues joined as to the second and
third paragraphs of the statement of defence, which were the only
issues in the cause; that the plaintiff should have the costs of the
action down to the time of such payment into Court, and that the
defendant should have the costs of the action subsequent to that
time, including the costs of the trial, and he should also have his
costs incidental to the cross-examination of the defendant by the
plainti£f; that the costs so allowed to the plaintiff and the $20 paid
into Court by the defendant should be deducted from the costs so
taxed to the defendant, and th'e defendant should have execution
for the balance, and the $20 paid into Court should be paid out
to the defendant.

Appeal allowed.

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410 SASKATCHEWAN LAW RBPOliTS. [vol.

[COURT EN BANC]

Bw Bang. Imperial Bank v. Kievell.

1909

Sale of Goods — Inapeetion of by Purchaser — Ascertained Goods — No ImpHed

Nov. 20. Warranty,

Defendant purchased a fanninff mill and gave a note therefor. Before pur-
chasing he examined the mill, which was delivered to him. In an action
on the note he alleged that the mill was not capable of doing good work,
and claimed breach of warranty. The trial Judge found that no express
warranty had been proved, and gave judgment for the plaintiff.

On appeal: —

Heldf that there was evidence to support the trial Judge's finding that there
was no express warranty, and the appellant having purchased the mill after
inspecting the same and relying entirely on his own judgment, there was
no impliea warranty.

This was an appeal by defendant from the judgment of Rimmer,
D.C.J. , allowing the plaintiffs' claim in an action on a li^i note
given for goods agreed to be sold, and was aigued before the Court
en banc at Regina.

W. H. WiUiams, for the appellant: The seller expressly war-
ranted the goods sold to do good work, and the goods failing to
comply with the warranty, of which failure notice was given, the
purchaser is entitled to set up breach of warranty in extinction of
the purchase price: Sale of Goods Ordinance, sec. 51, sub-sec. (a).
The sale was of a specified article sold by description, and there
was an implied warranty that the machine was reasonably fit for
the purposes sold: Sale of Goods Ordinance, sec. 16; and the
machine was not so reasonably fit.

A. M. MaJthesony for the plaintiff (respondent): The trial
Judge has found that the machine was sold by a trade name, and
there was, therefore, no condition of fitness for any particular
purpose or implied condition Si& to defects: Sale of Goods Ordinance,
sec. 16, sub-sec. 1 and 2; Frost & Wood v. Eberle, 3 W.L.R. 70.

November 20. The judgment of the Court was delivered by
Lamont, J.: — This is an appeal from the decision of the District
Court Judge for the Judicial District of Cannington in favour of
the plaintiff in an action to recover the amount of a lien note made
by the defendant to Smith & IngoUs, and duly assigned by them.

The note was given for the price of one Superior disc harrow

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n.]

SASKATCHEWAN LAW REPORTS.

411

and one Hero fanning mill. The defendant does not deny his
liability on the note in so far as the price of the disc harrow is con-
cerned, but he does dispute liability as to $45, the price of the Hero
fanning mill, on the grounds that he did not order a Hero mill at
all, but a "Fosson," and Smith & IngoUs sent him instead the
Hero mill, and that this mill could not be made to work. And,
further, that Mr. Lowe, who was Smith & Ingolls' salesman, gave
an express warranty that the mill would do as good and satisfactory
work as any cleaner, and if it failed to do that, they would take it
back. ,

The learned trial Judge has found as a fact that the defendant
purchased a Hero mill and not a Fosson, and with that finding
I agree. The defendant went to the place of business of Smith
& Ingolls for the purpose of purchasing a mill. They had no
Fosson mills on hand, but had a Hero mill on exhibition in their
warehouse. Mr. Lowe swears that he shewed this mill to the
defendant, and that, after seeing it, the defendant purchased the
same, and gave a note for the price of the mill and the price of a
harrow which he also purchased. In this statement he is corrobo-
rated by the note itself, which on its face contains the following
clause: "This note is given for one 12/16 Superior wheel disc harrow
and one Hero fanning mill." The defendant says these words were
not on the note when he signed it. He, however, admits that they
promised to deliver the mill to him in four days. He also admits
that they had no Fosson mills in stock. The Fosson mill is manu-
factured at Minneapolis, and the evidence shews that it would take
at least two weeks to get one delivered to the defendant. Smith
& Ingolls shipped him the Hero mill the day he signed the note,
and he admits receiving it within four days, as promised. The
learned trial Judge was, in my opinion, justified in finding as a
fact that the defendant purchased a Hero mill.

As to the warranty. The only express warranty claimed by
the defendant is that contained in a leaflet setting out the advan-
tages to the farmer, not of a Hero mill, but of a Fosson. The
document does not contain any reference whatever to a Hero mill.
The defendant says that when he signed the note he asked, "What
guarantee have I that the mill will be as represented, as you hold
my note for same," and that Mr. Lowe turned and picked up the
leaflet, and said, "This is our guarantee. We will stand behind it

En Bang.
19(m

Impbrial
Bank

V.
KlEVELL.

Lamont, J.

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412

SASKATCHEWAN LAW REPORTS.

[vol.

EiT Baito.
1909

Imperial
Bank

V.
KlEVBLL.

Lamont. J.

every time." Mr. Lowe admits that he may have handed the
leaflet to the defendant, but denies that he ever said it was their
guarantee. On this point the learned trial Judge, who had the
witnesses before him, has accepted the testimony of Low^e as against
that of the defendant, and has found that there was no express
warranty given. There is nothing in the evidence to satisfy me
that the conclusion of the trial Judge was not correct. But, even
if the defendant's version were right, the only warranty which he
contends was given was that contained in the leaflet. That docu-
ment, how^ever, does not contain any such warranty as claimed by
the defendant. It contains a lai^e mmiber of paragraphs setting
out the mechanical structure of the Fosson mill and the superior
advantages thereof, and then contains this clause, which is relied
upon by the defendant as containing the warranty: "Now we have
told you the facts about the Fosson Automatic Grain Cleaner and
Grader. We will stand right behind these statements all the time,
and we are willing to place the mill in competition with any cleaner
made at any time, and if we cannot make the machine do all we
claim for it, we do not want you to keep it."

Here they say that if they cannot make the mill do all they
claim for it, they do not want the purchaser to keep it, but nowhere
do they say that it will do good and satisfactory work, or anything
from which such a warranty could be spelled. There w^as, there-
fore, no express warranty given wath the sale of the mill. Is there
any implied warranty attaching thereto?

As the evidence shews that the defendant bought the Hero mill
which Smith & Ingolls had in their warehouse at the time, it was
the sale of a specific and ascertained article which the defendant
had examined and which he purchased, as he admits, relying en-
tirely on his own judgment. Under these circumstances, there
is no implied warranty as to the quality of the mill or its fitness for
any particular purpose: Sale of Goods Ordinance, sec. 16.

The appeal should, in my opinion, be dismissed with costs.

Appeal dismissed.

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n.] SASKATCHEWAN LAW REPORTS. 413

[COURT EN BANC]

Canadian Pacific R.W. Co. v. Forest City Paving and En Banc.

Construction Co. 1*0»

Common Carrier — Goods Received for Shipment — Contract to Pay Charges — Nov. 20.
Parties to — Consignor Presume to he Agent for Consignee — Liability of
Consignee — Action for Freight — Remedies of Consignee — Completion of
Contract — Acceptance by Consignee,

Defendants purchased a quantity of cement for shipment to them at Regina.
and it was so shipped by the consignors. The contract of shipment providea
that delivery should be made in the railway company's shed at destination
or when the goods had arrived at the place to be reached on the company's
railwav. The goods arrived at Regina and were with the consent of the
defendant placed for imloading at a point indicated by the defendant's
manager. The goods were subroquently taken away by another party who
had purchased them from defendant and who did not pay the freight, and
the defendant refusing to pay the same the plaintiff brought action to recover
the charges: —

Held, where goods are with the consent or by the authority of the purchaser
consigned by the vendors as consignors to be carried by a railway company
as common carriers to be delivered to the purchaser as consipiee, and the
name of the consignee is known to the carrier, the ordinary inierence is that
the contract of carriage is between the carrier and consignee, the consignor
being the agent of the consignee to m^e it, and the contract in this case
was therefore between the carrier and the consignee.

2. That the plaintiff company could therefore maintain an action for recovery
of the freight charge from the consignee.

3. That the plaintiff completed its contract and became entitled to recover
its charges when the car containing the ^oods was placed for unloading with
the knowledge and consent of the consignee.

This was an appeal taken to the Court en banc by the railway
company from a judgment of Rimmer, D.C.J., dismissing the
plaintiff's claim for recovery of freight charges on goods consigned
on the plaintiffs' railway to the defendants, and was argued before
the Court at Regina.

J. A, Allan, for the plaintiff (appellant): By the terms of the
bill of lading the delivery of the goods consigned was completed
when the goods arrived at Regina, and the defendants, having
been notified of the arrival of the goods and sold them,
thereby accepted the goods, and cannot now be heard to say they
did not receive the same. In any event the consignee is the agent
of the consignors, who primarily are liable for the freight: Dawes
v. Peck, 8 T.R. 330; Elliot on Railroads, vol. 4, pp. 2419 and
2421; Cork Distilleries v. Great SoiUhem and Western R.W, Co.
(1874), L.R. 7 H.L. 269.

T. S. McMorran, for the defendant (respondent) : The defen-

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414

SASKATCHEWAN LAW REPORTS.

[vol.

En Banc.
1909

Canadian
Pacific
R.W. Co.

Forest Cm
Paving

AND

Construc-
tion Co.

dant, on the facts, can only be liable on one or other of two theories
— first, that they are liable under express contract; or, second,
under an implied contract arising out of their actions at Regina.
As to the first, there was no privity nor is there any evidence
of agency. He referred to Dickenson v. LanOy 2 F. & F. 188;
O.W. R.W, Co, V. Bagge, 54 L.J.Q.B. 699; Halsbury's Laws of
England, vol. 4, p. 91. The only remedies open to the con-
signor are to sue the consignor or exercise their right of lien. In
order to establish an implied contract an actual delivery must be
proved, together with acceptance: Evans v. Bristol and Exeter Ry.,
10 W.R. 359; Barnes v. Marshall, 18 A. & E. 785 There was no
evidence of actual delivery or of a taking of the goods by the
respondent.

November 20. The judgment of the Court (Wetmore, C.J.,
Prendergast, Newlands, Johnstone, and Lamont, JJ.) was
delivered by Newlands, J.: — This is an action for freight on goods
carried from Owen Sound to Regina, and the defence is that the
goods were not carried for the defendants, but by virtue of a
contract entered into between the plaintiffs and the Imperial
Cement Company, Limited, and that said goods were never deli-
vered to defendants.

The facts are, briefly, that in the fall of 1907 the defendants
purchased from the Imperial Cement Co. at Owen Sound, Ontario,
1,200 bags of cement, which were shipped by the vendors to the
defendants at Regina by the plaintiffs' railroad. The shipping
.bill was signed by the Imperial Cement Co. as consignor, and by
the agent of the plaintiffs at Owen Sound, and the goods were
consigned to the defendants at Regina. Under these circum-
stances, to use the words of Mellor, J., in Cork Distilleries Co. v.
Great Southern and Western R.W. Co., L.R. 7 H.L. 269, at p. 277,
approved of by the House of Lords: "There is evidence in the
present case that these goods were with the consent or by the
authority of the purchaser consigned by the vendors, as consignors,
to be carried by the plaintiffs as common carriers, to be delivered
to the purchaser as consignee, and that the name of the consignee
was made known to the plaintiffs at the time of the delivery.
Under such circumstances the ordinary inference is that the con-
tract of carriage is between the carrier and the consignee, the con-
signor being the agent for the consignee to make it."

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415

The remedy of the common carrier in such a case is **by en-
forcing his lien upon the goods or by bringing an action on the
contract against any one who, at the time when the goods were
shipped, was a party to the bill of lading, either as being on the
face of it a contracting party, or as being an undisclosed principal
of such a party": Seioell v. Burdick (1885), 10 App. Cas. 74, at
p. 91, 54 L.J. Q B. 126, 52 L.T. 445.

It, therefore, only remains for me to consider whether the
plaintiffs have earned the freight sued for by completing the con-
tract of carriage. A term of the contract is "the delivery of the
goods shall be considered complete and the responsibilities of the
company shall terminate when the goods are placed in the com-
pany's sheds or warehouse (if there be convenience for receiving
the same) at the final destination, or when the goods shall have
arrived at the place to be reached on the said company's railway."
The defendants had been receiving shipments of cement all summer
by plaintiffs' railway, and it had not been the custom to put the
same in the freight sheds. The defendants' manager at Regina
gave the following evidence: —

"Q. Then you had requested them — you said so yourself — to
place the first ones at Miller's track? A. Yes, sir.

"Q. That is right, is it? A. Yes.

"Q. And you requested them to place the subsequent ones on
the track opposite the Independent Lumber Company's premises?
A. Well, I could not say that it was a request on my part. That
was probably because it waa just as handy for them as it was
for me.

"Q. It was, at all events, consented to by you? A. It was
consented to by me, yes. That is, when the cars came in I
accepted them on that siding."

I think, therefore, the plaintiffs completed their contract, and
earned the freight sued for by putting the cars containing said
goods up)on this track, as it was proved at the trial they had done,
and of which fact they notified the defendants.

What happened after the placing of the cars on this track and
notifying the defendants is, I think, not material to this action,
as there is no claim on the part of the defendants for damages
against the plaintiffs for negligence in allowing the Western Supply
and Agency Company to take away such goods without paying the

27 — ^voL. n. 8X.B.

En BANa
1909

Canadian

Pacific

R.W. Co.

Forest Crry
Paving

AND

construo-
tionCo.

Newlandi,!.

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416

SASKATCHEWAN LAW REPORTS.

[vol.

Bh Banc.
1009

Canadian

Pacific

R.W. Co.

Forest Cnr
Paving

AND

Construc-
tion Co.

NewUndB. J.

freight, nor v^as there any evidence that the plaintiffs had entered
into a new contract with the Western Supply and Agency Com-
pany by which said company became liable for the freight and the
defendants released from their obligation to pay same. The
learned trial Judge properly ruled out secondary evidence of the
order given by defendants to the Western Supply and Agency
Company, requesting the plaintiffs to deliver these goods to them
upon their paying the freight, and even if this order had been pro-
duced, it was proved that the plaintiffs had never seen same, and
that the Western Supply and Agency Company took the goods
without their knowledge, and therefore there was no consent on
the part of the plaintiffs to any such agreement: Lewis v. McKee,
L.R. 4 Ex. 58, 38 L.J. Ex. 62, 19 L.T. 522. I cannot, there-
fore; agree with the finding of the learned trial Judge that,
"in allowing the Western Supply Company to take the goods,
the plaintiffs entered into a fresh contract, and disobeyed the de-
fendants, even if they were under an implied contract to pay the
freight, in view of the express terms of the bill of lading."
The appeal should, in my opinion, be allowed with costs.

Appeal allowed wiOi costs.

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n.] SASKATCHEWAN LAW REPORTS. 417

[TRIAL.]

Ellis v. Fox. !»<>•

Landhrd and Tenant — Cancellation of Lease — Action upon Covenant After — ^^y ®-
Right of Lessor to Maintain — Tillage by Lessee — RigfU to Compensation for.

Plaintiff leased certain land to defendant, and with the land supplied 800
budiels of seed wheat and 800 bushels seed oats, which the lessee covenanted
to return — ^the wheat the following fall, the oats at the expiration of the
lease. There was also a covenant in the lease that either party might
cancel the lease within ten months from the date thereof, giving reasons
therefor. There was also a provision for cancellation by the lessor in the
event of sale, in which case the lessee was to be compensated for improve-
ments. The lessor subsequently cancelled the lease, and the lessee having
neglected to return the wheat and oats the lessor brought action to recover
tl^ value thereof. The defendant counter-claimed for summer fallowing
done during the term: —

Heldj that cancellation of a lease by mutual consent of the parties does not
destroy the term vested in the lessee, and therefore, notwithstanding such
cancellation, the lessor could maintain an action for the recovery of the
wheat.

2. That in the absence of an agreement to that effect the lessee is not entitled
to compensation for tillage upon cancellation.

This was an action for the recovery of the value of certain
wheat and oats delivered to a lessee by his lessor, and was tried
before Johnstone, J., at Moosomin.

Levi Thomaonj for the plaintiff.

B. P. Ridiardson, for the defendant.

May 8. Johnstone, J. : — On the 20th March, 1907, the plain-
tiffs leased to the defendant the south half and north-west quarter
of sec. 16, and the north-east quarter of sec. 17, township 17,
range 9, west of the second meridian, in the Province of Saskatche-
wan, for the term of two years and three hundred and sixty-four
days to be computed from the 1st March, 1907. This lease con-
tained a covenant by which the lessors agreed to supply the lessee
with seed grain for the year 1907 as follows: 800 bushels of seed
wheat and 800 bushels of oats, which the lessee covenanted to
return to the lessors as to the wheat in the fall of 1907 and as to
the oats at the expiration of the lease. This lease also contained
a provision that either party thereto should have power to cancel
the lease within ten months from the date thereof by serving a
notice in writing to that effect on the other party, giving reasons

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418 SASKATCHEWAN LAW REPORTS. [vol.

johMtone. J. fQp ^jjg ^jg^ of 8uch party to cancel such agreement. The lease
1909 further provided that the lessors should have the option of selling
r the described lands at any time during the term whereupon the

V. lease should become cancelled upon the terms that the lessee

should be reimbursed by the lessors for any expense he had in-
curred in preparing any portion of the described lands for crop
or otherwise incurred in properly farming the said lands; and in
case a 8sie should take place and the defendant had broken any
of the lands for crop (the cropping of w^hich by the tenant Vas
prevented through any such sale), the tenant should have $6 per
acre for breaking.

On the 9th November, 1907, the plaintiflfs caused to be served
upon the defendant notice in writing cancelling the agreement
for several named reasons. The defendant, however, remained
in possession until late in the winter of 1907 and 1908, when he
quit and delivered up possession to the plaintiffs, but n^lected
and refused to return to the plaintiflfs the seed delivered by the
plaintiflfs to the defendant in the spring of 1907, namely, wheat
714 bushels, and seed oats 600 bushels.

The plaintiflfs thereupon brought their action on the 9th day
of January, 1908, claiming for 800 bushels of wheat at 95 cents
per bushel and 800 bushels of oats at 50 cents per bushel. The
defendant denied the delivery of both the wheat and the oats
and the hire of the team, and, in the alternative, set up that the
plaintiflfs, through the improper cancelling of the lease, the reasons
given having been insufficient, were not entitled to recover either
for seed wheat or seed oats, and also counterclaimed for summer
fallowing done during the year $600, for carpenter work on well
$3, moving and work on granary $18, 75 oat sheaves $3, 300 oat
sheaves $12, drawing 256 bushels of seed wheat $10.54.

I find as a fact that the plaintiflfs delivered to the defendant
seed wheat consisting of 714 bushels, for which they are entitled
to be paid at the rate of 95 cents per bushel and as to the seed
oats the plaintiflfs delivered to the defendant 600 bushels, for
which they are entitled to be paid at the rate of 30 cents per bushd.

The notice of cancellation did not amount to a surrender, and
no surrender actually took place until a considerable time after
the defendant had committed a breach of the covenant as to the
return of the wheat. Cancellation of a lease by the mutiial con-

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SASKATCHEWAN LAW REPORTS.

sent of both parties does not destroy the term vested in the lessee,
and, therefore, notwithstanding such cancellation, the lessor may
maintain an action of debt for the recovery of the rent: Ward
V. Luwley, 5 H. & N. 87; Doe d. Courtail v. Thonias (1829), 9 B.
4 C. 288, 32 R.R. 680. As the lease was not terminated until some
time after action brought, there had been no breach committed
by the defendant of the covenant to return the oats. This fact
having during the trial been brought by me to the attention of
the counsel, it was agreed that the question of payment or non-
payment for the oats should abide by the result of the determina-
tion of the question as to the plaintiffs' right to succeed as to
the wheat. The plaintiffs will, therefore, be entitled to recover
for the number of bushels stated, viz., 600 at the price agreed
upon between counsel as that which should be assessed in case
the plaintiffs should be entitled to anything — namely, 30 cents
a bushel.

As to the defendant's counterclaim. The lease contained a
provision requiring the defendant to leave, upon the demised
premises at the termination of the lease, the same number of acres
of summer fallow as were got by him on entering into possession.
He had the advantage of the summer fallow of the plaintiffs for
the year 1906 in the year 1907 through cropping the same.

The defendant is not entitled to claim for tillage unless it
was so agreed. The lease contains no such provision nor was
there any evidence of any agreement between the parties to that
effect. The only provision contained in the lease as to reim-
bursing the defendant for labour performed is that of the one
I have already referred to. In Whiitaker v. Barker (1832), 38
R.R. 588, 1 C. & M. 113, where the tenant by mutual arrangement
left before the end of the term, it was held that he was not en-
titled to the value of the tillage or improvements which he left
on quitting, in the absence of any agreement to that effect.

419

Johnstone, 1.

1909

Ellis

Fox.

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420 SASKATCHEWAN LAW REPORTS. Lvol.

[IN CHAMBERS.]

1909 Union Bank v. McElroy.

June 22 Mortgage — Foreclosure — Order Nisi for — Service of — Necessity of Serving —

Service by Posting — Sufficiency,

Plaintiff secured an order nisi for foreclosure, and served the defendant, who
had not appeared, by posting a copy of the order in the office of the Local
Registrar. On an application for final order after default, the Local Master
refused the application on the ground that the service of the order nisi
was not sufficient. Upon reference to a Judge of the Supreme Court: —

Heldj that under the practice it is not necessary to serve the order nisi upon
the defendant before entering final judgment thereon.

2. That as the practice does not require entry of appearance in proceedingi
instituted by originating sununons, the provisions of sec. 82 of the rules
of Court as to service by posting in default of appearance do not apply.

This was a reference by a Local Master, under the provisions of
the Judicature Act, to a Judge in Chambers of an application made
to him for a final order of foreclosure, and was aiigued before John-
stone, J., in Chambers, at R^ina.

T. S. McMorran, for the plaintiff.
No one contra,

June 22. Johnstone, J.: — This is a proceeding instituted by
way of originating summons issued by His Honour the Judge of
the district court of Cannington, as Local Master, on the 13th day
. of October, 1908, calling upon the defendants to shew cause why
an order should not be made for the sale or foreclosure of the interest
of the defendants in the land in question.

Upon the return of the summons, 28th November, 1908, the
learned district Judge made an order finding the amount then due
the plaintiffs to be $1,253.90, which amoimt, together with interest
thereon from the 28th day of November, 1908, at the rate of eight
per cent., should be paid into Court within six months from the
date of such order, in default of which payment it was ordered the
defendants should be absolutely foreclosed and that title to the
said premises should be vested in the plaintiffs free from all claim,
right, title, interest or e-^uity of redemption on the part of the
defendants and all of them, or of any person or persons claiming
through them, but subject, however, to certain other mortgages
entitled to priority over the plaintiffs' mortgage. It was further

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n.] SASKATCHEWAN LAW REPORTS. 421

ordered that the defendants, each of them, and all persons claiming ^^^^IJJ^'*
through or under them, or any of them in possession of the mort- 1^09

gaged premises or in receipts of the rents or profits thereof, should Union Bank

deliver up such possession or receipts to the plaintiflF within ten days „ ^'
after service on them of the order for possession.

Default was made in payment of the moneys as ordered, and the
plaintiflfs applied before His Honour for an order absolute for fore-
closure, such application having been supported by the affidavit
of one McLellan, who swore that on the 2nd June, 1909, he did per-
sonally search at the office of the Local Registrar at Areola for the
purpose of ascertaining whether or not any money had been paid
into Court to the credit of the cause, and that no money whatever
had been paid either by the defendants or by any person or persons
on their behalf.

Upon application for order for foreclosiu*e absolute, the learned
Judge refused to make the same, on the ground that no evidence
had been adduced before him to shew that a copy of the order nisi
had been served on the defendants, and upon request of counsel the
matter was referred by His Honour to a Judge under sub-sec. 4,
sec. 50, Judicature Act, 1907.

The documents filed shew that on the 14th January, 1909, the
defendant Ellsworth William McElroy was served with a true copy
of the order nisi issued herein and dated the 28th day of November,
1908, by posting such copy in a conspicuous place in the office of
the local Registrar at Areola. This was the only evidence of service
of the order nisi on any of the defendants.

In my opinion, unless so directed, service of a copy of the order
nisi 18 not necessary. The form of the originating summons is
prescribed by statute, and the summons was issued accordingly,
and contains the provision: *'If you do not attend either in person
or by your advocate at the time and place above mentioned such
order will be made in your absence as may seem just and expedient."
This is notice to the defendant of the action that may be taken
under rule 473, which rule is as follows: *'Upon proof by affidavit
of the due service of the originating summons or on the appearance
in person or by advocate of the parties served the Judge may
pronounce such judgment as the nature of the case requires." I do
not think that rule 82 applies, nor do I think rule 330 applies.

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422 SASKATCHEWAN LAW REPORTS. [vol.

jojumtone. J. Under our practice no appearance is entered in matters com-

1909 menced by originating summons.
Union Bank ^^^ direction in the order nisi for payment into Court of the
V, moneys foimd to be due under the mortgage is not an order coming

^ ^^^' within rule 330: HulbeH v. Cathcart (1894), 1 Q.B. 244, 63 L.J.Q.B,
121, 70 L.T. 558.

An order for the payment of money by a certain date does not
require to be served imder the practice laid down in Hoptan v.
Robertson, a full report of which case will be found in the notes to
Farden v. fiicfe^ (1889), L.R. 23, Q.B.D. 126, 58 L.J.Q.B. 244, 60
L.T. 304. It was here held that an order giving leave to sign
judgment under order 14 of the English Rules, unless a certain sum
was paid into Court before a certain named day, need not be served
on the defendant before judgment is signed upon it. Field, J.,
who was sitting in Chambers and gave the judgment, lays do^^-n
the practice as follows: "The proposition as to the necessity in
certain cases of drawing up and serving the order does not apply
when the party to be served has himself to take the next step under
the order." The learned Judge goes on to say: "It is when the
other side may suppose that the order is abandoned that the neces-
sity of service arises. Where, for instance, an order is made giving
a party time to plead, such party must draw up and serve the order
on the other side. But in the present case an order for judgment
was made unless a certain amount was paid by the defendant before
a day named. I do not think it was necessary to serve this order
before signing judgment in default of this sum named being made."
See also, as to service of orders which may be made ex parte: Daniells
Chancery Practice, 778 and 1166; Seton, 6th ed., 1904; Yearly
Practice, 544; Encyc. of Laws of England, vol. 6, 156; Wiihail v.
Nixon, 28 Chy.D. 413 (which holds that where an order nisi
for foreclosure and possession had been made, the order absolute
which provided for possession was made ex parte) ; Craven Bank v.
Hartley, W.N. 1886, 189, where a similar order was made.

There will be an order for foreclosure absolute, and for deliver>-
of possession as asked for.

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II.] SASKATCHEWAN LAW REPORTS. 423

[TRIAL.]
WiRTH V. Cook. i»09

Sale of Land — Vendor not Owner nor in Position to Compel Conveyance —
Rescission by Purchaser — Right to.

Plaintiff applied to defendant to purchase a quarter section of land, and
defendant agreed to sell such land and accepted the first payment thereon,
which he paid over to his principal. Subsequently he discovered that he
had sold the wrong Land, and thereupon he entered into negotiations with
the owner of the l^d which he had actuallv sold with a view to seciu*ing it
for hia purchaser. This he was able to do, but instead of securing from the
purchaser an agreement with his principal at the stipulated price, he took
an agreement in his own name and at an increased price. The defendant
did not deliver any copy of the agreement to the plaintiff, and as a result
the plaintiff after repeated demands repudiated the contract and demanded
the money paid by him. The defendant subsequently, on default of the
second payment, served notice of cancellation . In an action for rescission : —

Heldf that the defendant, not bein^ the owner of the land sold or in a position
to compel a conveyance, the plaintiff was entitled to repudiate the contract,
and, ha vine done so before the notice of cancellation was served, the contract
was rescinded, and the money paid thereon should be refunded.

This was an action for rescission of a contract for sale of land
and return of the purchase price, and was tried before Prender-
GAST, J., at Regina.

J. C. Secordj for the plaintiff.

J. F. L. Embury^ for the defendant.

November 4, 1909. Prendergast, J. : — The defendant as
vendor and the plaintiff as purchaser entered into a certain agree-
ment for the sale of land, and the latter now brings this action for
rescission, return of a cash payment of $260, and $420 damages
for loss of improvements.

The defendant, who was a real estate agent, had for sale, amongst
other land, the south-east quarter of section 16, township 20,
range 19, west of the second principed meridian, belonging to one
Brice, together with a certain other quarter section owned by the
Bank of Montreal, and had commissioned the Capital Land Com-
pany to sell the same as sub-agents.

On April 27th, 1907, the plaintiff went to the said company's
office in this city, and, after inquiring about the terms and con-
ditions at which they held the said south-east quarter of 16, which
is near his homestead, was told that the price was $1,440, of which
$260 was to be paid down, and the balance in certain instalments,

Nov. 4.

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[vol.

Pzvndergut, J.
1000

WiRTH
V,

Cook.

which were then stated. The plaintiff then and there expreased
his willingness to buy, paid $10, for which he got a receipt (exhibit
A), and, having returned on May 2nd, paid $250, which completed
the cash payment, and for which he also got a receipt (exhibit B).
In these two receipts the description of the said south-east quarter,
which was intended to be conveyed, is fully set out. This, as
already stated, was Brice's quarter.

The company reported the sale to the defendant, referring to
the quarter by description and not under the owner's name, and
handed him the cash payment of $260 which they had received.

J. M. Scott, the clerk in the employ of the company who effected
the sale, received the money from the plaintiff, and handed it to
the defendant, says that the plaintiff '*was to get his agreement
then," that "he was to get it that day," that *'the defendant was
supposed to prepare the agreement and get it ready."

The defendant, either through some mistake in his notes or
error of memory, thought that the quarter section reported to him
as sold was the one that the Bank of Montreal had listed with him,
and he consequently paid them the $260, and had an agreement
prepared, in which the land described was the bank's quarter-
section.

The plaintiff, however, did not stay to execute the agreement
that day, as he was to do, but went on the quarter-section he had
intended to buy and described in the receipts and broke, disced
and harrowed sixty acres of the same. He came back to execute
the agreement about five or six weeks later, which would be about
June 12th, and upon production in the defendant's office of the
agreement with the bank which he had caused to be prepared, the
error was discovered, and the plaintiff refused to sign.

I may state at once that the bank still has the $260. The de-
fendant appears to have informed them that a mistake having
been made, he would take over the baigain; but the matter has
apparently not yet been closed betw^een them.

Upon discovering the mistake he had made, the defendant told
the plaintiff that he, in fact, had for sale the south-east quarter he
wanted, but that it was listed with him at $1,600, instead of $1,440,
and that the conditions were somewhat different. The plaintiff,
nevertheless, appears to have then expressed a willingness to pay
$1,600 rather than lose the sixty acres of improvements he had

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made. The defendant, at all events, told him not to do any more
breaking, and that he would in the meantime communicate with
the owner to see if he could not adjust his terms so that they might
be satisfactory.

The defendant, accordingly, went the next day to see Brice,
.who lived some thirty miles away. On the evidence of the plain-
tiff, of the defendant, and of Scott, I do not see that this could
have been later than about June 15th. The defendant, however,
having learned on the road that Brice w^as not at home, left word
for him with one Ellis, living in that locality, and came back to
the city. Brice's answ^er to Ellis, dated August 24th (exhibit 2),
was duly transmitted by the latter to the defendant, and must
have reached him about September 1st. Brice's terms were^ in
short: $1,440, of which $250 was to be cash, $200 on November 1st
of the same year, and the balance in four equal annual instalments,
with interest at six per cent.

It does not appear why Brice, who apparently had received
word from Cook about June 15th, was two and a half months
before replying. It is, at all events, only natural that the plain-
tiff, who had paid $260, had been made to understand that there
might be difficulty in procuring the land he wanted, and that even
then he would probably have to pay $160 more for it, should have
felt uneasy, as he says he did; and I believe, as he asserts, that,
in the course of these two and a half months, he did go to see the
plaintiff several times — to get his paper, as he puts it. This is,
again, the more likely, as Scott says that when he made his cash
payment the understanding was that he was to get his agreement
then.

I should here observe that the plaintiff is a German farmer of
very little education, and that, as far as I can judge, although
understanding some English on general topics, he would probably
confuse many of the expressions used in that language in a trans-
action of this kind.

After the receipt of Brice's answer, nothing of moment happened
for about a month. Possibly the defendant was waiting for the
plaintiff to come in.

In the first week of October the plaintiff did come in, and
executed as purchaser an agreement (exhibit C) for the said quarter
of section 16, wherein, not Brice, but the defendant is the vendor.

E^rendergEstf J*
1909

WlRTH

V.
CJOOK.

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The consideration is therein stated to be $1,600, and not $1,440,
as was at first agreed upon by the Capital Land Company (see
receipts A and B); and it was also $1,440 and not $1,600 that
Brice was asking (exhibit 2). What I wish to point out is that
the defendant raised the price of the land on the plaintiff without
that being at all required to secure the same from Brice, and that
the difference would go, not to Brice, but to the defendant.

The agreement also contains the following clauses: —

"The vendor agrees to convey and assure or cause to be con-
veyed and assured to the purchaser a good and sufficient transfer
in fee simple, etc.

"The vendor shall and will suffer and permit the said purchaser
to occupy and enjoy the same until default be made in the pay-
ment of the said sums subject, nevertheless, to im-
peachment for voluntary or permissive waste.

"The said vendor agrees to deliver up possession of the said
land on or before the day of October, a.d. 1907.

" Provided that in default of payment the vendor shall

be at liberty to determine and put an end to this agreement . .

and to retain any sum or sums paid thereunder ... in the
following method, that is to say, by mailing in a roistered package
a notice signed by or on behalf of the vendor intimating an inten-
tion to determine this agreement, addressed to the. purchaser at
Kennell P.O. And at the end of twenty days from the time of
mailing the same, the said purchaser shall deliver up quiet and
peaceable possession of the said lands, etc. . . "

It does not appear even from the plaintiff's own testimony that
he was dissatisfied to enter into an agreement with the defendant.
Nor does he say that he did not know that the defendant was only
an agent. I will at the same time casually observe, even if this
does not perhaps matter, that I do not see the reasons which called
for the agreement being made that way. Even if the plamtiff
was made to consent, the fact remains that it gave him at the time
no security on the land.

The plaintiff says that the defendant was to send him a dupli-
cate of the agreement in eight or fourteen days. He is corrobo-
rated as to this by his wife, whose want of knowledge of English,
I must say, detracts somewhat from her testimony, and also by
one Keiser. The defendant, on the other hand, asserts that it

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was quite clearly understood that he was to keep the duplicate
agreement until the second payment was made, and he is 'supported
by the witness to the execution of that agreement, who was then
a typewriter in his office. My conclusion is that the defendant
did not consider that it was a matter that the plaintiff sliould be
consulted about, that he just told him that it was to be so, and the
plaintiff yielded or, at all events, did not object at the moment.

I, however, see no reason why the defendant should have kept
the agreements. He says: '*No copy was given to the plaintiff
on account of the previous mix-up, and on account of it being so
close to the second payment of $260, and because of the peculiar
position it would place me in if he did not make the second pay-
ment, and I did not want to take the risk of assuming $2,800 of
liability." These are no reasons at all. What he calls ''the
previous mix-up" was his own blunder, with which the plaintiff
had nothing to do, and he could not be placed in any "peculiar
position" by the plaintiff defaulting later on in the second pay-
inent, if he (the defendant) had follow^ed what was the reasonable
and fair course — that is, bring the plaintiff and Brice together, and
close the matter between them as principals. There is no more
significance in what he says about "assuming $2,800 of liability."
H he assumes any liability with the Bank of Montreal, it will be
to save himself from his own blunder, and the plaintiff never asked
liun to assume any liability with Brice.

Having, however, secured the agreement with the plaintiff, the
defendant, on October 11th, writes to Brice (exhibit 4): "I have
succeeded in getting my purchaser on an agreement for sale, and
as soon as I secure the cash payment I will advise you.*'

Now, this is not in accordance with the actual facts. The
rfe/endant had received from the plaintiff a cash payment of $260
ever since the beginning of May, which w^as five months before.
He had, moreover, just bound the plaintiff to himself under the
agreement. His duty at that moment, as I hold that the implied
covenant was that he should at least do, w^as to turn over the $260
to Brice and secure the land. But that was the last communica-
tion that the plaintiff ever had with Brice, and he never made the
least attempt to secure the land.

Whether the understanding at the time w^as or was not that
the defendant should keep the duplicate agreement, I find that the

Prandergut, J.
1909

WiRTH

Cook.

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plaintiflF came back after that several times and again asked for
his papers. On two occasions, upon being refused, he seems to
have said that he was ready to take back his cash payment, with
compensation for the loss of his improvements, and on the last I
find that he then intimated to the defendant that, having no assur-
ance whatsoever in his possession, he would pay no more money
on the bargain. This, I, moreover, find, was before November 1st,
and he then abandoned the land, if he had not abandoned it before,
which is somewhat uncertain under the evidence.

At all events, on December 14th, the defendant sent the plain-
tiff by registered package, addressed to Kennell P.O., a notice of
cancellation (exhibit 6), which the defendant says he never re-
ceived.

With respect to compensation for loss of improvements, I do
not think the plaintiff has any claim. I feel that if he had asked
when he made the cash payment whether he could go on the land,
the reply would have been in the affirmative. But the fact is
that he did not so ask. He had entered into no agreement when
the improvements were made, and the two receipts (exhibits A
and B), not satisfying the Statute of Frauds, were not in any
aspect a license for him to take possession.

On the question of rescission and the return of the $260 I am
of opinion that he should succeed.

Counsel for the defendant laid much stress on the fact that the
vendor under the agreement covenants not "to convey and assure,"
but "to convey and assure or cause to be conveyed and assured."
This, I think, is establishing a distinction where there is no differ-
ence. In one case he covenants to convey it himself; in the other
case, to have it conveyed by another; but in both the obligation
is that the land shall be conveyed and assured, and the under-
taking that this shall be done is equally binding.

Possession was never delivered to the plaintiff under the agree-
ment, and he never was but a trespasser on the land.

The defendant was a trustee under the agreement, and was
bound as such, even if the plaintiff knew the condition of affairs,
to at least protect the trust. This he never did, nor ever attempted
to do. There was, moreover, in my opinion, apart from any
obligation resulting from the trust, as already stated, an implied
undertaking on the part of the defendant to pay to Brice the $260

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received from the plaintiff, which he has also neglected to do.
That the defendant understood that to be his duty is shewn by
the fact that, when the cash payment was handed to him by the
Capital Company, he turned it over to the Bank of Montreal, whom
he then thought to be the owners.

I hold that the plaintiff's declaration to the defendant, on the
occasion of their last interview, when, upon being refused any
further assurance, he declared that he would make no further pay-
ments, was a rescission, preceded or followed at once, as it was,
by abandonment of the land.

The defendant sent to the plaintiff on December 14th a notice
of cancellation based on his defaulting in the payment due Novem-
ber Ist. I have held that the plaintiff had already rescinded at
that time. But even if he had not, the plaintiff, who was aware
that the defendant had not attempted and was not attempting
to secure the slightest interest in the land, and who, moreover,
had not a scrap of paper to rely on, was not bound to continue to
make his payments, knowing that the first that he had made six
months before had not yet been applied as it should have been.

I do nbt think that the present case is governed by the princi-
ples laid down in Flureau v. ThomhUl (1776), 96 Eng. Rep. 635,
and 2 W. Bl. 1078; Bayne v. FothergiU (1871), L.R. 7 H. of L. 158,
qualifying the former; and Day v. Singleton (1899), L.R. 2 Ch.
320, distinguishing the first two, and in all of which the question
was, whether and when the purchaser is entitled to compensation
for loss of his bargain when the vendor cannot make title. No
such compensation is asked for here, and this case is, moreover,
obviously distinguishable in almost all of its main features.

Counsel for the plaintiff relied strongly on Forrer v. Nash (1865),
35 Bevan 167, where the Master of the Rolls said: "I am of
opinion that when a person sells property which he is not able to
convey himself nor has the power to compel a conveyance of it
from any other person, the purchaser, as soon as he finds that to
be the case, may say, 'I will haVe nothing to do with it.' The
purchaser is not bound to wait to see whether the vendor can in-
duce some third person who has the power, to join in making a
good title to the property sold.''

I may observe that in the case just cited the question was in
respect to an executed contract (''when a person seUs,'' etc.),

Prendergut, 1.
1909

WiRTH
V.

Cook.

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while we have to do in this case with an executory contract. But
I find that in two cases where the contract w^as executory, the
decision in Forrer v. Nash was referred to as being applicable.

In Brewer v. Broadv?ood (1883), L.R. 22 Ch. D, p. 105, 62 L.J.
Ch. 136, 47 L.T. 508, a vendor contracted to sell to a purchaser
an agreement for a lease, and the purchaser afterwards repudiated
the contract. At the date of the agreement and of the repudiation,
the agreement to lease was voidable at the will of a third party.
This third party was not taking any steps to avoid the agreement
to lease, and was even willing to confirm it on certain conditions.
It was, nevertheless, held that the purchaser was entitled to re-
pudiate the contract. Fry, J., in the course of his judgment, after
citing the above quotation from Forrer v. Nashy said: **That
principle has, of course, nothing whatever to do with cases in which
there are outstanding interests which the vendor has the power
of gathering in, because in that case he is able and he is under an
obligation to get them in; but it has a great deal to do with a ca^
in which the only title of the vendor is contingent upon the will
and volition of a third person."

In the present case the only title of the defendant is and always
has been contingent upon the will and volition of Brice, and he
never had otherwise a shred of title.

The other case referred to is Bellamy v. Debenham (1891), L.R.
1 Ch., p. 412, 60 L.J. Ch. 166, 64 L.T. 478, where there was an
agreement for the sale of certain property, and the purchaser,
upon discovering that there w^as a reservation of mines on the land,
rescinded. It was held by the Court of Appeal that, as the vendor
had not power to convey the mines, nor power to compel a con-
veyance of them from other persons, the purchaser was entitled,
upon discovering this, to rescind the contract, though the time to
be allowed for completion had not expired. And, with reference,
to repudiation, Lindley, L.J., said, in his judgment (p. 420):—
'*The defendant's solicitor, in his letter of 20th May, says that, as
the plaintiff cannot give his client the mines and minerals, he can-
not advise his client to complete, and that advice is communicated
to the client and adopted by him. It appears to me, therefore,
that there was on the 20th May a plain repudiation on the part
of the defendant of all liability to complete, and he has never
flinched from that possession."

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I may also refer to Hoggart v. ScoU, 1 Russ. & Mi. 293, where
the vendor, as in this case, had no power whatsoever to sell; 1900
and to the judgment of my brother Johnstone m Bannerman v. Waem
Green (1908), 1 Sask. L.R. 394, 8 W.L.R. 441, where the action v.

was for specific performance, but the same principles were in ques-
tion.

This dispute has arisen simply from the defendant miscon-
ceiving his position, owing to his having either to lose the $260
which he paid by mistake to the Bank of Montreal or to take over
the bai^ain, which may not prove a profitable one. But nobody
is responsible for this but the defendant himself. He should have
dismissed that consideration from his mind, and not have allowed
it to influence him in carrying out what he had agreed upon with
the plaintiff.

There will be an order for rescission.

And for a return to the plaintiff of the $260, with interest since
May 2nd, 1907.

And costs.

[IN OHAHBEBS.]

In rb Wark Caveat. 1900

Land Titles Act — Caveat — Application to Continue Claim under Verbal Trust — May 17.
Right of Cestui que Trust to File Caveat — Statute of Frauds — Jurisdiction
of Judge — Determining Matters in Controversy on^Summary Application,

Wark filed a caveat against certain lands, and a motion was made, on behalf
of the owner, to have such caveat removed. On a motion to continue the
caveat, it appeared that Wark claimed an interest in the land as cestui que
trust under a verbal declaration of trust, the conveyance from him to the
owner being absolute, although, as he claimed, subject to a trust as to the
profitB to w derived from the sale. This the owner denied. It was ob-
jected that under the provisions of the Land Titles Act no caveat could be
filed by Wark, as he did not claim an interest under document in writing,
and the Statute of Frauds was also invoked: —

Hdif that, under sec. 136 of the Land Titles Act a cestui que trust claiming a
beneficial interest of any sort may lodge a caveat whether the declaration
is in writing or not.

2. That as to the Statute of Frauds and other objections, these matters should
not be detennined on a simunary inquiry, and there being a question to
be determined, the caveat should be continued for a sufficient tinoe to
enable action to be brought in a competent Court to determine the matters
in question between the parties.

28 — ^VOIi. 11. S.L.B.

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Wetmore. C J^.

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In RE
Wark

Oayiiat.

This was an application to continue a caveat, and was argued
before Wetmore, C.J., in Chambers.

J. F, L. Embury, for the caveator.
Alex. Ross, for the owner.

May 17. Wetmore, C.J.: — ^This is an application to continue
a caveat registered by Wark, the applicant, against the south-west
quarter of section two (2), south-east section three (3), and the east
half of section four (4), in township twenty-two (22), range seven-
teen (17), west of the 2nd.

The material on which the summons in this case was obtained
is very meagre, and consisted merely of the affidavit of the applicant,
Wark. There is nothing to shew who is the registered o'^^Tier of the
land in question, nor is there anything to shew what grounds are
set forth in the caveat upon which the caveator claimed. Leave
was granted to produce further affidavits at the return of the sum-
mons, and further affidavits were read, but they threw no further
light upon the matter to which I have just referred.

The facts are that the caveator made an arrangement with one
McPherson to purchase the lands in question, and made a deposit
of $100 on account of such purchase. He endeavoured to n^otiate
a rensale to one Recor, but without effect. Eventually the arrange-
ment with McPherson was completed, but upon an increase of 50
cents on the purchase money, and a formal agreement in writing was
entered into between McPherson and Wark, and the first instalment
of the purchase money paid in full. The money to pay this first
instalment, and therefore to enable the agreement of sale to be
completed, was advanced by one L. A. Hamilton, against whom the
caveat in question was issued. Wark subsequently assigned the
agreement to Hamilton, and his contention, supported by his own
affidavit, is that Hamilton took the agreement and the land over
on the understanding that he was to pay the purchase money,
finance the matter, apply the proceeds of re-sedes to the moneys
he advanced, and the balance, which would represent the profits,
was to be equally divided between Wark and himself. This arrange-
ment as to financing the matter and dividing the profits was ad-
mitted by Wark to be entirely verbal. Hamilton, on the other
hand, by his affidavit expressly denies that there was any such ar-
rangement. He states, in fact, that the purchase by him of the

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agreement and the lands was absolute, and he states the particulars
under which he acquired this purchase, and, if true, such circum-
stances are reasonable and quite likely to have occurred. If Wark's
version of the transaction is correct, Hamilton would hold the
property in trust for the purposes as alleged by Wark. The transfer
to Hamilton, however, is absolute upon its face, and it was urged
at the return of the summons, on behalf of Hamilton, that inasmuch
as there was no writing by any person declaring such trust, that it
was void under sec. 7 of the Statute of Frauds, 29 Car. 2 C. 3.
It was also ui^ed that Wark was not in a position to file a caveat,
because such an instrument could only be lodged under sec. 136
of the Land Titles Act, ch. 24, 1906, by a person claiming to be
interested in the land, and that by virtue of sec. 79 of the last men-
tioned Act no trust can be registered; and even if the instrument of
assignment contained any notice of trust, the Registrar was obliged
by that section to treat it as if there was no trust, and the trustees
shall be deemed to be the absolute and beneficial owners of the land
for the purposes of the Act.

Dealing with the last objection, the Land Titles Act was never
intended to abolish trust estates. It has, however, provided that
a trust shall not be registered, and that the trustees shall be deemed
the absolute and beneficial owners of the land, but that is only for
the purposes of the Act — ^that is, for the purposes of r^istration,
because the Land Titles Act is an Act which deals, and is intended
principally to deal, with matters of registration. The Court still
holds its jurisdiction to deal with matters of trust and trust property
with respect to lands, as well as other property, and so long as the
trustee happens to be the roistered owner of the land in question
the Courts can compel him to carry out his trust and will restrain
him from appropriating the property to purposes not in accordance
with the trust. I go no further than that at present, for it is not
necessary; it may be that the Court may exercise its jurisdiction
as against a subsequent registered owner who took the property
with the knowledge of the trust or took it in collusion with the trustee
for the purpose of defeating the trust. It is not necessary for me
to discuss such a case, as this is a matter which comes up as between
the cestui que trust and the trustee, and in the absence of evidence
to the contrary I will assume that Hamilton still holds the land in
question.

Wetmoce, OJ.

1900

In rb

Wark

Caveat.

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Caveat.

The expression in sec. 136 of the Act, that "any person claiming
to be interested in the land" . . . "may lodge a caveat with
the Registrar," is not governed by sec. 79. The word "claiming"
gives this section a wider significance, and I apprehend that it is
good, therefore, to enable any person claiming a beneficial interest
of any sort to lodge his caveat so as to prevent the land being dis-
posed of, and obtaining a decree of the Court retaining his rights
against the person whom he deems likely to be disposed to interfere
with them.

In this case Hamilton has repudiated the arrangement as allied
by Wark. With respect to the other question raised, arising out
of the Statute of Frauds, I express no opinion. I am of the opinion
that that question must be decided by the Courts. If the material
before me was of such a character as to satisfy me clearly and beyond
all doubt that the caveator had no rights With respect to the prop-
erty, I would, I think, be justified in directing that the caveat' be
removed, but where there is a fair band fide ground for setting up
his alleged rights, the Court is the proper jurisdiction to deal with
the question, not a Judge under proceedings under the Act. The
fact that there was no written declaration of trust in this case is
not by any means conclusive — ^that is, there is room for discussion.
The cases appear to me to be possibly of somewhat a conflicting
character. In re the Duke of Marlboroughj Davis v. WhiUhead
(1894), 2 Chan. 133 (63 L.J.Ch. 471), Stirling, J., at p. 141, states
as follows: "The general principle that the statute is not to be used
as a protection to fraud has long been recognized by Courts of equity,
but this does not seem to have always been applied in a uniform
manner." Now, if Wark's version of what took place is true,
Hamilton's claim — that the purchase was an absolute one — and
his attempt to deal with the property for his own benefit exclusively
as he has done, would be a fraud on Wark. I express no opinion
as to what effect the Statute of Frauds may have on the question
under the circumstances of this case. The jurisdiction to determine
this question of fact is with the Court in an action properiy in-
stituted for the purpose. I, therefore, am of the opinion that my
duty is to maintain the sUjAils quo between the parties and to con-
tinue the caveat. I will therefore continue the caveat, but if
Wark does not, within twenty days from the date of this judgmiuit,
commence an action in a Court of competent jurisdiction to have

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his rights declared and lodge a lis pendens with the R^istrar, the
caveat shall, without further order, lapse. If he complies with this
direction the caveat will be continued until further order. But in
any event, if Hamilton lodges security with the Local B^istrar in
such amount as a Judge may deem proper to pay any damages or
sum of money which the Court may award to Wark in such action,
then, upon a certificate of such security being filed with the Registrar
of Land Titles, the said caveat shall lapse. The question of the
coats of this application will be reserved.

Wetmore. O.J.

1909

In re
Wark

Caveat.

[CHAMBERS.]

In re Outlook Hotel Co.

Company — Winding Up — Insolvency — Proof of — Admiasiona of Insolvency by
Officen— Effect of— Affidavit Verifying Petition— Sufficiency of.

An application was made to wind up a oompanv on the grounds of insolvency
tinder the provisions of the Companies Winding-up Act (Dom.). The
petition set out that the petitioner was a creditor, and that the company
was indebted to other persons in large amounts; that the company was
unable to pay these debts, and that certain persons in charge of the com-
pany's business had admitted its insolvency. This petition was verified
by affidavit, which stated "that such of the statements in the petition as
relate to my own acts and deeds are true, and such of the statements as
relate to the acts and deeds of others I believe to be true." No other
evidence was filed with the petition, nor was notice of any other affidavit
served until two days before the application was to be heard, when three
further affidavits were served and leave was asked to read them: —

Heid, that the affidavit did not verify the petition as required by the rules,
and was insufficient to support it.

2. That the original affidavit filed being totally insufficient, there was no
evidence on file when the petition was presented to support it, and leave
should not be given to file further affidavits in an endeavour to make out
a case after the return of the motion.

3. That insolvency can only be established in winding-up proceedings in the
manner provided by the Act, and admissions of officers of the company of
its insolvency are not sufficient to bring the case within the Act.

This was a motion to wind up a company alleged to be in-
solvent, and was ai^gued before the Chief Justice in Chambers.

W. B. Scott J for the petitioner.
W, J. Leahy f for the company.

November 12. Wetmore, C.J. : — ^This is an application on
behalf of Marshall A. Lougheed, under the Dominion Winding-up
Act, Rev. St. Can. 1906, ch. 144, for a winding-up order against

1909
Nov. 12.

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In re
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the company. The petition is not dated, but the affidavit of the
petitioner, purporting to verify the facts set forth in it, was sworn
on the 4th October last, and a copy of this affidavit was served on
the president of the company with the petition and the notice of
application. The fact that the petition was not dated is therefore
immaterial.

The petition sets forth: —

1. How and when the company was incorporated.

2. Where the head office is situate.

3. The object for which the company was incorporated.

4. The nominal capital stock, the number of shares into which
it is divided, the number of shares subscribed for as appears by the
memorandum of association on file in the office of the Registrar of
Joint Stock Companies for the Province, and the ignorance of the
petitioner as to how many shares have been subscribed for, and
what amount has been called up.

5. That the company inmiediately after incorporation com-
menced to carry on business, and has continued to carry on business
imtil the 4th October last.

6. That the petitioner is a creditor of the company for $1,547.47,
which is overdue and unpaid, and that the company is indebted to
other persons in large amounts which are overdue and unpaid.

7. That the company is unable to pay the petitioner's claim, or
to meet its other liabilities, and that the company is insolvent, as
has been admitted by the parties who are carrying on its business
at the town of Outlook, and then follows the prayer that the com-
pany may be ordered to be wound up, etc.

The affidavit before referred to as purporting to verify the facts
set forth in the petition merely refers to the petition as an exhibit,
and states: "That such of the statements in the petition ... as
relate to my own acts and deeds are true, and such of the statements
as relate to the acts and deeds of any other person or persons or body
corporate I believe to be true."

I cannot find set out in the petition any **acts or deeds" of the
deponent or of any other person or persons or body corporate,
except as stated in the fifth paragraph, which I think would be the
act of the company. All the other matters stated in such petition
are facts, but not ''acts or deeds"; and in so far as the depon«it
is concerned he states what is mentioned in such fifth paragn4>h

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as a fact, not as a deed or act of his. This affidavit, however,
appears to be in the form prescribed by the rules framed under the
provisions of the Companies Act, 1862 (Imp.) : see In re the New
CaUao, 26 Sol. J. 403.

It is quite clear that the facts -set forth in the petition require
to be verified under oath, and I must say that I cannot understand
how an affidavit in the form presented in England can, imder very
many circumstances, be applicable.

I am of opinion that I am not bound by the English rules
referred to, and I hold that the affidavit in question does not verify
the facts set forth in the petition.

The rules and orders under the Windiiqg-up Act formulated by
the Supreme Court of the North-West Territories on the 9th July,
1903, are in force, and applicable to the Winding-up Act I am
discussing and the procedure to be taken thereunder. Rule 47
provides that a copy of the petition indorsed with or accompanied
by the notice of the application shall be served as therein prescribed.
Rule 48 provides that such notice shall mention the affidavits upon
which the applicant intends to rely in support of his application,
and that copies of such affidavits and other material, or of any
portion thereof, shall be furnished to the advocate or any officer of
the company requiring the same within twenty-four hours after
demand.

The notice served in this case stated that the affidavit to which
I have referred would be read in support of the petition, and no
other affidavit or material was mentioned. This service was effected
on the 4th October, and stated that the petition would be presented
on the nth October. The matter was adjourned from time to
time, and eventually was heard before me on the 8th November,
when counsel for the applicant applied for leave to read three other
affidavits, viz,, of William Cornelius Kent, James Archibald Fraser,
and Marshall A. Lougheed, respectively. Copies of these affidavits
were served on the agents of the company on the 6th November.
The last two affidavits were irregular. Counsel for the company
stated that he would not object to these affidavits by reason of the
irr^ularities, and he would consider that by the reference made by
Fraser in his affidavit to "the above-named company" he intended
the Outlook Hotel Company, but he objected to the affidavit being
now received to bolster up the applicant's case or to set up new
grounds for the application.

Wetmore, C.J.

1909

In re

Outlook

Hotel Go.

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In rb

Outlook

HOTSL Co.

Rule 52 of the Supreme Court of the North- West Territories u
as follows: "Every such petition, and the affidavits and other
material intended to be used in support thereof, shall, on or before
the day of service of notice of the application for a winding-up
order, be filed in the office of the Clerk of the Court of the judicial
district in which the head office of the company is situate, and
unless so filed, such petition, affidavits or material shall not be read
or u^ed upon the application without special leave of the Court
or a Judge."

Of course, neither of those three affidavits were filed on or before
the day of service of the notice of application. They were only
served between the 25th October and the 4th November. Conse-
quently, that rule was not complied with, and unless special leave
is obtained from me to read these affidavits, the only material to
support the application is the affidavit of the applicant, which was
mentioned in the notice, and which I have held does not verify the
facts set out in the petition. This affidavit so absolutely and entirely
fails to verify the facts set forth in the petition, or any of them, that
I am of opinion that leave to read the additional affidavits should
not be allowed. As a matter of fact, on the day of service of the
notice there was not on file, as required by rule 52, a scintilla of
evidence to establish any one fact set forth in the petition. I
therefore refuse to allow those affidavits to be read.

I will not, however, turn this case off on that groimd alone.
This company is a trading company as defined by the Act, and was
incorporated under the Territorial Companies Ordinance, ch. 20 of
1901, and as held by me in In re the Nelson Ford Lumber Co, (1908),
9 W.L.R. 438, applications can only be made against it under the
Winding-up Act in question, when it can be brought under either
par. (a) or (b) of sec. 6 of that Act. It is clear that par. (b) does
not apply to the circumstances of this case. The proceedings,
therefore, can only be sustained on the ground that the company
is insolvent. Section 3 of the Act states, *'when a company is
deemed insolvent" (of course under the Act).

In Re Wear Engine Works Co, (1875), L.R. 10 Ch. 188, 44 L.J.
Ch. 256, 32 L.T. 314, James, L.J., dealing with similar provisions
in an Imperial statute, lays it down at p. 191: "We wish it to be
understood that a winding-up petition must allege facts which
justify a winding-up order. No doubt, if there is any slip in the

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statements the Court can allow an amendment, so that the real
point may be tried; but, subject to this power of amendment, it
is not enough for a sufficient case to be shewn in evidence; a suffi-
cient case must be stated on the petition, that the order may be
secundum allegata et probata.^'

It will not be sufficient to state generally in the petition that the
company is insolvent. Facts must be stated which will bring the
company within some one or more of the provisions of sec. 3. The
only paragraph of the petition imder which it can be set up that the
case is brought within any of the provisions of that section are
paragraphs 6 and 7. I have in effect set both of those paragraphs
out in a preceding part of this judgment, and they attempt to set
up in the first place that the company is not able to pay its debts as
they become due, and to bring it within clause (a) of sec. 3 of the
Act. Section 4 provides, when it shall be deemed that a company
is unable to pay its debts as they become due, the creditor must serve
a demand in writing on the company requiring it to pay the sum due,
and if the company fails to pay the same or to secure or compound
the same within the time prescribed by the section, it shall be
deemed to be unable to pay its debts as they become due. Nothing
of this sort appears in the petition. Paragraph 7 of the petition,
however, alleges: "That the said company is insolvent, as has
been admitted by the parties who are carrying on the business of
the said company at the town of Outlook." The attempt by this
allegation is to bring the company within clause (d) of sec. 3, which
is as follows: "If it has otherwise acknowledged its insolvency."
That means if the company has otherwise acknowledged its in-
solvency.

Who are the three parties who have made this admission? Are
they officers of the company, who are in a position as such to make
admissions of such a character to bind the company, or are they
persons who are merely put in the hotel by the company to manage
it? If the latter, I am very clear that any admissions made by
such persons would not amount to an acknowledgment of in-
solvency on the part of the company. And I am of opinion that
the admissions of insolvency by an officer of the company would
not amount to such an acknowledgment by the company.

In Re Qu'Appelle Valley Farming Co. Ltd.^ 5 Man. L.R. 160,
Taylor, C.J., at p. 164, dealing with an exactly similar clause

Wetmare, O.J.

1909

In re
Outlook
Hotsl Co.

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in the Winding-up Act, ch. 129 of the Rev. Stat., 1886, says: " It is,
however, sought to bring them within clause (d), and it is uiged
that the company has acknowledged its insolvency by not paying
the debt, allowing itself to be sued, judgment to be recovered, and
execution to be returned nulla bona. I do not think so. These
are all circumstances frem which perhaps a state of insolvency
might be inferred, but that is not what the statute means by acknow-
ledging its insolvency. To bring a company within the clause there
must, I think, be something actively done by it as an acknowledg-
ment. This seems plain from the clause, standing as it does im-
mediately after two other clauses, saying a company is deemed
insolvent 'if it calls a meeting of its creditors for the purpose of
compounding with them; if it exhibits a statement shewing its
inability to meet its liabilities.' "

In In re the Lake Winnipeg Trans. L. & T. Co., 7 Man.
L.R. 255, an affidavit was read made by the president of the com-
pany, who was the petitioner, stating that ''from his knowledge of
the companj^'s affairs he knows it to be unable to pay its debts in
full." That learned Judge held that that was not sufficient evidence
of insolvency (see p. 260 of that case), and I agree with him.

A fortiori — then a verbal admission made by the president or
other officer of the company would not be evidence of insolvency
under the Act. The acknowledgment contemplated by clause (d)
of the section must be something ejusdem generis w^ith what is re-
quired by clause (b) or (c) of the section.

Now, clearly the affidavit of the applicant served with the
petition, even supposing it verified the facts set out in such petition,
carries the matter no further.

The further affidavit of the petitioner, Marshall, which was
sought to be put in at the hearing, would be of no assistance. It
merely verifies the indebtedness of the company to hijn, states that
he has repeatedly asked the manager and other officers of the com-
pany for a settlement of his claims, and that these officers have
stated that the company was unable to pay its debts in full. That
does not comply with sec. 4 of the Act. The affidavit also stated
that Mr. Marshall was present at a meeting of creditors of the com-
pany, when it was admitted by the manager and secretary of the
company that the company was unable to meet its liabilities. He
does not depose that a statement was exhibited by the company,

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as required by clause (c) of the section. The affidavit of Kent does
not help the petitioner. He merely states that the company in
question owes a company of which he is manager some rent, and
that a distress warrant was issued on the 2nd November for its
recovery and the amount has not been paid. If it is thought that
this brings the case under the provisions of clause (h) of the section,
all I have to say is that that clause refers to an execution, not a
distress warrant, and, anyway, the issue of the warrant was after
the service of the notice of this application. The fifteen days from
the date of seizure has not yet expired, and there is no evidence as
to what time was fixed for the sale of the goods seized, if any seizure
was made, which is left very doubtful.

Neither will Fraser's affidavit assist the petitioner. It is of the
same character as the other affidavits. It alleges that he was
present at two meetings of creditors, when the manager and secretary
of the company admitted "that they" (I presume he means the
company) ''were unable to meet their liabilities." I have already
dealt with allegations of this character. He allies, however, that

the company called a meeting of its creditors for the day

of September, 1909, for the purpose of compounding with them.
In the first place, this is very vague. What day of September has
he reference to? But the great objection to this is that it is some-
thing entirely new. It is not mentioned in any other affidavit,
and there is not the slightest reference to it in the petition. As
far as I know, it was not brought to the notice of the company
until over a month after the petition and notice of application were
served.

I certainly would not, under such circumstances, if I had the
power to do so, allow the petition to be amended to correspond with
that all^ation. I may add that I was not asked to amend the
petition, neither will I receive this allegation to influence me in the
conclusion I have reached. I am very much inclined to the opinion
(although I do not decidedly lay it down) that an amendment
should not be*allowed in a case like this. There is not merely a
"slip in the statements," as mentioned by James, L.J., in the cita-
tion I have made from his judgment. The proceedings are abso-
lutely bad from the b^inning. No case whatever was presented
at the time of serving the petition and the notice.

Application dismissed, with costs to be paid by the applicant.

Wetmore, 0 J.

1909

In re
Outlook
Hotel Co.

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442 SASKATCHEWAN LAW REPORTS. [vol.

[COURT EN BANC]

En Banc. McCallum v. Russell.

1909

Principal and Agent — Commission on Sale of Land — Right of Aaent to^

Nov. 20 Payable Only on PaymenJt of Purchase Price— CanreUaiion by Vendor-

Effect of on Agent's Right to Commission.

Defendant listed certain land with plaintiff for sale on certain tenns, and a
commission of $200 was aereed upon. Plaintiff sold the land to a pur-
chaser who could not pay the agreed amount as deposit, but the defendant
accepted the purchaser and signed an agreement to sell. At this time it
was arranged that the pajrment of the plaintiff's commission should be
postponed until the purchasers could get a loan to pay for the property
or sell it. Subsequently no payment being made under the contract oth^
than the deposit of $50, the vendor cancelled the contract : —

Held (Lamont, J., dissenting), that, the plaintiff, having secured a purchaser
who was willing to purchase for the price agreed and who was accepted by
the defendant, was, in the absence of any agreement to the contrary, en-
titled to his conmiission.

2. That, even if the time of payment of the commission had been postponed,

yet, as the defendant had oy his action in cancelling the contract made it

impossible for the purchaser to complete his contract ^ so that the plaintiff

would be entitled to receive his commission, the plamtiff was entitled to

* recover notwithstanding the arrangement for postponement.

This waa an appeal from the judgment of Rimmer, D.C.J.,
dismissing the plaintiff's claim, and was argued before the Court
en banc at Regina.

F, W. G. HauUain, K.C., for the plaintiff (appdlant): The
plaintiff, being a real estate agent, is entitled to recover the amount
claimed on a quantum meruit as a reasonable remuneration for his
work and services, even though the terms of sale are different to
those named at the time the employment was given: Ings v, Rons,
6 W.L.R. 612; Mansel v. Clements, L.R. 9 C.P. 139; Toulmin v.
MiUer, 5S L.T. 96; WeycoU v. Campbell, 31 U.C.R. 584. The
amount claimed is reasonable and the usual remuneration for such
services. If there was any agreement that payment of commission
should be postponed until payment of the purchase price, defend-
ant by cancelling the agreement made performance impossible,
and the parties were thereupon restored to their original positions.

Avery Casey, for the defendant (respondent) : An agent ia not
entitled to recover his commission until he finds a purchaser who
is not only ready and willing, but also able to make the purchase:
Conrad Investment Co, v. Lloyd, U W.L.R. 338 & 340; HwiUt
V. Bunnell, 3 W.L.R. 229; Chapman v. Winston, 91 L.T. 17; LoU
V. Outhivaite, 10 Times L.R. 75. The agent cannot recover on

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a quantum meruit where there has been an express agreement:
LoU V. Outhwaite, supra; Re Slater's Claim, 7 Times L.R. 602;
Green v. Males, 30 L.J.C.P. 343.

November 20. Wetmore, C.J.: — ^This is an appeal from the
judgment of his Honour Judge Rimmer, sitting as Judge of the
K^ina District Court.

The action was brought to recover $149.75, the balance of
$200 alleged to be the agreed commission upon the sale by the
plaintiff; who was a land broker, of a lot of land owned by the
defendant situate in R^ina. -

The property was admittedly listed by the defendant with the
plaintiff; whether to find a purchaser or. a sale is not material,
because the plaintiff not only found a purchaser, but he sold the
property to a person whom the defendant accepted.

The terms of the agreement, in so far as they are material to
this action, upon which the property was listed are as follows:
The "rate of commission to be $200 paid out of the deposit, viz.,
city, town or village property; five per .cent, of purchase price.
Farm lands, per acre, $1.'' Therefore, the commission agreed to
be paid was $200.

The terms of sale were: ''Price $4,200; cash payment, in-
cluding the above deposit, $500, or $50 per month" (sic). Be-
tween the figures "$500" and the words and figures "or $50 per
month" the words "balance as follows" appears in print. This
18 marked out by a pencil mark going through it.

The plaintiff found a purchaser, one Mary M. Smith, for $4,200.
She paid $50 down to the plaintiff on account of the purchase
money.

The defendant and Mary M. Smith then entered into an agree-
ment for the sale of this land, dated the 3rd November, 1908.
The plaintiff agreed to sell the property in question to Smith for
$4,200; $50 down and $50 on the 1st Januar>% 1909, and $50 on
the first day of each and every month thereafter until the whole
sum of $4,200 and interest at the rate of six per cent, per annum
was paid and receipt of the payment was acknowledged.

Smith went into possession of the property.

I may say here that the agreement listing the property with
the plaintiff is dated the 12th October, 1908, and I have no doubt

En Bang.

1909
McGallum

Russell.
OJ.

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that the $50 mentioned in the agreement of sale as being received
was the deposit which Mrs. Smith paid the plaintiff on the purchase
of the property, and which the plaintiff retained.

The evidence as to what took place between the plaintiff and
defendant when the property was listed, and subsequently, is very
contradictory. The defendant swore that the property was listed
for $4,000, and the plaintiff was to get his conmaission the best way
he could. I presume by that was meant he would get as com-
mission whatever he could sell the land for over the $4,000. Look-
ing at the original agreement listing the property, it would appear
that the figures ** $4,000'' in it may have been changed to $4,200,
but the evidence is not sufficient, in my mind, to warrant the
Court in holding that this change was made after the defendant
signed it. In the first place, the trial Judge does not so find.
In the next place, the appearance of the figures in the original
document indicate that the change, if any, was made inunediately
after the $4,000 was written — the colour of the ink and the general
characteristics indicate that. Moreover, $4,200 was the price for
which the defendant agreed to sell the property to Smith, and
the provision that the commission was to be $200 would not be
consistent with the property being listed at $4,000, leaving the
plaintiff to get his commission for whatever he might secure over
and above the $4,000. There was no evidence that there was
any alteration after signing as to that being the commission stated
in the agreement.

The defendant also swore that this document had been altered
after he had signed it by scratching out the word "and" and sub-
stituting therefor the word '*or." The learned trial Judge has
found that the words '^balance as follows," which I have referred
to, were struck out after the defendant signed this agreement.
There was no evidence to warrant that. As before stated, the
evidence of the defendant was that the word "and" was struck
out and "or" substituted. He swore to no other alteration after
signing, and the plaintiff distiQctly denies that any change was
made in that paper after it was signed. The document does not
bear the appearance of having been altered in the way the defen-
dant speaks of.

If the testimony stopped there, I am of opinion that the plain-
tiff would be entitled to recover his full commission, because he

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did everything that he was called upon to do iinder this agreement.
He not only found a purchaser, but he brought about a sale on
the terms under which the property was listed with him. It is
true that he did not secure the $500 deposit, but he did secure
the $50 per nionth, and that was what the agreement warranted.
It is true that $500 could not be paid out of the first instalment,
$50, but, at the same time, having sold the property in accordance
with the terms imder which it was listed with him, he would be
entitled, in my judgment, to recover the commission agreed to be
paid, the defendant having accepted the purchaser.

However, before the agreement of sale between Mrs. Smith
and the defendant was executed, the defendant objected to signing
it, and said to the plaintiff, ''What about your commission?" to
which the plaintiff replied, "I am not in a hurry for my conunis-
sion. I will wait until they get a loan or sell it," and thereupon
the defendant signed the agreement. The plaintiff denied all
this.

I am of opinion that, the defendant having signed under such
circumstances, and the Judge having found that he so signed and
there being evidence to warrant that finding, that the case is
brought within lAncUey v. Lacey (1864), 17 C.B.N.S. 578, and if
the static quo, as a result of the defendant signing that agreement
under such circumstances had continued, I am inclined to think
that the plaintiff would not be entitled to recover the amount of
the balance of his commission until Smith had got a loan or sold
the property. But .the difficulty I find is that the defendant
afterwards cancelled the agreement of sale. Now, it seems to me,
under such circumstances, that being his own act, he cannot say
to McCallum, "It is true you earned your money, but you agreed
with me not to press for payment until one of certain events
happened, and I have rendered it impossible for either of these
events to happen by cancelling the agreement of sale which you
brought about, and therefore I am not bound to pay you any-
thing for your services." I am of opinion, therefore, that the
defendant having so cancelled the agreement of sale and put it
out of Smith's power to raise the means contemplated for paying
the plaintiff, that the defendant is bound to pay the commission.

And I may just add that I cannot see that the cases cited by
the learned trial Judge in his judgment — Taylor v. Caldwell (1863),

En Baito.

1909
McCallum

V.
RUSSBLL.

Wetmora, O. J.

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3 B. & S. 826, and KreU v. Henry (1903), 2 K.B. 740, 72 L.J.K.B.
794, 89 L.T. 328 — ^have any application to this case.

I am of opinion that the appeal should be allowed, the judg-
ment of the trial Judge reversed; judgment entered in the Court
of Appeal for the plaintifif for the full amount of his claim with
costs, and that the defendant should pay the costs of this appeal.

Prendergast, Newlands and Johnstone, JJ., concurred.

Lamont, J. (dissenting): — ^The defendant, by an agreement in
writing, bearing date October 12th, 1908, appointed the plaintiff
his agent to sell lot 6 in block 411, Regina. The agreement pro-
vided that the plaintiff's commission was to be ''$200 paid out of
the deposit," and the terms of sale were: '* Price $4,200. Cash
payment, mcluding above deposit, $500, or $50 per month." The
plaintiff did not find a purchaser able and willing to purchase the
property and make a cash payment of $500, but he did find a pur-
chaser, a Mrs. Smith, who was willing to buy the property at
$4,200 and make a cash payment of $50. The plaintiff then pre-
pared an agreement between the defendant and the purchaser
providing for a cash payment of $50 and $50 per month thereafter
until the full purchase price was paid, and he received $50 from
the purchaser. He then took the agreement to the vendor for
execution. After several weeks' delay, the vendor signed the
agreement. The purchaser remained in possession of the property
for only one month, and did not make any further payments, and
the agreement was subsequently cancelled. The plaintiff retained
the $50 paid, and sued the defendant for the balance of the $200
commission, less a 25 cent item which he credited to the defendant.
In the alternative he sued for $149.75 on a quanlum meruit. The
matter was heard before the Judge of the District Court, who held
that the plaintiff was not entitled to recover under either the
agreement or on a quardum meruit. From this judgment the
plaintiff appeals to this Court.

In his notice of appeal the plaintiff does not claim to be en-
titled to commission under the agreement, but does contend that
he is entitled to recover on a quantum meruit for services rendered
because he found a purchaser who agreed to purchase on terms
which the defendant agreed to accept. The defendant admits
that he executed the agreement with the purchaser, but he claims

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that he refused to do so iintil the plaintiff agreed to wait for his
cominission until the purchaser could get a loan through or sell
the property. The learned trial Judge found the facts to be in
accordance with the defendant's statement, and a perusal of the
evidence satisfies me that this finding is correct. The trial Judge
also found as a fact that ''Smith only paid $50, and at the end
of the month abandoned the property." And this finding is not
appealed against nor questioned. We have not a verbatim report
of the evidence given at the trial, but only the notes taken by the
Judge, but where there is an important finding of fact, and that
finding is not questioned by either parties to the appeal, I think
we may take it to have been duly proven, although the Judge's
notes do not shew the evidence that led up to that conclusion.
On the argument counsel for the plaintiff took no exception to
this finding, although the defendant set it up as a finding of fact
in his factum.

In February the defendant cancelled the agreement, having
received no money whatever on account of the sale. The defen-
dant having cancelled the contract, it is aigued that he thereby
made the obtaining of a loan or payment by Smith impossible,
and therefore the plaintiff is now entitled to recover the full com-
mission. I cannot think this contention well-founded. If effect
were to be given to it, what position would the defendant be in?
His agreement with the plaintiff, as I find, was this, that he would
pay the balance of the conmiission when Smith obtained a loan
or sold the property — in other words, he would pay the plaintiff
as soon as he received the amount from Smith. Smith, at the
end of the month, abandoned the property, without making any
further payment. In these circumstances, what was the defen-
dant to do? If the contention of the plaintiff is right, he could not
cancel the contract without rendering himself liable to pay at once
the balance of the commission. If he does not cancel the con-
tract, the plaintiff certainly is not entitled to the conunission, but
the defendant cannot deal with the property as the contract with
Smith is still subsisting. So that the defendant would have
neither the purchase money nor the use of the property. Must
he, then, bring an action against Smith for the balance of the
purchase money in order to demonstrate that the contract is not
an enforceable one before he can be relieved of his obligation to

21^— YOL. n. BXJL.

En BAira
1900

McCALLUlf
V.

Russell.

Lamootv J*

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McCallum

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pay the commission? Under the circumstances of this case I do
not think so. The defendant was imder obligation to pay the
commission when he received it from Smith, and not before. Then
he cancelled the contract. This, it is said, put it out of the power
of Smith to carry out the agreement. But we have no evidence
that Smith ever intended to carry out the agreement, and we have
the distinct finding of fact that Smith had, previous to the can-
cellation, abandoned the property. Can we, therefore, say that
but for the cancellation of the contract by the defendant, Smith
would have paid the purchase money and the plaintiff have thus
become entitled to his commission? Yet, it seems to me, that
is what we must hold to give effect to the plaintiff's contention.
Before he is entitled to recover, the plaintiff must shew that the
defendant received the money from Smith, or that, but for Us
own act or n^lect, he would have received it. The defendant
did not receive the money, and, with very great deference, it does
not seem to me that we should hold that he would have received
it but for the fact of his having cancelled the agreement, in the
face of the fact that Smith had previously abandoned the property.
Where, as in this case, the purchaser had previously abandoned the
property, I think the onus was upon the plaintiff to shew that
the condition upon which he was to receive his commission would
have been fulfilled but for the defendant's act.

The appeal should, in my opinion, be dismissed with costs.

Appeal aUotoed,

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[IN CHAMBERS.]

Miller and SmxH v. Ross. l»M

Practice — Default in Delivery of Defence — Motion for Judgment — Affidavit of Nov. 26
Merita — No Grounds of Information and Belief — Sufficiency of--<>bjection
to PUxirUiffe* Case in Point of Lavy— Letting Defendant in to Defend on
Account of Arguable Point of Law,

Plaintiff brought an action against defendant for rescission of a contract for
sale and return of purchase money on account of vendor's default. The
vendor appeared, but did not dehver a defence within the time limited.
On a motion for judf^ent, an affidavit was filed by defendant's solicitor
statins that in his belief defendant had a good defence on the merits, but no
grounds for this belief were stated. It was also objected by counsel for the
defendant that in an^^ event in point of law the plaintiffs' claim was not
sufficient to entitle mm to the relief asked for: —

HeUdy that an affidavit of merits ffied by defendant on an application for judg-
ment in default of defence must disclose facts shewing a good defence, and
if sworn on information and belief must disclose the grounds of such in-
formation and belief.

2. That if there appears to be a substantial question of law to be determined
and arisinff out of the plaintiffs' claim, the Court may, even in the absence
of an affi<&ivit, allow the defendant in to defend.

This was an application by the plaintiff for leave to sign judg-
ment against the defendant in default of defence, and was argued
before the Chief Justice in Chambers at Regina.

Alex. Robs, for the plaintiff.

H. F, Thomson, for the defendant.

November 26. Wetmore, C.J.: — ^According to the statement
of claim the plaintiffs entered into an agreement with the defendant
Ross to purchase from him a lot of land in North Battleford, for
which they agreed to pay him $925 on the execution and delivery
of the contract, $412.50 on the 22nd October, 1907, and $412.50
on the 22nd April, 1909. The plaintiffs paid the $925 and the first
instalment of $412.50 due on the 22nd October, 1907, and were
ready and willing to pay the final instalment of $412.50 on the
22nd April, 1909, but that he, Ross, was not then and never had
been the registered owner of the land and was unable to give a
transfer. The plaintiffs became aware of that fact after the final
pa3anent became due, and they repudiated the contract and pray
for a declaration that the contract is rescinded, for repayment of
the sums paid to Ross on account of it, and a declaration that the
plaintiffs are entitled to a lien on the interest of the defendant Ross
in such land.

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Miller

AND

Smith

Ross.

Entry of appearance on behalf of both defendants was made
by Mr. Panton. An order for security for costs was granted and
was practically complied with on the 18th day of June, 1909, and
notice of such compliance w^as served upon the agents for Mr. Panton
on the 15th day of October. No statement of defence has been
delivered by Ross, and the plaintiffs applied for judgment against
him for default in pleading. A sum^ions was granted for leave to
sign judgment for such default.

Objections were raised to the plaintiffs' right to the relief claimed,
by reasons of objections appearing as was alleged on the face of the
statement of claim, only one of which I consider to be worthy of
consideration, and that is, that the claim does not allege a demand
for a transfer of the land when the last instalment of the purchase
price became due, because if a demand had been made the de-
fendant might have procured a title. Hamilton v. McNeil (1894),
2 Terr.L.R. 31, was cited in support of that contention. I am not
disposed under any circumstances to determine that question upon
an application of this sort. It is possible that a case ma}' arise,
on an application to set aside a judgment and let the defendant in
upon the merits, where the facts or the question, as the case may be,
are very clearly against the defendant having any defence at all,
where the meritorious nature of the defence might be considered.
That course seems to have been adopted in Richardson v. Howdl,
8 Times L.R. 445. This is an entirely different application. A
defendant, on an application to set aside a judgment regularly
signed, comes to ask the indulgence of the Ck)urt, and his application
will not be granted unless he satisfies the Court that he has reason-
able grounds of defence or for inquiry. In this application the
plaintiff applies for what he is entitled to under the practice, and
the defendant will not be allowed to dispute the application on
grounds which would have opened grounds of defence if properiy
pleaded, or set up by some substantial application on his part.
But application was made to let the defendant Ross in on the
merits, which I think was quite in order. In support of that
application, an aflSdavit of Mr. Panton, and no other affidavit,
was read. It is now the acknowledged practice that, as a general
rule, on application to set aside a regular judgment on the merits
an affidavit should be produced setting forth what the character
of the defence is, and by that I understand that this must be es-

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tablished in a general way at least. It must not be merely an
affidavit setting forth the character of the defence, but there must
be something to shew that the defence is real and not merely imagin-
ary, and that it is a defence worthy to be entertained. I see no
reason where the defendant is in default — as the defendant Ross
is here — and wishes to prevent a jucfement being signed against him
whioji the plaintiff is entitled to sign, why the merits of the proposed
defence should not be proved in the same way. Mr. Panton, in so
far as his affidavit affects this question is concerned, merely set out
as follows: *'I believe that the defendants have a good defence as
set out in the statements of defence drawn herein, and that they
should be permitted to try such action on their defences." Annexed
as exhibits to this affidavit are the defences which he proposed to
put in for each of the defendants, and referring to the proposed
defence of Ross it sets up what I consider to be a good and valid
defence if the facts therein stated are true. Mr. Panton's affidavit
does not shew that. It would not be sufficient even under the old
practice, where the character of the merits were not required to be
set forth. In Bromley v. Gerish (1843), 6 M. & G. 750, Erskine, J.,
referring to the requirements of the affidavits, states as follows:
"The ordinar}'^ form of affidavit is that the defendant has 'a good
defence to this action on the merits.' Where it is made by the
party the words, 'as he is advised and believes,' are added; where
by the attorney or managing clerk to the attorney, the form is,
'as he is informed and verily believes.' " If an affidavit of this
character would not be sufficient under the old practice, a fortiori
it is not sufficient under the present. If a defendant was allowed
to come in on such an affidavit, he might in very many instances
very easily get a judgment set aside when there was no justifiable
cause for' doing it. It might be a very easy matter for a person to
convince his solicitor that he has a good defence, and so enable him
to swear as Mr. Panton has done. I am not prepared to say that if
Mr. Panton had stated as the reasons for his belief that ''he had
been so informed by the defendant," it might not have been suffi-
cient on an interlocutory application like the present. But the
rule of practice is that only facts in 4he knowledge of the deponent
must be stated in an affidavit, except on interlocutory applications,
when statements as to his belief may be admitted vnth the grounds
of such belief. Mr. Panton cannot possibly state anything here

1909

MiT.LER
AND

Smith

Ross.

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Miller

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Smith

Ross.

within his knowledge. At any rate he does not state that the facts
are so within his knowledge, and he does not state the grounds of
his belief. If the defendant's application to be let in rested entirdy
upon that affidavit, it would not be granted, but, as I have stated
before, counsel for Ross at the hearing of the application raised a
ground of defence in law appearii^ on the face of the statement of
claim which I believe to be worthy of consideration. Can I jJlow
Ross to file his defence in view of that fact? In Fardon v. Richier,
23 Q.B.D. 124, at p. 129 (58 L.J.Q.B. 244; 60 L.T. 304),
Huddleston, B., in dealing with the question of the necessity for an
affidavit in order to set aside a regular judgment, states as follows:
"During the alignment I was inclined to doubt whether such an
aflSdavit could be always necessary. But in Smiik v. Dobbins^
37 L.T. (N.S.) 777, the present Master of the Rolls appears to have
stated that it was * an inflexible rule' that a regular judgment prop-
erly signed could not be set aside without such an affidavit, and
there are statements in the manuals of practice to much the same
effect. The expression is perhaps strong, but, where there is no
such affidavit, it is only natural that the Court should suspect that
the object of the applicant is to set up some more technical case.
At any rate, when such an application is not thus supported, it
ought not to be granted except for some very sufficient reason."

Evidently there that learned Judge contemplated that there
might be a sufficient reason for granting leave to defend when there
was no affidavit. I agree with that conclusion, and I think that
it equally applies to a case like the present where no judgment has
been signed but the defendant asks to be let in, and I am of opinion,
entirely outside of Mr. Panton's affidavit and the question of law
so suggested by counsel, there is quite sufficient to allow the de-
fendant to come in and defend.

I have therefore arrived at the conclusion that the d^endant
Ross should have leave to enter his defence, and having arrived at
that conclusion I see no reason why I should limit him to defending
only on the ground so set up by counsel at the hearing. Having
concluded to let him in, I see no reason why he should not be allowed
to set up any matter of defence which he may consider to be open
to him. No injustice can be done to the other side by so doing.
The plaintiff has not been allowed to sign judgment, and that being
so the defendant, it seems to me, should have open to him all
available matters of defence.

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[IN CHAMBERS.]

Lankin V. Walker. l»09

Jnjunclion — Restraining Disposition of Personal Property — Adequate Remedy Nov. 29.
ai Law — Fraudvlmt Conveyance — Action to Set Aside by Simple Contract
Creditor — Right to Maintain — No Allegation tfiat there were Otner Creditors
— Necessity of.

Plaintiff claiming as creditor under a bond conditional upon delivery of
certain grain to them, which, it was alleged, had not been done, brought
action to set aside a conveyance of that grain. In the claim it was alleged
that the plaintiff sued on behalf of all creditors of defendants, but it was
not alleged that there were creditors other than plaintiff, nor was it alleged
that defendants were insolvent. An injunction was obtained from the
local Master restraining the party to whom the grain had been sold from
disposing of same, and restraining the defendants from dealing with any
securities ^ven in respect of the purchase price thereof. There was no
allegation m the claim that the plaintiff did not have an adequate remedy
on the bond.

On a motion to continue the injunction : —

Held, that an injimction should not be granted to restrain actionable wrongs
where there is an adequate remedy at law, and as there was nothing to
indicate that the plaintiff had not an adequate remedy on the bond, the
injunction should not be continued.

2. That a simple contract creditor, who has not obtained a judgment and
issued execution thereon, cannot maintain an action to set aside a fraudu-
lent conveyance imless he sue on behalf of all creditors.

3. To support such an action it should appear and be alleged that there are
other creditors of the defendant.

This was an application to continue an injunction, and waa
argued before Wetmore, C.J., in Chambers, at Regina.-

H, F. Thomson, for the plaintiff.
P. H. Gordon, for the defendant.

November 29. Wetmore, C.J.: — The statement of claim sets
forth that the defendants Weedin and Gumey T. Walker entered
into a bond with the plaintiff in the penal sum of $810.64, con-
ditioned for the paying by the defendants Walker to the plaintiff
of the sum of $810.64, by delivering to the elevator at Radisson
a sufficient amount of grain to discharge such obligation imme-
diately upon the threshii^ of the grain harvested on section 35-40-10,
W. 3, and the south-west quarter 3-41-10, W. 3.

That the indebtedness above mentioned was incurred by the
defendants Walker to the plaintiff as tenants to her of the above
lands.

That the crop on the lands has been harvested and delivered
to the elevator, but the defendants Walker refused to pay either

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Walker.

the sum of $810.64 or to deliver to the plaintiff the grain necessary
to liquidate that indebtedness, and, instead of paying the plaintiff
(the landlord of the said Walker) that amount for the rental of
such lands, they entered into a fraudulent conspiracy with the
defendant Hingley to defeat the claim of the plaintiff by delivering
to Hingley a bill of sale, dated the 27th September last, of all the
grain the defendants Walker grew upon the said lands for the pre-
tended consideration of $1,500, and that the defendants Walker
delivered such grain to the elevator company at Radisson in the
name of the defendant Gumey T. Walker.

That the defendant Hingley has not paid to the Walkers or
either of them the sum of $1,500, but has given to them a promissory
note or some other instrument representing the consideration of
the bill of sale.

That the grain is warehoused in the elevator of the defendants
the elevator company.

That the bill of sale and all transfers made in connection there-
with are to the knowledge of the plaintiff, other than the elevator
company, a fraud upon the plaintiff and all the other creditors of
the defendants Walker, and were made and entered into to defeat,
hinder and delay such creditors, and that this action is brought
on behalf of all the other creditors of the defendants Walker, as
well as the plaintiff, and they pray an injunction restraining the
Walkers from n^otiating or transferring, or in any way dealing
with any instrument given by Hingley as consideration for or in
connection with the bill of sale, and restraining the defendant
Hingley from paying to the defendants Walker any monies or
delivering to them any note or other instrument in connection with
such bill of sale, and restraining the elevator company from paying
any of the defendants or their assignees for any grain now stored
with them by the defendants Walker or either of them in their
warehouse, or delivering such grain to said defendants or their
assignees. And also an order setting aside the bill of sale and
transfer.

His Honour Judge MacLean, of the Battleford District Court,
granted an injunction order restraining the defendants for eight
days under the terms of the prayer in the stateinent of claim for
an injunction. A summons was taken out before a Judge of this
Court to continue that injunction, and it came on for hearing

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before me. Objection was taken to the continuation of such in-
junction on the grounds that it was improperly granted for a
number of reasons. The action is practically alleged in the state-
ment of claim to be brought under the Preferential Assignments
Act of this Province (ch. 25 of 1906) and under 13 Elizabeth, ch. 5.

The facts set forth in the statement of claim purport to be
verified by the affidavit of the plaintiff, and, possibly with the
exception of the bond referred to, that affidavit deposes merely to
matters of belief, without setting forth the grounds of such belief.
There is also an affidavit of the plaintiff's solicitor, in which he
deposed that the defendant Weedin Walker, at an interview on
the 28th September, when requested to pay the plaintiff's claim,
stated that he had got things fixed so that he would not have
to pay it, and that' the plaintiff could not make him pay it; that
he would see that a portion of the plaintiff's claim which related
to seed grain would be paid, as it was protected by a chattel mort-
gage, but that he and Gumey T. Walker would never pay the
balance of the plaintiff's claim; that, upon being asked how he
had fixed things to defeat the plaintiff's just claim, he stated that
he did not consider it was a just claim, but in any event he had
sold all the interest of himself and Gumey T. Walker in the grain
to Hingley on the 27th September, and given a bill of sale therefor,
and that Hingley had paid him $1,500 for his interest in the crop,
and he (Hingley) was now the owner of it; that he had assigned
the warehouse receipt to Hingley, and that he had had it fixed
by a lawyer so that it would stand law, and defied the plaintiff
to collect the debt. The only evidence which could possibly be
held to deny that Hingley had paid the $1,500 for the grain is that
the solicitor went to the only bank in Radisson and ascertained
that no transaction had been put through the bank whereby $1,500
had changed hands, and he did not believe that the defendant
Hingley ever paid to the Walkers that sum, and that, if there was
ever any consideration for the bill of sale, he believed it was in
the form of a note or other evidence of debt. There are some
other matters of belief stated in the solicitor's affidavit, but the
grounds of such belief appear to me to be all conjecture and
imaginary.

In London and Blackwall Railway Company v. Cross (1886),
31 CD. 354 (55 L.J.Ch. 313, 54 L.T. 309), Lindley, L.J., at p. 369,

Wetmore. d.

1909

L AN KIN
V,

Walker.

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Stated the following: "The very first principle of injunction law
is that primd facie you do not obtain injunctions to restrain action-
able wrongs for which damages are the proper remedy."

That is very well-settled law, and it may be carried further
by stating that primd facie you do not obtain injunctions to restrain
actionable wrongs when there is an adequate remedy at law. 1
can find nothing in the statement of claim of the affidavits used to
indicate that the plaintiff has not an adequate remedy by suing
upon the bond. Evidently the grain did not belong to her; she
had no lien upon it; she chose to rely upon the security of the
bond and of the parties to it. It does not follow that, because
this grain has been transferred to Hingley, that the Walkers have
no other property upon which a judgment against them for the
amount of the bond could be realized. There is no allegation that
the Walkers are insolvent or that the property assigned to Hingley
was all the property they had. I will just merely say that I con-
sider the statement of claim and the affidavits in support of it
very weak in those particulars.

Since the decision in Longway v. Mitchell, 17 Grant 190, it
has been generally accepted in this country as good law that
a simple contract creditor who has not obtained a judgment and
issued execution cannot maintain an action on his ovm behalf to
set aside a deed, conveyance or transfer allied to be fraudulent
under the statute of Elizabeth, but he might possibly obtain rdief,
however, by suing on behalf of himself and other creditors. See
also Hepburn v. Pattoriy 26 Grant 597, and Morphy v. WUson,
27 Grant 1. The title of the statement of claim does not
all^e that the plaintiff is suing on behalf of herself and other
creditors, but, in the body of the claim, as before stated, she
allies that she is so suing. However, I do not know that that
makes any difference. There is, however, no allegation whatever
in the statement of claim or in any affidavit used on the applica-
tion, that there are other creditors than the plaintiff. The authori-
ties to which I have referred must contemplate that, in order to
warrant a simple contract creditor bringing an action in the name
of other creditors to set aside a fraudulent deed under the statute
of Elizabeth, there must be other creditors, because, if there are
no other creditors, the all^ation that she is so suing must be false.
A plaintiff would be merely stating a false fact in order to en-

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deavour to, bring himself within the letter of the law. It is quite
evident she could not be suing on behalf of other creditors if there
were no other creditors, and, therefore, he must be suing on behalf
of himself in that case. I do not consider it necessary to elaborate
the case any further, except to refer to the judgment of Richards,
J.A., in Traders Bank v. Wright (1908), 8 W.L.R. 208, in which
that learned Judge, while agreeing with the reasons given by
Howell, C.J .A., for dissolving the injunction, also based his judg-
ment on the same grounds as those upon which I base my judg-
ment herein. The injunction order, therefore, was improvidently
granted and must be dissolved. So far as the Preferential Assign-
ment Act is concerned, it is not applicable, because the assignment
does not pretend to be made to a creditor of the Walkers.
The injunction will be dissolved with costs.

Wetmore, O.J.

1909

Lankin

t;.
Walkbr.

[IN CHAMBERS.]

Moose Mountain Lumber and Hardware Co. v. Paradis.

(No. 2.)

Appeal — Contempt of Court — Application for Leave to Appeal from Order
Committing for — Right of Appeal,

Defendant had been committed to prison for contempt of Court by disobeying
an order forbidding him to interfere with the crop on certain lands. He
applied for leave to appeal from the order of commitment: —

Held, that while in a case of wilful disobedience the Court will not entertain
any application on behalf of the person in contempt, yet, if there are any
facts which micht lead to a conclusion that he had not wilfully disobeyed
the order, the (x)urt will give leave to appeal from the order of commitment.

2. That disobedience of an order in a civil proceeding is not a criminal act
so as to preclude any appeal in respect of the order for commitment.

This was an application by defendant for leave to appeal from
an order committing him to gaol for contempt of Court, and was
aigued before Wetmore, C.J., in Chambers.

P. H, GordoUy for the plaintifif.

B. W. F, Harris, for the defendant.

December 4. Wetmore, C.J.: — This is an application on the
part of the defendant for leave to appeal from my judgment given

1909
Dec. 4.

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wetmoro. O.J. j^ this matter on the 25th of November last ordering the defendant

1909 to be committed for disobedience to an injunction order. The

^g^^^ facts of the case are fully set forth in that judgment. The applica-

MouNTAiN tion was opposed on the ground that the defendant, having been

Hardware adjudged guilty of a contempt of an order of the Court, will not be

^' allowed to appeal, at any rate until he has purged the contempt.

Paradis. I have come to the conclusion that the defendant has a right of

appeal. I am, however, not very clear that it is necessary for him

to obtain leave to do so. Oswald on Appeal, 2nd ed., p. 223, states

that it is not necessary; and the Judicature Act of 1894 (Imp.),

by sec. 1, par. (b), sub-clause (i), provides that leave is not necessary

where the liberty of the subject is concerned. (See Ann. Prac.,

1910, p. 655.) However, if leave is not necessary, the granting

of such leave cannot prejudice the right of appeal, and, as the liberty

of the subject is involved, it is better, I think, that I should grant

it than put the party to the risk of losing such right.

A number of authorities were cited on the part of the plaintiff
in support of his contention, some of which I will refer to. The
first case in point of time is Wenman v. Osbaldiston et al,, 2
Brown's H.L.C. 276. In that case the appellant deliberatdy
omitted to obey the order of the Court, and an order absolute for
his committal had been made and a warrant issued. The appellant
keeping out of the way, a sequestration was ordered, and appellant
then appealed from all the orders on the ground that it was un-
reasonable for reasons alleged that his estate should be any longer
continued under sequestration. The Court affirmed the orders
appealed against, and further ordered a reference to the Master
to ascertain the amount due to the respondents to tax their costs,
and that upon the appellant bringing the money into Court, and
complying with some other conditions mentioned, the appellant
might be at liberty to apply to the Court to discharge the sequestra-
tion. I do not consider this a very strong case in favour of the
plaintiffs' contention, but if it is there had, in that case, been a
clear and wilful disobedience of the order of the Court. In GarsHn
V. Garstin (1865), 34 L.J. Mat. 45, there had also been a deliberate
and wDful disobedience of the order of the Court. The appellant
had taken from the petitioner her youngest child, and he was
ordered by the Court to deliver it up to her. He refused to do so,
and the Court granted an attachment against him, whereupon he

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left England, taking the child with him. He had entered an wetmow, cu.
absolute appearance apparently by mistake instead of a conditional 1909
appearance, intending to raise the question that the Court had moosb
no jurisdiction to entertain the suit, which was for a divorce. He Mountain
then applied, after the attachment had been issued, to amend his Hardware
proceedings by filing a conditional appearance in order to enable ^'

him to raise the question of jurisdiction. The Court refused the Paradis.
application, holding that while he set the authority of the Court
at defiance he could not be heard in support of the application.
In Cavendish v. Cavendish (1867), 15 W.R., p. 182, the facts were
very similar to those in Garstin v. GarstiUy and the disobedience
of the order of the Court had also been deliberate and wilful. This
case, however, differs from the last mentioned case inasmuch that
it does not appear that an attachment had been issued against the
appellant. (That, however, is not material to the question I am
discussing.) The Court held that, being in contempt, he could not
be heard on an application for a new trial on the grounds that the
decree dissolving the marriage had not been justly made.

I can quite understand the principle upon which those cases ^

have been decided. If a party against whom an order has been
made is aware of what the order is and has no reason to believe that
it has been abandoned, and so wilfully disobeys it, he is so clearly
in contempt that the Court will not entertain an application from
him in the suit until he purges that contempt. It is not for a party
to say, wl^ae the restraining order is clear on its face, that the Court
had no junHktion to make it; it is his duty to obey the order, and
if the order is not properly made to appeal against it, but the Court
will not submit to having its orders deliberately put at defiance.
That may not have been the case in the proceedings now under
review. In this case, at the hearing of the application for a com-
mittal to issue, it was uiged with some shew of reason that the
defendant, owing to the delays of the plaintiffs in issuing and serving
the order for continuing the injunction, had reasonable grounds for
believing that the proceedings had been abandoned; and he also
set up that he had not been properly served with the order. In
this case, therefore, he does not come to the Court deliberately
attempting, as in the other cases, to put the order at defiance, and
I am of opinion, as at present advised, that under such circumstances
there is a right of appeal. At any rate I feel that I ought to give

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him an opportunity of at least asserting that right before the Court
of Appeal.

It was also contended, under the authority of O^Shea v. 0*Shea
(1890), 15 Prob. D., p. 59, 59 L.J.P. 47, 62 L.T. 713, that the appeal
asked for is an appeal in a criminal cause or matter. It seemed to
be very clearly laid down by the authorities that an appeal (in the
sense in which I am now using the word) cannot be taken in any
criminal cause or matter. I am of opinion that this is not an appeal
in a criminal cause or matter. In O^Shea v. 0*Shea the party against
whom the process for contempt issued was held guilty, by his con-
temptuous act, of a criminal act because he had done something
calculated to prejudice the Judge or jury in the trial of an action.
Counsel for the petitioner in that case, at p. 61, are reported to have
said: "No doubt there are two kinds of contempt of Court; when
it is a mere disobedience of an order in the Court in a civil action it
is not criminal, and then there may be an appeal; for in that case
the attachment only issues to enforce the order in the civil action."
And Cotton, L.J., p. 62, lays down the following: "Of course there
are many contempts of Court that are not of a criminal nature;
for instance, when a man does not obey an order of the Court made
in some civil proceeding, to do or to abstain from doing something
. . . that is really only a procedure to get something done in
the action, and has nothing of a criminal nature in it." And at
pp. 63-4 he states as follows: "But in the present case the whole
proceeding is to punish the appellant for a wrong w^h he has
done, and not to obtain the doii^ of anything for the petitioner's
benefit in the action in the Divorce Division. It was a proceeding,
therefore, entirely outside the divorce action, and its object was
only to obtain that fair trial to which every suitor has a right."
The Court dismissed the appeal in that case squarely on the ground
that the contempt of Court was of a criminal nature.

I cannot bring my mind to the conclusion that the defendant
in this case committed a criminal act. I would ask (as was done
by some of the Judges in a case to which my attention has been
drawn), if one was to charge this man with a criminal act, what
ofifence would you charge him as being guilty of, and in whom would
you lay the right of property? No receiver had been appointed
by the Court, and the injunction order itself was obtained for the
purpose, as Cotton, L.J., states, of getting something done in the
action. The order was one made in a civil proceeding.

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I will also refer to Bamardo v. Ford (1892), A.C. 326. I am of
opinion that the raiio decidendi in that case is in accordance with the
views I hold, although it may possibly not go so pronouncedly in
the direction for which it has been cited in the text books. I will,
therefore, give the defendant leave to appeal. I will make an
order authorizing his release from the imprisonment upon terms
which will be found in the order, provided, however, that this last
mentioned order will not be held in any way to prejudice him if he
does not comply with the terms I have imposed therein from
making such application for his release from imprisonment as he
may be advised.

Wetmore, C.J.
1900

MOOSB

Mountain

Lumber and

Hardware

Co.

Paradis.

• [IN CHAMBERS.]
Bashford v. Bott.

Practice — Injunction — Motion to Continue — Regularity of Procedure — Material
Used in Support — Withholding Material Facta.

Plaiatiff obtained an interim injimction restraining defendant from dealing
with certain land, and by the order leave was given the plaintiff to move
on notice on a certain dav to continue the injunction. On the motion it
appeared that the plaintiff had previously filed a caveat against the land in
question, but the right set out in the caveat and that in the statement of
daim were not identical. This fact did not appear in the material on which
the injunction was obtained. It was objected that the application to
continue could only be made by siunmons, and that the injunction should
be dissolved on acooimt of suppression of material facts: —

Held, that when leave is reserved m the order granting an injunction to move
by way of notice to continue it, a motion to continue may properly be enter-
tained upon notice.

2. That, while withholding of a material fact on an ex parte application for an
interim injunction may oe ground for refusing to continue it, still it is a
matter in the discretion of the Court, and the fact here alleged to have been
withheld did not so affeet the case as to justify refusal to continue the
injimction.

This was an application to continue an interim injunction, and
was argued before Wetmore, C.J., in Chambers.

Avery Casey and H. F, Thomson^ for the plaintiff.
P. H, Gordon, for the defendant.

December 8. Wetmore, C.J.: — On the 4th of November last
I granted an interim injunction order restraining the defendant, his
agents, etc., from transferring, mortgaging, incumbering or in any
way dealing with the north-east quarter of section 14, township 24,

1900
Dec. 8.

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range 28, W. 2, until the 30th day of November last, and it was
further directed by the order that the plaintiff should be at liberty
to serv^e notice of motion on the defendant returnable on the 25th
of November to shew cause why the injunction should not be con-
tinued until the trial or final disposition of this action or further
order. Notice of motion was served accordingly, and when the
matter came up in Chambers in response to that notice, objection
was taken on the part of the defendant that the proceedings to
continue the injunction should have been by summons and not by
notice of motion. This objection was founded on rule 458 of the
Judicature Ordinance, which contains the following: ** Applications
for summonses, rules and orders to shew cause and applications
authorized to be so made by the rules may be made ex parte.
Other motions in Court shall be by notice of motion and other
applications in Chambers by summons except where otherwise
specially provided."

In a form of interim injunction order given in Seton on Decrees,
6th ed., 452, there is a provision for leave to give notice of motion
to continue the injunction similar to that contained in the interim
injunction order granted herein. The practice laid down in Kerr
on Injunctions, 4th ed., p. 565, is the same as that given by the
form in Seton. In Chitty's forms, 13th ed. 219, however, there is a
provision incorporated in the order for leave for summonses to
issue. Probably what was laid down in Seton and Kerr had refer-
ence to the practice to make applications to the Coiut to continue
the injunction, and not to an application in Chambers. I am of
opinion, however, that the practice as set out in the interim in-
junction order in this case is allowable, and certainly it is more
convenient in cases like the present to proceed by notice of motion
than it is to proceed by sunmions. Very frequently, owing to the
urgency of the matter, a person appearing for an interim injunction
order is forced to get his material together in a very hurried manner,
and does not purpose to rest his whole case upon the evidence that
he is able to produce on the spur of the moment, but intends to
rely upon further evidence when the time comes to move or to apply
to continue the injunction. If his proceeding, then, is by notice
of motion, he can, at the same time that he serves his notice, serve
(in addition to that used at the application for the original order)
copies of other material upon which he intends to also rely on his

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application to continue the injunction. Where the proceeding,
however, is by summons, and that summons is embraced in the
order for an injunction, or by the leave granted to issue it contained
in that order, the plaintiff cannot, without leave of the Court, use
any other material except that on which he obtained such order or
summons. The Judge, in granting an interim injunction, can, in
my opinion, without any breach of the rule 458, prescribe in the
order the method by which the plaintiff may proceed to have that
order continued, and when that is done the party can proceed, not
under the rule, but he can proceed by virtue of the leave which
the Judge has granted. I am therefore of opinion that the pro-
ceeding by notice of motion was properly granted and the matter
came properly before me under the notice.

Another objection raised was that in the application for the
interim injunction, which was granted ex parUf material facts had
been withheld from the Judge. I will not set out fully what appear
to be the facts of this case as set out in the affidavit. It is only
necessary to say that according to the plaintiff's affidavit and state-
ment of claim this action is brought, among other things, for the
purpose of obtaining a declaration that he is entitled to a vendor's
lien in respect to the land above mentioned, and the fact alleged to
have been withheld is that he (the plaintiff) had previously lodged
with the Registrar of Land Titles a caveat ag£^st any dealing
with that land. The caveat and the plaintiff's statement of claim
are not based on the same grounds. The claim sets up a right in
the plaintiff on a vendor's lien. The caveat sets up an agreement
apparently in writing, giving the date whereon the defendant is
allied to have agreed to execute a mortgage of the property to
the plaintiff, or transfer it to him, to secure a payment of $3,121.50.
There is a letter from the defendant to the plaintiff, verified by his
affidavit, and I presume it probably contains the allied agreement
to give the mortgage or transfer. I am not prepared to say that
that letter amounts to an agreement at ail: I express no opinion
with respect to it. No mention was made of this caveat in the
ex parte proceedings for the injunction. It came up on the return
of the notice of motion. Am I bound, therefore, by the practice
to send this application out of Court because of the withholding of a
material fact? Undoubtedly that was the old practice where an
injunction order had been obtained and the defendant applied to
30 — ^voL. n. SX.B.

Wetmora, CJ.

1909
Babhford

V.
BOTT.

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dissolve it. In Kerr on Injunctions, 4th ed., at p. 586, it is stated:
"If on a motion to dissolve an ex parte injunction, it appears that
the plaintiff has mis-stated his case, either by misrepresentation or
by the suppression of material facts, so that an injunction has been
obtained which would not have been obtained if a more accurate
statement of the case had been made, the injunction will be dissolved
on that ground alone."

I was under the impression that the rule was more harsh than
that. All I can say is that if the fact that the caveat in question
had been filed had been presented to me on applying for an interim
injunction order, I would have granted it. This, however, is not
an application to dissolve an injunction: it is an application to
continue an interim order. At p. 566, dealing with the practice
on an application for an interim injunction order, the learned
author says: ** Where the application is ex parte it is necessary
that the Court should be informed of all material facts."

FvUer v. Taylor (1863), 32 L.J. Ch., p. 376, was cited for that,
but I am not prepared to say that it bears the text out. Wood,
V.C, in that case, at p. 377, speaking of these interim orders, states
as follows: *'It is quite true they are not exactly like ex parte in-
junctions, which put the other side to the necessity of coming here
to dissolve them, and in many respects there is a convenience in
the present course of proceeding, but, on the other hand, it is
necessary that the Court should be infoimed of every fact whenever
an interim order is asked for. This rule ought not, perhaps, to be
carried to that extreme degree of nicety to which it formerly was
in the case of ex parte injunctions, when the very smallest scrap of
paper that was omitted was held almost to disentitle to the injunc-
tion."

I can quite understand that cases may arise where material
facts have been withheld where the Court would refuse to continue
the injunction, — for instance, if the Judge is satisfied that fraud
had been used or the withholding of a fact had been done for the
purpose of unfairly dealing with or misleading the Court or pervert-
ing the course of justice. Section 31, rule 8, of the Judicature
Act, ch. 8, 1907, provides that *'An injunction may be granted or
a receiver appointed by an interlocutory order of the Court in all
cases in which it shall appear to the Court to be jttst or convenient
that such order should be made."

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That provision was contained in all the Ordinances affecting the
administration of justice in the North- West Territories — at any
rate from the time of the institution of the Supreme Court of the
Territories — ^and was carried forward into the Judicature Act.
The provision is taken from sec. 25, par. 8, of the Judicature Act,
1873 (Imp.), and the authorities are clear, it seems to me, that these
words increase the powers of the Court very materially. In AslaM
V. The Corporation of Southampton (1880), 16 Ch.D., p. 148, 50 L.J.
Ch. 31, 43 L.T. 464, Jessel, M.R., at p. 148, lays down the following:
"Of course the words 'just or convenient' did not mean that the
Court was to grant an mjunction simply because the Court thought
it convenient: it meant that the Court should grant an injunction
for the protection of rights, or for the prevention of injury, according
to l^al principles, but the moment you find there is a legal principle,
that a man is about to suffer a serious injury, and that there is no
pretence for inflicting that injury upon him, it appears to me that
the Court ought to interfere."

In Cummins v. Perkins (1899), 1 Ch. 16, Lmdley, L.J., at p. 20,
lays down the following, dealing with the provision in the Imperial
Act: "But the introduction of that section does not curtail the
power of the Court to grant injunctions or to appoint receivers:
it enlarges it. It has not revolutionised the law, but it has enabled
the Court to grant injunctions and receivers in cases in which it
used not to do so previously."

The power of the Court to grant injunctions to preserve property
or continue the status quo in respect thereto pendente lite is well
recognized, and being so recognized the language both of Jessel,
M.R., and Lindley, L.J., would apply to an application for an in-
junction to so preserve property.

It was further uiged, however, that there was no necessity for
an injunction in this case because the caveat would serve the pur-
pose, and no notice had been given the plaintiff as provided by the
Land Titles Act to remove it. I am of opinion, however, that the
obtaining an injunction in this case was prudent. In the first
place (without expressing any opinion on the merits of the action),
it is clear, in reading the two letters that passed between the parties
to this suit, that there was reasonable groimd on the part of the
plaintiff to bring it, if for nothing else than to endeavour to establish
the alleged vendor's lien with respect to the property. And it was

Wetiiion,CUr«

1909
Bashford

V.
BOTT.

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of the utmost importance that the defendant should be restrained
from disposing of the property. Now, in the meanwhile, all the
effect that the caveat has is to prevent the Registrar passing a title
to a transferee on roistering an incumbrance or mortgage by or
from a registered owner without putting a memorandum of the
caveat upon the certificate of ownership or other document. And
the person purchasing, on taking the mortgage or acquiring the
incumbrance, is bound to take notice of what the caveator has
claimed in his caveat, and takes his right to the property subject
to those rights, whatever they may be. But it seems to me that a
plaintiff, under the circumstances in which this plaintiff is placed,
has the right to go further and ask the Court to insist that the
property shall be held in the hands of the person against whom he
is proceeding for relief until the question involved in the action is
disposed of, and not become complicated by being transferred to a
third person, possibly involving change of parties to the action and
all that. As to whether a lis pendens would suit the purpose, I am
of opinion that a lis pendens would be of no use at all. A lis pendens
is only notice that an action has been brought.

I consider, therefore, that it is both just and convenient that
the injunction order be continued until the trial or final disposition
of this action or until further order, and order accordingly. The
costs of this application and of the application for the interim
injunction will be costs in the cause to either party.

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[IN CHAMBERS.]

CocKSHUTT Plow Co. v. Gray & Smith. 1900

MortQoge — Account Under — Mortgagee Trustee for Benefit of Creditors — Mort- Dec. 11.
gage for Benefit of Two Creditors Only — Moneys Received Distributed pro
Rata — Account by Plaintiff as Mortgagee only for Moneys Received from
Trust Fund — No Account as Trustee — Necessity for — Pleading — No Claim
by Defendant for General Account.

Defendants, being indebted to plaintiff and the Fairchild Co. in large amounts,
gave a mortgage to secure such indebtedness. At the same time they
turned over to plaintiff as trustee all their assets to be distributed rateably
among all their creditors. Lai]ge sums of money were received by plaintiff
as trustee, and from time to time such moneys were distributed rateably,
the share of plaintiffs and Fairchild being applied on the mortgage. The
mortgagee being in default, sale proceedings were taken and an account
was ordered. On taking account, the local Registrar ruled that the plain-
tiff need only account as mortgagee, and the accounts were taken on this
basis, no account of the trust fund being taken.- On motion to confirm
the Registrar's report, it was objected that the plaintiffs should have ac-
counted as trustees. In the defence of defendant Gray no claim for an
account as trustee was made nor was the trusteeship of plaintiff pleaded: —

Heldf that, the mortgagee and trustee being the same and the trust created
for the payment of the indebtedness imder the mortgage, the transactions
should be considered as one deed, and the plaintiffs should, therefore,
account not only as mortgagees but as trustees.

2. That, while the defendants had not pleaded the trust agreement, yet the
transactions were so intermixed that on a reference even in default of
appearance account must necessarily be taken of both accounts, and the
defendant should be in no worse position, having appeared and defended.

This was a motion to confinn the report of the Local R^istrar
on taking accounts in a mortgage action, and was argued before
Wetmore, C.J., in Chambers.

Alex. Ross, for the plaintiff.
L. B. Ring, for the defendant.

December 11. Wetmore, C.J. : — ^This action was brought under
the ordinary practice by writ of summons practically for foreclosure.
The property alleged in the statement of claim to be mortgaged, or
equivalent thereto, were lots 22, 23 and 24 in block 166 in the town
of Qu'Appelle. The mortgage is allied in the statement of claim
to have been made by the defendants in favour of the plaintiff
company. The defendant Smith did not appear to the action, but
the defendant Gray did, and filed a statement of defence in which
he alleged (1) that he never executed the mortgage mentioned in
the statement of claim, or any other mortgage to the plaintiffs;
(2) that he never executed or delivered to the plaintiffs any assign-
ment of his rights in lot number 22; (3) that he did not deposit with

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Smith.

the plaintiffs the certificate of title to that lot by way of equitable
assignment; (4) in the alternative, if the defendants were at any
time indebted to the plaintiffs such indebtedness had been fully
paid and satisfied.

An order was obtained from my brother Johnstone for delivery
of particulars of the payments alleged in the last mentioned para-
graph by a prescribed time, and that, in default of delivery within
that time, such paragraph should be struck out. It was allied
by the plaintiffs' counsel at the hearing before me that the par-
ticulars not having been delivered this part^raph was struck out.
This was practically conceded on behalf of Gray to be true.

The matter came before my brother Lamont on the hearing of
an application on the part of the plaintiffs for an order that the
plaintiffs should be at liberty to sign judgment in this action against
the defendant Smith for default and against the defendant Gray
upon admissions made by him on his examination for discover}', and
an order was made by that learned Judge directing a reference to
the Local R^istrar to take an account as between the plaintiffs
and the defendants and to ascertain the balance, if any, now due
under and by virtue of the mortgage, and declaring that the plam-
tiffs were entitled to a charge upon lot 22 in block 166 under and
by virtue of an equitable mortgage by way of assignment and
deposit of documents of title in respect of the moneys due under
and by virtue of the mortgage (which did not on its face embrace
lot 22) ; and the order further directed the defendants within three
months from the date of the order to pay into Court the amount
found due by the Local R^istrar, with interest at eight per cent.,
and, on default, sale of the premises.

The Local Registrar held his inquiry under this order and
lodged his report, and application is now made on behalf of the
plaintiffs to confirm that report. Counsel appeared on behalf of
the defendant Gray on this application. He raised no objection
to the finding of the Local Registrar as far as it went, but he claimed
that the matter should be sent back to him to inquire as to the
amount of moneys received, or which ought to have been received
by the plaintiffs except for their default under a certain trust agree-
ment. I am not called upon to go back of the order made by my
brother Lamont. The mortgage and the trust agreement were
produced before the Local Registrar at the inquiry. It appears

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that this mortgage was made, not in favour of the plaintiffs alone,
but in favour of the plaintiffs and the Fairchild Company Limited,
and it embraces other property than lots 23 and 24. The mortgage
and the trust agreement are both dated 24th of March, 1904. The
trust agreement was made between the defendants and both the
mortgagees mentioned in the mortgage. It provided that the
Cockshutt Plow Company and the Fairchild Company (whom I
hereafter call the mortgagees) jointly were to send to Qu'Appelle
on the first of May, 1904, or sooner if deemed advisable, a man as
their joint representative, the salary and expenses of whom were
to be paid by the defendants; that the defendants were to turn over
to this man all stock on hand, open accounts, notes of hand, and all
other assets of the firm (meaning the firm of Gray and Smith);
that such representative was to proceed to convert the same into
cash, notes, notes received from sale of stock, and securities, and
remit the same semi-monthly to the Cockshutt Plow Company
(the plaintiffs), who were to act as trustees and to distribute^the
same as collected pro rata among the following creditors: —

The Cockshutt Plow Company claim $12,578.00

The Fairchild Company claim 7,700. 20

Merrick & Anderson 1,720.00

Great West Saddlery Company 900.00

Mrs. Raymond 300.00

The division of cash receipts was to be made on the first day of
each month between those five creditors, and it provided that, in
consideration of the defendant Smith executing a mortgage to the
mortgagees jointly on certain lands, the mortgagees agreed to
extend the time of payment of Gray and Smith's present
indebtedness to the first of January, 1905. These half sections
are not mentioned in the mortgage on which this action
was brought; that mortgage embraces only lots situated in the
town of Qu'Appelle. The mortgage in question sets out the in-
debtedness to the mortgagees respectively as stated in the trust
agreement, making the total amount of the mortgage $20,278.20.
There can be no doubt that the money secured to the mortgagees
by the mortgage in question was the indebtedness alleged to be due
to them respectively by the trust agreement.

Gray's counsel insisted before the Local Registrar that he

469

Wetmon, CJ.

1909

CJockshutt'
Plow Co.

Gray ic
Smith.

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should take an account of the moneys received by the plaintiffs as
trustees under the trust agreement. The Local Registrar refused
to do so, holding that he was only at liberty under the order to take
an account of the moneys received by the mortgagees under the
mortgage. I am of opmion that the Local R^istrar was not correct
in this respect. So far as I can gather, nothing was ever heard of
this trust agreement until after the Local Registrar opened his
inquiry. Although the defendant Gray appeared, as I have stated,
and pleaded, he never set up the trust agreement or claimed that
the plaintiffs were entitled to account under it; he never set up
before Lamont, J., any such claim, and the matter of taking an
account imder the trust agreement was not specially referred to the
Local Registrar. It was urged on behalf of the plaintiffs that
by reason of the facts just mentioned the Local Registrar could not
go into the matter of the receipts and accounts arising out of the
trust agreement, and Sanguinetti v. Stuckey^s Banking Co. (1896),
1 Ch. 502, 65 L.J.Ch. 340, 74 L.T. 269, was cited in support of that
contention. The headnote of that case is as follows: "Any special
circumstance or fact affecting the amount due from the mortgagor
to the mortgagee in a foreclosure action — such as a valuation of
the security in bankruptcy — should be pleaded, or brought to the
attention of the Court, before the usual foreclosure judgment is
made, in order that a direction may be given to the chief clerk to
have regard, in taking the account, to such special circumstance
or fact; if this is not done at the trial no such question can be
subsequently raised on taking the account." That case was
decided by a single Judge, but a very able one. I am not by any
means confident that the judgment bears out the headnote to the
very general extent specified in such headnote, or that the judgment
can be taken to support the plaintiffs' contention. If it can I am
unable to follow it. But I conceive that there is a distinction to be
drawn between that case and this one. In the Sanguinetti case the
.special circumstance that arose was the question of the valuation
of a security in bankruptcy. The special circumstance that arises
in the case I am now considering is the amount that ought to have
been paid or considered as paid an amount of the mortgage. Sup-
pose the defendant Gray had not appeared or pleaded at all, and
application had been made for foreclosure and sale, what would
have been liable to happen? The first step to be taken would have

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been to ascertain the amount due under the mortgage. That
might have been done by the Judge himself by computing it under
the plaintiflFs' affidavits; he might have referred it to the Local
R^istrar or other officer to so compute; or he might have referred
it to the officer to hold an inquiry, and that without any request
from the defendant. I have frequently done so. In case a reference
had been made the defendant would have had a right to appear
before the officer and seek to establish that he was not credited
according to the plaintiffs with what he should have been credited.
When it is referred to an officer to take an account, as was done in
this case, the very object of the reference is to ascertain what was
due under the mortgage; that is, to ascertain how much was or
ought to have been credited and what balance is due after such
crediting, and what the mortgagor has got to pay to redeem. I
cannot see why on equitable principles the defendant should be
placed in a worse position because he appeared and pleaded. The
question is entirely one of finding the amount due on the mortgage.
In this case the trust agreement was made for the purpose of afford-
ing a means of raising money to apply on account of the claims of
the creditors mentioned therein, including the amounts secured by
the mortgage to the mortgagees. Although the mortgage and the
trust agreement were separate documents, they were, in my opinion,
one and the same transaction. Surely, then, when the Local Regis-
trar came to hold his inquiry the plaintiffs would be obliged to
account for and be charged on the mortgage with any amount they
received under that trust agreement and applied to such mortgage.
I apprehend that the Local R^istrar required that much when
holding his inquiry. (As a matter of fact he informs me that the
plaintiffs did credit the amounts they admitted so receiving and
applying.) Right on the threshold he had thrust upon him an
inquiry' as to what had been received under the trust agreement.
Was it open, then, to the plaintiffs to say to the Local Registrar:
You can go into this matter just so far as we choose to allow you,
but no further? Can the Cockshutt Plow Company, as the trustees,
say to the Cockshutt Plow Company, the mortgagees: We apply
so much of the moneys received by us as trustees on the mortgage
which we hold, and then prevent the mortgagee attempting to shew
that they had received more money as trustees than they have so
iipplied, and which ought to be applied to it? I must say that I

Wetmore. C.J.

1909

Cockshutt
Plow Co.

Gray &
Smith.

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cannot bring my mind to the conclusion that that would be equitable
or a proper accounting. I am quite well aware that the going into
the receipts under the trust agreement will involve a consideration
of the expenses of executing the trust and the pro rata amount after
deducting such expenses that the plaintiffs would be liable to have
charged against them on the mortgage. That cannot be helped.
It is possibly the unfortunate position the plaintiffs have got them-
selves in by acciBpting a trust which was to be executed laigely for
their own benefit. If some indifferent trustee had been elected
probably this matter might not have got in the position it is in.

The matter must be referred back to the Local Registrar to take
an account of the moneys received by the plaintiffs under the trust
agreement, or which ought to have been so received except for the
plaintiffs' default, and if any moneys were so received other than
what have been already charged against the plainti£fs on the
mortgage, or any moneys which ought to have been received except
for their default, to charge the same against the mortgage amount
pro rata according to the terms of the trust agreement.

1909

[IN CHAMBERS.]
Canada Permanent Mortgage Corporation v. Martin et al.

I^- 11- Mortgage

-Sale Under — Charge for Taxes— Not Providedjor in Decree — Ltalnlr
iJty of Purchaser to Aseume — Effect of Land Titles Act.

Certain lands were sold under decree in an action under a mortgage for an
amount in excess of that due under the first mortga^. No mention was
made in the decree or at the sale of any claims to which the sale would be
subject, but it subsequently transpired that there was a lante amount due
for unpaid taxes. On a motion to distribute the money in Court, the pur-
chaser claimed that the amount of these taxes should be paid out of the fund
in Court: —

Held, that under the Land Titles Act a purchaser takes title subject to unpaid
taxes, and the sale therefore was subject to any amount due for taxes, and
the piu-chaser was not entitled to be reimbursed in respect thereof. hrf

This was an application for payment out of moneys in Court
after sale of land on a mortgage sale, and was argued before the
Chief Justice in Chambers.

T. S, McMarran, for the Canadian Port Huron Co. and other

defendants.

E. B. Jonahj for the creditors.
H. E. Sampson, for the purchaser.

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December 11. Wetmore, C.J.: — ^This is an application on be-
half of the defendant the Canadian Port Huron Co. to have certain
moneys paid into Court paid out to them to the extent of their
claim and costs. Two actions were brought to foreclose mortgages
held by the plaintiffs, one against the south-east quarter of section
32-9-14, west 2 meridian, and the other against the south-west
quarter of the same section respectively. The properties were
sold under decrees of the Court, and the claim of the plaintiffs on
their mortgage was satisfied, and a balance remained of $2,787.23
in the whole realized from the sale of both properties. The Port
Huron Co. had a second mortgage which covered both the quarter
sections. The other defendants are execution creditors whose
executions were roistered subsequent to the mortgage of the
Canadian Port Huron Co. Wilson, who purchased both the quarter
sections, claims that he should be paid out of the money in Court
$217.48 standing as a charge against both quarter sections under
the Noxious Weeds Ordinance, ch. 24 of 1903. The orders for sale
directed that, in default of payment of the amounts assessed as
due under the mortgages, " the mortgaged property should be sold."
An affidavit of Wilson's was read in which he stated that at the
time of the sale nothing was said by the officer under whose direc-
tions the sale was made, or by the auctioneer, that the sale was
made subject to any charge whatever, and that he was not aware
that any charge was against the land. Some Ontario cases were
cited to me, and it was urged that they supported the proposition
that the purchaser was entitled to get the property discharged
from these taxes, and TurrUl v. TurriUy 7 Prac. R. (Ont.) 142,
was especially relied on. That case certainly appears to go the
length. I am not prepared to say that the others do. I am of
opinion, however, that these authorities are not applicable in this
Province, where the Land Titles Act (ch. 24 of 1906) is in force.
It is stated sometimes that that Act deals entirely with matters of
registration.. I am of opinion that that is not correct. It un-
doubtedly was intended to and does deal largely with matters
respecting the registration of land titles, but it also deals to some
considerable extent with the question of title. For instance, the
Act provides for the issuing of certificates of title to the owner,
and that if there are any registered mortgages or encumbrances
or notices authorized by the Act, or executions, that they shall be

Wetmore. C.J,
1909

Canada
Permanent
mortqaob

Corpor-
ation

Martin

ETAL.

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Permanent
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CJORPOR-

ATION

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ET AL.

noted on the certificate of ownership so issued, and that the owner
takes his title subject only to the mortgages, etc., so noted on the
certificate, except as stated in sec. 76 of the Act. That section
provides as follows: "The land mentioned in any certificate of title
granted under this Act shall, by implication and without any
special mention therein, unless the contrary is expressly declared
therein, be subject to ... (b) All unpaid taxes."

When a suit is brought to foreclose a mortgage given upon land
which has been brought under the Land Titles Act (as the mortgages
in this case were) , a mortgagee from the owner takes his r^ht subject
to what appears upon the certificate of title, and of course subject to
taxes and the other matters mentioned in sec. 76, if any. The
Court in decreeing a sale can only take notice of what appears
on the abstract of title received from the R^istrar of Land Titles,
and any charge for unpaid taxes would not appear on that. If
there is a prior encumbrance, mortgage, etc., the order of sale
will direct that the sale shall be subject to such prior encumbrance,
mortgage, etc. A purchaser under the order of sale will, however,
acquire the titles and rights of the owner or mortgagor and of all
parties whose rights or titles are duly registered, and in point of
time subsequent to the mortgage proceeded upon, provided of course
that all the subsequent parties have been brought before the Court,
and it is the practice of the Judges to require an abstract of title
for the purpose of ascertaining whether the proper parties who
may be bound by the decree are brought before the Court. The
Court, however, is not bound or called upon to insist upon in-
formation or proof respecting charges such as those mentioned in
sec. 76, and which are not registered. Every intending purchaser
is informed by the order for sale whether the land is to be sold
subject to other roistered mortgages, etc., or not, but he has no
knowledge from the order whether it is subject to a charge for taxes
or not. But every person is supposed to know the law, and an
intending purchaser must take notice that the property may be
charged at the time of sale with a charge for taxes. There is a
place where it can be found out whether there are any such charges
or not, and he must make inquiry there. If there are such chaises,
and whether he inquires or not, he is bound to take notice that such
charges exist, and whatever he purchases therefore is subject to
such charges. If it turns out that he has not made proper inquiries.

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and purchases without doing so, and that there are such charges,
he has got to take the land subject thereto. That, in my opinion,
is the intention and purview of the Act. It seems to me that it is
not imreasonable. Take this very case, for instance: The plaintiff
had leave to bid. It was natural that other -mortgagees would
attend to protect their securities and see if the land was worth it
and that they did not lose the benefit of such securities by its
being knocked down below its value, and they have the right to
bid. In this case the land realized more than the plaintiffs' claim.
It is fair to assume that the Port Huron Co., the next registered
mortgagee, would be present to see that the property was bid up
to the amount of their mortgage at least, and over, so as to make
them secure, and if the^ defendant had not bid the price for which
the property was knocked down to him they might have done so
and taken the property. Again: Another bidder may be present
at the sale who is aware of the encumbrance by virtue of the taxes,
and prepared to go to the extent of his last bid, possibly a few
dollars below that which the purchaser has bid; the purchaser by
going h^her puts him out. If the purchaser had not bid over his
laist bid he was prepared to take the land subject to the charge.
Surely under such circumstances it does not lie in the purchaser's
mouth to turn around and say, **I did not know there was an en-
cumbrance upon this land; if I had known it I would not have bid
so much."

Of course counsel for Wilson uiged that the taxes in question
were a chaige against the land. These taxes were S6.48 for the
year 1908, and $211 for the year 1909. Section 13 of the Ordinance
provides that any amount which has been expended for the purposes
mentioned by the Ordinance in destroying or disposing of noxious
weeds "which has not been satisfied on or before the 1st day of
January next following its expenditure shall be added to and form
part of the local improvement assessment of such lands in all
respects as if it were an original tax, and it shall have the same
effect on the land and may be recovered in any of the modes avail-
able for the recovery of such taxes." It was not questioned that
the taxes for the year 1908 are a charge on the land. That was no
disputed, but it was claimed that the taxes for 1909 are not a
charge and would not become so until January 1st, 1910. I do not
consider it necessary to decide that question. If they are a charge

Wetmore, O.J.

1900

Canada
Permanent
Mortgage
Corpor-
ation

BfARTIN

ST AL.

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mobtgagb

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JOT AL.

on the land, under my judgment Wilson has got to assume it; if
they were not a charge on the land at the time of the sale, then it is
clear from any standpoint that the amount should not be dischaiged
out of the moneys paid into Court.

The order wilt be that out of the moneys paid into Court alto-
gether in both suits the Canadian Port Huron Co. be paid to the
extent of their claim and costs of both suits and of this application;
and that the balance, if any, be distributed fro rata among the
execution creditors according to the amounts of their respective
claims. But the paying out under this order will be stayed for
fifteen days from this date in order to allow Wilson an opportunity
to appeal from this judgment if he desires to do so.

1909
Deo. 27.

[TRIAL.]

Jaoger v. Turner & Co.

AasignmenU and Preferences — Proof of Ineolvenqf— Inability to Pay MfU—
Preferential Aaeigninent — Knotdedge of Insolveney.

Defendants, just prior to the assiffnment for the benefit of crediton by a
debtor of the defendants, secured an order from the debtor for payment to
them of a portion of the moneys payable on the sale of his business, of
which they subsequently obtained payment. The debtor havin|| shortly
afterwards made an assignment to the plaintiff for the benefit of his credit-
ors, the assignee brought an action to secure the return of the money so
paid. It appeared tlmt the defendants had knowledge of the insolvent
condition of the debtor at the time of the giving of the order. The debtor
was not available at the trial to give evidence, and no direct evidence of
insolvencv could be given. It appeared, however, that for some time
prior to the assignment he had been unable to pay his debts in full, and the
assignee shewed that the liabilities exceeded the assets which had come
into his hands: —

Held, that the evidence was sufficient to establish that the debtor was unable to
pay his debts in full, and the defendants being aware of this, and the assign-
ment of the money to them having the effect of giving them a preference,
the assignment of such money should be set aside and the plamtiff have
judgment for the amount paicl.

This was an action to recover certain moneys paid to defendant
by a debtor when in insolvent circumstances, and was tried before
Johnstone, J., at Moose Jaw.

W. 5. WiUoughby, for the plaintiff.
G. E. Taylor, for the defendant.

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December 27. Johnstone, J.: — ^The plaintiff is an official as-
signee under the Assignments Act, and sues as such assignee.

On the 6th day of February, 1909, one Howard W. McConnell,
merchant, of Moose Jaw, carrying on business under the name and
style of "McConnell Brothers," claiming to be at the time in in-
solvent circumstances and unable to pay his debts in full, made
an assignment of his estate under the said Act to the plaintiff for
the benefit of his creditors.

Prior to the 18th January, 1909, one T. J. McCammon, also a
merchant of Moose Jaw, became indebted to the said McConnell
in a sum exceeding $1,514.39, the purchase price of the business
of McConnell Brothers sold to him by the said McConnell, and on
the said date McConnell, at the request of McCammon, signed a
dociunent in the following words: —
"T. J. McCammon, Esquire, —

** Please pay to James Turner & Co. Ltd., the sum of $1,514.39 full
of account out of the balance of purchase money due by you to me
in payment of the above account less proper reductions. Dated
January 18th, 1909."

The amount called for by this order was subsequently paid by
McCammon to the defendants, and the plaintiff allies in the
statement of claim that McConnell on the date referred to was in
insolvent circumstances and unable to pay his debts in full, and
with such knowledge, and with intent to give the defendants a pref-
erence over his other creditors, signed the said order, and the plain-
tiff claimed that as the assignment for the benefit of creditors had
been executed within sixty days after the signing of the said order
in favour of the defendants, the making of the said order constituted
a fraudulent preference under the Assignments Act, and was void
against the plaintiff and the creditors of H. W. McConnell. The
plaintiff claimed judgment of this Court declaring said order of the
18th January and the payments thereunder to be a fraudulent
preference within the Assignments Act and void, and the plaintiff
further claimed judgment for the payment of the said moneys by
the defendants to the plaintiff, as assignee.

The defendants contended that the order of the 18th January
made by the said Howard W. McConnell was not a fraudulent prefer-
ence or made with intent to prefer these defendants, nor had it that
effect, nor w^as it made at a time when McConnell was in insolvent

Johnstone, J.

1900

Jaggbr

Turner k
Co.

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circumstances or unable to pay his debts in full, or knowii^ that he
was on the eve of insolvency, and for these and other reasons did
not constitute a fraudulent preference under the said Act.

The trial of the action took place before me at Moose Jaw on
the nth day of October, 1909, and judgment was reserved.

At the conclusion of the trial I had some doubt as to whether
as against the defendants there was sufficient evidence of insolvency
of McConnell at the time of the giving of the order referred to.
I now think, however, the evidence amply sufficient to warrant
me in finding that at the time of the giving of the order by Mc-
Connell to the defendants, namely, on the 18th day of January,
1909, H. W. McConnell was unable to pay his debts in full and was
insolvent, and that the giving of the said order had the eflfect of
giving to the defendants a preference over the other creditors of
McConnell, and I so find.

McConnell, it was shewn, was absent from the Province at the
time of the trial, and that his attendance at the trial to give evidence
could not be secured; there was therefore no direct evidence as to
his insolvency, but his financial condition had to be gathered from
his acts and the surroundings.

It appears McConnell, on April 10th, 1908, purchased from one
T. J. McCammon, of Moose Jaw, the person already referred to,
all the stock-in-trade, good-will, etc., of the latter, at and for the
price of $10,722, on terms that he, McConnell, should pay for same
in certain stipulated sums on certain named dates. According
to the statement of the brother of H. W. McConnell, who claimed
to have had at one time an interest in the business, and who was
employed in the store and had a knowledge of the financial standing
of his brother H. W. McConnell, there was put into the business by
the brothers, in all, the sum of $3,000. Calls for money were
frequently made upon H. W. McConnell during the fail and winter
of 1908 up to the time of his assignment by McCammon and his
other creditors, without avail; the invariable reason for non-
payment given by the debtor being his inability to pay, and for
which reason McCammon on the 6th day of January, 1909, obtained
from McConnell, who was still indebted to him in a large sum of
money, a return by way of sale of all the stock-in-trade of the
business carried on by the latter, including good-will, etc. Mc-
Connell, on the 6th January, 1909, and for some time prior thereto.

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had been unable to pay certain promissory notes given by him to
the defendants in payment of goods purchased from them, as well
as moneys due other of his creditors. On several occasions during
the months of December, 1908, and January, 1909, McConnell
admitted his insolvency, and the official assignee's statement shews
the liabilities of McConnell to have been S6,464, as against $2,223.93
assets.

There is no real distinction between being in insolvent circum-
stances and being unable to pay debts in full: see Dominion
Bank v. Cowan, 14 O.R. 465; Bertrand v. Canadian Rubber Co.,
12 M.R. 27, Killam, J., 29. In National Bank of Australia v.
Morris (1892), A.C. 287, at p. 290 (a case arising under the pro-
visions of the Insolvency Acts, 5 Vict., ch. 17, and amendments,
whereby it was enacted that every payment made by a debtor to his
creditor, except in certain cases mentioned, should be a valid pay-
ment, provided such creditor should not at the time of payment
have known that the debtor was then insolvent), it was said:
"If the creditor who receives payment has knowledge of circum-
stances from which ordinary men of business would conclude that
the debtor is unable to meet his liabilities, he knows, within the
meaning of the Act, that the debtor is insolvent."

On the 31st December, 1908, a letter was written by McCammon
to the defendants (which letter, by the way, was not produced at
the trial, nor a press copy thereof obtained, although time was
given for its production), from which and the reply thereto, and
from subsequent letters and communications between Turner &
Co. and McCammon, it must be inferred that the defendants knew
perfectly well McConnell was in insolvent circumstances, or on the
eve of insolvency. No other reasonable conclusion could be arrived
at. The letter of the 5th January, in reply to that of 31st De-
cember, reads as follows:

"Hamilton, Jan. 5, '09.
"Mr. T.J. McCammon,

*' Moose Jaw, Sask.
It jwir Sir* * ^^ McConnell Brothers,

''Your esteemed favour of 31st ult. reached us yesterday and
while we'r^ret the state of affairs referred to, we thank you very
much for the information given us. Not having received a wire

31— VOL. n. 8X.B.

Johjutone, J.

1009

Jagger

Turner A
Ck).

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fjAGOER
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;Turneb&
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from^your good self since, we p^-esume you have failed so far in
arranging to purchase the business, and of course if an assignment
is made we would be unable to take any steps with regard to pro-
tecting ourselves, other than filing our claim in the usual manner
with the ajBsignee. They are owing us at present time about $1,500.
part of which is overdue and we are quite willing to leave the matter
in your hands to protect our interest as far as possible. Of course
if we should receive a wire before hearing further by letter we will
do what we can in way of issuing garnishee proceedings, should a
sale of the stock take place to your good self.
"Thanking you again, we are

"Yours truly,
" (Sgd.) James Turner & Co. Limited."

Again, on the 15th of January, the defendants wrote to Mc-
Canmion as follows:

"Hamilton, Jan. 15, 1909.
"Mr. T. J. McCammon,

"Moose Jaw, Sask.

"Dear Sir' "^ McConnell Bros.

"Your esteemed favour of 11th inst. reached us this morning
and we also have your telegram dated 14th inst., me., ' You must
act quick if you want protection,' to which we have replied per
press copy herewith and now confirm.

"We now enclose statement in full of account with acceptances
due 8th and 22nd Oct., 22nd Dec. and 6th Jan. You will see there
is one amount to mature on 21st inst. and we have instructed our
bank to advise Moose Jaw to hand this over to you if unpaid at
maturity.

" We would ask you to hand this statement and vouchers to your
solicitor at once with instructions to garnishee money in your hands
for purchase of stock from above firm.

"Trusting this matter will have your kind and prompt attention
and thanking you for the interest you have taken on our behalf.

" We are, yours truly,
" (Sgd.) James Turner & Co. Limited.''

I think this case is entirely distinguishable from that of Newton
V. LiUey (1906), 16 Man. L.R. 39, 3 W.L.R. 537, referred to by

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defendant's counsel. There it was held, upon the evidence, that
the creditor did not know and had not sufficient reason for believing
the debtors were unable to meet their liabilities at the time the
transaction attacked was entered into, whereas in the case now
under consideration I hold the contrary. In the Newton case it
appeared the transaction was made between the parties in good
faith, and there was no intention on the part of the debtor to give,
or the creditor to receive, a preference over the other creditors.
In this case I think this intention to prefer was present on the 18th
January as to both the creditor and the debtor.

There will therefore be judgment declaring the order in question
and the payment thereunder to the defendants for the reasons above
set out void as against the plaintiff, and the plaintiff will be, and he
is hereby declared, entitled to judgment against the defendants for
$1,514.39; the plaintiff to have the costs of the action.

Johnstono. J.

1909

Jaoobr

Turner &
Co.

[TRIAL.]

Brownsberger v. Harvey.

SdU of Goods — AgreemenJt in WHHng—CoUateral Verbal AgreemerU — Evi-
dence of — Admiaeibiliiy.

Plaintiff sued to recover the price of a threshing machine, for which the
defendants had given a lien note. The defendant pleaded that they signed
the note on the express verbal understanding that the plaintiff should
finnish all necessary repairs to put the machine in good condition: —

Held, that evidence was admissible to shew that a written contract was subject
to a collateral verbal agreement.

This was an actionTto recover the price of a threshing outfit
for which the defendants gave a lien note, and was tried by the
Chief Justice at Regina.

H. V. BigeloWf for the plaintiff.
J. F. Frame, for the defendant.

December 29. Wetmore, C.J.: — ^The defendants purchased
from the plaintiffs a 10-h.p. Waterous engine and one 28-inch
cylinder Premier separator, for $500, and on the 17th September,
1903, they gave two lien notes therefor, one for $300, payable on
the 1st December, 1903, the other for $200, payable on the 1st

1909
Dec. 29.

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Browns-

BERGER
V,

Harvey.

December, 1904, and these notes specified that they were given for
the engine and separator above mentioned. The action is brought
upon those notes.

The defendants took possession of this property before the order
therefor was given or the lien notes signed. The order was in
writing, but has been lost, and when the plaintiff was asked as to its
contents gave them in a most unsatisfactory character. There is
a good deal of evidence as to what was not in it, but there is prac-
tically no evidence to shew what was in it.

The defendants set up that there was a verbal agreement by
which the plaintiff agreed to furnish certain repairs and necessary
things to make the machinery work properly, and that if after being
tested it did not work properly they would be at liberty to return
it and would not be requested to pay the price charged for it, which
was represented by the notes.

It is quite evident that there was d collateral verbal agreement
to the written order, and which was recognized as existing by the
plaintiff himself.

The plaintiff testified: ^'I was to furnish repairs to put in run-
ning shape. That meant fit for threshing grain . . . that a
man could make wages on it." On cross-examination he was
asked cat^orically whether he had not promised to supply certain
specified repairs and parts, some of which he admitted that he had
^reed to supply, some of which he denied, and some of which be
stated that he did not remember. Those on the list which he
denied agreeing to supply were very few. Those with respect to
which he did not remember were comparatively numerous. The
difficulty is, however, that while the plaintiff does not remember,
the defendants do, and they state specificaUy what those articles
were. Consequently, with the exception of one or two articles so
denied by the plaintiff, the defendants' testimony stands uncon-
tradicted in respect to the items that were specified by them as
being required when they signed the order for the machine, and
the notes. The plaintiff testified that the things mentioned, what-
ever they were, were the things which he i^reed to furnish at the
time that the order was so signed and the notes given as being
necessary to put the machine in running shape.

So far, therefore, as this phase of the case is concerned, there is
no difficulty in reaching a conclusion, because the plaintiff has prac-

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B TOWNS-
BERG ER

r.
Harvey.

tically admitted it. A great many of the things agreed to be weunore^aj.
furnished were not furnished. The evidence establishes to my 1909
satisfaction that the machine did not work satisfactorily. It did
not work so as to enable the defendants to make wages by it at aU.
There was evidence that pointed in the direction that the machine
did not work properly because it was not properly handled; that
after it was returned it was sold to another person without any
further repairs being put upon it, and it worked, for a second-rate
machine (as this machine was), very satisfactorily. But it cer-
tainly did not work properly in the hands of the defendants.

I do not feel called upon in this case to decide whether the
reason for the machine not working satisfactorily was because the
defendants did not know how to handle it or not, or whether it
worked satisfactorily in the hands of the purchaser from the plain-
tiff, because the weight of evidence establishes to my satisfaction,
looking at the reasonable probabilities of the case (and in this
particular I have nothing else to guide me except the testimony
of the two defendants on the one hand and the plaintiff on the
other), that it was part of the agreement that if after a fair test
the machine would not do its work properly it might be returned.

I find that the machine not working satisfactorily the de-
fendants did return it, and the plaintiff received it and resold it.
The plaintiff having so received it puts an end of all necessity for
an inquiry as to what was the cause of its not working, or as to
whether it was returned in time or not.

I may say, in conclusion, that this case is really one entirely
of fact. The question whether a binding verbal agreement of the
character. I find existed in this case can be made, where there has
been a written agreement, has been discussed by me in two or
three cases decided recently. Here I find the plaintiff agreed and
did sign the notes and the order for the machine on the express
understanding and in consideration of the promise made to furnish
these repairs and parts. I draw attention to Cross et at. v. Douglas
decided by the Court en banc at its last sittings. I delivered
a dissenting judgment in that case, but I am of opinion that this
caae comes directly within Lindley v. Lacey (1864), 17 C.B.N.S.
578, cited by me in that judgment.

There will be judgment for the defendants with costs.

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[TRIAL.]

1909 Banton V. March Bros. & Wells.

Dec 31. Vendor and Purchaser — Specific Performance — Action for — Refusal to Execute
Transfer to Nominee of Purchaser — CanceUaHon of Contract — Right of
Purchaser to Repayment of Instalments Paid.

Plainti£f purchased oertain land from defendant and paid a portion of the
purchase price thereon, and went into possession. The purchaser being in
default under the agreement, the defendants served notice of cancellation
under the terms of the contract. The plaintiff then procured a third party
to make a tender of the purchase price, and demanded that the defendants
execute a transfer to sucn third person. There was at that time no assign-
ment of the original contract to the plaintiff's nominee, nor was the orismal
contract produced, and there were to the knowledge of the defendants
executions against the land of the plaintiff. The defendants refused to
execute the transfer, and retained the money paid by plaintiff, who sued
for specific performance, or return of the purchase money paid: —

Held, that there was no tender by the plaintiff, and the defendants were
under the circumstances justified in refusing to execute the transfer to
plaintiff's nominee, and the plaintiff was not entitled to specific performance.

2. That, following Hall v. TumbuU (1909), 2 Sask. L.R. 89, the plaintiff was
entitled to a return of the purchase money paid on account of the sale.

This was an action for specific performance of a contract for
sale of land, and was tried before Johnstone, J., at Yorkton.

C. D. Livingstone^ for the plaintiff.
W. R. Parsons, for the defendant.

December 31. Johnstone, J.: — The plaintiffs claim that on
the 8th day of December, 1905, the defendants agreed to sell to him
and he agreed to buy the south half 32-20-30 west of the first meri-
dian in the Province of Saskatchewan, for the sum of $3,200, S600
of which it was agreed should be and was in fact paid in cash; a
further sum of $325 on or before the 1st day of December, 1906,
and a similar sum on the 1st December in each and every of the years
1907 to 1913 inclusive, together with interest at six per cent, per
annum. The agreement referred to, exhibit A, amongst other
provisions, contained the following provisions: —

*'And the purchaser, in consideration of the premises aforesaid,
hereby covenants and agrees with the vendor to pay the purchase
money and interest thereon to the vendor at the times and on the
terms above mentioned, and that, on default in payment of any
instalment of interest, such interest shall at once become principal
and bear interest at the rate aforesaid. Provided that in the case

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of default in the payment of any instalment of either principal or
interest or taxes of any kind tha whole of the principal sum and
interest thereon and taxes then remaining unpaid on this contract
shall at once become due and payable.

*'The purchaser further agrees and covenants to pay and dis-
charge, on or before January 1st, in each year, all taxes, liens, rates
^nd assessments, whether municipal, Parliamentary or otherwise
wherewith the said lands may be rated or charged, and that he will,
on or before February 1st in each year, leave with the vendor a
receipt for the payment of all said taxes, liens, rates and assessments
upon said lands and in default of payment as aforesaid, the vendor
may pay the same and the sum so paid shall be deemed to be secured
hereby and shall be, without demand, payable forthwith with interest
at the rate herein provided. All buildings and improvements now
on said lands, or that shall hereafter be placed thereon shall not
be removed therefrom, but shall be and remain the property of the
vendor until this agreement shall be fully performed by the pur-
chaser. If the purchaser shall pay the several sums of money and
interest thereon and the taxes as aforesaid, strictly at the times
above limited, and shall faithfully and promptly perform each and
every of said covenants and agreements by him to be performed,
the vendor will, upon request and surrender of this agreement,
execute and deliver to the said purchaser, or his approved assigns,
a good and sufficient deed or transfer of said land.

'*And it is further agreed that if the purchaser shall fail to make
the payments of principal or interest aforesaid, or any of them, or
the taxes, strictly at the times above limited, or shall fail in the
performance of any of the covenants, or agreements herein con-
tained, then, and in such case, the vendor shall have the right,
at any time, to declare the whole amount remaining unpaid upon
this contract due and payable and to take action to collect the same
and to deliver to the purchaser a deed to said land when all of said
sums are collected or in place of the forgoing to declare this agree-
ment null and void by giving thirty days' notice in writing to that
effect, personally served upon the purchaser or mailed in a regis-
tered letter addressed to him at the post-office named below, and
all rights and interests hereby created or then existing in favour of
the purchaser or his approved assigns, or derived under this agree-
ment shall thereupon cease and determine, and the premises hereby

Johnstone, J.
1909

BA-NTON

March!
Bros. &
Wells.

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agreed to be conveyed shall revert to and revest in the vendor,
without any further declaration or forfeiture or notice or act of
re-entry and .without any other act by the vendor to be performed,
or any suit or legal proceedings to be brought or taken and without
any right on the part of the said purchaser or his assigns to any
reclamation or recompensation for moneys paid thereon. No
assignment or transfer of any interest in or to* this agreement of.
the lands described, less than the whole thereof, will be recognized
by said vendor under any circumstances, or in any event whatever,
and no assignment shall be binding upon the vendor unless approved
by its authorised officers, and no assignment shall in any way relieve
or dischaiige the purchaser from liability to perform the covenants
and pay the moneys herein provided to be performed and paid.

"And it is further agreed that time is to be the very essence of
this agreement.

'* Except as herein other^'ise provided, this contract shall inure
to the benefit of the respective heirs, representatives, successors and
assigns of both parties."

The plaintiff went into possession of the lands in question on
the 8th day of May, 1905, and remained in possession until the sum-
mer of 1909, and until after the issue of the writ, when he quit
possession. Save as to the $600, nothing further was paid by the
plaintiff on account of the purchase money or interest, or for taxes,
and on the 7th day of April, 1909, the defendants caused to be
•delivered to him a notice of cancellation of the contract and de-
-claring the contract null and void.

On this date, one A. C. Matthews caused to be tendered to the
plaintiff the sum of $3,307.93, with a request from the plaintiff
that the defendant should deliver to the said Mathews a transfer
of the lands in question under the Land Titles Act. At the time of
the tender the agreement for sale had not been assigned to Mathews,
nor, as provided by the agreement for sale, was this document
produced at the time of the tender. This request is in the fol-
lowing words: —

"Messrs. March Bros. & Wells,

"Langenbui^, Sask.
"I hereby authorize and require you to issue a transfer of the
rfiouth half of section thirty-two (32), township twenty (20) in

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1900

B ANTON
V.

March
Bnos. &
Wells.

range thirty (30) west of the principal meridian in the Province of ^°^^"'^^' ^'
Saskatchewan in favour of Alonzo Charles Matthews, and I hereby
tender you the full amount due under the agreement of sale between
yourselves and me respecting the above-mentioned land.

"And take notice that in case you fail to deliver a transfer to the
said Alonzo Charles Matthews, an action will be brought for specific
performance within five days from date.

"Dated at Langenburg, Sask., this 21st day of April, 1909.

(Sgd.) Harry W. Banton."

There was never any assignment of the contract between the
plaintiff and the defendants to Matthews, nor was there any docu-
ment other than the above request which would enable Matthews
to claim an interest in the lands in question.

It was claimed by the defendants in their statement of defence,
and not denied, that certain executions against the plaintiff had
issued and had been registered against the lands of the plaintiff in
the land titles office for the r^istration district covering the lands
in question, and for the reason that Matthews had no assignment
of the interest of the plaintiff in the lands in question, and that the
duplicate of the agreement for sale between the plaintiff and the
defendants was not produced by Matthews at the time of the tender,
and because of the executions against the plaintiff having been
registered against the said lands the defendants refused to execute
the transfer.

The plaintiff asks for specific performance, or, in the alternative,
for a refund of the $600 paid by him on account of the purchase
money which the execution of the agreement referred to, but he
makes no other claim.

The defendants make no claim for mesne profits, and set up b}'
way of defence that this sum has been forfeited to them under the
provisions of the f^reement for sale.

In Sawyer & Massey v. Bennett (1909), 2 Sask. L.R. 516, which
was decided at the last sittings of the Court en banc in October,
1909, it was determined in case of a transfer from the purchaser
from the owner of the fee, under an agreement for sale, that although
an action could not be brought by the transf erree against the vendor,
(for specific performance) that where the purchase moneys and
interest had been paid, the tramsferrees could bring an action as

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equitable ass^ees against the vendors and the transferror declaring
the purchaser from the owners in fee simple a trustee for the trans-
ferrees, the plaintiffs in such action.

Apart from the question of the rights of the plaintiff, because
of his default in the payments under the agreement, there was no
tender by the plaintiff, and as Matthews was not his assignee, and
for the reason that the agreement between the plaintiff and the
vendors had not been produced, and for the further reason that
there were executions registered against the plaintiff to the know-
ledge of the defendants, in my opinion the defendants were justified
in refusing to sign the transfer.

At the time of tender the plaintiff was in possession of the lands
in question, and the contract between him and the defendants had
to be cancelled before action could be taken for recover>' of the
land, and I therefore think that the giving of the notice did not
operate as a waiver of any right to take advantage of the default
of the plaintiff.

In my opinion the plaintiff is not entitled to specific performance:
Wallace v. Hesslein (1898), 29 S.C.R. 171 (1908); BaUd v. Hudson
Bay (1908), 1 Sask. L.R. 169.

As to the right of the plaintiff to repayment of the $600 paid by
him on the execution of the agreement for sale, I agree with the
conclusion arrived at by my brother Newlands in Hall v. TurnbuU
(1909), 2 Sask. L.R. 89. I might also refer to The Public Works
Commissioner v. Hill (1906), A.C., p. 368.

There will therefore be judgment for the plaintiff for $600, with
the general costs of the action, but no costs of the claim for specific
performance.

The defendants will be entitled to the costs occasioned through
the claim for specific performance and of the issue thereof. There
will be one taxation, and the amount found to be due to the de-
fendants on account of their costs to be deducted from the costs
of the plaintiff; the plaintiff to have judgment for $600 and the
balance and costs found due them on taxation.

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[TRIAL.]

Hudson* v. Fletcher et al.
Belcher v. Hudson et al.

Company — Sale of Property — Resolution Authorizing Conveyance — Non-com-
pliance with Provisions of — Conveyance Invalid — Seizure by Sheriff —
Breaking Open Door — Premises Occupied as Dwelling and Store — No Con-
nectian Between — Right of Sheriff to Break — Effect of Unlawful Entry upon
Seizure — Claim to Goods Seized — Subsequent Claim to Other Goods —
Estoppel — Insolvency — Fraudulent Conveyance.

The Mortlach Mercantile Ck)mpany being indebted to several parties, the de-
fendant Belcher was appointed a trustee for creditors, and with his consent
the business was transferred to a company known as Hudsons Ltd., which
agreed to assume the liabilities of the previous company and to pay the
same in regular payments. The new company being behind with its
payments, a resolution was passed authorizing the sale of the business and
conveyance thereof to J. W. Hudson upon execution of certain notes, which
it was found as a fact were never made. Notwithstanding, the conveyances
were made by the ofHoers of the company, and Hudson went into possession.
After the delivery of these documents Belcher recovered judgment against
the company, and execution was issued to the sheriff, the defendant Fletcher,
who issued a warrant for seizure. The plaintiff Hudson at this time lived
over the store premises in which the business was carried on. When the
bailiff arrived he found the store premises locked and Hudson refused to
open, whereupon the bailiff forced an entrance. There was no connection
between the living apartments and the store premises. After the seizure
Hudson first verbally claimed all the goods as his. Subsequently, however,
he filed a written claim, which was admitted. In an action for wrongful
seizure he alleged other goods were his, and claimed damages.

In an action to set aside the conveyance of the land, it appeared that at the
time of the transfer Belcher was pressing his claim, that other claims were
outstanding, that the goods were mortgaged in a considerable simi. and
that the assets if sold would be insufficient to meet the liabilities, ana that
Hudson must have been aware of the state of affairs: —

Held, that the notes to be given in payment of the goods not being delivered,
the conveyance thereof to Hudson was not in accordance with the resolu-
tion of the company authorizing it, and was therefore invalid j and the
property in the goods never passed to him.

2. That the store and dwelling, while not comiected, being under one roof,
the breaking by the sheriff ofthe door of the store premises was technically
a breaking of the dwelling, and therefore an unlawful breaking.

3. That Hudson having made a formal claim in writing to certain goods after
seizure, under the provisions of the rules of Court, could not afterwards
allege that other of the goods seized belonged to him, and maintain an
action for imlawful seizure in respect thereof.

4. That the company, at the time of the transfer of land to Hudson, beins
unable, if its assets were presently realized and if compelled to sell at a forced
sale, to pay its debts in full, must be deemed to have been insolvent at that
time, and Hudson being aware of this, and the conveyance to him being
apparently to defeat the creditors of the company, the conveyance must
be deemed to have been fraudulent under the Act respecting Assignments
and Preferences, and should be set aside.

The action was brought by plaintiff Hudson against the sheriff
for damages for unlawful seizure, and a further action was brought
by plaintiff Belcher against Hudson and others to set aside the

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1909 conveyance of the goods seized and of certain real estate to him as

Hudson being in fraud of creditors, and both actions were tried together at

^ ^- Moose Jaw before the Chief Justice.

Fletcher.

H. V. Bigelow, for Hudson.

Colin H, Campbelly K.C., and G, E, Taylor^ for the sheriff and

Belcher.

October 22. Wetmore, C.J.: — These two actions were tried
together. I will first deal with the action of

Hudson v. Fletcher et al.

The Mortlach Mercantile Company Limited was a company
carrying on a general mercantile business at Mortlach.

This company was composed of William J. White, Alexander

B. Hudson, and William T. Hudson, and these persons, on the Uth
of January, 1907, transferred their goods and chattels, which were
situated in a store hereinafter mentioned in this judgment, to Henry

C. Clements, in trust, practically, for the Hudsons Limited, upon
that company being properly incorporated, and the Hudsons Limited
agreeing to carry out the terms of assignment, which was to assume
and pay all debts and liabilities of the Mortlach Mercantile Company
for the approximate amounts as set out in the schedule annexed
to such assignment. Belcher became party to this assignment
for the purpose of assenting to it.

I will just state here that the gross amount of those debts was
$16,684.53.

The Hudsons Limited having become incorporated, Clements,
on the 2nd of February, 1907, assigned the property to them, they
agreeing to assume and pay all the debts and liabilities of the
Mortlach Mercantile Company above referred to.

Hudsons Limited entered into possession of this property, and
also the store in which it was situated.

Belcher, who is the plaintiff in Belcher v. Htidson et al., was the
trustee for the creditors to whom the Mortlach Mercantile Company
was indebted.

The plaintiff, Hudson, in the case of Hudson v. Fletcher el al..
was the president of Hudsons Limited.

By memorandum of agreement dated the 2nd of February,
between Hudsons Limited and Belcher, the company ^reed to

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pay the indebtedness of the Mortlach Mercantile Company, as
follows: $500 on the 15th February, 1907; $500 on the 15th of
March, 1907; $1,000 each month thereafter until the whole amount
was paid.

The Hudsons Limited made these payments for a time satisfac-
torily, but eventually they fell behind-hand, and, as a result. Belcher
brought an action against the company to recover the amounts for
which he was trustee, and on the 21st of April, 1908, recovered
judgment, upon admissions in the defendants' pleadings for
$1,010.60, being a portion of his claim. Execution was issued upon
this judgment, and the stock-in-trade of Hudsons Limited situated
in this store, seized, but the execution was satisfied by money
advanced by Cameron & Heap upon a mortgage on the property
and the note of Hudsons Limited, and the property was released
from seizure. Belcher, however, went on and recovered judgment
at the Moose Jaw sittings for the balance of his claim, being $3,387.22
and costs, and by leave of the Judge immediate execution was
ordered for the amount of such judgment. Execution was issued
accordingly against both lands and goods for the $3,387.22 on the
28th of May, and lodged forthwith in the hands of the sheriff, the
defendant Fletcher.

The plaintiff, Hudson, set up that before this execution was
lodged with the sheriff he had entered into an agreement with
Hudsons Limited whereby that company agreed to sell to him lots
1 and 2 in block No. 17, in the townsite of Mortlach, being the lots
on which the store is situated, and also lots Nos. 21 and 22 in the
same block. This alleged agreement is dated the 5th of May, 1908;
that he obtained a transfer from the company of this land on the
13th of May, 1908, and that a certificate of title thereto issued to
him on the 15th of May. He also claimed to have obtained from
Hudsons Limited an assignment of the stock and merchandise and
book accounts and general assets of that company, also dated the
5th of May.

In order to appreciate the character of the agreement, assign-
ment and transfer, I have got to state what took place between
J. W. Hudson and Hudsons Limited with the object of obtaining
the same.

The n^otiations, if I may so call them, that took place between
J. W. Hudson and Hudsons Limited, took place on the 4th of May,

Wetmore, O.J.

1900

Hudson

V,
Fl ETCHER.

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1908. The Hudsons Limited was composed of the following share-
holders: J. W. Hudson (who was president), W. T. Hudson (who
was secretary), A. C. Baker (vice-president), Nellie E. Baker (his
wife), Lottie Hudson (wife of W. T. Hudson), Theoline Hudson
(wife of A. B. Hudson), and C. L. Metcalf (wife of W. H. Metcalf).

No written notice was given caUing a meeting of shareholders
for the purpose of passing on the proposed transfer and assignments.

J. W. Hudson, W. T. Hudson and A. C. Baker were engaged
in the store on the 4th of May. A. B. Hudson was also there,
and W. H. Metcalf (who happened to be in town) was called in,
and the resolution, which I am about to set out, was passed.
Neither Nellie E. Baker or Lottie Hudson or Mrs. Metcalf were
present, and they had not received any notice of the proposed
meeting or of its object. A. B. Hudson professed to act for Theoline
his wife under a general proxy, and A. E. Baker for his wife (under
a similar proxy), Metcalf for his wife, and W. T. Hudson for his
wife. A messei^er was, two or three days afterwards, sent with a
copy of the resolution to Mrs. Baker, who signed it. These ladies
were never present at any meeting of shareholders at which any
such resolution was passed, or did they have any notice of such
meeting, as I have before stated.

I will not stop here to discuss whether under such circumstances
the resolution was valid or not, because from the view I take of the
pase it is not necessary to do so.

The resolution passed w^as as follows: —

^^Mortlach, May4th, 1908.

"A meeting of the shareholders of Hudsons Limited was held in
the roistered office of this company this day.

''Moved by Theoline Hudson, seconded by C. L. Metcalf:
That the offer of John W. Hudson to purchase the assets of Hudsons
Limited for $8,000, repayable $100 per month, with interest at six
per cent, per annum, payable yearly, with the privilege of paying
additional amounts from time to time, be and is hereby accepted,
and that an agreement for sale of the real property of Hudsons
Limited be executed in favour of John W. Hudson for $2,000,
repayable $40 per month, with interest at six per cent, per annum,
and that a bill of sale for the stock-in-trade, business, etc., of the
said Hudsons Limited be executed in favour of the said John

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W. Hudson for $6,000 repayable $60 per month, with interest at
six per cent, per annum, payable yearly, upon the said John W.
Hudson executing in favour of Hudsons Limited certain notes for
$6,000, repayable $60 per month, with interest at six per cent.,
payable yearly, and that upon execution of the said papers possession
will be delivered to the said John W. Hudson."

Acting in alleged pursuance of that resolution, the alleged
contract for sale of the lands hereinbefore mentioned was entered
into between Hudsons Limited and J. W. Hudson, the expressed
consideration being the sum of $2,000, payable in monthly instal-
ments of $40 each, as provided in the resolution, the first of such
instalments to come due on the 1st of July, 1908, with interest at
six per cent., and the balance was to be paid on the 1st of May in
each and every year, and it went on to provide that on payment
of such sums of money with interest as aforesaid, the vendo/ — that
is, the company — ^promised and agreed with the purchaser to convey
and assure, or cause to be conveyed or assured, to him, the said
parcels of land by deed or transfer.

Assuming that agreement to be a valid agreement, the condition
upon which the transfer was to be made was never filled, because
the payments .were not made, and therefore there was no authority
whatever for the transfer from Hudsons Limited to J. W. Hudson.

It will be observed that the resolution of the 4th of May author-
ising a sale of the stock-in-trade, business, etc., to be executed in
favour of J. W. Hudson, provided that it should be executed upon
Hudson executing in favour of the company certain notes for $6,000,
which notes were repayable (such was the expression used) at $60
per month of the $6,000 for which the stock-in-trade, etc., was to
be sold. J. W. Hudson never executed these notes. I doubt
whether, at the time the sheriff made the seizure hereinafter stated,
he had even executed one of them. He did sign four notes for
the amount of $240 in the whole, but that is all. It has not been
made to appear to my satisfaction when these notes were signed.
The alleged assignment or agreement to assign of the* 5th of May
in J. W. Hudson's favour (put in evidence) was therefore utterly
unwarranted by the resolution, and that being so, I hold, in so far
as the goods and other property embraced by that assignment are
concerned, that they did not pass, and the right of property therein
still remained in the Hudsons Limited.

Wetmore. OJ.

1909

Hudson

Fletcher.

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Upon the execution on the last-mentioned judgment, which I
have hereinbefore mentioned, being delivered to the sheriflf on the
28th of May, he sent them with a warrant to his bailiff, the de-
fendant Grant.

The goods were in the store on lots 1 and 2 before referred to.

The plaintiff, Hudson, lived above the store. It was his dwelling.
He had practically, I think, lived there before the alleged assign-
ments to him — ^that is, he sometimes stayed there and sometimes at
his farm. However, be that as it may, on the 29th of May, when
the bailiff entered the premises, he was living over the store. The
building was all under one roof. There were three entrances to the
store, two in front and one in the rear. All these entrances were
fastened. The bailiff went upstairs and interviewed Hudson, and
told him he had the executions and requested him to open the store,
and he .refused to do so. The bailiff then forced open one of the
outer doors of the store with a pry. It was fastened with some sort
of a catch over the door, but he forced this open and entered. I
hold that to be a breaking open of the store.

It is claimed, in the first place, against the defendants Fletcher
and Grant, that this entry was unlawful; that the dwelling-house
being over the store rendered the breaking of this outer door a
breaking of the outer door of the dwelling-house.

There was no communication in any way between the apart-
ments upstairs, which Hudson occupied as a dwelling-house, and
the store. This upstairs portion was reached by stairs, which were
outside the building altogether, through a door on the upstairs flat.
The question, therefore, arises, was this a breaking of the outer
door of the dwelling-house, because if it was the sheriff and his
bailiff were guilty of an unlawful entry, and would be responsible
in damages.

Were I to decide this question upon my own unaided judgment,
I think I would have little difficulty in reaching the conclusion that
the sheriff's bailiff was justified in entering this building in the way
he did. In Lee v. Gansely Cowp. 1, Lord Mansfield, C.J., in
delivering the judgment of the Court, states at p. 6 the reason for
the law that the outer door of a man's dwelling-house may not be
broken open to execute process. He says: **This has been long
and well understood. The ground of it is this: that otherwise the
consequences would be fatal, for it would leave the family within

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naked and exposed to thieves and robbers." It seems to me that
in a building situated as the one in question, the family living up-
stairs would be no more exposed to thieves and robbers by one of
the doors of the store beijig forced open than they were before such
breaking, because the thieves and robbers could not get into the
dwelling part of the buildii^ from the store. I am satisfied that
as the law now stands, by virtue of recent enactments both here and
in England, the breaking and entry of a store situated as this one
would not constitute burglary. But, assuming that, I could not
be aided in this matter by the consideration whether this store was
a dwelling-house so as to make it the subject of a bui^glary under
the statutes: I must be governed by the conmion law and not the
statute law. Hodder v. WiUiama (1895), 2 Q.B. 663, 65 L.J.Q.B.
70, 73 L.T. 394, is the latest case I can find dealing with the question
of what building may be broken into through the outer door to exe-
cute process. In that case the sheriBf's bailiff broke open the outer
door of a building occupied as a workshop and for storage of goods,
no one living in it and it not being connected with the dwelling-
house; the Court held that the breaking was justifiable. The
authorities bearing on the question, from Lemayne's Case, 1
Smith L.C., 9th ed., 99, down, were discussed, and while the Court
held, as I have stated, that the breaking of the outer door of that
building was justifiable, the several Judges very clearly laid down
that they so held because the rule did not include buildings not
connected with the dwelling-house. Lord Esher, M.R., at p. 666,
says: *'It seems clear that 'house' in that maxim means 'dwelling-
house' and does not include other buildings such as hams or ovi-
houses not connected with a dwelling-house," and Lopes, L.J., at
p. 667, says: "It has frequently been stated as the law that this
privil^e only extends to the dwelling-house, and not to a bam or
other building not connected with or within the curtilage of the
dwelling-house . . . The doctrine relied upon has never been
supposed to apply to anything but a dwelling-house, and has never
operated to pr^ent a sheriff fromjbreaking open the door of any
building not being a dwelling-house or connected with a dwelling-
house," and Kay, L.J., at p. 667, says: ''A bam or outhouse not
connected with the dwelling-house may be broken open in order to
levy execution." It will be observed that all the Judges lay it
down — it seems to me by clear implication — that in order to justify

32 — ^VOL. II. 8.L.B.

WetmoM^OJ.
Hudson

Flbttchsr.

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»^-J' the breaking of an outer door the building must not be connected

1909 with the dwelling-house or within its curtilage. I am therefore
Htobon reluctantly forced to the conclusion that the breaking open of the
V' door of this store was unlawful. Regina v. Higgs (1846), 2 C. & K.

322, was the strongest case brought under my notice for the defend-
ant. In that case the prisoner was indicted for burglary. He broke
into a dairy of the prosecutor. This dairy adjoined a kiln one of the
walls of which supported one end of the dairy, and the kiln adjoined
the dwelling-house, one end of it being supported by one of the
walls of such dwelling-house. There was no internal conmiunica-
tion from the dwelling-house to the dairy. To get from the dwell-
ing-house to the dairy a person had to go from the dwelling-house
by a door into the yard, and from the yard by another door into
the dairy. It was held that the dairy was not a part of the dwelling-
house, but it will be observed that in that case neither the kiln or
the dairy were under the same roof as the dwelling-house, and that
the roofs of the kiln and the dairy were lower than that of the
dwelling-house.

The next question that arises is as to the effect of the unlawful
entry upon the seizure made under the execution. It is urged, that
the seizure is void, and that the plaintiff is entitled by way of
damages to the value of the whole property seized (excepting, of
course, the portion of it returned to the plaintiff as hereinafter
stated). It is quite possible and very probable that if an applica-
tion had been made to the summary jurisdiction of the Court the
seizure would have been set aside. No such application, however,
was made. I have come to the conclusion that under the circum-
stances of this case it is not necessary for me to decide this question
in its general aspect. It is one upon which, when so considered,
the authorities do not appear to be decided. I have above held
that the stock-in-trade and other personal property of Hudsons
Limited claimed to have been assigned to J. W. Hudson did not
pass to him; it remained the property of Hudsons Limited. The
bulk of the property seized by the sheriff consisted of property which
I so hold to be that of Hudsons Limited, and was liable to seizure
under the execution. It would, in my opinion, be manifestly unjust
to hold that J. W. Hudson, who does not own the property seized, is
entitled to damages to the value of it, or to hold that quoad the
Hudsons Limited, who have not complained that the seizure is
invalid.

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There was some property seized which J. W. Hudson claimed
was purchased in his own credit after the alleged assignment of
the business to him. I am inclined to think that such is the case,
but if so it was comparatively trifling in amoxmt. I have not
scrutinised the evidence in this respect very carefully, for the reason
which I am npw about to state. I hold that J. W. Hudson is pre-
cluded not only as r^ards that property but also as regards the
whole property seized and sold by the sheriflf.

At the time that the bailiff seized this property he promptly
notified the plaintiff of the seizure and what he had seized, and the
plaintiff then claimed that it belonged to him and not to the execu-
tion debtors, Hudsons Limited. This was stated verbally to Grant,
the bailiff. Subsequently, however, Hudson appeared before the
sheriff, and he put in a claim in writing to certain portions of this
property, specifying them. The sheriff, acting under rule 432 of
the Judicatiu^ Ordinance, as enacted by sec. 3 of ch. 8 of the Or-
dinance of 1903, gave notice of this claim to the execution creditor,
and he abandoned any right to the property mentioned in such
written claim of the plaintiff, and the property was restored to him.
The claim was prepared in the following manner: the plaintiff
appeared at the sheriff's office with a list in writing of what he
claimed was not liable to seizure. It was very badly written,
so much so that it was suggested that he, the plaintiff, should read
the articles from this list and the sheriff should write them down
on another piece of paper. This was done. But the plaintiff
alleges that he did not claim in this writing more than he did because
the sheriff would not take down what he desired him to take down.
That he said when he, the plaintiff, mentioned one article, for
instance, "Well, if I- take down that I might as well give you the
whole thing," and he did not take it down. I do not believe the
plaintiff in this respect. The sheriff utterly denies that he ever said
anything of the sort. On the contrary, he stated that he took
down everything the plaintiff mentioned except part of a bag of
flour, which he told him he could have anyway, and he would have
been very glad if the plaintiff had put in a claim to everji^hing, and
I can quite understand why the sheriff would be. It would relieve
him of all responsibility in the matter, and it would be quite un-
natural, in my judgment, for the sheriff to decline to take down
anything which the plaintiff had claimed. Moreover, the plaintiff

Wetmore, O.J.

1909

Hudson

Flbtchxr.

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signed the claim as written by the sheriff. I accept the sheriff's
statement of this transaction.

Having reached this conclusion, I am of opinion that the plaintiff
has no cause of action with respect to any of the property. I do not
hold that a party claiming property seized by the sheriff is bound
to interplead, and that if he does not he loses his ipmedy. It is
not necessary for me, for the purposes of this case, to go that far,
but I have no hesitation in holding that when a party so claiming
puts in a claim to a portion of the property, and that is dealt with
by interpleader proceedings, as in this case, it does not lie in his
power to bring an action for other property which was under seizure
at the time by virtue of the same writ to his knowledge, and which
was not included in the notice of claim. Interpleader proceedings
are provided for the protection of the sheriff, and it gives a person
who states that his property has been wrongfully seized by the
sheriff, under execution against another person, a right to put in a
claim, and then the law provides the means by which that claim can
be adjudicated upon and settled. Having selected his remedy,
the claimant must stand by it; he cannot make use of it in so far
BB a part of the property is concerned and insist upon'his common
law right of action as to another portion of the property. To hold
otherwise, in my judgment, would be to lead the sheriff into a trap
and cause him to go forward with his execution in confidence,
merely to find out that the claimant had lulled him to sleep by
claiming a portion of the property. For this reason I am of opinion
that so far as the property seized by the sheriff and not claimed by
the plaintiff in writing is concerned, that the plaintiff has no right
of action. It is important to bear in mind that rule 432 of the
Judicature Ordinance requires the claim to be in writing, and the
sheriff cannot interplead unless it is. The plaintiff, therefore,
having put in a written claim in accordance with the rule, the sheriff
had a right to sjssume that he had abandoned the verbal claim
stated to the bailiff. The sheriff could only apply for interpleader
in respect to the property mentioned in the written claim.

It was also set up in the course of the trial that the sheriff re-
mained in possession an unreasonable length of time, and that he
sold the property at an unreasonable and imfair price. I find
against the plaintiff in so far as both questions are concerned.

I am of opinion that the damages by rc^ason of the wrongful

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499

entry should not in this case be very heavy; in fact, I think that
they should be not much more than nominal. Technically, under
the law, the outer door of the dwelling-house was broken open.
In good practical common sense the outer door of the dweUing-
house was not broken open at all. The plaintiff's occupation of
the dwelling portion of the building was not interfered with in the
slightest degree. I will therefore only award $20 as damages.

There will therefore be judgment to the plaintiff upon the issues
joined arising out of the first and second counts in the statement of
claim for $20 and costs. There will be judgment for the defendant
upon the issues arising out of the third and fourth counts of the state-
ment of claim with costs. The plaintiff to have the general costs of the
action, but no costs with respect to the proceedings relating to the
issues found for the defendants. The costs so taxed to the plaintiff
shall be taxed as if the action had been brought in a District Court.
In so far as witness fees are concerned, the attendance and travel
of the plaintiff only wiU be allowed to the plaintiff, and only three
days win be allowed him for coming, attendance and returning.
The breaking of the door of the shop was practically conceded, and
all the rest of the testimony, in so far as this case was concerned,
was directed towards the right of property in the goods so seized
under the execution, and that has been proved in favour of the
defendants. One judgment will be set off against the other, and
the party in whose favour the balance may be wiU have execution
therefor.

Belcher v. Hudsons Limpped.

As stated in Hudson v. Fletcher ^ the assignment of the personal
property to J. W. Hudson was unwarranted, and therefore he has
no interest in the property so alleged to have been assigned. Of
course, this is immaterial now as regards the moveable property,
because the sheriff has swept the whole of it away. If any of the
personal assets of Hudsons Limited, such as book debts, promissory
notes, and the like, was not seized by the sheriff, this judgment
will apply thereto, as the property therein did not pass to J. W.
Hudson. I must hold the sale and transfer of the real estate also
invalid; and that the same, as well as the assignment of the personal
estate and assets of Hudsons Limited, were made with the intent
of delaying and hindering creditors of the company.

Wetaon, OJ,
1900

Hudson

Flbtcher.

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'^ ^'^' At the time the alleged agreement for the sale of the lots of land
1909 and transfer thereof and the sale' of the personal property respec-
Bblchbr lively were made, the Hudsons Limited were insolvent or on the
V. eve of insolvency, and the management knew it. I find that the

shareholders of the company, who were present on the 4th of May
when the alleged agreement of sale was claimed to have been author-
ised, including J. W. Hudson, were aware that Belcher was pressing
for the balance of his claim. J. W. Hudson testified that he was
not aware of it. I cannot believe him. Notice of motion for 28th
April to set the case down for trial was served on the company's
solicitor on the 23rd April. The order settii^ down was made on
the 4th of May — the very day on which the shareholders met. It
is very difficult for me to believe that the solicitors did not keep
their client advised as to such an important step in the cause, and
Baker, one of the shareholders, testified that he and J. W. Hudson
were aware at the time of this meeting that Belcher was proceeding
with his suit.

There were a number of other creditors, but there is not any
evidence to shew that any of them had taken any proceedings to
enforce their claims at the time of this meeting, but they subse-
quently did take such proceedings, with the result that, after the
Belcher executions were lodged, executions at the suit of other
creditors were lodged amounting to $1,614.53, and I think, under
the circumstances of this case, it is fair to assume that the debts on
which the judgment supporting their executions were based were
outstanding at the time when the assignments and sales of the 4th
and 5th of May were claimed to have been authorized and made.

Then there was the mortgage to Cameron & Heap of $1,010
outstanding. The mortgage to Cameron & Heap was made on the
1st of May, 1908. The loan advanced on the security of this mort-
gage and the note of Hudsons Limited was obtained through Mr-
Burton, the manager of Cameron & Heap. He was under the im-
pression that the judgment for $1,010 obtained by Belcher repre-
sented the whole of his claim, and that he had no further claim,
and assuming that, he advised J. W. Hudson if possible to change
the business, on account of the reputation that Hudsons Limited
had — that they would have a hard time in getting credit an3rwhere.
And Mr. Burton went on to state that this company had a poor
reputation through trouble with their creditors, and also as man-

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agers, as business people, and I accept this testimony as correct.
Now, if added to this situation as Mr. Burton understood it, we add
$3,387 of liability (Belcher's judgment), which he did not under-
stand to be outstanding, the difficulty for the company to get credit
would be very considerably increased. The management and
shareholders who met on the 4th of May were aware of all this.
After the seizure by the sherijBf the value of the stock in the store
was appraised by one Stratheam. I see no reason why his appraise-
ment should not be accepted, and he valued it at $4,560.71. After
some goods amounting in value to about $160 were deducted from
this in consequence of representations made by the defendant
Hudson, the rest of the stock was sold at 35 cents in the dollar,
and the fixtures at $120. The fixtures were sold subject to some
liens which attached against them. The stock was not sold subject
to Cameron & Heap's mortgage, and the amount of that mortgage
was paid out of the proceeds of the sale. I have no reason to hold
that that sale was not a fair one, and the evidence establishes that
it realised as much as would be realised from a sale made under
the circumstances. In Davidson v. Douglas, 15 Grant 347,
Spragge, V.C, at p. 351, lays down the following: **In considering
the question of the solvency or insolvency of a debtor I do not think
that we can properly look upon his position from a more favourable
point of view than this: to see and examine whether all his property,
real and personal, be sufficient, if presently realized, for the payment
of his debts, and in this view we must estimate his land as well as
his chattel property, not at what his neighbours or others may
consider to be its value, but at what it will bring in the market at a
forced sale, or at a sale when the seller cannot await his opportun-
ities but must sell." And at p. 353 he says: **There is no doubt
as to the meaning of the words * in insolvent circumstances.' That
it is not necessary that the debtor should be either technically a
declared insolvent or openly and notoriously insolvent." This is
quoted with approval by Boyd, C, in Wamock & Co. v. Kleopfer,

14 Ont. Rep., at p. 291. The decision of the Chancellor was
upheld by the Court of Appeal in Wamock & Co. v. Kleopfer,

15 Ont. App. 324, and the learned Judges who constituted the
majority of that Court, who dismissed the appeal in express
terms, agreed with the view that the Chancellor took of the meanmg
of the expression ** insolvent circumstances." This case went on

Wotmora^ OiJ,

1909
Bblcher

Hudson.

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V.
HUDBOK.

appeal to the Supreme Court of Canada, 18 S.C.R. 701, and the
appeal was dismissed. I must admit, however, that the report last
mentioned is not very satisfactory as to what constitutes knowledge
of insolvency. I refer to the National Bank of Australia v. Morris
(1892), A,C. 287, where, at p. 290, Lord Hobhouse lays it down:
''If the creditor who receives payment has knowledge of circum-
stances from which ordinary men of business would conclude that
the debtor is unable to meet his liabilities, he knows, within the
meaning of the Act, that the debtor is insolvent." It is obvious
that what is so stated in respect to a creditor is equally true with
respect to any other person to whom it is necessary to bring home
knowledge of insolvency. In view of what was so laid down by
Spragge, V.C., and Lord Hobhouse, and taking into consideration
all the circumstances that I have mentioned, coupled with the
further facts that Hudsons Limited were unable to meet the pay-
ments to the plaintiff as they fell due, that in April the sheriff had
taken possession of the goods in the store under the execution for
$1,010, and that Hudsons Limited had in consequence to shut down
for a time, that J. W. Hudson had before the 4th of May given
Mr. Burton a statement shewing other liabilities against Hudsons
Limited than to the plaintiffs, that they were laige, and that J. W.
Hudson had stated to him that these other creditors would jump in,
And to prevent any further law costs and judgments the proposed
sales and assignments were to be made, I am forced to the conclusion
-that Hudsons Limited were at the time of the execution of the con-
tracts of sale and assignments in question, both of the land and
personal property and of the transfer of the land, in insolvent
'Circumstances, and the management, including J. W. Hudson,
knew it, and at any rate Hudsons Limited were at the time in ques-
tion on the eve of insolvency, and the management and J. W. Hudson
knew it. It is also worthy of comment that the minute book of
the company never turned up. J. W. Hudson stated that it was
kept in the safe, but when the sheriff broke into the safe (as he had
to) that book was not there. I also find that such contracts of sale,
•assignment and transfer, were made with intent to prejudice, hinder
and delay creditors, especially the plaintiff. This conclusion is
irresistible when I consider the testimony given by Burton above
referred to, and the fact that Hudsons Limited had given an agree-
ment by which it had bound itself to pay Belcher $1,000 a month,

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and that by the proposed assignments and transfers it was intended
that the whole of the property of that company should be trans-
ferred to J. W. Hudson so that the creditors would not have a single
asset of the company to proceed against, and that all the creditors
would have had to enable them to realise anything on their claims
would be $100 a month and six per cent, interest, which J. W.
Hudson had agreed to pay: and that even that means of realisation
was not very clearly expressed; I hold the contract for the sale of
the land, the assignment of the stock-in-trade, the assets, and
the transfer of the real estate, to be void under sec. 38 of the Assign-
ments Act, ch. 25 of 1906 of the Statutes of Saskatchewan.

It may be as well to repeat here what I found in respect to the
transfer of the land in Hudson v. Fletcher, namely, that it was
invalid because the condition upon which such transfer was to have
been made was not performed.

In arriving at the conclusion I have reached, I have not lost
sight. of the fact that the lands were valued in the contract of sale
at $2,000, but even at that value the assets of the company, viewed
from the standpoint of the cases I have cited, were not sufficient to
pay the debts. They were not sufficient to pay the plaintiff's
judgment alone.

There will, therefore, be judgment for the plaintiff with costs
to be paid by the defendants. The agreement to sell the land in
question and the certificate of title issued to J. W. Hudson will be
set aside, and the name of Hudsons Limited restored to the register
in the land registration office as the registered owner of the land,
and the agreement to sell the personal property will be set aside,
this, however, not to interfere with the seizure and sale by the
sheriff imder the executions, or the right of the execution creditors
(if any) imder the Creditors' Relief Ordinance, and it will be referred
to the Local Registrar to hold an inquiry as to the assets of the
Hudsons Limited, retained or held by the defendants or either of
them under the said agreements of sale and transfer or otherwise
howsoever, and such defendants and each of them shall account to
such Local Registrar at such inquiry; the plaintiff to be at liberty
to move for further directions either as to costs or otherwise.

Wetaune, C.J.
1909

Bblchbr
v.

HU1>80N.

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504 SASKATCHEWAN LAW REPORTS. [vol.

[COURT EN BANC]

Ew Baho. In re E. J. Brooks, Insolvent.

1909 Land Titles Act — Assignments and Preferences Act — Assignment for BenefU of

— ^ — Creditors — Executions Registered against Insolvent — Transmission to

Nov. 20. Assignee — Removal of Executions — Right of Assignee to Require — Duty of

Registrar — Section 8 of Aseignments and Preferences Act — Meaning of.

B. made aii assignment for the benefit of creditors to one C, under the pro-
visions of the Act respecting Assignments and Preferences. At the time
of the assignment and subsequently thereto, but before the assignee applied
for transmission to him of the land of the insolvent, some eighteen execu-
tions were re^tered in the land titles office. On transmission of the
land to the assignee, the Registrar endorsed upon the assignee's title memo-
randa of these executions. It appeared that the costs of the execution
creditors had been paid. The assi^ee applied to the Registrar to cancel
these endorsements, which the Registrar refused to do, and in this action
he was sustained by the Inspector. From this decision the assignee ap-
pealed : —

Heldf that by virtue of sec. 8 of the Act respecting Assignments and Prefei^
ences the rights of execution creditors are expressly subordinated to those
of the assignee, save only as to costs, and the execution creditors ha^ing,
save as to costs, which are proved to have been paid, no charge on the
land, the Registrar was not justified in endorsing a memorandum charging
the Land with such executions on transmission to the assignee.

2. That the Registrar, on an assignment being proved, has jurisdiction to
issue a title to the assignee free from executions, notwithstanding the pro-
visions of sec. 129 of the Land Titles Act, inasmuch as the Legiamture has
expressly declared that, after assignment, the assignment takes priority to
all such executions.

This was an appeal by an assignee for creditors from the decision
of the Inspector of Land Titles confirming the refusal of the Regis-
trar of Land Titles at R^ina to issue a certificate of title to the
assignee, except subject to executions recovered against the assignor,
and was argued before the Court en banc at Regina.

A. L, Gordon^ for the appellant: The Inspector of Land Titles
having held that he is not clothed with the necessary judicial powers
to determine the matters in question herein, it is submitted that
he is the authority to determine such matters: Land Titles Act,
64 to 69, inclusive. The case is merely a question of construction
of statutes. Section 6 of the Land Titles Act, with reference to
assignments for benefit of creditors, and making an assignment of
land by general words effective, *' subject to the provisions of the
Land Titles Act,'' relates to procedure only and as to the mode by
which title is to vest. By the Assignment Act the assignment has
precedence over all judgments save only as to the lien for costs.
Here all costs have been paid, therefore the assignee is entitled to
be roistered owner of insolvent's land free from executions.

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Frank Ford, K.C., for the Registrar (respondent): The assign-
ment is a transfer under the provisions of the Land Titles Act, and
the Registrar is required to issue certificate of title subject to the
rights of the execution creditors: Land Titles Act, sec. 129, sub-
sees. 3 & 4. The Assignments Act, in vesting the property in the
assignee, provides that such vesting shall be subject to the pro-
visions of the Land Titles Act: sec. 6, Assignments Act. No
provision is made in the Land Titles Act for issue of certificate to
assignee free from encumbrance. Section 128, Land Titles Act,
must be read in conjunction with sec. 6 of the Assignments Act,
and implies an exemption of executions registered against the land
prior to the assignment. The question whether the assignee's title
is exempt from execution is, in certain cases, at least, a question
both of mixed law and fact, in which event an issue is necessary to
decide the facts: Federal Life v. Stinson (1906), 13 O.L.R. 127,
affirmed 39 S.C.R. 229, syb nam. Scott v. Smanson; Baker v. GUlum
(1908), 9 W.L.R. 436. There being a question of fact to be de-
termined, the Registrar is not justified in ordering without notice
to interested parties what can only be ordered by the Court as a
result of an action: Farmer v. Clark (1909), 10 W.L.R. 28; M(yrris
V. Bentley, 2 Terr. L.R. 268.

November 20. The judgment of the Court (Wetmore, C.J.,
Prendergast, Newlands, Johnstone and Lamont, JJ.) was de-
livered by Lamont, J.: — This is an appeal from the Inspector of
Land Titles upholding a refusal of the Registrar of the Assiniboia
Lands Registration District to issue to H. H. Campkin, assignee of
Edwin J. Brooks, a certificate of title to lots 4, 5 and 6 in block 22,
Indian Head, freed from certain executions issued against Brooks,
copies of which had been registered in the land titles office.

On December 2l8t, 1907, Edwin J. Brooks made an assignment
for the benefit of his creditors, under the Assignment Act, to H. H.
Campkin, of all his personal property and all his real estate, credits
and effects which might be seized and sold under execution, and
pursuant to the assignment Campkin entered into possession of
the assigned property. Between November 7th, 1907, and January
16th, 1908, eighteen separate executions were issued against the
said Brooks by his respective creditors, and copies of these execu-
. tions were transmitted to the Registrar of Land Titles. After the

En Bang.
1909

In re E. J.
Brooks,

iNSOLVaNT.

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1909

In re E. J.

Brooks,
Insolvent.

Lament, J.

registration of these executions the assignee made application to
the Registrar to be roistered as owner of lots 4, 5 and 6 in block
22, Indian Head, the title to which had up to that time been in
the name of the debtor Brooks. The R^istrar issued a certificate
of title for the said lands in the name of the assignee, but indorsed
thereon a memorandum that the assignee's title was subject to the
executions registered against Brooks. Campkin then applied to
the Registrar to cancel the indorsement of the executions on his
certificate of title. This the Registrar refused to do. Campkin
then applied by way of petition to the Inspector of Land Titles for
an order directing the R^istrar to remove these executions from
his title. The Inspector upheld the decision of the Registrar, and
from the Inspector's decision the assignee now appeals to this Court.

The reason given by the Registrar for refusing to issue the
certificate of title to the assignee freed from the executions was that
the Assignments Act, under which the property of the debtor be-
came vested in the assignee, expressly stated that as r^ards lands
the vesting of the debtor's property in the assignee shall be subject
to the provisions of the Land Titles Act, and that the provisions
of the Land Titles Act, sec. 129, require him to indorse the execu-
tions on the certificate of title. Section 6 of the Assignments Act,
which came into force on August 1st, 1906, is as follows: —

"Every assignment made under this Act for the general benefit
of creditors shall as to the description of the property comprised
therein be valid and sufficient if such description is in the words
following, that is to say: 'All my personal property and all my real
estate, credits and effects which may be seized and sold under
execution,' or if it is in words to the like effect; and an assignment
containing a description so expressed shall vest in the assignee all
the real and personal estate, rights, property, credits and effects
whether vested or contingent belonging at the time of the assign-
ment to the assignor except such as are by law exempt from seizure
or sale under execution or other legal proceedings, subject, however,
as regards lands, to the provisions of the Land Titles Act."

The provisions of the Land Titles Act dealing with executions
is sec. 129, the first sub-section of which requires the sheriff, upon
delivery to him of an execution affecting lands, to deliver or transmit
to the Registrar of Land Titles a certified copy of the writ, and in-
dorsements thereon. Sub-sections 2, 3 and 4 of said section are
as follows: —

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" (2) Such writ shall bind the land covered thereby only from
the time of the receipt of a certified copy thereof by the R^istrar
for the registration district in which such land is situated.

" (3) From and after the receipt by the R^istrar of such copy
no certificate of title shall be granted, and no transfer, mortgage,
incumbrance, lease or other instrument executed by the execution
debtor of such land shall be effectual except subject to the rights of
the execution creditor under the writ while the same is legally in
force.

"(4) The Registrar, on granting a certificate of title and on
roistering any transfer, mortgage or other instrument executed
by the execution debtor affecting such land, shall, by memorandum
upon the certificate of title in the register and on the duplicate
issued by him, express that such certificate, transfer, mortgage or
other instrument is subject to such rights."

It will be observed that this section enacts that after the regis-
tration of an execution no transfer of the lands shall be effectual
except subject to the rights of the execution creditor under his
writ of execution, and the Registrar is enjoined on issuing a cer-
tificate of title to indorse on the certificate a memorandum that such
ceirtificate is duly subject to such rights.

What are the rights of an execution creditor under a writ of
execution roistered against the lands of a debtor who has made
assignment for the benefit of his creditor under the Assignments
Act? The answer to the question seems to me to be found in sec. 8
of the Assignments Act, which reads as follows: —

"An assignment for the general benefit of creditors under this
Act shall take precedence of all attachments of debts by way of
garnishment where the money has not been actually paid over to
the garnishing creditor as well as of all other attachments and of all
judgments and of all executions not completely executed by pay-
ment, subject to the lien, if any, of execution or attaching cerditors
for their costs."

By this section the rights of an execution creditor under his
execution are expressly subordinated to the rights of the assignee
under his assignment, which takes precedence of all executions not
completely executed by payment, but subject to the lien, if any,
of the execution creditors for their costs. The assignee, therefore,
is entitled to the land of the execution debtor which passes under

En Banc.
1909

In re £. J.

Brooks,
Insolvent.

Lamont, J.

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In re £. J.

Brooks,
Insolvent.

tAmo&t, J.

the assignment for the benefit of creditors freed from all executions,
subject only to the lien of the execution creditors for costs if they
or any of them have such lien. In the present case no question
arises as to the lien of the creditors for their costs, because evidence
was produced to the R^istrar, to which he took no objection, that
the assignee had paid to all of the execution creditors their costs
of suit, including the costs of executions. I am therefore of opinion
that the assignee was under these circumstances entitled to have
a certificate of title issued to him freed of the executions.

At the hearing of the appeal it was argued that even if the in-
tention of the Assignments Act was to give the assignment for the
benefit of creditors priority over executions against the debtor that
it was not the duty of the Registrar to determine the question as
to whether the executions should be omitted from the certificate of
title to the assignee — that the vesting of the land in the assignee
under the assignment was made expressly subject to the provisions
of the Land Titles Act, which by sec. 129, above quoted, require the
R^istrar to indorse on the certificate of title a memorandum that
the title was subject to the rights of execution creditors. If sub-
sec. 4 of sec. 129 requires this literal interpretation I am satisfied
that it is continually violated. As I understand the practice of
the land titles office where an execution creditor registers an
execution against the land of his debtor and subsequently obtains
a transfer of the land, the Registrar on issuing to him a certificate
of title does not indorse thereon a memorandum that his title is
subject to his own execution. The R^istrar himself determines
what are the rights of the execution creditor under his execution,
and decides' that these rights are merged in the transfer, and he
issues a certificate of title to the execution creditor without indorsing
thereon a memorandum of the execution. As to his duty in respect
to mortgages, see Reeves v. Konschur (1909), 10 W.L.R. 680. If,
under these circumstances, it is the duty of the Registrar to deter-
mine whether the certificate of title should or should not be issued
without indorsing thereon the execution, it seems to me equally his
duty to determine whether or not an execution should be indorsed
on the certificate of title issued under an assignment for the benefit
of creditors where the Legislature has expressly enacted that the
assignment shall take precedence of the executions subject only
to a lien for costs, which lien it has been satisfactorily proven to

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509

LamoQt, J.

him had been satisfied. If this were not so, the assignee in the En Banc.
present case must take the title to the land of the debtor charged 1^09
with eighteen executions, and before he can deal with the land i^ re E. J.
and carry out the object of the Assignments Act he must bring j^^?^^^*
eighteen separate actions to have these executions removed, and
as the object of the Act was to effect a speedy and equitable dis-
tribution of the assets of the debtor among the creditors, the Court
should not put a construction upon the language which will render
nugatory the object of the Act, unless there is no other reasonable
interpretation at which to arrive.

It was further contended that the case of the Federal Life
Assurance v. Stiman (1906), 13 O.L.R. 129, affirmed in 39 S.C.R.
229, shews that an execution creditor might in certain cases acquire
an interest or a charge under his execution by consolidating it with
a preceding mortgage which would take priority of an assignment
for the benefit of creditors, and that it could not be the duty of the
Registrar to determine such questions. As I read that case it does
not affect the question in this appeal. There the Court expressly
stated that the right of the defendant to priority for the amount of
his executions was not by virtue of the executions at all, but by
virtue of the adjudication of the Court; that the moment he had
proved his debt in the Master's office in the foreclosure proceedings
his executions in the sheriff's hands might have been allowed to
expire without affecting his lien on the lands. This lien he held,
not by virtue of his executions, but by virtue of the order of the
Court made prior to the assignment for the benefit of creditors.

The appeal should, in my opinion, be allowed, and the Registrar
directed to remove the memorandum of the executions from the
assignee's certificate of title, and also from the certificate of title
to Alexander M. Fraser, to whom the assignee has transferred lot 4.

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510 SASKATCHEWAN LAW EBPOETS. [vou

[COURT EN BANC]

En Bang. Kasindorf v. Hudson Bay Insurance Co.

1909

Practice — Action by Foreign Partnerakiv in Firm Name — Right to Maintain —

Nov. 20. Irregularity — Appearance by Defendant — Effect of — Waiver.

Plaintiff, a partnership carrying on business in the United States, issued a
writ in the Supreme Ck)urt of Saskatchewan, in the firm name, anunst the
defendant. The defendant company appeared to the writ and applied
for and obtauied an order for security for costs. After security had oeen
^ven, the defendant moved to set aside the writ on the groimd that the
issue thereof by a foreign partnership in the firm name was unwarranted
by the rules and a nullity. The Local Master before whom the motion was
heard gave the plaintiffs leave to amend, and this order was, on appeal to
a Judge in Chambers, upheld. On a further appeal: —

Heldf that the issue of the writ was an irregularity which was waived by the
defendants appearing in the action.

This was an appeal by the defendants from a judgment of
Newlands, J., in Chambers, sustaining an order of the Local Master
at Moose Jaw giving plaintiffs leave to amend their writ of summons
and proceedings by setting out the names of the members of the
plaintiff firm as plaintiff in the cause, and was aigued before the
Court en banc at Regina.

J. F. Hare, for the defendant (appellant): The Local Master
and Judge in Chambers erred in allowing plaintiffs to amend setting
out the names of the individual partners, because two or more
persons cannot sue in a firm name unless they are carrying on busi-
ness within the jurisdiction: Judicature Ordinance, rule 37. The
plaintiffs, havii^ no place of business in the jurisdiction, are not
carrying on business within the jurisdiction: Singleton v. BobertSf
70 L.T. 687; Hemham v. HaU (1891), 2 Q.B. 83. The carrying
on business within the jurisdiction is a condition precedent: Piggot
on Service ex Juris, 92; Annual Prac. (1904), 672; Western
V. Perez Triane Co, (1891), 1 Q.B. 304; RuaaeU v. CambefaH,
23 Q,B.D. 526; Abrahams v. Dunlop (1905), 1 K.B. 51. The
process, having been issued without the warrant of any rule, is a
nullity and cannot be amended: Smurthwaite v. Hannay (1894),
A.C. 501; Hunt v. Worsfold (1896), 2 Ch. 227; Annalby v. Prae-
torious, 20 Q.B.D. 765; PhiUipson v. Emmanuel. 56 L.T. 858.

W. B. WiUoughby, for the plaintiff (respondent) : The appelant
was too late in making his application: Jud. Ord,, R. 539. After
an unconditional appearance it is too late to object to any irregu-

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larity in ser\'ice on issue of the writ: Re Orr Ewing, 22 Ch.D. Bw Banc.
456; Mvihem v. Doerke, 53 L.J. Q.B. 526; Tozier v. Hawkins, 15 l«<»
Q.B.D. 685; Mayer v. Claretie, 7 T.R. 40; Forth v. De Las Lervas KAflDfw>BF
(1893), 1 Q.B. 768; Sears v. Meyers, 15 P.R. 381 & 387; Forbes v. Hudson Bat
Smith, 10 Ex. 717; UHoneux v. /Ton^ Xon^ Corpn., 33 Ch.D. 466; Insurance
Western Naiianal Bank v, Perez Triane Co, (1891), 1 Q.B. 304. ^'

Incorrect description of parties is an irr^ularity which may be
amended in the discretion of the Judge: Jud. Ord., R. 538; The
Assunta (1902), p. 150; Hunt v. Worsfold (1896), 2 Ch. 224;
Wilmot V. Fairhold House Property Co., 51 L.T. 552. On a sim-
ilar state of facts to those in this case leave was given to amend:
La Banca MagioruUa v. Hamburger, 8 L.T. 548; Singleton v.
Roberts, 70 L. T. 587. He also referred to Imperial Bank v. HitU,
4 Terr. L.R. 331. Inasmuch as leave was given to amend in these
various cases, it is evident that an action in which the parties
are improperiy described is irregular only and not a nullity, and
not being a nullity the irregularity is waived by the appearance.

November 20. The judgment of the Court (Wetmore, C.J.,
Prendergast, Johnstone and Lamont, JJ.) was delivered by
Johnstone, J.: — ^The plaintiffs reside and carry on business in New
York City as Kasindorf Brothers. The defendant company has
its head-office at Moose Jaw.

The plaintiffs, who were and are foreigners, on the 7th October,
1908, issued a writ in the firm's name against the defendants for
the recovery under a contract of insurance with the defendants of
$541, allied loss sustained by fire to goods in New York City.

The defendants entered an appearance in the said action through
their solicitor, on the 26th day of said month of October, and as
the result of an application made for that purpose in November
following, on the 11th of December secured an order for security
for costs with a stay of proceedings.

On the 12th of February last the required security, $200, was
deposited in Court to the credit of the cause.

The defendants on the 22nd of the same month obtained a
summons from the Local Master at Moose Jaw calling upon the
plaintiffs to shew cause why the writ of summons and the statement
of claim should not be set aside.

33 YOL. II. S.L.B.

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SASKATCHEWAN LAW REPORTS.

[vol.

Ex Bawo.
1009

Kabikdorf

Hudson Bat

Insurance

Johnstone, J.

On the 24th of April, 1909, this summons was by the Local Master
dismissed with costs.

The defendants, under Judicature rule 37, on the 15th day of
April demanded from the plaintiffs in writing particulars as to
the names, addresses, etc., of the plaintiffs. This demand was
satisfied finally on the 22nd April, 1909.

The defendants on the 26th of the same month, for what reason
does not appear, obtained a second summons to set aside the w^rit
and statement of claim, on the ground that the issue of the writ
was irregular and not warranted by the procedure under our rule,
rule 37, the plaintiff's firm never having carried on business in
the Province.

On the return of this summons, the Local Master made an order
giving leave to the plaintiffs to amend their said writ and statemrat
of claim by inserting the names of the individual partners com-
prising the firm.

From this order the defendants appealed to a Judge in Chambers,
and the matter came before my learned brother Newlands, who
dismissed the appeal.

From this judgment the defendants further appealed to the
Court en banc, on several grounds, as follows: —

2. That the writ of summons and statement of claim herein
were issued without the warrant of any rule or enactment, and are
null and void.

3. That the plaintiffs' firm, not being a firm or partnership
carrying on business w^ithin the jurisdiction, cannot sue in the
firm name.

4. That the plaintiffs are unknown to this jurisdiction.

5. That the plaintiffs did not satisfy the Local R^istrar before
the issue of the writ of summons that the plaintiffs carried on busi-
ness within the jurisdiction.

6. That the writ of summons and statement of claim haNong
been issued without the warrant of any rule or enactment, and
being null and void, cannot be amended.

I agree with the reasons of the judgment of my learned brother
who heard the appeal.

The question arising in the case cited by counsel for the appel-
lants, Smurthwaiie v. Hannay (1894), A.C. 494, 63 L.J.Q.B. 737,
71 L.T. 157, was a different question altogether, and one under a

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513

JohnitoiM, J.

dififerent rule — ^Eng. rule 1 of order 16. In that case it was a En BANa
question of misjoinder of plaintiffs, and where it was admitted ^^^^
that the claims of the plaintiffs were several, that they had no Kasindorf
joint cause of action or claim to relief, and that before the Judicature jj^j^jg^,, g^y
Act they could not have been joined as plaintiffs in such an action, Insurance
but it was contended that order 16, r. 1, justified the course which
had been piirsued in making them co-plaintiffs, but the Court held
otherwise, and that the rule did not warrant such course. Lord
Herschell, in giving judgment, said: "I cannot accede to the
argument urged by the respondent, that even if the joinder of the
plaintiffs in one action was not warranted by the rule relied on
this was a mere irr^ularity of which the appellants, by virtue of
order 70, could not now take advantage. If unwarranted by any
enactment or rule it is, in my opinion, much more than an irr^u-
larity." Lord Russell gave expression in similar language at p. 506.

I can very well imderstand how the joining of several plaintiffs
in the same action having different and several causes of action
could not be treated as an irr^ularity. Such joinder of plaintiffs,
as stated by Lord Russell, was the constitution of a suit as to parties
in a way not authorized by the law and the rules applicable to
procedure, and in a way that was not capable of being remedied
by order 70, our rule 538. The proceedings could not be carried
on, nor could a trial take place with all the parties of different
interests and claims before the Court. Some plaintiffs with diver-
gent interests would have to be struck off the record. Moreover,
order 70 could have no application to such a state of affairs. It
was never so intended.

The question in the case at bar arises under rule 37: —
"Any two or more persons claiming or being liable as co-partners
and carrying on business within the jurisdiction may sue or be sued
in the name of the respective firms if any of which such persons were
co-partners at the time of the accruing of the cause of action; and
any party to an action may in such case apply by summons to a
Judge for a statement of the names and addresses of the persons
who were at the time of the accruing of the cause of action co-
partners in any such firm, to be furnished in such manner and verified
on oath or otherwise as the Judge may direct.

"(2) Any person carrying on business in the name of a firm

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Co.

614 SASKATCHEWAN LAW REPORTS. [vol.

En Banc, apparently consisting of more than one person may be sued in the

1009 name of such firm. (E. 648A & 648B) CO. 21, R. 37."
Kasindorp Corresponding to Eng. ord. 48a, r. xl., which now takes the place
H SON B T ^^ Tuiea 6 and 7 of order 9, the difference consisting in the use in
Insurance our rule 37 and O. 48, r. 1, in the English, of the words: "Carrying
on business within the jurisdiction."

Most of the cases cited turned upon the question of jurisdiction
in the Courts to deal with foreigners. In Russell v. Cambefort,
23 Q.B.D. 526, 58 L.J.Q.B. 498, 61 L.T. 751, it was held that
a foreign partnership, the members of which yrere foreigners
resident out of the jurisdiction but carrying on business in flngland,
could not be served under rule 6 of order 9 by service on the
manager at the principal place of business within the jurisdiction,
that such rule did not apply to foreigners not resident in England
though carrying on business there. It was further held, that
though an Act of Parliament can give jurisdiction to the Court
against British subjects, as to foreigners Parliament has not and
does not assume to have jurisdiction against those residing abroad
and who have not submitted to the jurisdiction of the English
Courts.

Lopes, L.J., said, in delivering judgment: ''I think the rule
does not give jurisdiction as against foreigners ... I think
the rule only applies to English subjects." All that was done in
this case was to set aside service on the manager. Western National
Bank of the City of New York v. Perez Triana Co. (1891), 1 Q.B.
304, 60 L.J.Q.B. 272, 64 L.T. 543, is another case where the question
of jurisdiction was raised, a question not material in the case under
discussion because the plaintiffs have submitted to the jurisdiction.
The defendants have appeared and taken steps in the action. In
the latter case a writ was issued against a foreign partnership firm
in the firm's name, which firm carried on business abroad with no
place of business in England. The writ was served on a person,
an alleged partner, temporarily in England. This partner entered
a conditional appearance, after which he entered an imconditional
appearance, and in his own name applied to set aside the service
of the writ. A Divisional Court refused to set aside the service.

Held by Lord Esher, M.R., that the service was good service on
the firm.

By Lindley and Bowen, L.JJ., on the authority of Russell v.

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515

Cambefort, that rule 6 of order 9 did not apply to the case of a
foreign firm, but that the defendant (appellant) had by appearing
waived the irr^ularity, and it was ordered that if the plaintiffs
would elect to amend the writ by naming the appellant, the service
would stand as against him.

The Master of the Rolls said: "If the person attempted to be
served desires to submit there was no proper service, he must move
to set aside the alleged service, but he must do so before he appears,
because if he appears any irr^ularity in the service is waived by
his appearance.'*. At p. 317 of the report. Lord Bowen says: **But
the defendant is really himself sued together with others, since the
plaintiff intends to include him, and to shew at the trial that he is
properly included, among the members of the firm, and the irregu-
larity of the nomenclature in the writ the defendant has waived as
against himself by appearance, since he might, if he had chosen,
have moved, under order xii., rule 30, to set aside the service upon
himself, and was not obliged to appear to enable him to move."
The same doctrine is laid down in Dobson v. Festi Raisini & Co.
(1891), 2 Q.B., in appeal, 92, at p. 94, Lindley, Lopes and Kay,
L.JJ., 95, 60 L.J.Q.B. 481, 64 L.T. 551.

Heinemann v. Hale & Co. (1891), 2 Q.B.C.A. 83, 60 L.J.Q.B.
650, 64 L.T. 548, a case decided since the alteration in the rules,
relied upon by the appellants, the Hudson Bay Insurance Co., as
in their favour, I read as approving of the decision in Russell v.
Cambefort and the Western National Bank, In Heinemann v. Hale
a writ was issued against a foreign firm in respect of a breach of
contract made and to be performed in England. The writ was
issued in the firm name and was served on one of the three partners
who was resident in England, the other two residing out of England.
On an application of the partner resident in England before appear-
ance to set aside the writ and service, the decision of the Queen's
Bench Division was reversed and the writ set aside. Fry, Lord
Justice, in concluding his judgment, says: "In coming to the
conclusion I have expressed I am fortified by both the cases of
RtcsseU V. Cambefort and The Western National Bank of New York
V. Perez Triana & Co.^^

I think, therefore, the defendants having appeared as they did,
the appeal should be dismissed, with costs.

Ap]}eal dismissed with costs.

En Banc.
1009

Kasindorf

Hudson Bat

Insurance
Co.

Johnrtoot, J«

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516 SASKATCHEWAN LAW REPORTS. [vol.

[CJOURT EN BANC]

En Banc. Sawyer & Massey Co. v. Bennett et al.

1009

Vendor and Purchaser — Sale of Land Held under Agreement for Sale — Covenant

Nov 20. ^^ Agreement Restricting Assignment without Approval of Vendor — Effect

of — Transfer of Land by Purchaser in Fee Simple — Refusal of Vendor to
Approve — Effect of Refwsal on Estate of Transferee — Equitable Estate
Created — Subsequent Assignment by Original Purchaser — Approval thereof
by Vendof^-r-Righis of Transferee and Assignee — Priorities— -Fraud on Part
of Agent of Assignee— Obtaining Approval of Vendor by — Effect of on Right
of Transferee and Assignee.

Defendant Bennett purchased from the Canadian Pacific Railway Company
certain land on deferred payments, and received a contract whereby the
company agreed to convey the land to him on payment, and which con-
tract also contained a clause providing that no assignment of the pui^
chaser's interest in the land should be valid or effectual unless and until
approved of by the company. Subseouently Bennett, being indebted to
plaintiff, was approached by one J. D. McLeod. an agent for plaintiff, and
asked for security, and by way of security the defendant rave to the plain-
tiff a transfer in fee simple of the land, the legal estate oeing still in the
railway company. The plaintiffs applied to the railway company for their
approval of the transfer, which approval was refused on the ground that
the conveyance was not in the form of an assignment of Bennett's equitable
interest in the land.

Some time after McLeod again saw Bennett, and made an arrangement with
him to sell the same land for him, and, in pursuance of the assignment,
lifcLeod sold the land to one M. J. McLeod, and procured an assignment
of the railway company's contract in proper form, which assignment was
duly approved by the company. This approval was, however, secured bv
the fraud and criminal acts of J. D. McLeod, who forged the name of M. J.
McLeod to the assignment, made a false affidavit of execution, and also
forged the name of M. J. McLeod to an affidavit accounting for the absence
of the original agreement for sale, which affidavit also contained false
allegations. In an action to set asiae the conveyance to M. J. McLeod: —

Held (Lamont, J., dissenting), that the clause in the agreement requiring the
approval of the vendor to any assignment was effective only as between the
vendor and purchasers, and, therefore, an assignment without the approval
of the vendor would be valid and binding as against all the world except the
vendor, and create an equitable estate or interest in the land in question
in the transferee or assignee.

2. That transfer in fee simple given by Bennett to the plaintiffs, while it did
not convey his estate at law, the fee simple being vested in the railway
company, was sufficient to create an equitable estate in the plaintiff.

3. That the equities between the plaintiffs and M. J. McLeod being equal,
the approval of the assignment to McLeod by the railway company would
give McLeod a better equitable estate than the plaintiff.

4. But (Lamont, J., dissenting), in determininf^ the rights of parties in cases
of contest between persons having equitable mterests, all the circumstances
must be taken into consideration m order to determine which has the better
equity, and the approval of McLeod's assignment having been procured by
fraud and criminal acts on the part of his agent, the approval so obtained
could not ffive him any better position in equity than if the approval had
not been obtained, and, therefore, the plaintiffs' equitable estate, being first
in point of time, should prevail.

5. That in equity the assignment to McLeod was subject to the estate previ-
ously conveyed to the plaintiffs, and, that being so, McLeod, by securing
the approval of the railway company and thus bettering his equitable

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SASKATCHEWAN LAW REPORTS.

517

position, the plaintiffs have a right to attack the means by which such
approval was obtained, and to shew that such approval was improperly
obtained.
6. That (Lamont, J., dissenting) the knowled^ of McLeod's agent of the
previous transfer, when the approval of the railway company was obtained,
was notice to McLeod of such previous transfer.

This was an appeal by the plaintiff from the judgment of
Wetmore, C.J., dismissing the plaintiff's action, and was ai^ued
before the Court en banc at R^ina.

N. MacKemie, K.C., for the plaintiff (appellant): The signa-
ture of the defendant McLeod being forged and approval of the
railway company to the assignment being secured by forged docu-
ments and fraud, no eflfect can be given in equity to an assignment
and approval thereof so obtained, and such document is not capable
of being ratified: Brook v. Hook^ 40 L.J. Ex. 50, at p. 52; and,
consequently, there never was any contractual relation between
the three respondents. The transfer given by Bennett to appel-
lant was operative in equity: Davis v. Earl of Strathmore,
16 Ves. 419, 33 E.R. 1046; Pomeroy, vol. 2, sec. 660; and in
the event of a conveyance by the railway company to Bennett,
the appellant in equity would have been entitled to have Bennett
declared a trustee for it, and any subsequent assignee with notice
would have taken subject to such claim: MaundreU v. Maundrell,
10 Ves. 260, 261, 270. The respondent McLeod had notice by his
agent, J. D. McLeod, of the previous assignment. The knowledge
of the agent is the knowledge of the principal: Sheldon v. Cox, 27
E.R. 404; Le Neve v. Le Neve, 21 Rul. C. 774, 26 E.R. 1172; Agra
Bank v. Barry, 21 Rul. C. 784; Pomeroy, vol. 2, sec. 672; Atterbury
V. WaUis, 6 DeG. McN. & G., at p. 466; FiMer v. BenneU, 2 Hare
394, at p. 402; Majoribanksv. Hovenden, 6 Ir. Eq. 238, at p. 241.
This rule applies equally strongly where the agent is, in addition to
acting as an agent, also acting as vendor or mortgagor: Sheldon
V. Cox, supra; Pomeroy, vol. 2, sec. 667, and note 6; Dart on
Vendors and Purchasers, vol. 2, 7th ed., 889; Atterbury v. WaUis,
supra. Respondent McLeod, having notice through his agent of
appellants' rights, is liable to the same equities as Bennett: Storey
on Equity, 2nd ed., p. 255; Pomeroy, vol. 2, sec. 730; Le Neve
V. Le Neve, supra. Where*fraud has been committed and notice
presumed, mere concealment of facts by the agent will not make
the rule inapplicable: Pomeroy, vol. 2, sec. 673; Dart's Vendor

En Banc.
1900

Sawyer &

MAfitfBTGo.
V,

BsNivivrT,

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518 SAfiKATOHE]YAN LAW EEPOETS. [vol.

En Banc, and Purchaser, vol. 2, 7th ed., 902; RoUand v. HaH, L.R. 6
^ Ch. Ap. 678; Bradley v. Riches, L.R. 9 Ch. D. 189. Where

Sawyee a the principal has constituted the agent his general agent for the
MasbsyCo. purposes of the transaction, he is affected with notice of all the

BuNOTMT. agent knew: Dixon v. Wynch (1900), 1 Ch. 736; Dart, vol. 2.
p. 902. The fact would indicate that respondent McLeod had
constructive notice of the claims of appellant: Pomeroy's Equity,
vol. 2, sec. 604, 605, 606; Boursot v. Savage, 2 Eq. Ca. 135
& 142. The appellant's assignment was the earlier, and the
equitable doctrine is that where the equities are equal, the first in
point of time will prevail: PhiUipps v. PhUlipps, 4 DeG. F. &
J., at p. 215; Pomeroy, vol. 2, sees. 591 et seq., 682, 718; Cave
V. Cave, L.R. 15 CD. 646. The transfer to appellant conveyed
all Bennett's interest, and the respondent McLeod took nothing:
Pomeroy, vol. 2, sec. 714; PhiUipps v. PhUlipps, 31 L.J.Ch.
321; UUerson Lhr, Co. v. Remire, 2 S.C.R. 218, 226. Equit-
able charges may be created under a non-assignable contract:
In re Turcan, 58 L.J.Ch. 101, at p. 105. The clause in the railway
company's contract gave them a right to refuse an assignment
not satisfactory and continue to act under the contract and
convey to the original purchaser, but they had no right to ad-
judicate on the regularity or validity of conflicting assignments.

W, B. WilloiLghby, for the respondent M. J. McLeod: By the
original contract of sale between the defendant Bennett and the
Canadian Pacific Railway Company it is provided that no assign-
ment of such contract shall be valid until approved by the com-
pany. The plaintiffs never procured such consent, and the
respondent contends that it was a condition precedent to the
right of the plaintiff to succeed that such consent to the assign-
ment should be procured. In view of the nature df the personal
covenants in the original contract, such an assignment is reasonable.
Contracts are generally assignable except in the following cases:
(1) Where the contract is personal to the parties; (2) where
there is an express provision against assignment; and (3) where
assignment is illegal and against public policy: Fry on Specific
Performance, 4th ed., par. 232. Such restrictions are valid:
Grosvenor v. Green, 28 L.J.Ch. 173,^ In re Hart v. Wishart-
Langan Co,, 9 W.L.R. 519, at p. 525; Brice v. Bannister,
3 Q.B.D. 569, at p. 581. A limitation on the fee simple is

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n.] SASKATCHEWAN LAW REPORTS. 519

imposed repugnant to the estate. The purchaser in this case En Bano.
procured the right to the conveyance to him of the fee simple ^^^
only on the performance by him of his covenants, and there was Sawter Sc
nothing repugnant in exacting, as the condition of the convey- MassbyCo.
ance to him, the performance of such covenants and conditions. Bennett
The plaintiffs are guilty of laches, and thereby induced the defen-
dant Bennett to believe that the plaintiff had abandoned any
intention of relying on the transfer as security, and he was there-
fore justified in dealing with the land: Savage v. Foster ^ 2
White & Tudor L.C., 6th ed., 678; Clough v. L. & N.W, Ry.,
41 L.J.Ex. 17. The transfer was a conditional one, the con-
dition being that the plaintiffs would pay the instalments of
principal and interest due and save the contract from forfeiture.
This they did not do, and the condition not being carried out and
no present value being given, the assignment was revocable and
was revoked. when the second assignment was given: Weylson v.
Dunn, 34 Ch. D. 569. The defendant McLeod is a bond fide
purchaser for value, and, having obtained the title papers,
is entitled to the protection of the Court: Bassett v. Nosioorthy,
21 Rul. Ca. 703. Even if J. D. McLeod was the agent of
the defendant McLeod, he was such agent only to secure the
consent of the railway company, and his knowledge of the prior
transaction cannot be imputed to defendant McLeod: Pomeroy,
2nd ed., sec. 675.

A. L. Gordon, for the defendant the Canadian Pacific Railway
Company: Three grounds are urged against the company: (1)
that, being aware of the transfer to the plaintiff, they should not
have approved of the transfer to McLeod; (2) that, knowing of
such transfer, they should either have conveyed to plaintiff or
refused to recognize any assignment; and (3) that by their defence
they have waived their rights under the clause in the contract
restricting assignments. As to the first ground, it is contended
by the plaintiff that the clause in the contract is invalid as being
a restraint on alienation. The respondent claims that, in view
of the special covenants contained in the contract, the clause was
a reasonable one and valid in law: Re MacLeay, L.R. 20
Eq. 186; Earles v. McAlpine, 6 App. R. 145. As to the
second ground, it is submitted that the company have an absolute
right under their contract to say who shall or shall not occupy

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the position of purchaser: Weatherell v. Ooering, 12 Ves.
504; Sergeant v. Noah (1903), 2 K.B. 304, at pp. 310 and 312.
As to waiver, the pleadings in this case on the part of the com-
pany simply express their willingness to convey the land under
the direction of the Court, the provisions of the contract being
complied with.

November 20. Newlands, J.:— On the 10th of May, 1902,
the defendant Bennett entered into an agreement of sale with
his co-defendant the Canadian Pacific Railway Company to pur-
chase the south-west quarter of 17-19-26 W. 2. On the 6th day
of May, 1905, the said defendant Bennett, being indebted in a
laige sum to the plaintiff company, executed in their favour a
transfer of the said quarter-section. On the 15th day of June,
1906, the defendant Bennett sold the said quarter-section to the
defendant M. J. McLeod, and assigned to him the agreement of
sale with the Canadian Pacific Railway Company. The plaintiffs
in the action dispute this last-mentioned sale, and ask to have
the plaintiff company declared the owner of the said quarter-
section, and a further declaration that the assignment to the de-
fendant McLeod is void against the plaintiff comp^my and was
ineffective to convey any rights to the said McLeod to the said
land as against them. The defendant Bennett makes no defence
to this action nor does the defendant the Canadian Pacific Rail-
way Company; they merely recite the facts and submit their rights
in the premises to the Court. The real defendant is M. J.
McLeod, and his defence is, practically, that he is a purchaser
for value of the said premises without notice of the plaintiff
company's claim, and that the assignment to him has been ap-
proved of by the Canadian Pacific Railway Company, the holders
of the l^al estate in the said property.

The case was tried before the learned Chief Justice, who gave
judgment in favour of the defendant McLeod," on the ground that
there was a clause in the agreement of sale between the defendants
the Canadian Pacific Railway Company and Bennett which pro-
vided that ''no assignment of this contract shall be valid unless
the same shall be for entire interest of the purchaser and approved
and countersigned by the Commissioner of the Land Department
or other duly authorised person, and no agreement or conditions

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or relations between the purchaser and his assignee or any other
person acquiring interest or title from or through the purchaser
shall preclude the company from the right to convey the premises
to said purchaser on the surrender of this agreement and the pay-
ment of the unpaid portion of the purchase money which may be
due hereunder, unless the assignment hereof be approved and
countersigned by the said commissioner or other person as afore-
said/' and that under this clause the said company had refused to
recognise the transfer to the plaintiff company as a valid assign-
ment; that they had approved of the assignment from Bennett
to McLeod; and that, although the approval of this latter assign-
ment had been obtained by the fraud of the agent of the defen-
dant McLeod who obtained such approval, the plaintiff company
had no locibs standi to attack the transaction; that the fraud was
on the Canadian Pacific Railway Company, and they could, if they
so desired, attack it, but, as they had not done so, the plaintiff
company could not.

I do not think that it is necessary for me to consider the reasons
given by the learned Chief Justice for holding that this clause in
the agreement between the Canadian Pacific Railway Company
and Bennett is a valid one, but, with all due deference to that
learned Judge's opinion, I must differ from him on the interpreta-
tion he has put upon this clause. This interpretation is that any
assignment by the defendant Bennett of his interest in the land
would be void if the company refused to approve of it, and that
he considered it similar to the covenant in a lease not to assign
or sublet without leave.

Now, a covenant in a lease not to assign, if broken, allows the
lessor to enter and terminate the lease, and the lease being deter-
mined, the estate of the assignee would also be determined. In
this case no such effect can follow the assignment of the agree-
ment, of sale to a person of whom the Canadian Pacific Railway
Company will not approve. The estate which Bennett, the pur-
chaser, had in the land before the assignment is not affected, nor
is there any provision for its being terminated, but there is a
special provision in the clause itself which provides for the effect
which will follow an ass^nment by him without the consent of
the company having been obtained — that upon the completion
of the terms of purchase the company may convey their estate

En Bang.
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NewUndi, J.

in such land to Bennett, the original purchaser, notwithstanding
such assignment. Taking the clause as a whole, its intention
seems to be that any assignment to be valid as against the com-
pany must be approved by them, and that, in the event of an
assignment without their approval, they may ignore the same,
and convey their interest in the land to Bennett, their original
purchaser, notwithstanding such assignment by him. Once the
terms of the agreement of sale are complied with and the land
conveyed by the company to Bennett, the original purchaser,
he would ^old the same in fee simple without any restrictions,
and a transfer or assignment of his estate made by him would
take effect. Upon this construction of this clause in the agree-
ment the transfer from the defendant Bennett to the plaintiff
company would not be void. It would be good against Bennett
and all the world, excepting the Canadian Pacific Railway Com-
pany. It would not, however, be binding upon them nor pre-
vent them from conveying the land to Bennett, who, in that event,
would become trustee of the said lands for the plaintiff company.

The company refused to approve of this transfer to the plain-
tiff company solely because it was in the form of a transfer under
the Land Titles Act, which is a form provided by that Act for
the transfer of the title to land by a roistered owner, and is not
a form of conveyance which would convey the legal estate apart
from that Act. Now, in this case the legal estate was in the
Canadian Pacific Railway Company, and they were registered as
owners of this property, and a transfer under the Land Titles
Act was not, therefore, a proper form of conveyance for Bennett
to use; it would not convey his estate to the plaintiff company
at law, but it would in equity give them the right to call upon
him to give them a proper assignment of his title to this land,
and the plaintiffs, therefore, had an equitable estate in these lands.

Subsequent to the plaintiff company getting this transfer, the
defendant McLeod purchased from the defendant Bennett his in-
terest in the said land, or, as he states in his pleading and evidence,
he purchased from one John D. McLeod, who purchased from the
defendant Bennett, and procured for the defendant McLeod an
assignment of his agreement of sale direct from Bennett. At
this time the legal estate was still in the Canadian Pacific Railway
Company, as it is to this day, and the estates, therefore, of both

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the plaintiff company and the defendant McLeod to this land are
equitable estates; and up to the time that the Canadian Pacific
Railway Company approved of the assignment from Bennett to
McLeod the equitable estates of both the plaintiff company and
McLeod were in every way similar estates. It is true the plain-
tiff company did not pay any money to Bennett at the time he
transferred this land to them, but at that time he owed them a
considerable sum of money, the payment of which was forborne
by the plaintiff company on account of such transfer, and, there-
fore, the consideration they gave was a valuable one.

Now, if these estates were similar in all other respects; the.
maxim, qui prior est tempore potior est jure, would apply, and the
transfer to the plaintiff company, being the first in time, would
prevail: Rice v. Ricey 2 Drew. 73; Cave v. Cave (1880), 15
CD. 639, 49 L.J.Ch. 505, 42 L.T. 730. It is, therefore, neces-
sary for me to consider whether the fact of the approval by the
land commissioner of the Canadian Pacific Railway Company of
the assignment to the defendant McLeod gives him a better estate
than the plaintiff company, and, if it is a better estate, whether
it is one that equity will not interfere with. In Rice v. Rice Kin-
dersley, V.C, held that the possession of the title deeds by a sub-
sequent equitable mortgagee gave him a better equity, and there
was, therefore, no room for the application of the maxim, qui
prior est tempore potior est jure. Now, in this case Mcljeod's
assignment has been approved by the Canadian Pacific Railway
Company, the holders of the legal estate, which would, I think,
all other things being equal, give McLeod a better equitable estate
than the plaintiff company. But, to quote Kindersley, V.C,
again, in Rice v. Rice, at p. 82: "I must, however, guard against
the supposition that I mean to express an opinion that the pos-
session of title deeds will in all cases and under all circumstances
give the better equity. The deeds may be in possession of a party
in such a manner and under such circumstances as that such pos-
session will confer no advantage whatever. . . . So the deeds
may have come into the hands of a subsequent equitable mort-
gagee by means of an act committed by another person which
constituted a breach of an express trust as against the person
having the prior equitable interest. In such a case it would be
contrary to the principles of a Court of equity to allow the subse-

En Banc.
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Sawteb db
Mabsey Ck).

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Newlands, I.

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quent mortgagee to avail himself of the injury which had been
thus done to the party having the prior equitable estate or interest.
Indeed; it appears to me that in all cases of contest between persons
having equitable interests, the conduct of the parties and all the
circumstances must be taken into consideration in order to deter-
mine which has the better equity."

If we examine the conduct of the parties in this case, especially
to find out how the defendant M. J. McLeod obtained the approval
of the Canadian Pacific Railway Company to the assignment from
Bennett to himself, which would give him the better equity, what
do we find? The learned trial Judge has found that the approval
to this assignment was obtained in the following manner: "Having
procured the assignment to Malcolm J. McLeod, it became neces-
sary to obtain the approval of the railway company, and here
fraud and criminal acts were unquestionably perpetrated. But
the fraud, in my opinion, was upon the Canadian Pacific Railway
Company. The company required, as I have already stated,
that an assignment of the character in question should be executed
by the assignee, as well as by the original purchaser of the land.
Malcolm J. never executed the assignment in question. John D.,
without any authority whatever, put his name to it, and deliberately
swore to the execution of the instrument by Malcolm before a cwn-
missioner for taking oaths. So the signature by Malcolm to
that instrument was a forgery, and the aflSdavit of execution was
false. I say the signature of Malcolm was a forgery because it
was done with the intent to lead the railway company officials to
believe that Malcolm had really signed it, and so to induce them
to approve of the assignment to him. For some reason or other,
apparently, the railway company required that Beimett's copy
of the original contract of sale between them and him should be
produced. It was not produced, and John D. McLeod, thinking
it necessary that the non-production of it should be accounted
for, prepared a solemn declaration, purporting to be made by
Malcolm J. MacLeod, setting forth that he was the purchaser of
the assignment, and that he had lost the purchaser's copy of the
original contract, and that there was no assignment endorsed on
such contract, and that he had not delivered it to any person for
any purpose whatever. John D. McLeod, without any authority,
affixed Malcolm J. ]McLeod's name to this declaration, and then

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signed a certificate in his own name^ as commissioner for oaths,
that the declaration had been made before him by Malcolm. I
hold both these acts to be criminal acts, and therefore fraudulent.
John D. McLeod obtained an approval of the assignment of the
contract of sale from Bennett to Malcolm J. Had it not been
for these fraudulent documents to which I have referred, such
approval would not have been granted. There was to my mind,
therefore, a clear fraud with respect to the Canadian Pacific Rail -
way Company. I entirely acquit Malcolm J. McLeod of being
an actual party to these fraudulent and criminal acts— he knew
nothing about them. . Nevertheless, John D. McLeod, in en-
deavouring to procure an approval by the company of this assign-
ment to Malcolm J., was acting as his agent, and Malcolm must
take the consequences of his agent's acts."

Now, can an approval of the assignment, procured in such a
manner, confer any advantage upon McLeod, and is it true that
the plaintiff company have no locus standi to avail themselves of
such conduct on the part of a subsequent purchaser? As I have
already stated, I am of the opinion that the transfer from Bennett
to the plaintiff company is not rendered void by the clause in the
original agreement of sale providing for the approval of an assign-
ment by the land commissioner of that company. The plaintiffs,
therefore, obtained by that transfer an equitable estate in said
land, and when the defendant McLeod bought this land and had
the agreement of sale assigned to him, he got an equitable estate,
subject to the plaintiff company's prior equitable estate. Lord
Chancellor Westbury, in Phillips v. Phillips, 4 DeG., F. & J., at
p. 214, says: **I take it to be a clear proposition that every con-
veyance of an equitable interest is an innocent conveyance; that
13 to say, the grant of a person entitled merely in equity passes
only that which he is justly entitled to, and no more. If, there-
fore, a person seised of an equitable estate (the legal estate being
outstanding) makes an assurance by way of mortgage or grants
an annuity, and afterwards conveys the whole estate to a pur-
chaser, he can grant to the purchaser that which he has, vi3., the
estate subject to the mortgage or annuity, and no more. The
subsequent grantee takes only that which is left in the grantor.
Hence, grantees and incumbrancers claiming an equity take and
are ranked according to the dates of their securities; and the

£17 Bang.
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maxim applies, qui prior est tempore potior est jure. The first
grantee is * potior* — that is, * potentior.* He has a better and
superior — because a prior — equity. The first grantee has a right
to be paid first, and it is quite immaterial whether the subsequent
incumbrancers, at the time when they took their securities and
paid their money, had notice of the first incumbrance or not."

These remarks of the Lord Chancellor only apply where the
equities are in all other respects equal, because, as was pointed
out by the Lord Chancellor in that case and by Kindersley, V.C.,
in Rice v. Rice, where a purchaser or incumbrancer who is later
or last in time succeeds in obtaining an outstanding legal estate,
or any other legal advantage, the possession of which may be a
protection to himself or an embarrassment to other claimants, he
will not be deprived of this advantage by a Court of equity. If,
therefore, MacLeod took subject to the estate of the plaintiff com-
pany, they certainly have the right to attack the means he used
to get a legal advantage over them by having his assignment
approved by the Canadian Pacific Railway Company, and as these
means were found by the trial Judge to be both fraudulent and
criminal, and for which McLeod was held responsible, I cannot
think that he thereby acquired any better title than he had before
that approval. To hold that a man could better his position in
equity by such means would be to put a premium upon fraud
and be against all principles of a Court of equity. Without this
approval, as I have already said, McLeod's equitable estate is no
better than the equitable estate of the plaintiff company, and,
all other things being equal, the maxim, ^i prior est tempore
potior est jure, applies, and the plaintiff company's estate, being
first in time, must prevail.

I have not considered the question of notice, so ably argued
by counsel for the plaintiff company, and all I need say in refer-
ence to it is that it is an additional reason why the defendant
McLeod should not be allowed to take advantage of the approval
of his assignment by the Canadian Pacific Railway Company,
because at the time this approval was obtained by his agent, John
D. McLeod, he (the agent) knew of the prior transfer to the plain-
tiff company, he having himself obtained it, and it is no answer
to say that, not having used this transfer for a year, he supposed
it was abandoned by them. The knowledge he had of the trans-

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527

action was sufficient to put him upon inquiry, when he would
have ascertained that the plaintiff company were relying upon
the same.

There should be a reference to the Local Registrar to ascertain
the amount due by the plaintiff company on said lands both to
the Canadian Pacific Railway Company and McLeod.

Prenderqast and Johnstone, JJ., concurred.

Lamont, J.: — I agree with the judgment of the learned Chief
Justice in so far as he holds that the clause in the agreement setting
out th^t no assignment of the contract shall be valid unless ap-
proved and countersigned by the defendant company, gives to
that company, so long as any part of the purchase money remains
to be paid or any of the covenants to be performed by Bennett
remain unperformed, the right to refuse to accept any assignment
by Bennett at all, or the right to refuse one assignment and accept
another. The clause being a valid one, the rights which Bennett
acquired in the land were limited by that clause, and whoever
acquired Bennett's rights acquired them with the limitation at-
tached thereto. As against the Canadian Pacific Railway Com-
pany, therefore, the action was properly dismissed. This was
practically conceded on the aigument by counsel for the plaintiffs,
but they contended that, even though the Canadian Pacific Rail-
way Company approved of the assignment to Malcolm J. McLeod,
they were still at liberty to ask the Court for a declaration that
Malcolm J. McLeod was a trustee of the land for them. In this
contention I am of opinion that the plaintiffs are right. If the
circumstances under which a purchaser of land acquires title be
such that some other person is entitled to the beneficial interest
in the land, the Court may declare that the purchaser holds that
land as a trustee. The question, then, is, are the circumstances
of this case such that Malcolm McLeod should be declared a trustee
for the plaintiffs? The plaintiffs contend he should be, for two
reasons: (1) Because they hold an equitable title which is prior
in point of time to McLeod's assignment; and (2) because McLeod
acquired his title after notice of the plaintiffs' prior equitable
right. For McLeod it was contended that he had no notice of
the plaintiffs' transfer, and, further, that by their acts and omissions

34 — ^VOL. II. S.L.B.

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the plaintiffs have lost whatever priority they had by virtue of
their transfer being- of an earlier date. The plaintiffs' transfer
was obtained on May. 26, 1905. The assignment to the defendant
McLeod was executed after June 15, 1906. As the Canadian
Pacific Railway Company held the registered title, the plaintiffs'
claim was purely an equitable one. The defendant McLeod ob-
tained the consent of the Canadian Pacific Railway Company to
his assignment, which gave him a right to call for the l^gal title,
and this gave him a title superior to the plaintiffs. In securing
the approval of the Canadian Pacific Railway Company to his
assignment John D. McLeod, whom the learned Chief Justice has
foimd was the agent of Malcolm McLeod to secure such approval,
was guilty of fraud on the defendant company. Malcolm McLeod
cannot, therrfore, as has been pointed out by my brother New-
lands, take advantage of the fraud to uphold his right to call for
a legal estate, and without that approval he has also only an
equitable title. The title of both parties, therefore, being purdy
equitable, the question to be decided is which has priority.

It is a well-known rule that as between equitable claimants,
where the equities are in all respects equal, the first in point of
time will prevail. In this case are the equities equal? If so,
the plaintiffs are entitled to succeed. The facts upon which the
defendant McLeod must rely as giving him a better equity than
the plaintiffs are that the plaintiffs' agents received the fransfer
from Bennett upon the condition that the plaintiffs would make
the payments to the Canadian Pacific Railway Company as set out
in the contract, with the possible exception of one payment, about
which there is some conflict of testimony; that the plaintiffs'
agents had no authority to take the transfer upon that condition
and that, therefore, it was not a binding arrangement until accepted
by the plaintiffs; that no notice of acceptance thereof was given;
and that no payment or offer of payment was made to the Canadian
Pacific Railway Company until after McLeod had his assignment.
Also the further facts that the plaintiffs, having taken a transfer
of the land, left Bennett not only in possession of the land, but
also in possession of his contract with the Canadian Pacific Railway
Company, which was the only evidence of title he had to the land,
and which John D. McLeod received from Bennett on June 15th,
1906. Are these facts sufficient to give Bennett a better equity
than the plaintiffs?

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In Dart on Vendor and Purchaser, 7th ed., at p. 858, the learned
author says: ''Where the contest lies between parties having
mere equities, anything which raises a positive equity against the
one, 'upon the principle which in equity, as distinct from law,
is designated by the term "estoppel," ' will give the other, though
his equity is posterior in creation, a better claim on the assistance
of the Court."

In Rice v. Rice (1853), 23 L.J. Ch. 289, it was held that the
equitable interests of two parties, the v.endor in respect of his
lien for unpaid purchase money, and the equitable mortgagee
for moneys advanced, being in all respects equal, the equitable
mortgagee, by the possession of the title deeds, had a better
equity, and that the rule qui prior est tempore potior est jure can
only apply where the equitable iuterests are in every respects
equal. In that case Kindersley, V.C., said: "In examining into
the relative merits of two parties having adverse equitable io-
terests, the points to which the Court must direct its attention
are obviously these: the nature and condition of their respective
equitable interests, the circumstance and manner of their acquisi-
tion, and the whole conduct of each party with respect thereto."

In Farrand v. Yorkshire Banking Company (1888), •40 Ch. D.
182, 58 L.J. Ch. 238, the facts resembled those of the present case.
There the plaintiffs' testator advanced £200 to one Priuce, to
enable him to purcha^ a certain property, and took from him a
bond for the payment of the money and an agreement that, as
soon as he had obtained title, Prince would execute a legal mort-
gage and hand over to him the title deeds. Prince purchased
the property, but did not give the legal mortgage or deposit the
title deeds with the plaintiffs' testator. About a year afterwards
Prince deposited the title deeds with the defendant bank as
security for a loan. The bank claimed priority, and the plain-
tiffs brought action to have it declared that their claim had priority
over that of the bank. In giving judgment. Lord North, after
pointing out that for about a year after the purchase was made
the testator, although entitled to the possession of the title deeds,
did not call for them and took no steps to obtain them, but left
them in Prince's hands, thus enabling him to borrow on the faith
of them from the bank, said: "The question is, under these circum-
stances, which of the two, the plaintiffs or the bank, ought to be

En BAira
1909

Sawtbr &
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En Banc.
1909

Sawtbr &
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Benkett.
Lunont, J.

preferred? It is said that they have what are called 'equal
equities.' Of course, one equity is aiwa,ys prior to the other
in date, and the expression 'equal equities' does not refer to
equality in date. When equities are equal in other respects, the
earlier in date is preferred, but, when equities are not equal, then
the priority of date is easily got over, at any rate, as between
equitable incumbrancers. Now, if the plaintiffs' testator had
asked for the deeds, which under his agreement he was entitled
to have, the bank could not have been defrauded by Prince by
his depositing the deeds with them, for it is clear that Prince ob-
tained advances from the bank without communicating to them
the fact that there was another security on the property. The
way in which they were originally induced to lend their money
to Prince and to continue dealing with him for twenty years and
more arose simply and solely from the fact that the plaintiffs'
testator first, and the plaintiffs after his death, had not chosen
to ask for the deeds, or to make any inquiry about them. The
testator allowed Prince to receive the deeds on the completion
of his purchase, and the testator and the plaintiffs allowed him to
retain them for his own purposes, so that he had power to deal
with them as he pleased without any claim on their part. It
seems to me that in this state of things the equities are not equal,
and the plaintiffs are not entitled to set up against the defendants
that they are prior to them in point of date."

In Lloyd Banking Company v. Jones (1885), 29 Ch. D. 221,
54 L.J. Ch. 931, 52 L.T. 469, Mr. Justice Pearson said: "Where
there are equities which are otherwise equal, the possession of
the deed gives priority to the person who has got them." And
in The National Provincial Bank of England v. Jackson, 33
Ch. D. 1, 55 L.T. 458, Cotton, L.J., says: "As between equit-
able claims, the question is whether one party has acted in such
a way as to justify him in insisting upon his equity as against
the other."

In the present case the conduct of the plaintiffs in not notif3ring
Bennett of their acceptance of the transfer with the conditions
on which it was given attached, and their neglect to make the
payments to the Canadian Pacific Railway Company, led both
Bennett and John D. McLeod to the conclusion that the transfer
had not been accepted. It seems also to have led Johnston, the

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head of the Massey-Harris collecting department and an agent
of the plaintiflfs, to the same conclusion, for, when John D. McLeod
informed him of the sale of the said land to Malcolm McLeod,
he raised no objection whatever on the ground of the plaintiffs'
prior transfer, although he himself had been the one who forwarded
that transfer to the plaintiffs' office in Winnipeg. Their con-
duct also in leaving Bennett in possession of all the title papers
to the property enabled him to hold himself out to McLeod as
being in possessi(>n of all the interest which he obtained under
the contract with the Canadian Pacific Railway Company. I,
therefore, think that the defendant McLeod has the better equity,
unless, indeed, he had notice of the plaintiffs' claim when he pur-
chased the property. Had he such notice? He had no actual
notice. But it is said he had constructive notice; that John D.
McLeod was his agent in the transaction, and he had knowledge
of the plaintiffs' prior transfer. The learned Chief Justice has
found as a fact, and I entirely agree with that finding, that John D.
McLeod was not an agent for Malcolm McLeod at all until after
Malcolm had obtained the assignment from Bennett, but that,
having obtained the assignment, he employed John D. McLeod
as his agent to secure the approval of the Canadian Pacific Rail-
way Company to the assignment. John D. McLeod certainly
knew of the plaintiffs' transfer having been taken. Is this suffi-
cient to chaige Malcolm McLeod with knowledge of plaintiffs'
claim?

In his Laws of England, vol. 1, at p. 215, Lord Halsbury lays
down the law as to notice as follows: "456. Where an i^ent,
in the course of any transaction in which he is employed on his
principal's behalf, receives notice or acquires knowledge of any
fact material to such transaction, under such circumstances that
it is his duty to communicate it to the principal, the principal
is precluded, as regards the persons who are parties to such trans-
action, from relying upon his own ignorance of such fact, and is
taken to have received notice of it from the agent at the time
when he should have received it, if the agent had performed his
duty with due diligence. But, in the absence of such duty, the
principal is not bound by any notice given to, or any knowledge
acquired by, the agent, if at the time when the agent received
such notice or acquired such knowledge he was not acting as agent
on the principal's behalf."

En Banc.
1909

Sawyer &
MassetCo.

Bennett.

Lamont. J.

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532

SASKATCHEWAN LAW EEPOBTS.

[vol.

En Banc.
1909

Sawyer &
Masset'Co.

Bennett.

Lamont, J.

In Re Hampshire Land Company (1896), 2 Ch. 743, it was held
that where one person is an of&cer of two companies, his personal
knowledge is not necessarily the knowledge of both companies.
The knowledge which he has acquired as officer of one company
will not be imputed to the other company unless he has some
duty imposed upon him to conmxunicate his knowledge to the
company sought to be affected and some duty imposed on him
by that company to receive the notice. This principle was ap-
proved in Young v. David Payne & Co., Ltd, (1904), 2 Ch. 608,
73 L.J. Ch. 849, 91 L.T. 777.

The case of KeMewdl v. WaJtaon, 21 Ch. D. 685, furnishes
a number of valuable illustrations of the principles applicable
to notice. In that case Fry, L.J., said: "The first question is,
did the principal know of the chaige? If he did not, had he an
agent who knew of the chaige? Then the next question is, was
it the agent's duty to communicate that fact to the principal."
And he held in that case that where a sub-purchaser, who had
bought a small lot from the purchasers, and who had allowed the
purchasers, at their suggestion, to employ their own solicitors,
who knew of the vendor's lien, to prepare the conveyance, there
was no duty cast upon the solicitors to communicate to the sub-
purchaser the existence of the lien, and the sub-purchaser was
not chaiged with notice thereof, the solicitors emplo3anent being
in that case simply to draw the conveyance.

From these authorities it seems to me clear that, before the
knowledge of the agent can be imputed to the principal, there
must be a duty on the part of the agent cast upon him by virtue
of his employment to receive and communicate that knowledge
to the principal. Applying these principles, the present case
seems to me to resolve itself to this: had John D. McLeod, by
virtue of his employment to obtain the approval of the Canadian
Pacific Railway Company, any duty cast upon him to ascertain
and commimicate to his principal the fact of there being out-
standing equitable claims against the property? In my opinion,
there was no such duty. His employment was limited simply
to one thing, and that was the obtaining of the approval of the
Canadian Pacific Company to the assignment. Whatever know-
ledge he had or obtained which it was his duty by virtue of that
employment to ascertain and communicate to Malcolm J. McLeod

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SASKATCHEWAN LAW REPORTS.

533

is knowledge which can be imputed to the principal, and by which
the principal must be bound. But where it was no part of his
duty as agent of Malcolm McLeod to ascertain the existence of
the plaintiff's claim, I am of opinion there was no duty cast upon
him to communicate to his principal the fact that the claim existed.
In no sense was John D. McLeod Malcolm McLeod's general
agent in the transaction. Therefore the knowledge which he had,
but which his employment cast upon him no duty to communicate,
cannot be imputed as knowledge to Malcolm McLeod. The de-
fendant McLeod, therefore, having no knowledge of the plaintiffs'
claim, and having, as I have held, the better equity, is entitled to
succeed. In my opinion, the appeal should be dismissed with
costs.

Appeal aUotoed.

Eir Bang.
1909

Sawter &
Masset Go.

Bennett.

Lamont, J.

END OP VOL. II.

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INDEX.

ACTIOH.

Bight of Simple Contract
Creditor to Maintain Action to
Set Aside Fravdulent Assign-
ment,]— See Assignments and
PreferengbS; 1.

ADMDnSTRATIOH.

Practice in Surrogate Pro-
ceedings,] — See Practice, 1, 14.

APPEAL

1. Ax^eal from Conviction by
Jtistice of the Peace — Reference
to Court en banc by District
Court Judge — Jurisdiction of
Court.] — See Criminal Law, 3.

2. Appeal from Summ^ary
Conviction — Stated Case — Regu-
larity of Proceedings,] — See
Criminal Law, 4.

3. Appeal to Court en banc]
— See Practice, 2 and 3.

ASSESSMENT AND TAXATION.

1. Crown Lands — Assessment
of Occupant,] — See Municipal
Corporation, 2 and 3.

2. Personal Property — Assess-
ment of Chartered Bank —
Moneys Held on Deposit — Notes
and Specie.] — Held, that moneys
held on deposit not being the
property of the bank, notes and
bills of exchange representing
such moneys and the bills of the
bank representing no value un-

36 VOL. II. S.L.B.

til issued are not assessable, but
that all fixtures, specie, bills of
other banks. Dominion bills,
notes and bills of exchange re-
presenting moneys held other-
wise than on deposit are assess-
able. In re Lang School Dis-
trict, 322.

ASSIONHENTS AND
PSEFEKENCES.

1. Assignments and Prefer-
ences Act — Action to Set Aside
Chattel Mortgage — Knowledge
of Mortgagee of Insolvency of
Mortgagor — Intent to Obtain
Preference — Mortgage to Secure
Past and Present Advances —
Validity of — Action Brought by
Simple Contract Creditor —
Right of /SwcA Creditor to Main-
tain Action,] — Defendant
Hourie, being in insolvent cir-
cumstances, gave a chattel mort-
gage to the defendant bank to
secure $500 past indebtedness
and $250 a present advance.
The manager of the defendant
bank was well acquainted with
the defendant Hourie 's circum-
stances, and must have known
him to be insolvent. A simple
contract creditor of Hourie
brought an action to set aside
the mortgage as void under the
Assignment and Preferences
Act:—

Held, that in order to render
a conveyance void under the pro-

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INDEX.

[vol.

visions of sec. 39 of the Assign-
ments Act, there must be know-
ledge of the insolvency on the
part of both parties and concur-
rence of intent to obtain an un-
lawful preference over other
creditors.

(2) That the chattel mortgage
attacked having been given and
taken with knowledge of the in-
solvency of the mortgagor, was
as to the past indebtedness of
$500 void, but was valid as to
the advance of $250, which, al-
though not actually advanced
until a few days after the mort-
gage was given, was intended to
be a present advance on the
security of the mortgage.

(3) That under the Assign-
ments Act any creditor may
maintain an action to set aside
a fraudulent conveyance under
the provisions of the Act, whe-
ther his claim has been reduced
to judgment or not. Douglas
v. Hourie, 34.

2. Proof of Insolvency — In-
ahility to Pay Debts — Preferen-
tial Assignment — Knowledge of
Insolve ncy. ] — Defendants, just
prior to the assignment for the
benefit of creditors by a debtor
of the defendants, secured an
order from the debtor for pay-
ment to them of a portion of the
moneys payable on the sale of
his business, of which they sub-
sequently obtained payment.
The debtor having shortly after-
wards made an assignment to
the plaintiff for the benefit of
his creditors, the assignee
brought an action to secure the
return of the money so paid.

It appeared that the defendants
had knowledge of the insolvent
condition of the debtor at the
time of the giving of the order.
The debtor was not available at
the trial to give evidence, and
no direct evidence of insolvency
could be given. It appeared,
however, that for some time
prior to the assignment he had
been unable to pay his debts in
full, and the assignee shewed
that the liabilities exceeded the
assets which had come into his
hands: —

Held, that the evidence was
sufl5cient to establish that the
debtor was unable to pay his
debts in full, and the defendants
being aware of this, and the as-
signment of the money to them
having the effect of giving them
a preference, the assignment of
such money should be set aside
and the plaintiff have judgment
for the amount paid, dagger
V. Turner & Co,, 476.

3. Fraudulent Conveyance —
Statute of Elizabeth — Intent]
— ^Defendant McDonald being
indebted to the plaintiffs and
others, conveyed a farm to his
co-defendants, his wife and
father-in-law, for an expressed
consideration of $4,000.00 to be
paid in cash, notes, and by the
proceeds of a loan. The evi-
dence as to payment was con-
tradictorj*-, but the weight of evi-
dence seemed to shew that $1,-
400.00 was paid. Beyond con-
tradictory evidence between the
defendants as to the mode of
payment there was no eTidenoe
of fraud: —

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537

Held, that no actual and ex-
press intent to defraud or delay
creditors being shewn in both
parties, the transfer, being for
valuable consideration, ought
not to me set aside. Manitoba
Brewing & Malting Co. v. Mc-
Do7iald, 223.

4. Land Titles Act — Execu-
tions— Effect of Assignments and
Preferences Act Upon.] — See
Land Titles Act, 1.

5. Company — Sale of Proper-
ty—Resolution Authorizing Con-
veyance — Non-compliance with
Provisions of — Conveyance In-
valid— Insolvency — Fraudulent
Conveyance.] — The Mortlach
Mercantile Company being in-
debted to several parties, the de-
fendant Belcher was appointed a
trustee for creditors, and with»his
consent the business was trans-
ferred to a company known as
Hudsons Ltd., which agreed to
assume the liabilities of the pre-
vious company and to pay the
same in regular payments. The
new company being behind with
its payments, a ^resolution was
passed authorizing the sale of the
business and conveyance thereof
to J. W. Hudson upon execu-
tion of certain notes, which, it
was found as a fact, were never
made. Notwithstanding, the
conveyances were made by the
officers of the company, and
Hudson went into possession.

In an action to set aside the
conveyance of the land, it ap-
peared that at the time of the
transfer Belcher was pressing
his claim, that other claims

were outstanding, that the goods
were mortgaged in a consider-
able sum, that the assets if sold
would be insuflScient to meet the
liabilities, and that Hudson
must have been aware of the
state of aflfairs: —

(1) That the company, at the
time of the transfer of land to
Hudson, being unable, if its
assets were presently realized-
and if compelled to sell at a for-
ced sale, to pay its debts in full,
must be deemed to have been in-
solvent at that time, and Hud-
son being aware of this, and the
conveyance to him being appar-
ently to defeat the creditors of
the company, the conveyance
must be deemed to have been
fraudulent under the Act re-
specting Assignments and Pre-
ferences, and should be set aside,
i Belcher v. Hudson, 489.

ASSIOIOfENTS OF DEBTS.

1. Contract for Sale of Land

, — Instalment Payable Thereun-

.der — Attachment before Due —

Liability to Attachment.] — The

ipurchisiser under agreement for

sale of land was served with a

garnishee summons for a debt

due by the vendor. At that time

DO instalment was due. When

I the next instalment became due

he paid into Court an amount

sufficient to satisfy the debt. In

an action by the purchaser for

specific performance the vendor

objected that the instalment was

not attached and the payment

improperly made : —

Held, that an instalment un-
der an agreement for sale of land

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INDEX.

[vol.

containing a convenant to pay
is a debt which is attachable.
Campbell v. McKinnon, 345.

2. Aiiachmeni of Debts —
Amount Due under Building
Contract — Failure of Contractor
to Complete Work — Work Com-
pleted by Owner — Debt Due —
Condition Precedent to Payment
—Effect o/.]— Defendant had a
• contract for the erection of a
school building for the garnish-
ees, but abandoned the work be-
fore completion. The contract
provided that the proprietor
might in such a case take posses-
sion of the premises and com-
plete the work and charge cost
against amount due the contrac-
tor. It was also provided that
the final estimate of 20 per cent,
should not be payable until all
liens had been paid and defec-
tive work remedied. The plain-
tiff after the defendant aban-
doned the work gamisheed the
balance due him under the con-
tract. After the garnishees had
paid all liens and completed the
building, most of which pay-
ments were made after service of
the garnishee, there was no sur-
plus remaining: —

Heldf that the true test as to
whether or not there is an at-
tachable debt is to ascertain whe-
ther anything has to be done by
the judgment debtor as a con-
dition precedent to payment,
and as the condition precedent
to the payment of the amount
due when the garnishee was
served was the completion of the
building, which was never com-
pleted by the contractor, there'

was not any attachable debt due
from the garnishee to the judg-
ment debtor. Reward Milling
Co. V. Barrett J & Reward School
District, Oamishee, 210.

3. Practice in Cases of.] — See
Practice, 4.

BILLS OF EZCHAITOE AHS
PBOXISSOBT NOTES.

1. Promissory Note — Action
Upon by Ouardian of Lunatic —
Note Oiven for Sale of Ooods be-
fore Ouardian Appointed — Con-
sideration — Ratification — Notice
of.] — ^The plaintiff, the brother
of a lunatic, sold certain pro-
perty of such lunatic to defend-
ant, taking a promissory note
in payment expiressed to be pay-
able to plaintiff for the lunatic.
The note being dishonoured,
plaintiff sued to recover, and the
action was dismissed. The plain-
tiff was then appointed guardian
of the estate and brought a new
action as guardian, but did not
notify the defendant of his ap-
pointment or ratify the trans-
actions occurring prior to his ap-
pointment : —

Held, that if the note when
given was not valid, the plaintiff
could not, upon being appointed
girttrdian, recover upon it, in any
event not unless he had ratified
the sale and notified the defend-
ant of such ratification and of
his appointment. Davis v. Rey-
nolds, 221.

2. Promissory Note — Verbal
Agreement as to Extension of
Time for Payment — Principal

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539

and Agent — Commission on Sale
of Land — Duty of Agent — Sale
Without Agent's Knowledge.] —
Plaintiffs, as executors, sued on
a promissory note. Defendant
admitted the note, but alleged a
verbal agreement for the exten-
sion of time for pajonent. He
also counterelaimed for commis-
sion on sale of land, it appearing
that deceased had promised him
a commission if he could procure
a purchaser. The defendant in-
terested a party in the property,
but the latter, finding it impos-
sible to raise sufficient money to
carry the sale through, men-
tioned the property to a third
party, who went to the deceased
and purchased on the terms
stated to the defendant, without
the defendant's knowledge, and
without the deceased being
aware that the purchasere had
learned that the property was
for sale through any efforts on
the defendant's part: —

Heldy that the date of pay-
ment expressed in the promis-
sory note could not be varied by
parol evidence.

(2) That in order to entitle the
agent to commission on sale of
land it must be shewn that the
sale is the direct result of the
agent's efforts, and it is not suffi-
cient that he mention the pro-
perty to another person who is
not his agent, nor the agent of
the purchaser, and who after-
wards mentions it to a third
party, who purchases. Vachoe v.
Stratton, 72.

3. Sills of Exchange — Action
Upon — Bill Drawn to Order of

Bank — Not Indorsed — Action
by Drawer Upon — Holder of
BUI — Pleading,] — Plaintiff,
the drawer of a bill of exchange
accepted by the defendant,
brought action thereon. The bill
was drawn payable to the order
of the Dominion Bank, and was
not indorsed by the bank, but in
the statement of claim it was
alleged that upon dishonour the
bill was returned by the bank
to the drawer, who was then the
holder thereof. The defendant
appeared and filed a defence
which was struck out on a mo-
tion for speedy judgment. On
such motion the defendant filed
no affidavit, but relied on the
objection that the bill had not
been indorsed to the plaintiff,
who could not, therefore, main-
tain the action : —

Held (per Wetmore, C.J.,
and Johnstone, J.), that as the
defendant had, in answer to the
motion, raised a difficult ques-
tion of law which might be an
answer to the plaintiff's claim,
he should be permitted to de-
fend.

Per Newlands and Prender-
GAST, JJ.,that it was not neces-
sary for the plaintiff in pleading
to allege any facts which would
be presumed in his favour, and
it was therefore unnecessary to
allege that the Dominion Bank
were the holders for value, and
it might be presumed that when
they returned the bill to the
plaintiff they were paid by him',
and it was therefore unnecessary
to allege payment in order to en-
title the drawer to recover.

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INDEX.

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(2) That it was not necessary
for the Dominion Bank to in-
dorse the bill to the drawer, as
when the bank w^as paid the bill
ceased to be negotiable, and the

— Ooods Held by Mortgagor un-
der Agreement for Conditional
Sale — Seizure in Oood Faith.]
— ^Plaintiff delivered a team of
horses to his son, under an agree-

only right of action which exists , ment for conditional sale where-
is the right of action against the i by the property in the horses
acceptor by the drawer, which was reserved to the plaintiff un-

he acquires not through the

payee but by virtue of his orig-
inal position as drawer. Velie v.
Hemstreet, 296.

til th^ purchase price was paid.

Subsequently the son mortgaged

the horses, and the mortgage

came .into the hands of the de-

A nil ^ E7 7 n- fendant company. Default be-

4. Bdls of Exchange — Given i . j 4.1. ^u

. r n ' ipjr ^l^^S made, the company author-

for Insurance Premmm-Effectl.^ .^^ ^^j^^ ^^^ defendant

as a Settlfmcnt.] — See Fire In- ■ ^ „ ^ ._*_ ^^_ ^ ^„

SURANCE, 2.

5. Days of Grace — Action be-

Cornell, to seize the horse. On
the seizure being made the plain-
tiff notified the bailiff of his lien

fore Expiration of,] — See Chat- and the registration thereof, but,

TEL Mortgage, 2.

BILLS OF SALE.

1. Change of Possession —
What Constitutes — Registra-
tion.]— See Conditional Sale,
3.

2. Growing Crop — Convey-
ance of — Effect of Ordi^iance.]
— See Landlord and Tenant,

BTJILDIirO CONTBACTS.

1. Completion by Contractor
— Recovery of Instalments.] —
See Attachment of Debts, 2.

2. Accepta7ice — Architects
Certificate — Damages for Non-
Completion. ] — See ]VIechanic 's
Lien, 2.

CHATTEL MOBTOAOE.

1. Conversion — Seizure of
Ooods under » Chattel Mortgage

by reason of a change in the
boundaries of the registration
district, mentioned the wrong of-
fice as the place where the note
was registered. Search on two
occasions at the office named
failed to shew the lien registered,
and the defendants thereupon
sold the horses. The note had
in fact been properly registered
before the changes in the boun-
daries. In an action for eon-
version : —

Heldy that although the defen-
dants acted innocently and in
good faith in selling the pro-
perty in question, there was
nevertheless a wrongful conver-
sion. Reinholz v. Cornell & Oaar
Scott Co., 342.

2. Chattel Mortgage — Collat-
eral Security for Payment of
Promissory Note — Days of Grace
on Notes — Seizure under Mori-
gage before Expiration of —
Right to Make — » Acceleration

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541

Clause in Mortgage — Evidence \ taming a clause providing for
that Mortgagee Deemed Himself \ entry and seizure, provided
Insecure — Reference to Locallthe mortgagee deems the mort-
Registrar to Ascertain Damages ! gage to be insecure, before
— Discretion of Judge.] — Plain- the sum payable thereunder
tiff purchased a stock of goods i is due, it must appear that the
from defendant Stewart, giving | mortgagee did actually deem the

promissory notes in payment,
and as collateral security to such
notes a chattel mortgage ex-
pressed to be x)ayable on the days
when the notes were respective-
ly payable, and to be collateral
thereto. The mortgage also con-

mortgage insecure at the time
he made the entry, and that such
entry was made on that ground.
(4) That it is a matter entire-
ly in the discretion of the trial
Judge whether he assess the
damages claimed in an action
himself or refer it to the local
Westaway v.

tained the usual acceleration
clause, and a provision that the ; registrar to do so,
mortgagee deeming the mort- ; ^^^^1,^^^^ 178.
gage insecure he might declare ^

it due at any time. The plain- 1 ^- Action to Set Aside as in

tiff having made default in pay- Fraud of Creditors.] —See As-

■ ment of one of the notes, the de- 1 signments and Preferences, 1.

fendant caused the goods men-|

tioned in the mortgage to be

seized, the seizure being made
before the expiration of the last
day of grace on the note but af-
ter the payment became due as
expressed in the mortgage. The
plaintiff sued for damages for
unlawful seizure and conversion
of the goods : —

Held, that a mortgage given
as collateral security to a prom-
issory note cannot be enforced
for default in payment until af-
ter the expiration of the last
day of grace for payment of
such note.

(2) An action cannot be main-
tained on a promissory note un-
til the expiration of the last day
of graceu

(3) That in order to justify
entry and seizure before default,
under a chattel mortgage con-

coMPAinr.

1. Insolvency — Liquidation
— Contributories — Settling List
of — Allotment of Shares — With-
drawal of Application Before —
Notice of Withdrauml — Notice
of Allotment — Application
Obtained by Fraud — Lia-
bility of Applicant as a Contri-
butory— Debt Due by Company
to Shareholder — Right to Set-
off.]— On the day after signing
an application for shares in a
company the applicant decided
to withdraw and mailed a notice
of such intention to the party
who had taken the application,
which in the ordinary course of
the mail should have reached
him the following day. There
was no evidence that this letter
did reach the party to whom it
was addressed on that day or

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[vol.

that he was an agent or officer of,
^the company authorized to re-
ceive such a notice. In the mean-
time and without notice of with-
drawal the company accepted
the application and allotted the
shares, but notice of allotment
was not given until twelve days
later. On an application to set-
tle contributories : —

Held, that an application for
shares cannot be withdrawn af-
ter allotment.

(2) That in the absence of a
•statutory provision or custom of
husiness to the contrary, a notice
sent by mail is not operative in
the absence of evidence that it
was actually received.

An applicant for shares re-
sisted the application to place
his name on the list of contribu-
itories on the ground that he had
been induced to take the shares
by misrepresentation.

Held, that fraud was no an-
swer to the application, as the
applicant should have taken pro-
ceedings to have the shares can-'
•celled before winding up.

A shareholder set up that the
•company was indebted to him in
a large amount, being for
amoimt due under one of the
company's policies upon pro-
perty destroyed by fire, and
claimed the right to set off each
•amount.

Held, that in view of the pro-
visions of sub-sec. 2 of sec. 44 of
the Companies Ordinance and
paragraph 2 of sec. 14 of the
Winding-up Ordinance, the
shareholder was entitled to set
•off such debt. In re Globe Fire

Insurance Company, Limited,
234.

2. Company in Liquidation —
Winding up — Settling List of
Contributories — Register of
Members — Evidence of Member-
ship— Condition Attached to Ap-
plication not Stated in Writ-
ing — Application in Writing
Unconditional — Condition not
Communicated to Company —
Effect of,] — On an application
to settle the list of contributor-
ies of a company, one Robertson,
who had made application for
shares and whose application had
been accepted, objected that his
application was conditional up-
on his appointment as agent of
the company and his acceptance
of that agency. He also objected
that his membership in the com-
pany had not been properly
proved, as the register had not
been produced : —

Held, that the register of the
company is not conclusive or the
only evidence of membership
therein, but membership may be
proved without reference to the
register.

(2) That the application for
shares being an unconditional
one, and there being no evidence
that any notice of a condition
attached had ever been given to
the company, Robertson's name
must be placed on the list of con-
tributories. In re The Olobe
Fire Insurance Company, Ltd.
Robertson's Case, 266.

3. Company — Winding Up —
Insolvency — Proof of — Admis-
sions of Insolvency by Officers--

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Effect of— Affidavit Verifying
Petition — Sufficiency of.] — An
application was made to wind up
a company on the grounds of
insolvency imder the provisions
of 'the Companies Winding-up
Act (Dom.). The petition set
out that the petitioner was a
creditor, and that the company
was indebted to other persons in
large amoimts; that the com-
pany was unable to pay these
debts, and that certain persons
in charge of the company's busi-
ness had admitted its insolvency.
This petition was verified by
affidavit, which stated **that
such of the statements in the
petition as relate to my own
acts and deeds are true, and such
of the statements as relate to
the acts and deeds of others I
believe to be true.'* No other
evidence was filed with the peti-
tion, nor was notice of any other
affidavit served until two days
before the application was to be
heard, when three further affi-
davits were served and leave was
asked to read them : —

Hekl that the affidavit did
not verify the petition as re-
quired by the rules, and was
insufficient to support it.

(2) That the original affidavit
filed being totally insufficient,
there was no evidence on file
when the petition was presented
to support it, and leave should
not be given to file further affi-
davits in an endeavour to make
out a case after the return of the
motion.

(3) That insolvency can only
be established in winding-up pro-

ceedings in the manner provided
by the Act, and admissions of
officers of the company of its in-
solvency are not sufficient to
bring the case within the Act.
In re Outlook Hotel Co,, 435.

4. Companies Winding-up Or-
dinance— Company in Liquida-
tion — Seizure of Goods by
Sheriff Before Liquidation —
Right of Sheriff to Sell.]— An
order was made, imder the pro-
visions of the Companies Wind-
ing-up Ordinance (ch. 13 of
1903), to wind up a company,
and a liquidator was appointed.
Before the appointment of the
liquidator the sheriff seized the
goods of the company imder a
writ of execution. On an appli-
cation for an order directing the
sheriff to hand over the goods so
seized to the liquidator: —

Held, that the Court had, un-
der the Companies Winding-up
Ordinance, 1903, no jurisdiction
to require the sheriff to hand
over the goods seized by him un-
der execution. In re Regina
Windmill and Pump Co., Limi-
ted, 32.

5. Resolution Authorizing Con-
veyance— Non-compliance with
— Effect of.] — See Execution,
1.

CONDITIONAL SALE.

1. Windmill and Appurten-
ances— Machinery Attached to
FrceJiold by Purchaser under
Contract for Sale — Cancellation
by Vendor — Action by Bailor
under Conditional Sale against
Vendor for Detention — Fixture

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[vol.

— What Constitutes — Intention
of Parties — Right of Bailor to
Remove,] — Defendant sold cer-
tain land to one P. under con-
tract for sale upon deferred pay-
ments, and B. went into posses-
sion. While so in possession he
purchased from plaintiff a wind-
mill, pump, tank, piping and a
sawmill for the operation of
which shafting was attached toj
the windmill. 1

This machinery was not paid '
for, but was sold upon terms
that the property therein should
not pass until paid for. The
machinery was set up on the
land, being aflSxed by bolts to
posts set into the soil and fast- '
ened there, and could not be used :
unless so fastened. The def en-
dant cancelled P.'s contract for
purchase of the land and took
possession. The plaintiff de-
manded delivery of the windmill
and appurtenances and the de-
fendant refused, whereupon the
plaintiffs brought action for de-
tention : —

Held, that the windmill in
question having apparently been
intended to be a permanent im-
provement and to enhance the
value of the premises, and be-
ing aflSxed thereto, became part
of the freehold, and while the
contract whereby the property
therein was to remain in the
plaintiff until payment would be
enforceable as against P., it was
not enforceable as against the
owner of the freehold in posses-
sion after P. 's contract had been
cancelled.

(2) That the sawmill being
part of the windmill, also went

with the land. Cockshutt Plow
Co, V. McLoughry, 259.

2. Conditional Sale of Goods —
Alteration of Agreement After
Signature — Effect of — Letters
Changing Order — Effect on
First Order — New Contract] —
Plaintiff applied to the defend-
ant Jones to purchase certain
goods on the terms that he would
pay a certain sum in cash and
the balance in fifteen monthly
payments, the property in the
goods to remain iti the seller un-
til payment. Subsequently the
defendant Jones found that all
the goods offered could not be
supplied, but suggested others
in substitution, and to this the
plaintiff agreed. The alteration
had the effect of reducing the
price by the sum of $40.00. In
shipping the goods an invoice
was sent out wherein the terms
of payment were incorrectly
stated. The plaintiff accepted
the goods and made the cash
payment thereon, but claimed
to pay the balance on the terms
as stated in the invoice. It also
appeared that when the order
was altered by the plaintiff
agreeing to the substitution of
other articles for those ordered,
the defendant Jones 'had made
the necessary corrections in the
original order. As a result of
the dispute over the terms of
payment the defendants, under
the terras and conditions of the
original order, seized and sold
the goods. The plaintiff there-
ux)on brought action for dam-
ages alleging the original eon-
tract to be void on account of

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545

the alteration, and that a new
contract had been made when
the plaintiff accepted the goods
on the terms of the invoice : — .

Held, that the goods were sold
and delivered upon the terms of
the original order, with such
changes as were necessary, and
to which the plaintiff had
agreed, and as the defendant
Jones could nat have collected
more than the value of the goods
shipped, the alterations in the
order were not material and did
not have the effect of voiding
the contract. Gogain v. Brack
ett, 253.

the horses for the amoimt due
and he would re-sell them to A.,
at the same time taking lien
notes for the purpose of secur-
ing the purchase price. This
arrangement was 'carried out,
lien notes being given. The
horses were at this time in a
livery stable, and there was not
any apparent change of posses-
sion during the transaction. A
immediately afterwards sold the
horses to the plaintiff. The de-
fendant, learning of the sale,
took possession of the horses un-
der the lien notes, and the plain-
tiff sued for detention : —

3. Goods Seized under Agree-
ment for Conditional Sale — Pre-
vioxi^ Sale of Same Goods With-
out Reservation of Property —
Re-sale to Original Seller — Val-
idity of Lien — Change of Posses-
sion on Re-sale — Sale to Inno-
cent Purchaser — Intention of
Alleged Bailor and Bailee — Bills
of Sale Ordinance — Ordinance
Respecting Hire Receipts and
Conditional Sales.] — Defendant
sold a team of horses to one A.,
taking promissory notes in pay-
ment. When one of the notes
became due he learned that A.
. would not likely be able to pay,
and made inquiries as to his
position, and was advised that
if he could get possession of the
horses he could re-sell them to
A., taking lien notes which would
afford him security. According-
ly he went to see A., and asked
for payment, and on A. stating
that he could not pay, the defen-
dant proposed that he buy back

Held, that the whole transac-
tion between the defendant and
A. was one devised to evade the
provisions of the Ordinance re-
specting Hire Receipts and Con-
ditional Sales, and there being
no actual bond fide re-sale to the
defendant the lien notes under
which he claimed were not oper-
ative, he having no right, title
or interest in the horses in ques-
tion which could be retained un-
der an agreement for conditional
sale.

(2) In any event the transac-
tion was void imder the Bills of
Sale Ordinance because there
was at the time of the alleged
re-sale no actual or continued
change of possession, nor any
memorandum in writing duly
registered. Taegar v. Rowe, 159.

4. Seizure of Goods under
Previous Mortgage,] — See Chat-
tel Mortgage, 1.

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[V<Mi.

CONTBACT.

1. Action for Damages for
Non-performance — Failure of
Plaintiff to Perform Conditions
— Mutual and Dependent Cove-
nants. ] — ^Defendant agreed to
plough a certain quantity of
land in consideration of receiv-
ing a portion of the <5rop to be
grown thereon. The plaintiff,
on his part, agreed to provide a
granary for the purpose of stor-
ing the grain to be grown. De-
fendant failed to plough the land
agreed upon, and plaintiff did
not erect the granary. In an
action by the plaintiff for dam-
ages for failure to plough the
land, defendant pleaded that by
reason of the plaintiff's failure
to provide the granary he had
to haul away the grain, and the
time occupied in doing so pre-
vented him completing the con-
tract before frost prevented him
doing so: —

Held, that neither the coven-
ant of the plaintiff to furnish
the granary nor that of the de-
fendant to plough went to the
whole consideration, and the'
covenants were not mutual con- 1
ditions the one precedent to the ,
other, and therefore the failure i
of the plaintiff to furnish the!
granary was no defence to the
plaintiff *s action for damages |
on the other branch of the con- 1
tract. See v. Branchflower, 20.

2. Building Contract — Com-
pletion by Contractor — Becov- \
ery of Contract Price.] — See At- [

TACHMENT OF DeBTS, 2.

3. Alteration after Signature
— Effect of — Change in Contract
by Correspondence — New Con-
tract.]— See CoNDrriONAL Sale,
2.

4. Contract of Hiring — Evi-
dence of.] — See Master and
Servant, 2.

5. Contract for Sale of Land.]
— See Vendor and Purchaser.

CBDflNAL LAW.

1. Crown Case Beserved —
Bringing Stolen Property into
Canada — Evidence of Theft —
Becent Possession — Sufficient
Evidence to go to Jury.] — Ac-
cused was convicted of bringing
stolen property into Canada
knowing it to have been stolen.
It was proved that the property
was stolen in North Dakota on
the 6th of March, 1909, that on
the 12th of the same month it
was found in the possession of
the accused in Canada, and there
were circumstances from which
the jury might find that the
accused brought the property
into Canada. It appeared
that the accused was in the
locality where the goods were
stolen at the time they disap-
peared and he gave no account
of his possession. On a Crown
ease' reserved : —

Held, that the evidence was
sufficient to warrant the jury in
finding that the accused stole the
property and brought it into
Canada. The King v. Duff, 323.

2. Crown Case Beserved —
Charge Preferred Before Su-

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preme Court by Deputy Attor-
ney-OeneroL — No Preliminary
Hearing — Leave of Presiding
Judge not Obtained — No Direc-
tion from Attomey-Oeneral.] —
After the conviction of the ac-
cused on a charge preferred
against him by the agent of the
Attorney-General, the Deputy
Attorney-General, who appeared
in person, without obtaining the
leave of the Judge or a direction
from the Attorney-General, no
preliminary hearing having been
held, preferred a further charge
signed by himself against the ac-
cused, on which, after trial, he
was convicted. Objection hav-
ing been taken to the charge on
the ground that the Deputy At-
torney-General had no authority
to prefer such charge wijkhout
leave of the Judge or direction
of the Attorney-General, and on
the ground that no preliminary
hearing had been held, a case was
stated by the presiding Judge to
the Court en banc.

Held (Johnstone, J., dissent-
ing), that the Deputy Attorney-
General is not an agent of the
Attorney-General within the
meaning of the term as used in
the Criminal Code, and is not,
therefore, authorized to prefer
a charge as agent of the Attor-
ney-General.

(2) That while by the General
Interpretation Act (Dom.) it is
provided that words directing
or empowering any minister to
do any act or thing includes the
lawful deputy of such minister,
such provision is controlled by
the special interpretation sec-

tions of the Criminal Code, and
as the deputy is not referred to
therein, it must be held that the
Deputy of the Attorney-General
is not by reason of his office auth-
orized to prefer a charge under
the provisions of sec. 873a of the
Criminal Code.

(3) The Deputy Attorney-
General, not being an agent of
the Attorney-General under the
provisions of sec. 873a of the
Code authorized to prefer a
charge, the conviction of the ac-
cused must be quashed, not hav-
ing been preferred with the leave
or by the order of the Court.
The King v. Duff, 388.

3. Appeal to District Court
from Conviction by Two Justices
—-Reference by District Court
Judge of Question of Law to
Court en banc — Jurisdiction of
Cowr*.]— An appeal from a con-
viction by two justices of the
peace having been taken to the
District Court, and a question
having arisen as to the regular-
ity of the proceedings, the Dis-
trict Court Judge referred such
question to the Court en banc : —

Held, that in such matters the
Court appealed to, and in this
case the District Court, is the
absolute judge of facts and law,
and the Court en banc had no
authority to advise in the mat-
ters. Mischowsky v. Hughes, 219.

4. Appeal by Way of Stated
Case — Failure of Justice to De-
liver Case Within Time Limited
— No Partictdar Judge Named
in Stated Case — Recognizance —

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[vol.

Sufficiency of — Jurisdiction of
Covert.] — ^Appellant being con-
victed before two justices of the
peace, applied to the justices to
state a case setting out that the
appeal was to the Honourable
the Chief Justice or to such other
Judge of the Supreme Court as
might be presiding in Chambers
when the appeal should be heard,
and entered into a personal re-
cognizance in $100 as required
by the rules. The justices did
not deliver the case within the
time limited, but subsequently
transmitted it to the Chief Jus-
tice : —

Held, that the appellant, hav-
ing done all that it was practi-
cable for him to do, could not
lose his right of appeal by reason
of the delay on the part of the
justice.

(2) That the personal recog-
nizance of the appellant was
sufficient within the provisions
of the Criminal Code.

(3) That the onus of shew-
ing that the case was not trans-
mitted to the Court in a sealed
envelope, as required by the
rules, was on the respondent, and
in the absence of such evidence
the Court would presume that
the justices had complied with
the rules in that regard.

(4) That the conviction being
palpably bad, the matter was a
proper one for appeal by way
of stated case. The King v.
Turnbully 186.

DOMINION LANDS ACT.

Homestead — Execution of
Charge Before Patent Issued —

Effect of.] — See Land Titles
Act, 3 and 4.

ELECTIONS.

1. Controverted Election Act
— Motion to Strike Out Particu-
lars of Corrupt Practices — Pro-
vision in Order for Delivery of
Particidars as to Effect of Non-
compliance — Effect of— Juris-
diction of Judge to Make Fur-
ther Order — Applicability of
General Practice to Particulars
in Controverted Election Pro-
ceedings— Effect of Provisions
of Controverted Elections Act as
to Delivery.] — By an order un-
der sec. 11 of the Controverted
Elections Act, the petitioner was
directed to furnish particulars
of the matters alleged in his peti-
tion, and it was further ordered
that no evidence be given at the
trial of any matter of which
particulars were not delivered as
ordered. The respondent moved
to strike out the particulars de-
livered, on the ground that the
order had not been su£Sciently
complied with, or for further
and better particulars : —

Held, that the Legislature
having made provision in the
Controverted Elections Act for
I delivery of particulars, and hav-
m^r empowered the Judge to
order that in default no evidence
be given at the trial of any mat-
ters of which particulars were
not given as ordered, and a
Judge having made such order,
no further or other order could
now be made with respect to par-
ticulars.

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549

(2) That as the practice pro-
vided by the Controverted Elec-
tions Act in respect to delivery
of particulars differed from that
prescribed by the rules of Court,
and the practice under the Act
was sufficient, the provisions of
the rules of Court could not be
invoked to support the applica-
tion, and must be deemed to be
excluded by the specific provi-
sions of the Act. Botve v. Whit-
more, 82.

2. Controverted Election Act
— Protested Election — Regular-
ity of Nomination — Voter —
What Constitutes.] — The re-
spondent was declared elected as
a member of the Legislature,
and a petition was filed against
his return. On the trial it was
proved that the respondent had
been nominated by four persons,
and it was sought to shew that
one of these was not qualified,
not being on the voters' list, and
not having resided in the»province
for one year. The nominator
objected to was called and sworn,
and stated that he could not re-
member when he came to the
province, nor did he know if he
was qualified to vote. The vot-
ers' list was also produced and
shewed his name erased: —

Held, that in an election held
under the provisions of sees. 269
to 284 of the Saskatchewan Elec-
tion Act the entry of a voter's
name on the list is not an essen-
tial qualification as a voter, and
therefore the absence of the
name of the nominator from the

list did not in itself disqualify
him as a voter.

(2) That the receipt given by
the returning officer under the
I provisions of sec. 122 is conclu-
I sive only as to the matters in
j such receipt contained, and does
not apply to the qualification of
I the nominators.

i (3) That the onus of proving
I lack of qualification being on the
I petitioner, in the absence of posi-
tive evidence of lack of qualifi-
' tion, the negative evidence given
I by the party whose qualification
' was attacked was not sufficient
to discharge the onus and prove
lack of qualification. Boice v.
j Anderson; Last Mountain Elec-
' tion Case, 245.

f 3. Local Improvement Act —
I Controverted Election — Irregu-
larity in Proceedings to Avoid —
I Intitiding Affidavits — No State-
ment that Election Held — Irregu-
larity in Proceedings Prior to
; Election — Insufficient Notice of
' Election— Effect of— No Evi-
dence that Result Affected.] —
The applicant applied to have
one Stribbell ousted from office
as a councillor of a local im-
provement district on the groimd
that the notice of election had
not been posted as required by
law. No evidence was given that
the result of the election was
affected thereby, or that all the
voters had not voted. The sum-
mons and affidavit for the pur-
pose of the application were not
intituled in any Court : —

Held, that it was not necessary
that the proceedings under the

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INDEX.

[vol.

Local Improvement Act should
be intituled in any Court.

(2) That every irregularity will
not defeat an election, and the
eflPect it may have on the final re-
sult must be considered, and as
there was no evidence that if the
notice required by law had been
posted the result of the election
would have been different, and
as it did not appear that all the
voters had not voted, the appli-
cation should be dismissed. In
re Load Improvement District,
No, ll-A'3, 80.

4. Local Improvement Act —
Controverted Election — Admis-
sibility of Affidavit to Prove
Election Voidr— Evidence as to
Disqualification of Voters — Con-
viction for Non-payment of
Taxes — Chambers Summons —
Signature of by Chamber Clerk
— Judge persona designata.] —
An application was made under
the provisions of the Local Im-
provement Act to oust a council-
lor on the ground that three of
the voters voting for him had
not paid their taxes and were
therefore disqualified. Evidence
in support of this allegation was
given by affidavit, which shewed
that the voters in question had
been convicted for non-payment
of taxes, and which also contain-
ed an allegation that their taxes
had not been paid, the kind of
taxes not being specified: —

Held, that the provisions of
the Act contemplated evidence
in support of the application be-
• ing given by affidavit, and there-
fore affidavits of which no notice

of intention to read had been
given might be read.

(2) That the conviction by a
justice of the peace of the voters
objected to for non-payment of
taxes was not sufficient evidence
that they had not in fact paid
their taxes.

(3) That, as the affidavits did
not shew that the taxes which
it was deposed had not been paid
were local improvement taxes
due the district, the fact was not
sufficiently proved.

(4) That the summons was ir-
regular, being signed by the
chamber clerk, and not by the
Judge granting the same, who
alone had jurisdiction under the
Act to sign such a summons.
The King ex rel. Dale v. Lam,
78.

EZECXTTION.

Company— Sale of Property-
Resolution Authorizing Convey-
ance— Non-compliance with Pro-
visions of — Conveyance Invalid
— Seizure by Sheriff— -Breaking
Open Door — Premises Occupied
as Dwelling and Store — No Con-
nection Between — Right of
Sheriff to Break— Effect of Un-
lawful Entry upon Seizure ^—
Claim to Ooods Seized — Subse-
quent Claim to Other Goods —
Estoppel — Insolve ncy — Fraudu-
lent Conveyance.] — The Mort-
lach Mercantile Company being
indebted to several parties, the
defendant Belcher was appointed
a trustee for creditors, and with
his consent the business was
transferred to a company known
as Hudsons Ltd., which agreed

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551

to assume the liabilities of the
previous company and to pay
the same in regular payments.
The new company being behind
with its payments, a resolution
was passed authorizing the sale
of the business and conveyance
thereof to J. W. Hudson upon
execution of certain notes, which
it was found as a fact were never
ihade. Notwithstanding, the
conveyances were made by the
officers of the company, and
Hudson went into possession.
After the delivery of these docu-
ments Belcher recovered judg-
ment against the company,
and execution was issued to
the sheriff, the defendant
Fletcher, who issued a war-
rant for seizure. The plain-
tiff Hudson at this time lived
over the store premises in which
the business was carried on.
When the bailiff arrived he
found the store premises locked
and Hudson refused to open,
whereupon the bailiff forced an
entrance. There was no connec-
tion between the living apart-
ments and the store premises.
After the seizure Hudson first
verbally claimed «dl the goods as
his. Subsequently, however, he
filed a written claim, which was
admitted. In an action for
wrongful seizure he alleged other
goods were his, and claimed dam-
ages.

In an action to set aside the
conveyance of the land, it ap-
peared that at the time of the
transfer Belcher was pressing
his claim, that other claims were
outstanding, that the goods were

36 VOL. II. S.L.R.

mortgaged in a considerable sum,
and that the assets if sold would
be insufficient to meet the liabili-
ties, and that Hudson must have
been aware of the state of af-
fairs : —

Held, that the notes to be given
in payment of the goods not be-
ing delivered, the conveyance
thereof to Hudson was not in ac-
cordance with the resolution of
the company authorizing it, and
was therefore invalid, and the
property in the goods never
passed to him.

(2) That the store and dwell-
ing, while not connected, being
under one roof, the breaking by
the sheriff of the door of the
store premises was technically a
breaking of the dwelling, and
therefore an unlawful breaking.

(3) That Hudson having made
a formal claim in writing to cer-
tain goods after seizure, under
the provisions of the rules of
Court, could not afterwards al-
lege that other of the goods
seized belonged to him, and
maintain an action for unlawful
seizure in respect thereof.

(4) That the company, at the
time of the transfer of land to
Hudson, being imable, if its as-
sets were presently realized and
if compelled to sell at a forced
sale, to pay its debts in full, must
be deemed to have been insolvent
at that time, and Hudson being
aware of this, and the convey-
ance to him being apparently to
defeat the creditors of the com-
pany, the conveyance must be
deemed to have been fraudulent
under the Act respecting Assign-

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[vol.

ments and Preferences, and
should be set aside. Hudson v.
Fletcher, 489.

2. The Sheriff Seized the Ooods
of a Joint Stock Company —
Winding Up Proceedings Were
Subsequently Taken and a Liqui-
dator Appointed.] — On an ap-
plication for an order directing
the sheriff to hand over the goods
seized to the liquidator : —

Held, that the Court had no
jurisdiction to make the order
asked for under the provisions
of the Companies Winding-up
Ordinance of 1903. In re Re-
gina Windmill and Pump Co.,
32.

EVIDENCE.

1. Company — Proof of Mem-
bership in — Register,] — See
Company, 2.

2. Company — Proof of Insol-
vency— Sufficiency.] — See Com-
pany, 3.

3. Criminal Law — Recent
Possession of Stolen Ooods —
Evidence of Theft.] — See Cbim-
INAL Law, 1.

4. Extradition — Evidence —
Prim/i Facie Case.] — See Extra-
dition, 1.

5. Credibility of Witnesses —
Direct Contradition — Weight of
Evidence.] — See Master and
Servant, 1.

6. Sale of Ooods — Varying
Written Order — Evidence to —
Admissibility.] — See Sale op
Goods, 2 and 5.

EXTRADITION.

Abortion — Evidence — Prima
Facie Case — Accessory.] — The
accused was arrested at the in-
stigation of the United States
authorities charged with having
procured an unlawful operation
to be performed upon a woman.
In support of the charge a de-
position of the woman was pre-
sented which set out that she
had been seduced by the accused
and become pregnant; that he
had taken her to St. Paul to have
an operation performed ; that he
took her to a physician who made
an examination of her; that
afterwards the accused left St.
Paul, and after his departure an
operation was performed by the
physician and a miscarriage re-
sulted : —

Held, that as the deposition
did not set out that the operation
to be performed and which
the accused took the complain-
ant to St. Paul to have perform-
ed, was the imlawful operation
which was performed, and as
there was no evidence to connect
him with the unlawful operation,
he must be discharged. In re
Claude McCready, 46.

FALSE IMPSISOHMEHT.

Pleading — Not Ouilty hy Sta-
tute— Amendment by Pleading
— Claiming Benefit of Statute
Without Pleading — Action
Against Justice of the Peace —
Notice of — Sufficiency — Plead-
ing Insufficiency — Probable
Cause as a Defence — Malice.] —

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In an action against justices of
the peac^ for false imprisonment
the defendant at the trial ap-
plied to amend by pleading not
guilty by statute : —

Held (following Oesman v.
City of Regina, 1 Sask. L.R. 39),
that such an amendment should
not be allowed at this stage.

The defendants then claimed
to have the right to avail them-
selves of the statutes in ques-
tion without pleading same ; par-
ticularly as to no notice of ac-
tion being given, the notice
which had been given being, it
was claimed, defective: —

Held, that this could not be
allowed and in any event the
defendants not having pleaded
that the notice was defective
could not attack the same.

vised by a police officer that the
dispute was not within his jur-
isdiction ; but notwithstanding
he issued a warrant for the ar-
rest of the plaintiff who was
brought before the two defend-
ants in custody and after var-
ious irregular proceedings was
committed to gaol to stand his
trial, being released by the agent
of the Attorney-General as soon
as possible but not until he had
been subjected to all the indig-
nities attendant on arrest and
imprisonment. There was no
evidence that the defendant
Hossie was aware of the circum-
stances set out. In an action
for false imprisonment: —

Held, that in an action for
malicious prosecution the exist-
ence or non-existence of prob-
able cause must be determined

In aii-action for false impris-,^ ^^^ ^^^ ^l^j^ j^ ^j^^ ^^^
onment against two justices of j^^^ ^hieh the Jud^ is to draw

the inferences are matters for
the jury, except where the facts
are not in dispute when the
Judge decides such matters him-
self.

(2) That upon the facts set
out and undisputed there was
no evidence of reasonable and
probable cause justifying the ac-
tion of the defendant Tedford
to go to the jury. Baker v. Ted-
ford and Hossie, 307.

the peace it appeared that a dis
pute was pending as to the own-
ership of a certain building, to
the knowledge of the defendant
Tedford. The plaintiff having
attempted to remove this build-
ing the other claimant laid an
information before the defend-
ant Tedford charging the plain-
tiff with entering on the prem-
ises of the claimant and at-
tempting to remove a house. It
also appeared that before act
ing on the information Tedford
was notified by the plaintiff that
he owned the house in question
and there were other circum-
stances to his knowledge from
which he might reasonably be-
lieve the plaintiff's claim to be
well founded. He was also ad-

FIKE nrSTTBANCE.

1. Application — Misrepre-
sentation in — Policy Void on Ac-
count of — Knowledge of False
Representation by Agent of^
Company — Effect of.] — Plain-
tiff insured a building with de-

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f endant company, and made cer-
tain statements in the applica-
tion as to fires used on the prem-
ises which were found to be false.
The premises were destroyed by
fire, and the company disputed
liability. In answer to the de-
fence of misrepresentation, the
defendant pleaded that the com-
pany's agent, who had filled out
the application, was aware of
the condition of the premises : —

Held, that the policy was void
on account of the mis-statements
contained in the application.

(2) That even if the plaintiff 's
agent had been aware of the con-
dition of the premises, as it ap-
peared that he had filled out the
application and had filled in the
answer to the questions upon
which the misrepresentations
were based, he would be acting
as agent of the plaintiff and in
fraud of th« company, and the
company would not be bound
by the policy or affected by his
knowledge. Parsons v. AVberta-
Canadian Insurance Co., 76,

2. Premium — Payment by
Bill of Exchange — Default in
Payment of Bill — Effect of— No
Notice of Loss — Notice a Condi-
tion Precedent — Waiver of No-
tice— Appointment of Adjuster
—Effect of,] — Plaintiffs in-
sured in the defendant company
against loss by fire a stock of
goods for $2,000. The applica-
tion contained a clause that if
the premium was not paid as
agreed the insurance should be
void until '*such settlement is
made." The premium was
never paid in cash, but a bill of

exchange was drawn upon plain-
tiffs and accepted by them, but
this was never paid. The pro-
perty was shortly afterwards
destroyed by fire. The policy
contained one of the statutory
conditions, namely, that the in-
sured should forthwith after loss
give notice to the company in
writing. No such notice was
given by the insured, although
the company's agent gave no-
tice and told plaintiffs he had
done so. It was contended,
however, that notice had been
waived: first, because the com-
pany did not draw attention
to the omission; second, because
they sent an adjuster to adjust
the loss; and third, because the
manager of the company made
an appointment to discuss the
claim. The policy, however,
contained a clause that 'no con-
dition should be waived except
in writing. The policy also re-
quired that the proofs of loss
should shew when and how the
fire originated to the best of the
claimant's belief, while in the
proof of loss filed the claimant
stated the cause of fire to be
unknown, while from his examin-
tion for discovery it appeared
that he believed it started from
an explosion of the furnace. In
an action to recover the amount
of the policy: —

Held, that the defendant, hav-
ing drawn a bill of exchange up-
on the plaintiffs which was by
them accepted and became a
floating security which might be
passed from hand to hand, must
be deemed to have accepted ** set-

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555

tlemenf within the meaning of
the terms of the application.

(2) That compliance with the
term of the policy requiring no-
tice of loss was a condition pre-
cedent to the right to recover,
and while if some sort of notice
had been given which was defec-
tive the Court might possibly
relieve, yet no «uch relief could
be granted where there was an
absolute non-compliance.

(3) That the acts pleaded in
support of waiver were not suffi-
cient to support the plea, but
in any event the policy provided
that no waiver should be effec-
tive unless in writing, and there
being no writing that would con-
stitute a waiver, the plaintiffs
could not succeed on that
ground.

(4) That the proofs of loss
were insufficient, as the state-
ment of the cause of the fire
being in the belief of insured
unknowTi, was untrue. Bell
Bros, V. Hudson Bay Insurance
Co,, 355.

FSAXTDAin)
KISBEPKESENTATION.

1. See Company, 1.

2. Insurance Policy — Misre-
presentation in Application —
Effect of.] — See Fjdbb Insur-
ance.

3. Sale of Goods — Misrepre-
sentation on,] — See Sale of
Goods, 2, 6, 8.

4. Sale of Land,] — See Ven-
dor AND Purchaser, 4, 8, 10, 11.

FIXTTTEES.

1. Windmill and Appurten-
ances — Attached to Freehold
— What Constitutes.] — See
Conditional Sales, 1.

2. Buildings Laid on Free-
hold.]— See Real Property.

FOREIGN JUDGMEITT.

Action Upon — Right to Main-
tain.]— See Sale of Goods, 6.

OITAEDIAN.

Sale of Goods of Ward — Sale
Before Appointment — Bight of
Guardian to Maintain After Ap-
pointment,]— See Bills op Ex-
change AND Promissory Notes,
1.

iNJinrcTiON.

I Practice as to.] — See Prac-
I TiCE, 6, 7 and 8.

I LANDLORD AND TENANT.

1. Cancellation of Lease — Ac-
tion Upon Covenant After —
Eight of Lessor to Maintain —
\ Tillage by Lessee — Right to
I Compensation for,] — Plain tiflE
, leased certain land to defendant,
and with the land supplied 800
[bushels of seed wheat and 800
bushels seed oats, which the
lessee covenanted to return — the
, wheat the following fall, the oats
at the expiration of the lease.
' There was also a covenant in the
I lease that either party might
cancel the lease within ten
months from the date thereof.

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[vol.

giving reasons therefor. There
was also a provision for cancel-
lation by the lessor in the event
of sale, in which case the lessee
was to be compensated for im-
provements. The lessor subse-
quently cancelled the lease, and
the lessee having neglected to
return the wheat and oats the
lessor brought action to recover
the value thereof. The defen-
dant counterclaimed for summer
fallowing done during the term :
Held, that cancellation of a
lease by mutu<al consent of the
parties does not destroy the term
vested in the lessee, and there-
fore, notwithstanding such can-
cellation, the lessor could main-
tain an action for the recovery
of the wheat.

(2) That in the absence of an
agreement to that effect the
lessee is not entitled to compen-
sation for tillage upon cancella-
tion. Ellis V. Fox, 417.

2. Lease for Years — Repair of
Premises by Landlord — Tenant
Out of Possession During Re-
pairing— Right of Landlord to
Rent During Such Period —
Consent of Tenant — Distress for
Rent — What Constitutes — De-
tention of Ooods.] — Plaintiff
leased certain premises from the
defendant for a period of three
years, and carried on business
therein. The premises being out
of repair the plaintiff complain-
ed to the defendant of the con-
dition of the premises, and the
defendant thereupon proposed
that the plaintiff vacate the
premises for about one month
and that he would then have the

necessary repairs made. To this
the defendant agreed and moved
out. The repairs were not com-
pleted until after about two and
one-half months, and the plain-
tiff ultimately told the defend-
ant he would not continue in the
occupancy of the premises, and
the defendant thereupon re-let
them. When the plaintiff va-
cated the premises he left a
range thereon, and this he de-
manded from the defendant, who
refused to give it up until the
rent for the two months during
which the repairs were being
made was paid. The plaintiff
thereupon sued for detention,
and the defendant counterclaim-
ed for the renst. The learned
trial Judge found for the plain-
tiff and dismissed the counter-
claim. On appeal : —

Held, that the plaintiff having
vacated the premises at the re-
quest of the defendant without
any compulsion, and apparently
without any objection the dispos-
session during the period in
which the repairs were being
made did not amount to an evic-
tion, and in order to effect a sus-
pension of rent the dispos-
session must amount to an evic-
tion, and therefore the defend-
ant was entitled to rent during
such period.

(2) That even if the language
used by the defendant were suffi-
cient to constitute a seizure for
rent, he had not proved that
such seizure was made between
sunrise and sunset, and as the
onus was upon the defendant to
prove that the seizure was law-

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fully made, which had not been
done, the plaintiff was entitled
to recover on the claim for deten-
tion. Mah Po V. McCarthy, 119.

3. Interpleader — Lea^e of
Land— Rent Payable by Deliv-
ery of Portion of Crop — Assign-
ment of Lease by Lessor — Seiz-
ure of Crop by Sheriff under
Execution Against Lessor — Val-
idity of Assignment — Oromng
Crop — Bills of Sale Ordinance —
Property in Crop.] — ^Defendant
was the owner of a farm, which
he leased on terms that he was
to receive one-half of the crop,
when threshed, by way of rent.
Being indebted to one Emerson,
he executed a deed by way of
security whereby he did ** as-
sign and grant ... all that
certain parcel of land . . . to-
gether with the residue unex-
pired of the said term of years
and the said leave and all bene-
fit and advantages to be derived
therefrom." The sheriff, under
writ of execution of the plain-
tiff, seized the defendant's half
of the crop which was claimed
by Emerson, and the sheriff in-
terpleaded. Whether the crop
was standing or cut, threshed or

(2) That the assignment of the
lease, being intended as a con-
veyance of the crop, was as to
the i)ortion of the crop cut, void,
as such an agreement was not
registered nor was there any
actual or continued change of
possession. Robinson v. Lott,
150.

4. On Appeal.] — Held, rent is
a chose in action, and as such is
assign^able, and the doctrine ap-
plies to future rent as well as
past due rent.

(2) That until the grain was
threshed and divided the pro-
perty therein remained in the
lessee, and in the absence of evi-
dence of division and delivery
there was no evidence that the
debtor had any interest in the
crop liable to seizure.

(3) That (Johnstone, J., dis-
senting) the assignment by the
lessor of the benefits of a lease,
the rent under which is payable
by a portion of a crop, is not an
assignment of a growing crop
within the meaning of the Bills
of Sale Ordinance. Robinson v.
Lott, 276.

5. Trespass — Conversion of

divided, did not appear by the Ooods — Landlord and Tenant —

material before the Court: —

Held, that the intention of
the parties in making and ac-
cepting the assignment of lease
in question was that it should
be by way of security upon a
growing crop, and was therefore,
by the provisions of sec. 15 of
the Bills of Sale Ordinance, void
as regards the erop uncut at the
time of execution.

Distress for Rent — Irregular
and Excessive Distress — Sale
Without Appraisement — Unrea-
sonable Delay in Selling,] —
Plaintiff and one B, carried on
business in partnership in prem-
ises owned by the wife of B.
There was a verbal arrangement
between B. and plaintiff by
which they were to become the
i joint owners of such premises,

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but the wife of B. did not ap-
pear to have been a party to sueh
arrangement. It was also a part
of such arrangement that the
I)artnership should assume and
make the payments due under a
mortgage on the property. The
partnership was dissolved, plain-
tiff continuing the business.
After the dissolution defendant
became the owner of the prem-
ises, and served a notice on
plaintiff demanding rent at $20
per month, to begin from a date
some months previous to the
date of the notice. Plaintiff
never agreed to pay any rent,
and not paying same defendant
distrained for Sy^ months' rent,
locked up the premises, and after
a delay of nearly three weeks
sold the goods of plaintiff and
of other parties which were then
on the premises, without ap-
praisement, the defendant him-
self buying in at a very low
price. The plaintiff sued for
damages for trespass, conversion
and illegal distress : —

Held, that to give a right to
distress there must be a fixed
rent, and there being no such
rent fixed by agreement there
was no right of distress.

(2) That a landlord cannot by
notice fix the amount of rent to
be paid unless the amount is as-
sented to or fixed by implication.
White V. Ciisak, 106.

LAND TITLES ACT.

1. Certificate of Title— Pro-
cured by Fraud — Equitable \
Jurisdiction of Court to Re-
lieve.]—Turner V. Clark. 200.

2. Assignments mnd Prefer-
ences Act — Assignment for
Benefit of Creditors — Execu-
tions Registered Against Insol-
vent— Transmission to Assignee
— Rem^>v(U of Executions —
Right of Assignee to Require —
Duty of Registrar — Section 8 of
Assignments and Preferences
Act — Meaning of.] — B. made an
assignment for the benefit of
creditors to one C, under the
provisions of the Act respect-
ing Assignments and Prefer-
ences. At the time of the assign-
ment and subsequently thereto,
but before the assignee applied
for transmission to him of the
land of the insolvent, some eigh-
teen executions were registered
in the land titles ofiice. On
transmission of the land to the
assignee, the Registrar endorsed
upon the assignee's title memo-
randa of these executions. It
appeared that the costs of the
execution creditors had been
paid. The assignee applied to
the Registrar to cancel these en-
dorsements, which the Registrar
refused to do, and in this action
he was sustained by the Inspec-
tor. From this decision the as-
signee appealed: —

Held, that by virtue of sec. 8
of the Act respecting Assign-
ments and Preferences the rights
of execution creditors are ex-
pressly subordinated to those of
the assignee, save only as to costs,
and the execution creditors hav-
ing, save as to costs, which are
proved to have been paid, no
charge on the land, the Registrar
was not justified in endorsing

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a memorandum charging the
land with such executions on
transmission to the assignee.

(2) That the Registrar, on an
assignment being proved, has
jurisdiotion to issue a title to
the assignee free from execu-
tions, notwithstanding the pro-
visions of sec. 129 of the Land
Titles Act, inasmuch <as the Leg-
islature has expressly declared
that, after assignment, the as-
signment takes priority to all
such executions. In re E. J,
Brooks, Insolvent, 504.

3. Caveat — Right of Caveator
to Require Registration Before
Issue of Crown Grant for Land
— Duty of Registrar— Judicial
Discretion — Caveator's Claim
Founded on Unregistered Mort-
gage— No Evidence which would
Support Right to Register Mort-
gage.]— The appellants secured
a mortgage from one Ebbing on
certain lands, and applied to the
registrar to register a caveat
against such land claiming an
interest therein under such mort-
gage. At the time of such ap-
plication grant from the Crown
for such land had not been re-
ceived, and the appellants pro-
duced no evidence that such
grant had issued or that the
mortgagor was entitled to mort-
gage such land. The registrar
refused to register such caveat,
and the appellants appealed
from his decision : —

Held, that, as the registrar
could not accept and register the
mortgage imder which the ca-
veator claimed until the Crown
grant was received by him or

until he was satisfied by affi-
davit in form E. to the Land
Titles Act that the mortgagor
was entitled to create the mort-
gage, he could not accept and
register a caveat claiming under
such a mortgage in the absence
of the Crown grant or evidence
of the right of the mortgagor
to create such mortgage. In re
Ebbing, 167.

4. Caveat — Summons to Con-
tinue — Powers of Judge Upon —
Determination of Rights of Par-
ties— Jurisdiction of Judge —
Dismissal of Summons — Sub-
stantial Question in Issue — No
Opportunity Oiven to Bring Ac-
tion— Power of Judge to Dis-
miss — Caveat in Respect of
Mortgage of Crown Land Before
Patent — Right to Maintain —
Interest in Land — What is Suffi-
cient to Support Caveat.] — The
appeUanit the (laar Scott Com-
pany filed two caveats against
the respondent Guigere's land,
one under a mortgage which
was shewn to have been given
in respect of Crown lands before
the issue of the patent, and the
other under a judgment recover-
ed against the respondent under
the name of Gaar as to land of
which the respondent was regis-
tered as owner under the
name of (iuigere. The re-
spondent served a notice re-
(juiring the withdrawal of the
caveats, and a summons was
taken out by the appellants to
continue them: On the hearing,
the Judjje in Chambers dismiss-
ed the summons, without giving
anv time for bringing an ac-

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[vol.

tion to maintain the rights as-
serted : —

Held, that if there is any
bond fide question of law or
equity to be decided as to the
right of the caveator to the es-
tate or interest claimed under
the caveat, such question should
be disposed of in the Supreme
Court, and the caveat should be
continued for a sufficient time
to allow an action to be brought
in which to decide such question.

(2) That (following In re
Ebbing (1909), 2 Sask. L.R.
167) as to the claim under the
mortgage, such mortgage being
given in respect of Crown lands
before the issue of the patent,
and there being no evidence of
the mortgagor's right to create
the mortgage, the Registrar
should never have accepted the
caveat, and the Judge in Cham-
bers properly refused to continue
the caveat.

(3) That as to the oaveat
filed under the judgment
against land of which the debtor
was the registered owner under
another name, the land could
properly be said to be registered
in the name of **some other per-
son,'' and being so registered
the appellants had a right to
file a caveat, and the Judge in
Chambers should have continued
the caveat to give the appellant
an opportunity to amend the
proceedings so as to charge the
land in question under the judg-
ment.

(4) The question of whether
or not the land was the home-
stead of the respondent and not

liable to be charged by the ap-
pellants' judgment was not such
a question as should properly
be determined in summary pro-
ceedings under the Land Titles
Act. 6aar ^cott Company v.
Ouigere, 374.

5. Mortgage Against Specific
Land — Reference Therein to Un-
specified Land — Refusal of Reg-
istrar to Register — Right of Reg-
istrar to Refuse.] — The company
executed a mortgage of specific
lands in the form provided by
the Land Titles Act, but by the
covenants contained therein em-
bodied in and made a part of
the mortgage a trust deed where-
by the company mortgaged gen-
erally all its lands, such lands
not being specifically described.
This mortgage the Registrar re-
fused to register. On appeal : —

Held, that by embodying the
trust deed in the mortgage the
mortgagor purported to mort-
gage both described and unde-
scribed lands, and this being con-
trary to the provisions of the
Land Titles Act the Registrar
was justified in refusing to reg-
ister the instrument. In re
North-West Telephone Co,, Lim-
ited, 379.

6. Caveat — Application to

Continue Claim Under Verbal

Trust — Right of Cestui que

Trust to File Caveat — Statute of

Frauds — Jurisdiction of Judge

— Determining Matters in Con-

I troversy on Summary Applica-

j tion.] — Wark filed a caveat

I against certain lands, and a mo-

I tion was made, on behalf of the

I owner, to have such caveat re-

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561

moved. On a motion to continue
the caveat, it appeared that
Wark claimed an interest in the
land as cestui que trust under a
verbal declaration of trust, the
conveyance from him to the own-
er being absolute, although, as
he claimed, subject to a trust as
to the profits to be derived from
the sale. This the owner denied.
It was objected that under the
provisions of the Land Titles
Act no caveat could be filed by
Wark, as he did not claim an
interest under document in writ-
ing, and the Statute of Frauds
was also invoked : —

Held, that, under sec. 136 of
the Land Titles Act a cestui que
trust claiming a beneficial in-

9. Land — Conveyance in
Fraud—Effect of.] — See Ven-
dor AND Purchaser, 10.

HEN.
Detinue — Boarding Hotise
Keeper — Ooods of Lodger —
Lien for Board and Lodging —
Ooods not Brought for Purpose
of Journey— Extent of Right
of Detention.] — ^Defendant was
a boarding house keeper, and
plaintiff, while staying with him
in a transient manner, brought
a large quantity of personal pro-
perty, consisting of household
effects and other articles, to the
defendant's house, and left them
there, in the meanwhile becom-

ing indebted to the defendant
terest of any sort may lodge a | for board. There was some dis-
caveat whether the declaration pute as to the amount due, and
is in writing or not. i the defendant refused to deliver

(2) That as to the Statute of
Frauds and other objections,
these matters should not be de-
termined on a summary inquiry,
and there being a question to
be determined, the caveat should
be continued for a sufficient time
to enable action to be brought in
a competent Court to determine
the matters in question between j
the parties. In re Wark Caveat,
431.

7. Merger of Mortgagee's In-
terest in Fee — Effect of Act.] —
See Mortgage, 7.

8. Application to Bring Un-
der the Act — False Statement on
—Effect of.]— See Trust and
Trustee.

the goods until payment, and
claimed a lien on goods to the
value of about $1,000 for a small
balance due for board: —

Held, that a boarding house
keeper's lien extends to all goods
brought to the premises by the
lodger while a guest, and not
merely to goods brought for the
purpose of the journey.

(2) That the lien extends to
all the goods, no matter how
great the value as compared with
the amount due. Newman v.
Whitehead, 11.

MASTER AND SEBVANT.

1. Agreement as to Wages —
Evidence of — Weight of Evi-
dence — Direct Contradiction
Between two Witnesses of

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Equal Credibility.] — Plain-
tiff was employed by de-
fendant for a number of years,
entering such employment with-
out making any agreement as to
wages. In an action for wages
the plaintiff swore and the de-
fendant denied that after the
plaintiff had been in the employ-
ment some time the defendant
asked what wages the plaintiff
would expect, to which the plain-
tiff replied **$50 per month."
To this defendant made no re-
ply, €uid the plaintiff continued
in his employment. There was
no corroborative evidence in sup-
port of this evidence on behalf
of either party, and the learned
trial Judge found both parties
to be of equal credibility, and
held that, according to the auth-
orities, where one party alleges
the occurrence of an incident
which the other denies, both
being of equal credibility, credit
should be given to him who
swears affirmatively; and found
the above conversation proved,
and gave judgment for the plain-
tiff. On appeal: —

Held, that, assuming that the
testimony of the plaintiff as to
the conversation to be true, the
learned trial Judge was justified
in finding a contract to pay
wages at the rate alleged.

(2) That there is no rule of
law affecting the question of
credibility where the evidence
is evenly balanced, as in this
case; but the Judge must deal
with each case as it affects his
mind, and the learned trial
Judge having found for the

plaintiff and there being evi-
dence to warrant such finding,
the appellate Court should not
interfere. Watt v. Watt, 141.

2. Assignment of Wages Earn-
ed— Hiring at Monthly Wage —
Gross Immoral Conduct by Ser-
vant— SedtLction of Master's In-
fant Daughter — Continuing Of-
fence— Bight of Servant to Re-
cover Wages,] — ^Defendant em-
ployed a servant for the season
at a monthly wage. During the
term of his employment the ser-
vant seduced the master's four-
teen-year-old daughter, and it
appeared that such offence had
been committed during every
month of the hiring. The master
did not become aware of the ser-
vant's conduct until the expira-
tion of the term, and immediate-
ly laid an information against
the servant and caused his arrest,
and he was subsequently con-
victed. The servant assigned his
wages to the plaintiffs, who
brought action against the mast-
er to recover the amount alleged
to be due. The claim was dis-
missed, and the assignees ap-
pealed : —

Held, that a servant who is,
during his term of service, guilty
of grossly immoral conduct af-
fecting his master is not entitled
to recover wages for the period
in which he was guilty of such
conduct, and the conduct of the
servant in this case was such as
to debar him from recovering
the wages earned.

(2) That while the wages were
due monthly, yet as the servant
had during each and ever>*

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month of his employment been
guilty of immoral conduct, no
wages ever became due to him.

(3) The fact that the master
was not aware of the servant's
conduct until after the expira-
tion of the term does not entitle
the servant to recover. Wood ds
McCausland v. Barker, 400.

MECHANIC'S LIEN.

1. Contract with School Dis-
trict— Right to FUe Lien Against
Lands of — Construction of Sta-
tute — Enforcing Judgment
Against School District,] — A
school district duly organized in
Saskatchewan and declared to
be a corporation let a contract
for the erection of a school build-
ing. A sub-contractor filed a
mechanics' lien against the
building, and not being paid
brought action to enforce the
lien. It was objected that the
lien was not enforceable against
the lands of a school district: —

Held, that the lands of a school
district were liable to be sold
under the provisions of the Me-
chanics' Lien Act.

(2) The provisions of sec. 9
of the School Assessment Ordin-
ance providing a means of real-
izing the amount of a judgment
against a school district do not
exclude other remedies. Lee v.
Broley, 288.

2. Time of Registration —
Ooods Supplied — Entire Con-
tract — All Ooods of Same Class
— Notice of Lien of Sub-Contrac-
tor to Owner — Waiver — Build-
ing Contract — Acceptance —

Architect's Certificate — Dam-
ages for Non-completion — Right
to Set-off Against Lien-Holder.]
— Defendant B. contracted with
defendant F. to build a house
for the latter. Plaintiff sup-
plied at different times during
the work hardware and installed
plumbing and heating appara-
tus and not being paid filed a
lien. The last work done was on
the furnace on January 3rd, the
other work done by plaintiff hav-
ing been completed and material
supplied at an earlier date.. The
lien was filed on February 2nd.
No formal notice was given by
Smith to Fry of his claim as a
sub-contractor but payment of
the account had been discussed
between them on several occa-
sions, and Fry had promised to
protect Smith. Fry also claimed
that the work had not been fin-
ished by Bernhardt in accord-
ance with the contract, that no
architect's certificate had been
produced and that he was en-
titled to set off certain damages.
It appeared however that he had
taken possession of the premises
and that accounts had been stat-
ed to some extent and a balance
found due : —

Held, that the plumbing, heat-
ing and building hardware were
all supplied with the same object
by the one party on the one
hand to the one party on the
other, standing in the same re-
lationship and were so supplied
as material and labour coming
within the scope of the plain-
tiff's business and were so bound
into one as to form an entire

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contract and not as separate con-
tracts or deliveries and the last
work on the whole being done
on the 3rd of January the lien
was filed in time.

(2) That the defendant Fry
by his conversation with plaintiff
and assurance of protection of
the account had waived notice
of claim of lien.

(3) That by taking possession
of the premises, selling the same
and stating accounts with Bern-
hardt, Pry had accepted the
work and waived the presenta-
tion of an architect's certificate.

(4) Damages for delay in per-
formance can not be set off
against a lienholder. Smith v.
Bernhardt & Fry, 315.

MORTOAOE.

1. Foreclosure — Order for
Sale on Application for Foreclo-
sure— Jurisdiction of Judge to
Make Without Application by
Party.] — The plaintiff instituted
proceedings under a mortgage,
for foreclosure. On the hearing
of the application the Judge in
Chambers made an order for sale.
None of the defendants applied
for sale or offered to guarantee
costs. On appeal: —

Held, that, except in a few
cases such as in case of in-
fants, the mortgagee has a
strict right to foreclosure un-
less the mortgagor, a subse-
quent encumbrancer, or some
person claiming through or un-

security for the performance of
any terms such as security for
costs which the Court may im-
pose on granting sale. Canada
Life Assurance Co, v. Vance,
398.

2. Sale Proceeding Under —
No Bid Except by Plaintiff —
Land Sold for Twenty-five Cents
— Application to Confirm Sale
— Refusal to Confirm — No Con-
sideration.]— ^Plaintiff instituted
foreclosure proceedings under a
mortgage, and on the application
of one of the defendants an or-
der for sale was made with leave
to the plaintiff to bid. No one
appeared to bid at the sale save
the plaintiff's agent, who bid
twenty-five cents, and the land
was knocked down to the plain-
tiff for that sum. On an appli-
cation* to confirm the sale, the
Judge before whom the appli-
cation was made refused to con-
firm. The company appealed: —
HeW, that having regard to
the nature of the property, the
amount bid and for which the
land was knocked down was so
puerile that the Court was war-
ranted in treating it as no sale,
and refusing confirmation.

Held, also, however, that no
substantial bid having been
made, the sale should be treated
as abortive, and an order for
foreclosure made. Canada Per-
manent Mortgage Corporation
V. Jesse, 251.

3. Sale Under — Charge for
Taxes — Not Provided for in De-

der him or them, appears and.cree — Liability of Purchaser to
asks for sale, and deposits such ! Assume — Effect of Land Titles
sum as may be determined asi-drf.] — ^Certain lands were sold

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under decree in an action under
a mortgage for an amount in
excess of that due under the first
mortgage. No mention was
made in the decree or at the sale
of any claims to which the sale
would be subject, but it subse-
quently transpired that there
was a large amount due for un-
paid taxes. On a motion to dis-
tribute the money in Court, the
purchaser claimed that the
amount of these taxes should be
paid out of the fund in Court : —
Held, that under the Land
Titles Act a purchaser takes
title subject to unpaid taxes,
and the sale therefore was sub-
ject to any amount due for taxes,
and the purchaser was not en-
titled^ to be reimbursed in re-
spect thereof. Canada Perman-
ent Mortgage Corporation v.
Martin et al, 472.

4. Account Under — Mortgagee
Trustee for Benefit of Creditors
— Mortgage for Benefit of Two
Creditors Only — Moneys Re-
ceived Distributed pro Rata —
Account by Plaintiff . as Mort-
gagee only for Moneys Re-
ceived from Trv^t Fund — No
Account as Trustee — Necessity
for — Pleading — No Claim by
Defendant for General Ac-
count.]— Defendants, being in-
debted to plaintiff and the Fair-
child Co. in large amounts, gave
a mortgage to secure such in-
debtednes. At the same time
they turned over to plaintiflf as
trustee all their assets to be dis-
tributed rateably among all
their creditors. Large sums of
money were received by plaintiff

as trustee, and from time to time
such moneys were distributed
rateably, the share of plain-
tiffs and Fairchild being ap-
plied on the mortgage. The
mortgagee being in default, sale
proceedings were taken and an
account was ordered. On taking
account, the local Registrar
ruled that the plaintiff need only
account as mortgagee, and the
accounts were taken on this
basis, no account of the trust
fund being taken. On motion
to confirm the Registrar's report,
it was objected that the plain-
tiffs should have accounted as
trustees. In the defence of de-
fendant Gray no claim for an
account as trustee was made nor
was the trusteeship of plaintiff
pleaded : —

Eeld, that, the mortgagee and
trustee being the same and the
trust created for the payment of
the indebtedness under the mort-
gage, the transactions should be
considered as one, and the
plaintiffs should, therefore,
account not only as mortgagees
but as trustees.

(2) That, while the defend-
ants had not pleaded the trust
agreement, yet the transactions
were so intermixed that on a re-
ference even in default of ap-
pearance account must neces-
sarily be taken of both accounts,
and the defendant should be in
no worse position, having ap-
peared and defended. Cock-
shutt Plow Co, V. Oray & Smith,
467.

5. Sale Under — Regularity of
Sale — Time for Holding Sale —

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[vol.

Local Time— Standard Time,]—
Certain land was ordered to be
sold under mortgage at 12
o'clock noon at Esteven. In
Esteven what is known as local or
fast time is obseryed, such time
being one hour faster than
Standard time. The land was
offered for sale and was sold at
12 o'clock noon local time. On
application to confirm the sale:

Held, that as, under the pro-
visions of sec. 31 of the Interpre-
tation Act, what is known as
Mountain Standard time is de-
clared to be the time for the Pro-
vince, the sale should have been
held at 12 o'clock noon, Stand-
ard time, and not having been
so held, it was irregular. Great
West Life Assurance Co. v. Hill,
158.

6. Foreclosure — Amending
Order Nisi — Payment of Taxes
made after Order — Increasing '•.
Amount to be Paid to Redeem — j
Costs,] — Plaintiff obtained an
order nisi for foreclosure. After
the order had been made he,
under the terms of the mort- ,
gage, paid a further sum for
taxes. There was, however, no
evidence that such payment was
necessary to protect the security.
He now applied for an order in-
creasing the amount to be paid
upon redemption, and fixing a
new date for redemption. The
mortgagor had been served but
did not appear : —

Held, that as the mortgagor
had not appeared and would in
any event be required to pay the
taxes and as reasonableness and

convenience should he the basis
of practice an order should be
made for a new account and a
new date for redemption.

(2) That as it had not been
shewn that the payment of taxes
was necessary to protect the
security and as the mortgagee
could have insisted upon pay-
ment before redemption, the
costs of the application should be
borne by the mortgagee. Mat-
hew V. McLean, 301.

7. Transfer of Land by Way
of Security — Assignment of
Mortgage Thereon to Owner of
Fee— Effect of— Merger — In-
tention of Registered Owner
when Taking Assignment of
Mortgage — Effect of Land Titles
Act — Equitable Jurisdiction of
Court to Relieve — Res judicata.]
— ^Defendant Konschur was the
registered owner of a half sec-
tion of land, subject to a mort-
gage to the Mutual Life Assur-
ance Co., a second mortgage to
the plaintiff, and an execution
recovered at the suit of the de-
fendant Riddell. The assur-
ance company began to forclose,
and to protect her claim under
the execution the defendant
Riddell paid off the company,
taking an assignment of the
mortgage and securing a trans-
fer of the fee simple from the
defendant Konschur, who at the
same time signed a memorandum
acknowledging his indebtedness
to her in respect of the amount
advanced to pay off the mort-
gage. The assignment of the
mortgage was then registered
and endorsed on the title. On

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the same date she also registered
the transfer, whereupon the
Registrar issued a new certi-
ficate without any nfemorandum
of the mortgage transferred to
Riddell, holding that the mort-
gage upon registration of the
transfer merged in the fee
simple, or was extinguished by
the transfer. On the question
being referred to the Chief
Justice under the Land Titles
Act, he held, on the evidence
then before him, which was sim-
ply the documents in the regis-
trar's possession, that the regis-
trar had acted in accordance
with the provisions of the Act.
The plaintiffs then instituted an
action for foreclosure or sale
under their mortgage. The de-
fendant Riddell by her defence
asked a declaration that she was
entitled to a charge in priority
to the plaintiffs' claim for the
amount of the Mutual Life
Assurance Co.'s mortgage. The
evidence shewed that the trans-
fer to Riddell of the fee simple
was intended as security only for
the moneys advanced and her
judgment against Konschur : —

Held, that as, when the defen-
dant Riddell took and register-
ed the assignment in question,
it was her intention to keep alive
the security, it was not ex-
tinguished, but remained to her
benefit as a valid charge upon
land in priority to the plain-
tiffs' mortgage. Beeves v. Kons-
chur, 125.

8. Foreclosure of— Mortgage
Oiven to Secure Performance of

37 — VOL. II. 8.L.B.

Contract — Covenant to Pay
Fixed Sum — Assignment of
Mortgage — Partial Failure of
Consideration — Rights of Assig-
nee to Recover Full Amount —
State of Accounts between Mori-
gagor and Mortgagee — When
Assignee Bound by — Estoppel
— How Mortgagor Estopped.] —
Defendant W. employed one D.
to break certain land, and exe-
cuted a mortgage for the contract
price to secure payment of the
same. The mortgage in question
was on the face of it absolute,
and contained tie usual clause
acknowledging receipt of the
principal. D. assigned the mort-
gage to plaintiff, who proceeded
to foreclose the same. It ap-
peared that D. had never com-
pleted his contract, and of the
work done only a small portion
was of any value, and in respect
of the balance it was so badly
done that, in another action,
the present defendant had re-
covered judgment against D. for
damages to the land. The plain-
tiff claimed the whole amount of
the mortgage covenant, and
alleged that defendant was es-
topped as against the assignee
from denying that the full con-
sideration had not been advanced
(1) by acknowledging receipt of
the principal sum, and (2) that
having recovered judgment on
breach of contract in respect of
the breaking, he must look to
that for relief: —

Held, that an assignee of a
mortgage takes, subject to the
state of accounts existing be-
tween the mortgagor and mort-

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[vol.

gagee at the time of the assign-
ment, and when the mortgagor
shews that the amount advanced
or the amount due is less than
the face value of the mortgage,
the assignee can only recover the
full amount if he shew that he
gave full value for the mortgage
without notice that a less
amount only was due, and that
the mortgagor has enabled the
mortgagee to deceive the assignee
or has led the assignee to believe
that the greater amount was due,
and this not being shewn, the
assignee could recover only the
amount actually due.

(2) That it being the duty of
the assignee to enquire into the
state of the accounts, the defen-
dants were not estopped from
denying the amount due unless
some act of the mortgagor justi-
fied the belief that the full
amount was due, and the mere
execution of the acknowledgment
in the mortgage was not sufiS-
cient.

(3) That the judgment re-
covered by the mortgagor being
for damages to the land by the
work done and not for non-
performance, the recovery of
such judgment did not estop the
defendant from claiming a re-
duction in the amount payable
under the mortgages. Swan v.
Wheeler, 269.

9. Description of Land — Mort-
gage Covering Specified and Un-
specified Land,] — See Land
Titles Act, 5.

MUNICIPAL CORPORATIOHS.

1. Highway — Closing of by
Municipal Corporation — Effect
of By-law Closing Streets Passed
Without Notice — Validity of —
Effect of sec. 101, Municipal Or-
dinance— Defect of Substance or
Form.] — By a plan duly record-
ed in the proper land titles oflSce,
the area incorporated within the
bounds of the city of Begina was
shewn as divided into blocks and
lots, streets and lanes. The de-
fendant the city acquired block
197, excepting one lot, which was
subsequently acquired by the
plaintiffs, and other land, and
being desirous of creating a
number of warehouse sites, the
city decided to close the streets
and lanes leading to and
through, block 197, and for
that purpose passed a by-
law. No notice of this by-
law was given to the registered
owner of the lot subsequently
acquired by plaintiffs. The de-
fendants, having passed the by-
law, proceeded to sell block 197
and portion of the streets and
lanes so closed, and buildings
were erected which obstructed
the way of egress and ingress to
plaintiffis' lot, and plaintifiBs sued
for a declaration that the streets
and lanes closed were public
highways, and for the removal
of the obstructions: —

Held, that until notice is given
to the registered or assessed own-
ers of all land abutting upon any
street or lane which it is pro-
posed to close by by-law, under
the provisions of sec. 5 of ch. 28
of the Ordinances of 1903 the

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city council has no jurisdiction
to pass any by-law closing such
streets.

(2) That if any by-law is so
passed without notice, the pro-
visions of sec. 101 of the Munici-
pal Ordinance (ch. 70, CO.,
1898) and sec. 307 of the Regina
Charter (ch. 46 of 1906), now
sec. 193, City Act, ch. 16, of
1908, will not validate any act
done under such by-law, the lack
of jurisdiction to pass such by-
law without notice not being **a
want of substance or of form."
Ges7nan v. City of Regina, 50.

2. Distress — Arrears of Taxes
Due School District — Unlawful '
and Excessive Distress — Assess-
ment of Interest of Occupant of
Crown Lands — Regularity — Dis-
tress for a Cheater Amount than
Actually Due — Regularity of —
Excessive Seizure.] — Plaintiff
had been for a number of years
an occupant of Crown lands for
which he had been assessed by
the school district. No taxes were
paid by plaintiff, and other par-
ties subsequently assessed for the
same land paid none. In 1908,
these taxes being unpaid and the
plaintiff having 73 head of
horses on the land, the defend-
ant school district authorized
the defendant Hopper to seize
the goods of plaintiff and the
other occupants for such arrears.
In pursuance of suoh warrant
Hopper seized 73 head of horses
belonging to plaintiff and 2 be-
longing to the other occupants.
At most there was only $200 due
for taxes. The proceedings con-

nected with the seizure appeared
to be regular. It was objected,
however, that the assessment was
irpegular, but it had not been
appealed from, nor were any
grounds laid which would in-
validate all the assessments. In
an action for trespass and exces-
sive seizure : —

Held, that while Crown lands
cannot be assessed, yet the occu-
pant thereof can be assessed in
respect of his interest therein.

(2) That even if certain of the
assessments were irregular, some
of the taxes were properly due,
and distress for a greater amount
than that actually due is not
per se actionable.

(3) That the seizure of 73
head of horses to satisfy a debt
not exceeding $200 was an ex-
cessive distress for which the
plaintiff was entitled to dam-
ages. Robertson v. Hooper and
Trustees of Olen Morris School
District, 365.

3. Assessment — Occupant of
Crown Land — Assessment in Re-
spect of — Value to he Placed
Thereon — Assessment of Real
Property — Actual and Compara-
tive Values.] — Appellant was a
lessee of Crown land and was
assessed therefor by the respon-
dent for the full cash value. He
claimed to be liable for assess-
ment only in respect of the value
of his interest therein, and in
any event that the aasessment
was excessive : —

Held, that in view of the pro-
visions of sec. 26, sub-see. 2, of
the Schools Assessment Ordin-

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ance of 1901, which directs that
the occupant of Crown lands
shall be assessed therefor and,
as by the only provision respect-
ing the basis of assessment, sec.
30 of the same ordinance, it is
directed that real property shall
be assessed at the actual cash
value thereof it must be held that
the occupant must be assessed
for the full cash value.

(2) That the adoption of a
flat assessment rate per acre
throughout a district does not
constitute an equitable assess-
ment, unless it be shewn that
all the land is equally valuable,
and that the rate adopted is the
fair cash value of such land, and
the land in question not being
equally as valuable as are other
lands assessed, it must be assess-
ed at its actual cash value.
Wauchope School District, In re,
327.

4. Controverted Elections.] —
See Elections^ 3 and 4.

5. Mechanics' Lien — Filing
Against Lands of School Dis-
trict.]— See Mechanics' Lien, 1.

PABTNEBSHIP.
Action by in Firm Name —
Right to Maintain.] — See Sale
OP Goods, 4.

PKACTICE Airo PLEADING.

1. Administration — Applica-
tion for Letters of — Deceased
Domiciled ex juris — Appli-
cation by Widow — No Evi-
dence as to Orant of Ad-
ministration by Court of Domi-

cile— Right of Widow to Let-
ters in Absence of this Evi-
dence.] — Deceased in his life-
time resided in the State of
North Dakota and died leaving
property in Canada. His widow
made application to this Court
for letters of administration, but
it did not appear that she was
the person entitled to administra-
tion by the law of the place of
domicile, or that any adminis-
tration had been granted in
North Dakota; and on this
ground the Surrogate Judge re-
fused the application. The ap-
plicant appealed: —

Held, that when an intestate
dies ex juris leaving property
in juris the Court should grant
administration to the person
clothed by the Court of the
country of domicile with the
power and duty of administer-
ing the estate no matter who he
be, and in the absence of evi-
dence of appointment of an ad-
ministrator in the place of domi-
cile, or as to the party entitled
there to such administration, the
application should be refused.
In re Cook, 333.

2. Appeal — Contempt of
Court — Application for Leave
to Appeal from Order Commit-
ting for — Right of Appeal.] —
Defendant had been committed
to prison for contempt of Court
by disobeying an order forbid-
ding him to interfere with the
crop on centain lands. He ap-
plied for leave to appeal from
the order of commitment: —

Held, that while in a case of
wilful disobedience the Court

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will not entertain any applica-
tion on behalf of the person in
contempt, yet, if there are any
facts which might lead to a con-
clusion that he had not wilfully
disobeyed the order, the Court
will give leave to appeal from
the order of commitment.

(2) That disobedience of an
order in a civil proceeding is
not a criminal act so as to pre-
clude any appeal in respect of
the order for commitment.
Moose Mountain Lumber <&
Hardware Co. v. Paradis (No.
2), 457.

3. Appeal — Not Perfected —
Motion to Dismiss — Practice —
Costs.] — ^Plaintiffs having given
notice of appeal to the Court
en banc, neglected to perfect the
appeal within the time limited,
and the defendant moved to dis-
miss. It was objected on the
authority of Griffin v. Allen, 11
Ch.D. 913, that no costs of the
motion should be allowed, as no
demand had been made for costs
of the appeal : —

Held, that Griffin v. Allen,
supra, did not lay down the es-
tablished practice in these mat-
ters, but merely indicated the
course, the Court would pursue
in such cases, and no such prac-
tice having been established in
this Court, the application
should be allowed with costs, but
the rule in Griffin v. Allen was
a very proper one, and in the fu-
ture the Court would not, in the
absence of good cause, allow costs
of an application to dismiss for
want of prosecution of an ap-
peal, unless the applicant has

made a previous demand for
costs of the appeal, which has
not been complied with. Wes-
sell V. Tudge, 231.

4. Attachment of Debt —
Judgment Against Garnishee —
Order for Made ex Parte — Ap-
plication to Set Aside — Regular-
ity of Order — Summons to Set
Aside — Grounds of Irregularity
not Stated — Leave to Defend —
Merits — Promissory Note not
Due — Attachable Debt — Mis-
take by Clerk of Court — Effect
of — Costs.] — The garnishee not
having, so far as the record
shewed, disputed his liability to
the defendant, an order was
made ex parte giving leave to
the plaintiff to enter judgment
and issue execution against the
garnishee, which was done. The
garnishee then moved to set aside
the order on the ground that
it was made ex parte, and also
on the ground that he had a
good defence on the merits.
These grounds were not, how-
ever, set out in the summons: —

Held, that an order for judg-
ment against the garnishee in de-
fault of appearance may be
made ex parte.

(2) The grounds of the al-
leged irregularity not having
been stated in the summons, the
application should not be grant-
ed on that ground.

(3) The garnishee having
shewn that he had what might
be good ground for disputing
his indebtedness, and having ac-
counted for his apparent de-
fault, should be allowed to dis-
pute his liability.

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(4) The plaintifE should not
be prejudiced by reason of the
mistake of the clerk of the Court
in omitting to file with the re-
cord a letter written by the gar-
nishee disputing his' liability,
and that the garnishee must
therefore pay the costs of the
judgment and of the applica-
tion to secure the same. Hunter
V. Collings, 207.

5. Default in Delivery of De-
fence— Motion for Judgment —
Affidavit of Merits — No Grounds
of Information and Belief —
Sufficiency of — Objection to
Plaintiffs Case in Point of Law
— Letting Defendant tn to
Defend on Account of Arguable
Point of Law.] — Plaintiff
brought an action against^ de-
fendant for rescission of a con-
tract for sale and return of pur-
chase money on account of ven-
dor's default. The vendor. ap-
peared, but did not deliver a
defence within the time limited.
On a motion for judgment, an
affidavit was filed by defend-
ant's solicitor stating that in his
belief defendant had a good
defence on the merits, but no
grounds for this belief were
stated. It was also objected by
counsel for the defendant that
in any event in point of law the
plaintiff's claim was not suffi-
cient to entitle him to the relief
asked for: —

Held, that an affidavit of
merits filed by defendant on an
application for judgment in de-
fault of defence must disclose
facts shewing a good defence,

and if sworn on information and
belief must disclose the grounds
of such information and belief.
(2) That if there appears to
be a substantial question of law
to be determined and arising out
of the plaintiffs' claim, the
Court may, even in the absence
of an affidavit, allow the defend-
ant in to defend. Miller Jk
Smith V. Ross, 449.

6. Injunction — Motion to Con-
tinue— Regularity of Procedure
— Material Used in Support —
Withholding Material Facts.] —
Plaintiff obtained an interim in-
junction restraining defendant
from dealing with certain land,
and by the order leave was given
the plaintiff to move on notice
on a certain day to continue the
injunction. On the motion it
appeared that the plaintiff had
previously filed a caveat against
the land in question, but the
right set out in the caveat and
that in the statement of claim
were not identical. This fact
did not appear in the material
on which the injunction was ob-
tained. It was objected that the
application to continue could
only be made by summons, and
that the injunction should
be dissolved on account of sup-
pression of material facts : —

Held, that when leave is re-
served in the order granting an
injunction to move by way of
notice to continue it, a motion
to continue may properly be en-
tertained upon notice.

(2) That, while withholding
of a material fact on an ex parte

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application for an interim in-
junction may be ground for re-
fusing to continue it, still it is a
matter in the discretion of the
Court, and the fact here alleged
to have been withheld did not
80 affect the case as to justify
refusal to continue the injunc-
tion. Bashford v. Bott, 461.

7. Injunction — Restraining
Disposition of Personal Property
— Adeqiiate Remedy at Law —
Fraudulent Conveyance — Ac-
tion to Set Aside by Simple Con-
tract Creditor — Right to Main-
tain— No Allegation that there
were Other Creditors — Necessity
of,] — Plaintiff claiming as credi-
ditor under a bond conditional
^ upon delivery of certain grain
to them, which, it was alleged,
had not been done, brought ac-
tion to set aside a conveyance
of that grain. In the claim it
was alleged that the plaintiff
sued on behalf of all creditors
of defendants, but it was not al-
leged that there were creditors
other than plaintiff, nor was it
alleged that defendants were in-
solvent. An injunction was ob-
tained from the local Master re-
straining the party to whom the
grain had been sold from dis-
posing of same, ,and restraining
the defendants from dealing
with any securities given in re-
spect of the purchase price
thereof. There was no allega-
tion in the claim that the plain-
tiff did not have an adequate
remedy on the bond.

On a motion to continue the
injunction : —

Held, that an injunction
should not be granted to restrain
actionable wrongs where there is
an adequate remedy at law, and
as there was nothing to indicate
that the plaintiff had not an ade-
quate remedy on the bond, the
injunction should not be con-
tinued.

(2) That a simple contract
creditor, who has not obtained a
judgment and issued execution
thereon, cannot maintain an ac-
tion to set aside a fraudulent
conveyance unless he sue on be-
half of all creditors.

(3) To support such an action
it should appear and be alleged
that there are other creditors
of the defendant. Lankin v.
Walker, 453.

8. Injunction — Restraining
Order — Disobedience of — Mo-
tion for Attachment for Con-
tempt— Service of Injunction
Order — No Notice under Rule
330 Judicature Ordinance —
Necessity for in Orders Restrain-
ing— Original Order not Ex-
hibited to Defendant when
Served — Necessity for — Know-
ledge by Defendant of Contents
— Delay in Service of Order
Continuing — Effect of.] — An
order was made in this action
restraining the defendant from
interfering with the crop on cer-
tain land until further order,
and a summons was granted
with the order calling on the
defendant to appear and shew
cause why the injunction should
not be continued until the trial
of the action. A copy of this
order was served upon the de-

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[vol.

fendant personally, and he ap-
peared by counsel on the re-
turn, and after the hearing,
the injunction was continued
imtil trial. The defendant
afterwards entered on the land,
drove off the plaintiffs' ser-
vants who were threshing the
<5rop, and removed it. On a
motion for attachment it was
objected by the defendant that
no memorandum under Rule
330 of the Judicature Ordinance
was indorsed on the copy of the
order served; that it did not
appear that a copy of the orig-
inal order was exhibited to the
defendant when service waa ef-
fected, and that, as the order
continuing the injunction waa
made on the 25th of September
>and was not served until the
^Ist of October after the alleged
contempt, there was undue delay
on the part of the plaintiff: —
Held, that it is not necessary
to indorse the memorandum re-
-quired by Rule 330 of the Judi-
cature Ordinance on a restrain-
ing order, the provision only ap-
plying to mandatory orders.

(2) While inclining to the
•opinion that it was necessary to
'exhibit the original order when
making service, yet as it ap-
peared that the defendant was
aware of the terms of the in-
junction order, and as in such
xsircumstances there may be a
•contempt without service, the
objection was not a valid one.

(3) That while the plaintiffs
had been guilty of undue delay
in serving the order continuing
the injunction, yet, inasmuch as

the original order restrained the
defendant until further order it
was the duty of the defendant
to ascertain if the order was still
in force before interfering with
the property. Moose Mountain
Lumber and Hardware Co. v.
Paradis, 382.

9. Judgment — Motion for
Summary— Affidavit Verifying
Claim — Sufficiency of — Time
for Making Application — Issue
Joined,] — Plaintiff applied to
strike out appearance and enter
judgment against the defendant
under Rule 103 of the Judica-
ture Ordinance. The aflSdavit
filed alleged a judgment recov-
ered against the defendant in
I the Alberta Court for a certain
I sum, but did not set out that
' he was still indebted to the plain-
tiff in that or any sum : —

j Held, that the affidavit did
jnot sufficiently establish the

cause of action.
184.

Oaetz V. Hall,

I 10. Pleading — Amendment
— Fraud — No Damages Alleged
— Plea Only Open to Party Im-
mediately Affected,] — Plain-
tiff applied to amend his state-
ment of claim by adding an al-
legation that the instrument
! which he sought to have set aside
I was executed by defendant Car-
rigan by the fraud of the other
d<»fendant. It was not alleged
i that the defendant Carrigan was
'defrauded or damaged: —

Held, that the defendant could

' not plead such fraud, as it raised

an issue not between the plain-

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575

tiff and defendant, but between
the two defendants.

(2) That the plea in any event
could not be allowed, as it was
not therein alleged that the de-
fendant Carrigan was actually
defrauded or damaged. Tasker
V. Carrigan, 230.

11. Pleading — Action for Li-
bel — Application to Amend
Statement of Defence — Matter
of Defence Charging Crime —
Allowance of Amendment Plead-
ing — Discretion of Judge — Par-
ticulars not Suffiicient — Refus-
ing Amendment for Insuffi-
ciency,] — In an action for libel,
the defendant in the first place
pleaded generally denying the
matters alleged in the statement
of claim. Subsequently he ap-
plied to amend by pleading jus-
tification, and filed the proposed
amended defence. The matters
relied upon by way of justifica-
tion charged the acceptance of
bribes by the plaintiff when
holding a municipal office, and
it was objected that the Court
should not permit an amend-
ment charging fraud or crime,
and it was also objected that the
matters charged were not stated
with sufiScient particularity: —

Held, that the allowance of an
amendment setting up fraud is
discretionary with the Judge
and in some cases permissible,
and in this case the amendment
should be allowed.

(2) That it is not now neces-
sary to put the particulars re-
lied upon by way of justification
in the pleading, but such par-
ticulars, if not pleaded, must be

subsequently delivered, and the
proposed amended pleading was
not therefore bad, although all
the matters therein alleged were
not stated with sufficient partic-
ularity. Laird v. Leader Pub-
lishing Co,, 1.

12. Order for Security for
Costs — Appeal from Local
Master — Formal Order not
Drawn Up or Settled — Stay of
Proceedings — Discretion of
Local Master as to,] — Defend-
ants secured an order from a
local Master requiring the plain-
tiff to give security for costs,
but he refused to direct a stay
of proceedings meanwhile. The
defendants on account of this
refusal appealed. No formal
order was taken out before ap-
peal : —

Held, following the English
practice, that it is imnecessary
to take out the formal order be-
fore appealing.

(2) That the granting of a
stay of proceedings is purely a
matter of discretion and the
local Master in the exercise of
his discretion having refused a
stay for reasons given such dis-
cretion should not be interfered
with. Wray v. Can. Nor, Ry,
Co., 321.

13. Pleading — Amendment at
Trial — Embarrassing — Allow-
ance of — Material Facts —
What Necessary to Make Oood
Plea — No Defence to Amended
Plea — Finding by Trial Judge
on Improper Plea — Effect of,]
— Plaintiff sued to recover com-
mission alleged to be due under

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[vol.

an agreement whereby he as-
signed an agency held by him
to the defendant. After action
brought, and upon the examina-
tion of the defendant for dis-
covery, it transpired that after
making the contract with the
plaintiff he retired from busi-
ness, and his .business was ac-
quired by a concern which
secured the agency in question.
Plaintiff thereupon applied at
the trial to amend by pleading
alternatively that if the defen-
dant gave up the agency he did
so of his own accord and in vio-
lation of the expressed and im-
plied terms of the contract,
whereby the plaintiff suffered
damage. No facts were set out
in support of the plea. The
trial Judge on the trial allowed
the amendment subject to ob-
jection.

Xo defence was delivered to
the amended plea. After trial,
and in his judgment, the trial
Judge decided that the amend-
ment should not have been al-
lowed, and dismissed the plain-
tiff's original claim, but found
for him on a breach of contract,
notwithstanding his finding that
the amendment was an improper
one. On appeal : —

Held, that the proposed
amendment, lacking as it did
any allegation of fact to sup-
port it, should have been disal-
lowed, and the plaintiff, there-
fore, could not recover.

(2) That an embarrassing
plea should not be allowed by
way of amendment.

(3) That no defence having
been pleaded to the amended
plea, there was no issue before
the Court. Anderson v. Olson,
405.

14. Probate — Application for
Aiicillary Letters — Evidence in
Support — Exemplification Un-
der Seal of High Court of Jus-
tice for England.] — This was an
appeal from the decision of a
Judge of the Surrogate Court
refusing a petition for ancillary
letters probate upon petition of

I the executor supported by an

exemplification of letters pro-

I bate under the seal of the High

I Court of Justice for England : —

! Held, that the production of

an exemplification of probate

under the seal of the High Court

of Justice for England, together

with the afGidavits under the

Succession Duty Ordinance,

was sufiicienit to entitle the

executor to ancillary letters

probate. In re Chesshire, 218.

15. Service — Mortgage —
I Foreclosure — Order Nisi for —
\ Service of — Necessity of Serv-
\ing — Service by Posting — Suffi-
ciency.]— Plaintiff secured an
order nisi for foreclosure, and

I served the defendant, who had
. not appeared, by posting a copy
i of the order in the oflRce of the
Local Registrar. On an appli-
, cation for final order after de-
> fault, the Local Master refused
the application on the ground
that the service of the order nisi
was not sufScient. Upon refer-
ence to a Judge of the Supreme
Court : —

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577

Held, that under the practice
it is not necessary to serve the
order nisi upon the defendant
before entering final judgment
thereon.

(2) That as the practice does
not require entry of appearance
in proceedings instituted by
originating summons, the provi-
sions of sec. 82 of the rules of
Court as to service by posting
in default of appearance do not
apply. Union Bank v. McElroy,
420.

16. Writ of Attachment —
Application to Set Aside — Writ
Obtained upon False Affidavits
— No Appearance by Applicant
— Locus standi — Step in the
Cause — Proceeding Incidental
to the Cause.] — Defendant
moved to set aside a writ of at-
tachment on the ground that it
had been obtained on affidavits
which were false. No appear-
ance had been entered by the
defendant, and it was objected
that until an appearance had
been entered he had no locu^
standi : —

Held, that the issue of a writ
of attachment is not a step in
the cause, but is entirely inci-
dental thereto, and a motion may
be made to set it aside on the
ground of irregularity before
appearance. Sawyer Massey v.
Carter, 148.

17. Writ of Summons — Ac-
tion by Foreign Partnership in
Firm Name — Eight to Maintain
— Irregularity — Appearance by
Defendajit — Effect of — Waiver.]
— ^Plaintiff, a partnership carry-

ing on business in the United
States, issued a writ in the Su-
preme Court of Saskatchewan,
in the firm name, against the
defendant. The defendant com-
pany appeared to the writ and
applied for and obtained an or-
der for security for costs. After
security had been given, the de-
fendant moved to set aside the
writ on the. ground that the is-
sue thereof by a foreign partner-
ship in the firm name was un-
warranted by the rules and a
nullity. The Local Master be-
fore whom the motion was heard
gave the plaintiffs leave to
amend, and this order was, on
appeal to a Judge in Cham-
bers, upheld. On a further ap-
peal : —

Held, that the issue of the
writ was an irregularity which
was waived by the defendants
appearing in the action. Kasin-
dorf V. Hudson Bay, 510.

18. Pleading.] — See Velie v.
Hemstreet, 72.

19. Pleading not Ouilty by
Statute — Amendment by Plead-
ing — Claiming Benefit of Statute
Without Pleading.] — See False
Imprisonment, 1.

20. Land Titles Act — Practice
in Cases Under.] — See Land
Titles Act.

21. Mortgage Sale and Fore-
closure.]— See MOETGAGE.

PBAIBIE FIBE.

Damage by Prairie Fire —
Origin of Fire — Degree of Care
Required — Prairie Fires Ordin-

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[vol.

ance — ^^ Permitting Fire to Es-
cape'' — Interpretation.] —
Plaintiff's buildings and other
property were destroyed by a
prairie fire alleged to have
spread from the ashes of a stack
of flftraw burned by the defen-
dant. The evidence shewed
that before the stack was fired
a guard of about 40 yards in
width was burned around it, and
there was also a fire guard three
furrows in width about 300
yards to the west. The prairie
fire did not occur until four
days later, on which day a high
wind was blowing, and indica-
tions pointed to the remains of
the straw stack as the origin of
the fire: —

Held, that in view of the cli-
matic conditions prevailing in
the Province, a man bringing
fire upon his land must exer-
cise the greatest caution, and
under those conditions precau-
tions must be taken to prevent
the fire spreading imtil such
time as it is absolutely extin-
guished, and the defendant, hav-
ing failed to take such care, was
liable to the plaintiff in dam-
ages.

That if a person does not pro-
perly watch a fire started by him
and see that it does not get away,
and it escapes, he thereby ** per-
mits" it to escape within the
meaning of sec. 2 of the Prairie
Fire Ordinance (ch. 87, CO.
1898). Roberts v. Morrow, 15.

See Railway Company, 1.

PRINCIPAL AND AGENT.

1. Commission on Sale of
Land — Right of Agent to — Pay-
able Only on Payment of Pur-
chase Price — Cancellation by
Vendor — Effect of on Agent ^s
Right to Commission.] — Defen-
dant listed certain land with
plaintiff for sale on certain
terms, and a commission of $200
was agreed upon. Plaintiff
sold the land to a purchaser who
could not pay the agreed
amount as deposit, but the de-
fendant accepted the purchaser
and signed an agreement to sell.
At this time it was arranged
that the payment of the plain-
tiff's conunission should be post-
poned until the purchasers could
get a loan to pay for the pro-
perty or sell it. Subsequently
no payment being made under
the contract other than the de-
posit of $50, the vendor can-
celled the contract: —

Held (Lamont, J., dissent-
ing), that, the plaintiff, having
secured a purchaser who was
willing to purchase for the price
agreed and who was accepted by
the defendant, was, in the ab-
sence of any agreement to the
contraiy, entitled to his com-
mission.

(2) That, even if the time
of payment of the commission
had been postponed, yet, as the
defendant had by his action in
cancelling the contract made it
impossible for the purchaser to
complete his contract, so that the
plaintiff would be entitled to
receive his commission, the plain-
tiff was entitled to recover not-

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579

withstanding the arrangement
for i)ostponement. McCallum
V. Russell, 442.

2. Commission on Sale of
Landr—Duty of Agent — Sale
Without his Knowledge.] — The
principal promised the agent a
commission if he could procure
a purchase of certain land. The
agent interested a party in the
property, but the latter being
unable to purchase mentioned
the properly to a third party
who purchased from the prin-
cipal on the terms stated with-
out the agent's knowledge and
without the principal being
aware that the purchaser had
learned of this sale through the
agent : —

Held, that in order to entitle
an agent to his commission the
sale must be the direct result of
his efforts, and the sale in this
case could not be said to be the
direct result of the agent's ef-
forts, and he was not entitled to
commission. Vachoe v. Strat-
ton, 72.

RAILWAY COMPAFSr.

1. Destruction of Property by
Spark from Locomotive — Negli-
gence of Defendant — Proximate
Cause.] — Plaintiff was the own-
er of a warehouse in close proxi-
mity to defendant's railway.
Within six feet of the warehouse
he piled a quantity of hay, which
became ignited by a spark from
a locomotive on the railway, and
the fire spread to the warehouse,
which was totally destroyed.
The jury found that the fire

originated from the defendant's
engine, but that the plaintiff
had been guilty of negligence in
storing the hay in such close
proximity to the railway: —

Held, that as the jury had
found the plaintiff negligent^
and such negligence was the
proximate cause of the damage,
he could not recover. Cairns v.
Canadian Northern R.W. Co.,
19.

2. Common Carrier — Ooods
Received for Shipment — Con^
tract to Pay Charges — Parties to
— Consignor Presumed to be
Agent for Consignee — Liability
of Consignee — Action for
Freight — Remedies of Consignee
— Completion of Contract — Ac-
ceptance by Consignee.] — De-
fendants purchased a quantity
of cement for shipment to them
at Regina, and it was so ship-
ped by the consignors. The
contract of shipment provided
that delivery should be made
in the railway company's
shed at destination or when
the goods had arrived at
the nearest place to be reach-
ed on the company's railway.
The goods arrived at Begina and
were with the consent of the de-
fendant placed for unloading at
a point indicated by the def end-
ant 's manager. The goods were
subsequently taken away by an-
other party who had purchased
them from defendant and who
did not pay the freight, and the
defendant refusing to pay the
same the plaintiff brought action
to recover the charges: —

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[vol.

Held, where goods are with
the consent or by the authority
of the purchaser consigned by
the sellers as consignors to be
carried by a railway company
as common carriers to be de-
livered to the purchaser as con- j
signefe, and the name of the con- 1
signee is known to the carrier,
the ordinary inference is that
the contract of carriage is be-
tween the carrier and consignee,
the consignor being the agent of
the consignee to make it, and the
contract in this case was there-
fore between the carrier and the
consignee.

(2) That the plaintiff com-
pany could therefore maintain
an action for recovery of the:
freight charged from the con- 1
signee.

(3) That the plaintiff com-1
pleted its contract and became |
entitled to recover its charges
when the car containing the
goods was placed for unloading
with the knowledge and consent
of the consignee. Canadian Paci-
fic KW, Co. V. Forest City Pav-
ing and Construction Co., 413.

EEAL PEOPEETY.

Buildings Placed Thereon —
Property in.] — An execution
debtor placed certain buildings
on land, the property of the de-
fendant in the issue, for which
it ajxpeared ground rent was
paid. These buildings were
of wood resting on loose
stone foundations to which
they were not affixed nor
were the foundations let into the
earth, but the earth had been

levelled to make the foundation
level. A cellar had been dug in
the earth under one building.
A judgment creditor seized these
buildings, and the defendant,
the owner of the fee simple,
claimed them as part of the free-
hold, and an issue was directed :
Held, that to be a parcel of
the freehold a building must be
affixed to it or something con-
nected with it, or there must be
evidence to shew that it was in-
tended that the buildings should
be part of the freehold; the
buildings in question not being
affixed to the freehold, and there
being no evidence that they
should be a part of it, the build-
ings were the property of the
debtor and liable to seizure.
Hamilton v. Chisholm, 227.

SALE OF GH)ODS.

1. Manitoba Grain Act — Stor-
age of Wheat to he Specially
Binned — Storage Tickets Is-
sued— Agent Agreeing to Spe-
cially Bin Wheat Contrary to
Instructions — Liability of Ele-
vator Company — Delivery of
Wheat — Amount to which Bailor
Entitled— Place of Delivery J\ —
PlaintiflE delivered a quantity of
wheat to defendants' elevators
at Saskatoon and Osier, receiv-
ing tickets or receipts therefor
in the form of storage tickets
mentioned in the Manitoba
Grain Act. The agent marked
the words *' specially binned"
on these tickets; but it was
shewn he had express instruc-
tions not to accept any ni^eat to
be specially binned. The

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581

amount of wheat shipped from
the bins in which plaintiff's
wheat was stored was greater
than that mentioned in the tick-
ets, and he claimed this wheat
The plaintiff also claimed dam-
ages by reason of the defend-
ants' failure to deliver the wheat
to him at Palmerston, Ont., the
wheat being in fact delivered at
Fort William:—

Held, that the plaintiff having
accepted ordinary storage re-
ceipts under the Manitoba Grain
Act calling for the delivery to
him of the ** above quantity
grade and kind of wheat,"
could not claim that the wheat
was specially binned under the
provisions of the Act, and was
entitled only to delivery in ac-
cordance with the provisions of
the Act when the grain is stored
under storage tickets.

(2) That the indorsement of
the words ** specially binned"
on the ordinary storage receipt
would not give any greater privi-
lege than those to which the
plaintiff was entitled under stor-
age tickets.

(3) That the contract between
the parties being for delivery
of the wheat in car lots at any
terminal elevator in the district,
the delivery of the wheat at Fort
WiUiam was sufficient compli-,
ance with the contract. Caswell
V. Western Elevator Co., 153.

2. Entirety of Contract — In-
tention of Parties — Sale by De-
scription— Misrepresentation —
Admissibility of Parol Evidence
to Vary Written Contract —
Acceptance by Buyer — Reason-

able Opportunity of Inspection.]
— ^Plaintiffs agreed to sell defen-
dant certain thceshing machin-
ery, consisting of **a second-
hand, portable John-Abell en-
gine, known as the Sutcliffe en-
gine," separator, and other ac-
cessories. The engine was
second-hand, and the other arti-
cles were new. The memoran-
dum of the agreement was em-
bodied in two documents, the
reason given by the agent of the
plaintiff being that fhey would
not warrant the second-hand
goods, but would warrant the
new goods, the document relat-
ing to the engine containing no
warranty. It was alleged that
the engine was represented as
having been recently re-built and
as good as new. "Wlien the goods
arrived, the defendant, who
knew nothing of engines, made
a cursory examination of the
articles, and then signed the
notes for the purchase price.
Subsequently his engineer ex-
amined the engine and refused
to have anything to do with it,
on the ground that it was so
badly out of repair as to be un-
safe. The defendant thereupon
refused to accept the goods. In
an action for the purchase price :

Held, that as the agreement
was for articles necessary to con-
stitute a complete threshing out-
fit, and the memorandum of sale
was only severed on account of
the warranty, the contract must
be deemed to be an entire con-
tract, and the defendant was not
required to accept any portion

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[yoL.

of the goods if he was not re-
quired to accept all.

(2) That the representations
as to the character of the en-
gine were not of a collateral na-
ture, but were a description of
the property to be sold, and the
sale was therefore a sale by de-
scription, and as the goods de-
livered did not correspond with
the description the purchaser
was entitled to reject them.

(3) That as the character of
the engine to be sold was not
sufficiently stated in the memor-
andum of sale, parol evidence
was admissible to prove the de-
scription of the engine to be de-
livered.

(4) That the execution of the
notes for the purchase price
after a cursory examination by
the defendant, who was not capa-
ble of judging whether the en-
gine was as described, was not
an acceptance of the goods,* but
he was entitled to a reasonable
opportunity of examining the
goods with the assistance of one
qualified to judge of the qual-
ity of the goods delivered, and
to reject them if they did not
comply with the description. J.
I. Case Threshing Machine Co.
v. Fee, 38.

3. Inspection of by Purchaser
— Ascertained Goods — No Im-
plied Warranty,] — Defendant
purchased a fanning mill and
gave a note therefor. Before
purchasing he examined the
mill, which was delivered to him.
In an action on the note he al-
leged that the mill was not capa-

ble of doing good work, and
claimed breach of warranty. The
trial Judge found that no ex-
press warranty had been proved,
and gave judgment for the plain-
tiff. On appeal: —

Held, that there was evidence
to support the trial Judge's find-
ing that there was no express
warranty, and the appellant hav-
ing purchased the mill after in-
specting the same and relying
entirely on his own judgment,
there was no implied warranty.
Imperial Bank v. Keivell, 410.

4. Action by Foreign Partner-
ship in Firm Nams — Action by
Foreign Company — Right to
Maintain — Acceptance of Ooads
— Damages for Breach of War-
ranty— Evidence of Breach.] —
Defendant ordered a car of
apples, which the plaintiff ship-
ped on tenps that it should be
accepted on delivery at point of
shipment. The car was received
in due course and unloaded by
the defendant, who first com-
plained that one box was short
and one bad, and later that ten
boxes were bad, and at a sub-
sequent date that the whole ship-
ment was bad. There was no
evidence as to the condition of
the goods when delivered for
shipment.

At the trial it was objected
that a foreign partnership (the
plaintiffs being resid^it out of
the Province) could not main-
tain an action in the firm name,
and subsequently, when it trans-
pired that the plaintiff was a
corporation, that being a foreign

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583

corporation not registered they
could not maintain an action.
In an action for the price of
goods sold and delivered : —

Held, that defendant, having
appeared to the writ of sum-
mons, waived any objection to
the plaintiff's right to bring an
action in the firm name if the
plaintiffs were a firm.

(2) That the contract being
made by correspondence, and de-
livery having taken place out of
the Province, the plaintiff could
not be said to be a foreign com-
pany carrying on business in the-
Province.

(3) That the defendant not
objecting to the condition of the
whole shipment when received,
and having taken possession of
the car and sold some of the con-
tents, must be deemed to have
accepted the goods.

(4) That it was, however, a
condition of the sale that the
goods should be in merchantable
condition when delivered for
shipment, and the defendant
oould accept the same and sue
for breach of warranty if the
goods were not as ordered.

(5) That while the defend-
ant's actions raised a very strong
presumption that the goods were
practically satisfactory when de-
livered, yet as the plaintiflf had
given no satisfactory evidence
that the goods were in good con-
dition when shipped, and the de-
fendant having shewn damages,
he was entitled to an allowance
for such damages. Shinn v. Mc-
Lean, 336.

38 — VOL. n. S.L.B.

5. Ordinance — Memorandum
in Writing — Connecting Differ-
ent Documents ,— Admissibility
of Parol Evidence — Inconsist-
ency Between Documents — Ac-
ceptance— Receipt.] — The de-
fendant gave plaintiff's traveller
an order for certain goods, a
memorandum of the sale being
made and delivered to the defen-
dant; but not signed by him.
Some of the goods were shipped,
when the defendant wrote a let-
ter to the plaintiffs referring to
**an order given to your travel-
ler," but not specifically refer-
ring to the written memoran-
dum. When the goods reached
their destination the defendant
opened the cases, examined the
contents, but did not take deliv-
ery, claiming the goods were not
as ordered. This, however, was
not pleaded as a matter of de-
fence : —

Held, that where in the letter
signed by the party to be
charged a reference is found to
something which may be a con-
versation or may be a written
document, parol evidence is ad-
missible to shew that it was a
written document which was re-
referred to, and the document
referred to having been proved,
it may be put in as evidence and
so be connected with the one
already admitted or proved, and
parol evidence was therefore ad-
missible to connect the letter and
the previous order.

(2) That opening the case and
examining the contents was an
act of the buyer, which recog-
nized a pre-existing contract of

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[vol.

sale and constituted a sufficient
acceptance to take the case out
of the statute. Steine v.
Korbin, 6.

6. Agreement in Writing —
Collateral Verbal Agreement —
Evidence of — Admissibility. ] —
Plaintiff sued to recover the
price of a threshing machine, for
which the defendants had given
a lien note. The defendants
pleaded that they signed the
note on the express verbal under-
standing that the plaintiff
should furnish all necessary re-,
pairs to put the machine in
good condition: —

Held, that evidence was ad-
missible to shew that a written
contract was subject to a collat-
eral verbal agreement. Browns-
berger v. Harvie, 481.

7. Foreign Judgment — Defen-
dant not in Jurisdiction of Court
— Effect of — False Representa-
tions— Grounds of Belief in
Truth of — Right of Buyer to Re-
scind.] — Defendants ordered
certain butter making machines
from plaintiff on the representa-
tion that with these machines
butter could be made from milk
fresh from the cow. On receiv
ing the machines they found
that they would not make butter
as represented and immediately
returned them. The representa-
tion in question was made by the
plaintiff's agent who did not
give evidence, but it did not ap-
pear that he had any ground
for believing the representa-
tions to be true. In fact the

plaintiff's own literature shewed
the representations to be unture.
The plaintiff recovered judg-
ment in the Supreme Court of
Alberta for the price of the
goods, the defendants not being
resident in Alberta and not ap-
pearing and now sued upon the
foreign judgment or alternative-
ly for goods sold and delivered :
Held, that the representation
being untrue and the agent hav-
ing no ground for believing it to
be true the Court could infer that
it was fraudulently made and
the defendants were therefore
entitled to rescind the contract
and return the goods.

(2) (Following OurdyaX Singh
V. Rajah of Faridkote (1894),
A.C. 670) , the defendants not be-
ing residents of or domiciled in
Alberta and not having appear-
ed in the action there the plain-
tiff could not now recover upon
the foreign judgment recovered
by default. McCuUough v.
Defehr and Dyck, 303.

8. Sale of Wheat by Sample —
Right of Inspection— Rejection.]
— Plaintiffs purchased from de-
fendant by sample a quantity of
wheat to be shipped. The wheat
was duly loaded and the bill
made out to defendant, but some
days afterwards the defendant,
having been paid for the wheat,
transferred the bill of lading by
indorsement to the plaintiff.
The car was delayed in ship-
ment, and when it reached
its destination the plaintifb
found the wheat in one end
of the car not equal to sample,

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585

being badly heated. The plain-
tiffs refused to accept the ship-
ment, and notified defendant,
who sent an agent to inspect it,
and as a result of this inspection
the agent requested the plaintiffs
to unload the car and make the
best possible out of it, which was
done. The plaintiffs then
brought action for damages. The
defendant's evidence went to
shew that the wheat was in good
condition when loaded in the car,
while expert witnesses for the
plaintiffs were of the opinion
that it must have been tough
when loaded. In explanation of
heating it was shewn that after
the car was loaded and before
the door was closed a violent
rainstorm had occurred, and that
the wheat in the end of the car
which, from the direction of the
wind, would naturally have been
reached by the rain, was that
which was damaged. This storm
took place before the indorse-
ment of the bill of lading. The
plaintiffs having obtained judg-
ment for damages, the defendant
appealed : —

Held, that the reasonable ex-
planation of the condition of the
wheat was, that it had become
dampened by the rain, and as
this took pl<ace while the wheat
was still at the risk of the defen-
dant, the plaintiffs were entitled
to recover.

(2) That the true measure of
damages was the difference be-
tween the price agreed to be paid
for the good wheat and the
amount realized from the sale of

the damaged wheat. Moore MM-
ing Co. v. Laird, 369.

9. Fraud — Substitution of
Other Goods for Those Ordered
— Payment of Notes Given
Therefor After Knowledge of
Fraud — Action for Damages —
Right to Maintain — Measure of
Damages.] — Plaintiff offered by
correspondence to purchase by
description a certain horse. The
defendants agreed to sell at the
price offered and shipped a horse
to the plaintiff. The horse ship-
ped was not that ordered but
the plaintiff did not know this
and accepted the horse as the one
ordered, it being however a very
much inferior animal. He short-
ly afterwards learned that he
had been defrauded, but not-
withstanding retained the horse
and continued to use it and paid
the notes given for the purchase
price. He now sued for dam-
ages :—

Held, that the plaintiff not-
withstanding his retaining the
horse and making payments af-
ter knowledge of the fraud was
entitled to maintain an action
for damages for the delivery of
an inferior animal in place of
that ordered. Perry v. Kidd,
330.

10. Cancellation of Order be-
fore Shipment — Acceptance by
Buyer Under Mistake as to Con-
signor— Conversion — Establish-
ment of Relation of Bailor
and Bailee,] — Defendant order-
ed a car of apples from plaintiff
but before shipment cancelled
the order and placed an order

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INDEX.

[VOL-

elsewhere. The plaintiff shipped
the car originally ordered and
this reached the defendant with-
out notice and he, thinking the
car to be the one subsequently
ordered, accepted it. When the
second car arrived however he
discovered his mistake and im-
mediately notified the plaintiffs
that he held the goods at
their risk. Some of the apples
had been sold, and subsequently
to prevent loss a further quan-
tity was sold. In an action for
conversion or for goods sold and
delivered : —

Held, that there was no con-
version) the defendant hot being
aware that the car had been ship-
ped by plaintiff, nor was there
any sale and the relation between
the parties was merely that of
bailor and bailee and the defen-
dant therefore should account
only for moneys actually re-
ceived less freight and expense
of sale. Pioneer Fruit Co. v.
Litschke, 325.

SALE OF LAND.

See Vendor and Pubchasbb.

SPECIFIC PERFOBMAHCE.

See Vendor and Purchaser.

TSXrST Am) TBXrSTEES.

1. Trust — Crown Orant to
Trustees — Sale by Trustee — Sub-
sequent Conveyance to Other
Trustees — Notice of Agreement
to Sell — Issue of Certificate of
Title— Effect of Land Titles Act
— Application to Bring Under

Act— Effect of False Statement
Therein — Fraud— Statute of
Limitations — Time — Effect of
Fraud Upon.] — By Crown grant
certain lands were conveyed to
trustees upon certain trusts.
These tru3tees entered into an
agreement to sell to the plain-
tiff upon deferred payments.
Before such payments were com-
pleted the trustees from the
Crown conveyed to other trust-
ees the deed con&ining a refer-
ence to the sale to one C, who
assigned to the plaintiff. These
last mentioned trustees made ap-
plication to have the land
brought under the Land Titles
Act, filing a declaration that
they knew of no interests in the
land other than their own, and
upon such application a certifi-
cate of title was issued. Subse-
quently other trustees were ap-
pointed and a new certificate is-
sued. It appeared that each
body of trustees had express no-
tice of the plaintiff's claims. The
plaintiff, after the conveyance
by the trustees from the Crown,
paid the balance due and secured
a conveyance from the original
trustees in 1896, but on account
of the title being vested in the
other trustees he could not regis-
ter this transfer. The second
body of trustees were registered
as owners of the land in ques-
tion in 1893. The plaintiff took
no action until 1906, when he
filed a caveat, and subsequently,
the registered owners refusing
to recognize his claim, he brought
action for a declaration that
they held the land in trust for

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587

him. All the various bodies of
trustees were connected with
and held in trust for the Pres-
byterian Church in Canada, and
in the original grant it was ex- 1
pressly provided that the Church '
might at any time change the
trust, but subject to all existing
rights : —

Held, that the trustees claim-
ing under conveyance from the
trustees from the Crown, being
voluntary transferees, were sub-
ject to the trusts contained in
the original grant from the
Crown, which preserved rights
created by the original trustees.

(2) That notwithstanding that
the subsequent trustees were reg-
istered owners of the land, the
Court under its equitable juris-
diction could give relief to the
plaintiff if the certificate of title

VENDOB Am) FTTBCHASER.

1. Specific Performance —
Action for — Refused to Execute
Transfer to Nominee of Pur-
chaser — Cancellation of Con-
tract— Right of. Purchaser to Re-
payment of Instalments Paid.]
— Plaintiff purchased certain
land from defendant and paid
a portion of the purchase price
thereon, and went into posses-
sion. The purchaser being in
default under the agreement, the
defendants served notice of can-
cellation under the terms of the
contract. The plaintiff then pro-
cured a third party to make a
tender of the purchase price,
and demanded that the defend-
ants execute a transfer to such
third person. There was at that
time jio assignment of the orig-
inal contract to the plaintiff's
nominee, nor was the original

were obtained by fraud, and the i contract produced, and there
suppression of information by | were to the knowledge of the de-
the applicants, when the land ' fendants executions against the

was brought under the Act, as
to the rights created in favour
of the plaintiff, of which they
were aware, constituted fraud.

(3) That under the provisions
of sec. 25 of ch. 27, 3 & 4 Wm.
IV., the defendants were not en-
titled to avail themselves of the
provisions of the Real Property
Limitations Act, not being trans-
ferees for value, and being
trustees. Fish v. Bryce, 111.

2. Verbal Declaration of Tr\ist
— Registration of Caveat Re-
specting,]— See Land Titles
Act, 6.

land of the plaintiff. The de-
fendants refused to execute the
transfer, and retained the money
paid by plaintiff, who sued for
specific performance, or return
of the purchase money paid : —

Held, that there was no tender
by the plaintiff, and the defen-
dants were under the circum-
stances justified in refusing to
execute the transfer to plain-
tiff's nominee, and the plaintiff
was not entitled to specific per-
formance.

(2) That, following Hall v.
Turnbull (1909), 2 Sask. L.R.
89, the plaintiff was entitled to
a return of the purchase money

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INDEX.

[vol.

paid on account of the sale.
Banton v. March Bros, & Wells,

484.

2. Sale of Lands — Specific
Performance — Tender — Pay-
ment Attached — Tetider of Bal-
ance— Sufficiency — Laches —
Waiver — Time Essence of
Agreement — Intention of - Par-
ties,]— PlaintiflE agreed to pur-
chase certain land from the de-
fendant and made the first pay-
ment thereon, it being also un-
derstood that the defendant
should retain possession for some
time. Before the second pay-
ment became due the plaintiff
was served ynth a garnishee
summons at the instance of a
creditor of defendant, and pur-
suant to such summons paid into
Court the amount attached.
When the second payment be-
came due plaintiff tendered the
amount less the amount attach-
ed, which defendant refused to
accept, apparently basing his re-
fusal on the deduction of the
amount paid into Court. Noth-
ing further was done until the ;
time came for the defendant to -
deliver possession, when several :
conferences took place, during
which the plaintiff asked for a ,
definite statement from the de- 1
fendant as to his intentions, stat-
ing that he must have the land
or his money back. At the last
of these conferences the defend-
ant, without committing himself,
promised to give an answer
later. He never made any fur-
ther communication. The plain-
tiff did not tender the next in-
stalment, and about a year after

the time when he should have
received possession he brought
action for specific performance.
After action brought the defen-
dant served notice of cancella-
tion. In an action for specific
performance : —

Held, that an instalment due
under an agreement for sale
containing a covenant by the
purchaser to pay is a debt which
is attachable.

(2) That tender of the bal-
ance of the instalment after de-
ducting the amount paid into
Court was a suflScient tender.

(3) That the defendant's con-
duct in refusing to give a defi-
nite refusal to complete the con-
tract and deliver possession, and
promising an answer which he
never gave, would excuse any
laches on the part of the plain-
tiff in claiming relief. Camp-
hell V. MacKinnoHy 345.

3. Sale of Land and Business
— Default in Payment of Pur-
chase Price — Cancellation of
Contract — Notice — Sufficiency of
^r-Forfeiture — Relief Agaiyist —
Breach of Contract by Purchas-
er.]— Plaintiff agreed to sell de-
fendant a tailoring business, in-
cluding the premises, stock-in-
trade and tools, part of the pur-
chase price to be paid in cash
and the balance in instalments.
The agreement provided that
'*the purchaser to have sixty
days' notice of each of his quar-
terly payments being due before
the contract can be declared
void.'' The defendant made de-
fault in payment, and the plain-

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INDEX.

589

purchasing made inqniries as to
the value : —

Held, that the representations
in question must be regarded as
representations respecting the
value, and there being no fiduci-
ary relationship between the par-
ties the purchaser was not justi-
fied in placing confidence in
them.

(2) That in order to avoid a
contract for misrepresentation,
the representation must not only
be untrue, but the purchaser
must have been induced to act
upon that representation, and as
the vendor had examined the
property before purchasing, and
after purchasing had made in-
quiries as to the value, it would
appear that he had not relied
solely upon the representations
and so been induced to enter in-

tiff gave notice that ** unless
those notes with interest are
paid in full within the next 60
days' I will proceed to fore-
closure, "and brought this action
for a declaration that the con-
tract was cancelled. The agree-
ment also contained a provision
that the plaintiff would not
carry on business in the vicinity
for ten years, and it transpired
in evidence that he had carried
on business after the sale : —

Held, that the agreement evi-
dently contemplated that the
contract might be declared void
on default, and as the notice
substantially complied with the
terms of the agreement and sufiB-
ciently conveyed the plaintiff's
intention to the defendant it was
suflBcient to determine the con-
tract, but as the plaintiff had ,
himself been guilty of a breach i ^^ ^he contract on the strength
of the contract the Court would i^* ^uch representations. Flem^
relieve against the forf eiture. ] ^^^A' V- ^^^^^*^' ^^■

Dohson V. Doumani, 190. ,

5. Agreement for Sale of

4. Action for Purchase Price

Land on Deferred Payments —
Default by Purchaser — Cancel-

—Misrepresentation by ^endorj^^^^^^^ ^^ (j^^^^^^^_g^^^^^p^^^
as to Price Paid for Land and ^ f^^^^^^^_j^ig^^ to— Delay —
Buildings— Effect of.] — Plam- jr^rfeiture of Purchase Money
tiff sold defendant a house ^^^\paid— Jurisdiction of Court to
lots and sued defendant for the ! Eelieve,]—P\mnt\n purchased a
purchase price. The defendant ; ^^^^j^,^ ^j ^^^^ ^^^^ defendant
alleged that he wa^ induced to j ^^ deferred payments, the con-
purchase on the plaintiff's repre- 1 ^^^^^ containing a clause pro-

sentation that he had paid $375 ,
for the lots and $400 for the'
house. The plaintiff admitted
that the lots cost him only $175 '
and the house $300. The de-
fendant, before purchasing, ex- ! money paid. Default was made
amined the property, and after I in payment of the second instal-

] viding for cancellation upon
; non-payment of any of the in-
I stalments, and that in the event
of cancellation the vendor should
' be entitled to retain all purchase

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INDEX.

[vol.

ment, and the defendant cancel-
led the contract and declared the
moneys paid forfeited. After a
lapse of about a year the plain-
tiff tendered the balance due and
demanded a convey^ance, which
being refused, he brought an
action for specific performance:

Held, that the plaintiff was
not entitled to specific perform-
ance by reason of his delay.

(2) That the purchase money
paid not being in the nature of
a deposit, and being a substan-
tial payment, its forfeiture on
<5ancellation would constitute a
penalty against which the Court
would relieve. Hall v. Turnhull,
89.

6. Default of Purchaser —
Rescission of Contract — Forfei-
ture of Payments — Possession of
the Premises — Time Essence of
Contract^Intention of Parties
— Peaceable Possession — What
Constitutes.] — Plaintiff was the
owner of certain property in
Yorkton, upon which were cer-
tain buildings in which she car-
ried on business as dealer in im-
plements and as a keeper of a
feed stable. The implement
business consisted largely of sell-
ing goods on commission as
agent for several different ma-
chine companies. She entered
into an agreement to sell the
property in question to the de-
fendant, together with the busi-
ness carried on by her, and to
use her best efforts to procure
for the defendant the agencies'
for the several companies repre-
sented by her. The agreement

provided for quiet possession of
the premises by the purchaser
until default, and that upon de-
fault the plaintiff could cftncel
the contract and retain all
moneys paid by the purchaser
in respect thereof. The defen-
dant being in financial dif-
ficulties, was unable to se-
cure the agencies in ques-
tion, notwithstanding that the
plaintiff gave assistance to
secure such agencies. The de-
fendant made default in pay-
ment of the second instalment
and the plaintiff served notice
of cancellation. Subsequently
the plaintiff entered into posses-
sion of the premises in the ab-
sence of the defendant, who on
his return resisted the plaintiff's
right to possession. The plain-
tiff sued for a declaration that
the contract was cancelled, while
the defendant claimed the return
of the purchase price on the
ground that he had not secured
the agencies: —

Held, that the agreement hav-
ing declared time to be of the
essence of the contract, and there
being nothing in the dealings be-
tween the parties to indicate that
it was not really the intention
of the parties that it should be
so, it must be held that time was
of the essence of the contract.

(2) (Following Steele v. Mc-
Carthy, 1 Sask. L.R. 317) that
time being of the essence of the
contract and the defendant hav-
ing made default under such
agreement, and the plaintiff hav-
ing performed her part, of the
contract, the plaintiff was en-

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INDEX.

591

titled to cancel the contract un-
der the provisions thereof, and
such cancellation was not in ^he
nature of a forfeiture against
which the Court could relieve,
but was distinctly a matter of
agreement between the parties
to which effect must be given.

(3) That the Court oould only
order the return of the payments
made by the defendant as an
alternative to specific perform-
ance by the plaintiff, which
could not be ordered, as the de-
fendant was not ready and will-
ing to perform his part of the
agreememt. Hole v. WOsan, 59.

•

7. Sale of Land on Deferred
Payments— Default hy Purchas-
er— Cancellation and Forfeiture
of Moneys Paid — Land Encum-
bered for Amount Greater than
that Due hy Purchaser— Right
of Vendor to Insist on Pay-
ment.]— Plaintiff purchased a
section of land from defendant
upon deferred payments. The
plaintiff made default in one
payment, and such default con-
tinuing for two months the de-
fendant served notice of cancel-
lation of the contract in accord-
ance with the terms thereof, and
claimed the right to retain all
moneys paid thereon. Ajt the
time of cancellation the defend-
ant had encumbered the land
for an amount greater than that
which was due by the plaintiff.
The plaintiff tendered the bal-
ance due and brought action for
specific performance: —

Held, that the defendant, hav-
ing encumbered the land for an

amount greater than that due by
the plaintiff at the time default
was made, was not entitled to be
paid or to receive the balance
due in respect of the land by
the plaintiff, and not being en-
titled to such payments could
not cancel the contract because
payments were not make to him.
Keinholz v. Hansford, 86.

8. Sale of Land Held Under
Agreement for Sale — Covenant
in Agreement Restricting As-
signment Without Approval of
Vendor — Effect of — Transfer of
Land hy Purchaser in Fee Simr
pie — Refusal of Vendor to Ap-
prove— Effect of Refusal on Es-
tate of Transferee — Equitable
Estate Created— Subsequent As-
signment hy Original Purchaser
— Approval Thereof by Vendor
Rights of Transferee and As-
signee— Priorities — Fraud on
Part of Agent of Assignee —
Obtaining Approval of Vendor
by — Effect of on Right of Trans-
feree and Assignee.] — ^Defend-
ant Bennett purchased from the
Canadian Pacific Railway Com-
pany certain land on deferred
payments, and received a con-
tract whereby the company
agreed to convey the land to him
on payment, and which contract
also contained a clause providing
that no assignment of the pur-
! chaser's interest in the land
I should be valid or effectual un-
j less and until approved of by the
; company. Subsequently Ben-
I nett, being indebted to plaintiff,
I was approached by one J. D.
! McLeod, an agent for plaintiff,

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INDEX.

[vol.

and asked for security, and by
way of security the defendant
gave to the plaintiff a transfer
in fee simple of the land, the
legal estate being still in the
railway company. The plain-
tiffs applied to the railway com-
pany for the approval of the
transfer, which approval was re-
fused on the ground that the
conveyance was not in the form
of an assignment of Bennett's
equitable interest in the land.

Some time after McLeod again
saw Bennett, and made an ar-
rangement with him to sell the
same land for him, and, in pur-
suance of the assignment, Mc-
Leod sold the land to one M. J.
McLeod, and procured an assign-
ment of the railway company's
contract in proper form, which
assignment was duly approved
by the company. This approval
was, however, secured by the
fraud and criminal acts of J.
D. McLeod, who forged the name
of M. J. McLeod to the assign-
ment, made a false affidavit of
execution, and also forged the
name of M. J. McLeod to an affi-
davit accounting for the absence
of the original agreement for
sale, which affidavit also con-
tained false allegations. In an
action to set aside the convey-
ance to M. J. McLeod:^

Held, that the clause in the
contract providing that no as-
signment thereof should be valid
unless approved of by the com-
pany was a reasonable provi-
sion and not void as being a
restraint on alienation, the ven-
dor having the right while the

contract remains uncompleted to
decide with what persons he shall
be brought into contractual re-
lations.

(2) That the railway company
having refused to approve of the
transfer to the plaintiff, and the
fraud which had been perpetrat-
ed having been perpetrated
upon the railway company,
the plaintiffs had no loctts standi
to attack the transaction. Saw-
yer, Massey v. Bennett, 93.

9. On Appeal] — Held (La-
MONT, J., dissenting), that
the clause in the agreement
requiring the approval of the
vendor to any assignment
was effective only as between
the vendor and purchasers,
and, therefore, an assignment
without the approval of the
vendor would be valid and
binding as against all the world
except the vendor, and create an
equitable estate or interest in the
land in question in the trans-
feree or assignee.

(2) That transfer in fee sim-
ple given by Bennett to the
plaintiffs, while it did not con-
vey his estate at law, the fee
simple being vested in the rail-
way company, was sufficient to
create an equitable estate in the
plaintiff.

(3) That the equities between
the plaintiffs and Mr. J. Mc-
Leod being equal, the approval
of the assignment to McLeod by
the railway company would give
McLeod a better equitable es-
tate than the plaintiff.

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INDEX.

593

(4) But (Lamont, J., difi-
senting), in determining the
rights of parties in cases of con-
test, between persons having
equitable interests, all the cir-
cumstances must be taken into
consideration in order to deter-
mine which has the better equity,
and the approval of McLeod's
assignment having been pro-
cured by fraud and criminal acts
on the part of his agent, the
approval so obtained could not
give him any better position in
equity than if the approval had
not been obtained, and, there-
fore, the plaintiffs' equitable es-
tate, being first in point of time,
should prevail.

(5) That in equity the assign-
ment to McLeod was subject to
the estate previously conveyed
to the plaintiffs, and, that being
so, McLeod, by securing the ap-
proval of the railway company
and thus bettering his equitable
position, the plaintiffs have a
right to attack the means by
which such approval was ob-
tained, and to shew that such
approval was improperly ob-
tained.

(6) That (Lamont, J., dis-
senting) the knowledge of Mc-
Leod's agent of the previous
transfer, when the approval of
the railway company was ob-
tained, was notice to McLeod of
such previous transfer. Sawyer
& McLssey Co, v. Bennett et al.,
516.

10. Land Titles Act — Trans-
fer under Power of Attorney —
Subsequent Conveyance by Beg-

istered Owner — Action to Set
Aside Conveyafice — Fraud and
CoUusion.] — Defendant C.
gave a power of attorney to his
wife to sell and convey certain
land, and in pursuance of that
authority she did convey to the
plaintiff. She subsequently dis-
appeared and could not be
found. The plaintiff did not
take immediate steps to perfect
his title, and on applying he
was unable to produce the power
of attorney and so secure title.
In the meantime defendant C.
conveyed to the defendant M.,
taking a note in payment of the
purchase price, and M. register-
ed his transfer. To procure re-
gistration a new certificate of
title had to be procured, and
this was done by order of a
Judge on production of an affi-
davit which indicated the loss of
the originals. It appeared, how-
ever, that when this affidavit was
made the defendants were aware
of the plaintiff's claim, but no
mention of it was made in th6
affidavit, nor was it disclosed to
the Judge. It also appeared
that C. had told M. of the giv-
ing of the power of attorney,
and there was also evidence to
lead to the belief that the defen-
dants, when the transfer to M.
was made, were afraid of such
outstanding title. The note
given for the purchase price was
never paid, nor did it appear
that C. had ever made any ef-
fort to collect it. It also appear-
jed that M. had purchased the
property without seeing it, and
having no idea of its value: —

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594

INDEX.

[vol.

Held, that the Land Titles
Act preserved to the Court jur-
isdiction to deal with questions
of fraud <and with other equities
that may arise affecting land,
and which would properly be
cognizable on the equity side of
the Court, and, as the evidence
indicated fraud and collusion be-
tween the defendants, the trans-
fer to the defendant M. should
be set aside. Turner v. Clark,
200.

11. Specific Performance —
Vendor Owner of Uncertain
Equitable Interest — Relief to
which Plaintiff Entitled^-Mis-
representation — Laches — Pro-
perty Traversed by Public Boad
— Divisibility of Contract.] —
The plaintiff and defendant
agreed to an exchange of cer-
tain properties in which they,
at the time of the agreement,
had some equitable interest. The
plaintiff subsequently acquired
title to his land and brought an
action against the defendant for
specific performance, the defen-
dant having then only an equit-
able interest of an indefinite
character in the property he had
agreed to convey. The defend-
ant pleaded misrepresentation,
and particularly that the plain-
tiff had not a good title, owing
principally to the fact that part
of the property in question was
traversed by a road which had
been used by the public for up-
wards of twenty-four years : —

Heldf that in view of the un-
certain nature of the interest of
the defendant in the land in

question, the Court could not
decree specific performance of
the contract.

(2) That the property in ques-
tion being traversed by a high-
way in use for over twenty
years, and in respect of which
the owner might at any time be
involved in a litigation, the
Court would not compel the pur-
chaser to accept the property
subject to a prospective lawsuit.

(3) That even thou^ the
road in question affected only
a portion of the land, yet the
contract was an entire one, and
the Court could not decree speci-
fic performance as to part. WeU-
wood V. Haw, 23.

12. Sale of Land — Vendor not
Owner nor in Position to Com-
pel Conveyance — Rescission by
Purchaser— Bight to.] — Plain-
tiff applied to defendant to pur-
chase a quarter section of land,
and defendant agreed to sell
such land and accepted the first
payment thereon, which he paid
over to his principal. Subse-
quently he discovered that he
had sold the wrong land, and
I thereupon he entered into nego-
tigations with the owner of the
I land which he had actually sold
j with a view to securing it for -his
purchaser. This he was able to
I do, but instead of securing from
I the purchaser an agreement with
j his principal at the stipulated
I price, he took an agreement in
his own name and at an in-
creased price. The defendant
did not deliver any copy of the
agreement to the plaintiff, and

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n.]

INDEX.

595

as a result the plaintiff after
repeated demands repudiated
the contract and demanded the
money paid by him. The defen-
dant subsequently^ on default
of the second payment, served
notice of cancellation. In an ac-
tion for rescission: —

Held, that the defendant, not
being the owner of the land sold
or in a position to compel a con-
veyance, the plaintiff wbs en-
titled to repudiate the contract,
and, having done so before the

notice of cancellation was served,
the contract was rescinded, and
the money paid thereon should
be refunded. Wirth v. Cook,
423.

13. Cancellation of Contract-
— Fixtures Placed in Freehold
by Purchaser — Bight of Bailor
to Bemove after Cancellation.]
— See CoNDFriONAL Sale, 1.

wuMJiIVO UP.

See Company.

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LAW SOCIETY OF SASKATCHEWAN-

Synopsis of proceedings of the adjourned regular meeting of the

Benchers held at Regina on Thursday the 24:th

day of June, 1909.

After the minutes of the previous meeting had been read
and adopted a considerable number of complaints against solici-
tors were dealt with. Certain of these were referred back to the
complainants for proof of their several allegations, but matters
relating to two members of the Society were placed in the hands
of the Society's solicitor for immediate action.

Leave was given for the enrolment of the following named
gentlemen as barristers and solicitors: — 0. R. Regan, A. M.
Mclntyre, C. W. Hoffman, P. M. Anderson, A. E. McDougall,
R. D. McMurchy.

Admission as student-at-law was allowed in the following
cases:— A. Gowler, J. P. PfeiflEer, T. C. Davis, A. N. Grant, E. A.
Gee, P. D. Tanner, Henry Ward, J. McL. Swain, Mattie M.
Wilson.

The following students obtained permission to study for a
term at Osgoode Hall: — ^D. McKenzie, P. W. Deutschmann, F.
B. Bagshaw, John Martin.

It appeared from correspondence between the secretaries
that the Benchers of the Law Society of Alberta would probably
arrange at their next meeting for reciprocity with this Society
so that students who were admitted by the Law Society of the
North- West Territories, upon completion of their term of service
and upon passing the required examinations in either province,
could be enrolled as barristers and solicitors in both provinces
upon payment of a single enrolment fee. The following resolu-
tion was therefore passed.

"That Rule 49 be amended by adding thereto the following
provisos : —

'^Provided that students enrolled and in good standing on
the fifteenth day of September, A.D. 1907, under the Law
Society of the North-West Territories may continue their course
in the Province of Alberta, and services performed and examina-
tions taken in the Province of Alberta shall be recognized in this
province; and proof of enrolment as barrister and solicitor in

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11 LAW SOCIETY OF SASKATCHEWAN.

the Province of Alberta shall in such cases permit enrolment as
barrister and solicitor in this province without further formality
when half the fee of one hundred dollars collected by the Law
Society of Alberta for enrolment is remitted to this Society.

'* Provided further that the preceding proviso shall come into
effect and remain in force when and for so long as the Law
Society of Alberta adopts a similar provision."

Rule 55, sub-rule c. was amended by inserting after the
word ''is" where it occurs in the second line thereof, the words
''so far as his official records shew."

It was resolved that barristers and solicitors, after enrolment,
be supplied at the expense of the Society with the Saskatchewan
Law Reports beginning with the first number of the volume
commencing next after their enrolment; and that, in cases of
alleged non-delivery of parts, upon proof of mailing by the
publishers, duplicate parts be not supplied at the expense of the
Society.

The secretary was instructed to point out to the publishers
of the Western Law Reporter that very few Saskatchewan cases
are now appearing in that publication, and to say that in order
to maintain its usefulness to practitioners in this province,
Saskatchewan cases should receive as much attention as those of
other provinces.

An opportunity having occurred to obtain excellent por-
traits in oils of the Hon. Chief Justice, and the Hon. Hugh
Richardson, formerly senior Judge of the Supreme Court of the
North- West Territories, the same were ordered to be purchased
and hung in the Court House at Regina, and a special committee
was authorized to obtain similar paintings of the other members
of that Court, i.e., Chief Justices McGuire and Sifton, and
Judges McLeod, Rouleau and Scott.

As it appeared that the accommodation in the several librar-
ies is very limited no extensive, purchases of law books was
authorized.

An interim balance sheet to May 31st last, and an estimate
of receipts and expenditure for one year submitted by the
secretary-treasurer is appended.

N. Mackenzie, C. H. Bell,

President. Secretary-Treasurer.

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LAW SOCIETT OF SASKATCHEWAN. Ill

Estimate of receipts for a period of One Year from May Slst,

A.D. 1909.

Annual fees, 196 cases, as for last 12 mos $ 1,955 .00

Enrolment fees, 16 at $410, 14 at $100, as for last 12 mos 7,605.00

Students' fees, 33 cases, as for last 12 mos 2,045.00

Interest on bank balance, as for last 12 mos 448.81

Examinations, 3 per annum, 15 candidates each, based on last

12 mos 460.00

$ 12,503.81

Estimated expenditure, without further purchases of books ... 10,786.36

Estimated surplus for the year .^... . . «^ $ 1,718.46

Estimate of expenditure for a period of one year from May Slst,

A.D. 1909.

Saskatchewan Law Reports,

Editor $ 800.00

Printing, 1 vol. of 650 pp. say, with insurance

on stock 1,400.00

Reporters, for copies judgments 200.00

$2,400.00

Territories Law Reports,

Say 3 parts at $290.00, based on cost of last

three parts 870.00

•

Libraries,

Librarian at Regina 420 . 00

7 other librarians at $50 and $100 500.00

Back pay to two librarians when catalogues

furnished 103 . 86

Balance due on C. L. B. Co. contract 336 . 60

Continuations, based on last seven months 2,680.00

(If based on last 12 months, $2,235.00)

Note increase.

4,040.36

Examinations,

3 examiners at $150 460 . 00

5 presiding examiners at $16, 3 exams, each,

based on last year 80 . 00

530.00

Discipline,

Say 4 cases at $75 each 300 00

Carried Forward $8,140 . 36

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IV LAW SOCIBTT OF SASKATCHEWAN.

Brought Forward $8,140.36

CouYocation,

4 meetings, baaed on last 5 meetings 550.00

Insurance,

Falls due March, 1910, for three year term, say 1,000.00

Office Expenses,

Secretary-Treasurer $720.00

Postage 50.00

Petty cash 20.00

Premiums on Treasurer's bond 25 .00

Stationary, printing, additional insurance and

incidentals, say 255 .00

1,095.00

.$10,785.36

Balance Sheet to May 31st, A.D. 1909.

Bank balance, 31 October, 1908 $ 14,570.12

Annual fees 1,910.00

Enrolment fees 5,355.00

Students' fees 980.00

Interest on bank deposit 448 . 81

Law Society, N.W.T. 16.67

Expense $ 1,207.79

Examinations 246.30

Territories Law Reports 442.41

Saskatchewan Law Reports 1,596.00

Areola Law Library ^ 980.40

Battleford Law Library 319.30

Moose Jaw Law Library 046 .95

Moosomin Law Library 350 . 20

Prince Albert Law Library 310.05

Regina Law Library 1,270 . 73

Saskatoon Law Library 997 .85

Yorkton Law Library 228.40

Balance on hand,

Bank $ 14,354.22

Cash 30.00

14,384.22

$23,280.60 $23,280.60

Paid to Canada Law Book Co., Ltd. $ 5,088.36

Paid to The Carswell Co., Ltd 235.00

Sundry payments on library accounts 80. 52

Total payments on library accounts $ 5,403 . 88

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