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BC Historical Books

The British Columbia law notes Cassidy, Robert 1894

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         ^; INDEX OF CASES IN NO. I. T<
February, 1894] I Vol. I. No
the Seal Fishery (Behring Sea) Act, 1891.    Ship found witbin
;.. prohibited limits -with skins on board.    Vis major.. Lawful
Practice.   Pleading*   Amendment.    Counter Claim.   Adding
after case in paper for trial.
Maritime Law.   Towage Contract.   Concealment of Circumstances Affecting.   Extraordinary Towage or Salvage. .
Practice.   Ex parte Order Extending Time,
make any Necessary Order on Appeal.
Discretion  to
Res Judicata. Giving Effect to Order of Higher Court.
Costs. Taxation; Divisional Court. Printed Appeal Book
on Motion to.    -
GRAYS et al v. McCALLUM et al.
Agency. ." Placer Mining Act, 1891," Sees. 98 and 99.
Authority of Person other than the Foreman to Bind
Mining Partnership.   Ratification.
County Courts.   Jurisdiction of S. C. Judges in.
of.   C. C. Act, 1888, Sec. 15.
Pleading. Order XtX., Rule 19 Partnership. Denial as
Alleged. Negative Pregnant. Party, on Appeal, held
estopped by Implied Admission in a Pleading Treated at
the Trial as a Complete Traverse.
Arrest.    Ca.   Sa.    Discharge   from   Custody.   Maintenance
: Money.   Rules 976 and 977
Practice. Examination of Judgment Debtor. Whether
Necessarv to have return of Nulla Bona on Execution
before  Obtaining.   Rule 486.   Con.  Stat.I B. C.  Cap. 42,
Sec. 11.
• ■
Master and Servant. Company. Contract of Hiring. Construction of. Wrongful Dismissal. Evidence. Statements
of Directors. Ratification. Offer of Compromise. Divisional Court.   Jurisdiction to set aside non-suit.
Practice. Divisional Court. Extending time of Appeal to.
Ex parte order.   Irregularity.
March, 1894]
{Voi,, I. No.
Overcrowding.     "Suffering to be
Mens rea.
Procedure.    Retrospective legig-
AH GWAY, in re, ex parte CHIN SU.
Habeas Corpus. Custody of,infant. Affidavit—Translation
from deponent's language.   Evidence.   Admissibility. '.- 41
Pleading.   Slander.   Alternative Denial. .',     64^
B.C. IRON WORKS CO. v BUSE, et al.
Practice.   Divisional.Court.   New Trial.   Extending time for  .{
motion after lapse of the 8 days. 62
CROFT v HAMLIN, et al.
" Bills of Exchange Act." Presentation of payment of. note
payable at particular place. Necessity for as against maker.
Practice. Judgment under Order XIV. Special endorsement.   Sufficiency of.
Navigation Act.   Articles 16 and 20.   Party to blame. ; r.gf
Costs.   Taxation.   Copies of Appeal Book on Appeal to Divisional   Court.      Printed   copies   disallowed.      Rule   678.
"Amendment of Bill of. Costs after successful appeal from
Taxation .not Allowed. 63
Estoppel. Default judgment whether operates as. Mental
unsoundness.   Practice.   Res judicata. 46
Liquor License. Summary conviction. Appeal.. Practice.
Jurisdiction. Evidence. Construction of words "spirituous
liquor." •    . "' 55
Mineral Act.    Adverse Claim.     Extending statutory time for
bringing Action.   Appeal.   Divisional .Court.   Jurisdiction.
Practice,     Notice   abandoning   appeal.     Introduction   of
fresh facts and reviewing order after judgment and before
.'■ order drawn up. . 34
Appeal from County Court. Co. Ct. Amendment Act, 1892,
Sec. 3.    Question of Law.   Jurisdiction. . 37
Criminal Lhw. Speedy Trials Act. Substituting charge at
trial. Adjournment during trial. Depositions. Evidence
of witness being out of Canada.   Forgery. 58
TAI YUEN CO. v.BLUxVI, et al.
Divisional Court.   Jurisdiction.   Refusal of ex parte  application.   Appeal. 43
Exemption from execution. Homestead Amendment Act, 1890.       45
Practice. Order LVIIL, Rule 15. Appeal. .Security for
costs.   J nrisdiction. 44
'*.-'* Sanitary By-law, 1886.
Occupied."   Scienter.
Costs.   Taxation.   Scale
lation. THE
British Columbia Law Notes.
Vol. 1.
No. 1.
The necessity for some fetter method than that which
at present obtains of brincing the decisions of the Courts in
British Columbia before the Profession lias been apparent
for some time past. The p'an which lias been adopted, the
only practicable one under the circumstances which have
hitherto existed, of having the printing of the British Columbia
Law-Reports done by the Grace of Her Majesty's Provincial
Government, and of the Queen's Printer, is very unsatisfactory, especially during the Session of the Legislative Assembly,
when the printing of the Law Reports is in point of fact
postponed pending execution of work which necessarily
claims prior attention.
There has been expressed a very general wish on the
part of the Profession to receive notes of decisions, particularly of those relating to matters of practice, as soon as
possible after they are decided ; and, owing to the uncertainty
and delay in the publication of the ordinary Reports, it has
been practically useless to adopt a system of reporting short
notes of practice cases, as such, reports are necessarily in a
somewhat different form to those of the full reports of decisions of the Courts, and their principal value consists in
their early and regular publication. 4
The Editor, in view of the fact that he is in possession,
from time to time, of all the materials necessary for a system
of reporting advance notes of cases, has thought it well to
venture the present publication in the hope that the members of the Profession will subscribe for it in each numbers
as will realize a ,sum sufficient at least to pay the cost of
"We are in hopes that in the near future the Law Society
may be able to effect some arrangement with the Provincial
Government to obtain some monetary grant in aid of Law
Reporting, in lieu of the services of the Queen's Printer, so
that the printing of the Reports may be done on an ordinary business basis by some printing firm.
Our intention is to publish two numbers of "The British Columbia Law Notes" every month, each containing 20 or
more pages. It is intended, at all events, to publish in advance of the regular Reports all decisions of the Courts, whether
in Chambers or elsewhere. An arrangement has been made
with a member of the Profession to sit in Chambers every
day and take notes of the decisions which may be there
given ; and also to obtain on the spot, notes of all decisions
rendered in the Courts, whether delivered orally or otherwise.
Owing to the comparatively small number of lawyers in
practice in British Columbia, it is not expected that, at first
at all events, a greater number of subscribers than say 60 or
70 can be obtained. It is therefore proposed that the subscription shall be $10.00 per annum j and it is considered
that the Profession will not deem that sum, in two instalments, too much to pay for the advantages of keeping in
immediate touch with the decisions of the Courts, particularly upon matters of practice.
It is not intended at present to use the British Columbia Law Notes as a Law Journal in the full sense of the
term, but, at the same time, it is proposed to introduce short LAW  NOTKS.
notes and comments on matters of interest to t\\a Profession ;
and its pages, within proper limits, will be open to communications from members of the Profession on matters of
professional interest.
We have taken the liberty of distributing this, our first
number, among the members of the Profession, without
having previously eamassed their support, and shall be
pleased to receive the names of intending subscribers.
Sir 2.[attheir Bailie Beghie. 7i7., C. J.
The opening of the sittings of the Pull Court on 25th
January last was the occasion of a verv pleasing incident.
Sir Matthew Begbie, owing to what has happily proved to have
been only a temporary illness, had wisely sought a change of
scene and rest, for a few months, from the arduous duties
which devolve upon him as Chief Justice of British Columbia
and which he has performed with untiring energy for the
last 34 years.
lie now occupied the Bench for the first time since his
return to Victoria.
Nearly all the members of the bar at that time in Victoria attended the opening of the Court in their robes, as |
mark of professional respect and personal welcome to the
learned Chief Justice upon his return to the Bench.
Their Lordships Justices Crease, McCreight, Walkem
and Drake also sat, constituting, with the Chief Justice,
the whole court.
Upon the Registrar calling the first case on the list,
Hon. Theodore Davie, the Attorney General, rose, and having
asked permission of the Court, addressed his Lordship the
Chief Justice as follows:—
Before the regular business of the Court proceeds, I
wish, and in this I voice the  unanimous  sentiment of the 6
bar, to accord to your Lordship, the Chief Justice, our hearty
congratulations upon your sufficient restoration to health, to
again take your accustomed place upon the bench.
Your Lordships absence, and the cause of it, have been
the occasion of many anxious moments to all ; and I cannot
sufficiently express the gratification which we feel at your
presence again amongst us, to continue that unflinching and
impartial administration of justice, which this country has
enjoyed at your hands for the last thirty-four years.
We trust that you will soon have completely regained
your health, and that it will yet be very many years before
the termination of Your Lordships usefulness will have
His Lordship said:—Mr. Attorney-General, I assure you
that although I may not show it 1 am deeply moved by the
kind remarks which have fallen from you. My chief anxiety
during my absence has been the inconvenience which it must
necessarily have caused the bar. Judgments in several cases
heard before vacation should have been delivered before this.
I do not know whether I am acting prudently in being here
at the present time, although I feel fit to continue my ifflffe
excepting that occasional attacks of physical pain make it
difficult to give my whole attention to the work that I am
engaged in. I may remark, Mr. Attorney-General, that you
yourself are looking well, and that all the members of the
bar are looking extremely well.
The Attorney-General—I think I may safely assure your
Lordship that we are ail in good fighting trim.
His Lordship—In conclusion I may say that I am
deeply grateful to you for your remarks, which I feel are
The regular business of the Court  was then proceeded LAW NOTES.
We are aware of the sentiment with which the
learned Chief Justice, in common with all gentlemen of
breeding, regards any unwarranted invasion of private life
through the medium of printer's ink.
The Chief Justice is, however, of more than mere professional interest to the bar. His personality stands forth
prominently in every page of its history and Jurisprudence
from the time of his arrival in the Province. He had a
large share in moulding its laws in the days when his
knowledge and experience were of the greatest value.
It was, however, in his stern administration of the law,
and in the prevention of lawlessness, that the community
was and is most indebted to him. It is common knowledge
that in the early days, when he was the only Judge of the
Supreme Court, his firm and fearless execution of the duties
of his judicial office, in districts far from the centres of
population, and the seat of the Courts, peopled by a turbulent
horde of gold seekers and adventurers, caused life and property to be respected to an extent which was a matter of
surprise, if net envy, in similar communities just south of
the national boundary, where men were only too much
of a law unto themselves.
Many things have been said and printed of the Chief
Justice, which are always said at some time or other, by some
persons or other of any man of a resolute and independent
spirit who occupies a position which makes him an arbiter in
affairs. It is sufficient to say that he is regarded with respect and admiration, we might say with affection, by the
members of the Bar who practice before him. We look
upon him as the most patient and painstaking of our Judges.
He is a man of unusual strength and decision of char-
acter, but, withal, eminently open to argument and very
courteous to counsel.
The Chief Justice's figure is well known in the Province. Tall, beyond the common stature of man—he is con-
sinerably over six feet in height—he has  preserved the ac- 8
tivity of youth to an age when most men have retired to the
chimney cornei', or, at least, ceased to be capable of such recreations as shooting and lawn tennis. In fact, it is said that
his recent indisposition was brought on by a cold caught by
sitting in the open air, without a coat, after playing tennis
all afternoon. It is to be hoped that he will take better care
of himself in future.
We heartily re-echo the wish expressed by the Attorney-
General, that Sir Matthew Begbie may long enjoy such
health as may enable him to continue to preside over the
administration of justice in the Province.
While speaking of the Chief Justice, there is a matter
which should be brought to the attention of the Bar and of
the Law Society. In, we think, all of the Provinces of Canada, certainly in Ontario, Quebec and Manitoba, the Law Societies possess a complete series of portraits in oils, of the
Chief Justices of their Provinces, from the first incumbents
of the office downwards.
In Ontario they have the portraits of the Chief Justices
of each of their Courts. These are hung in prominent positions in Osgoode Hall. The idea has much to recommend
it. The writer remembers very well, when first a student at
Osgoode Hall, the pleasure he took in walking round the
corridors of that very Une building and looking at the pictures of the eminent lawyers who presided, and particularly
of those who had formerly presided in the Courts. At a
later period of his professional novitiate, it was interesting
to endeavor to trace some association between the judicial
style and manner of the different Chief Justices, and the
counterfeit presentment of their personality as exhibited on
the canvas.
Lawyers, past and present, are one great fraternity, and
of necessity seek each other's acquaintance independently of LAW NOTES.
time or space, and that which we are and which we accomplish we leave as. a record and as a legacy to our successors.
There is no one of us, perhaps, who has not endeavoured to
form, and in fact, who has not fabricated some picture in his
own mind, of the personal appearance of the great English
Judges. It is not a mere sentiment which would make us
wish to begin a series of portraits of the Chief Justices of
British Columbia. ?.If it is, then the whole world is ruled by
sentiment, and why should not we be? The Manitoba Bar has
now life-sized portraits of Chief Justice Wood, Chief Justice
Walbridge, and Chief Justice Taylor, the present incumbent
of the office. If the Law Society or the Bar at large, do not
move in the matter and persuade our Chief Justice to let us
take his picture and hang it in the Court House, we think
that our successors will blame us very much some day.
The following Bills of interest to the profession are now
before the Provincial Legislature.
The Lodgers' Relief Act.
This Bill provides for the protection of the goods of
lodgers from distress by the landlord for the rent of the immediate tenant. It is similar in effect to tht English
"Lodgers Relief Act, 1870," which came into force in Manitoba by the introduction of English Law when that Province was constituted, and to the Act of Ontario. Its
justice is apparent.
An Act Respecting Partnership.
The provisions of the English " Partnership Act " are
taken without alteration, and consolidated with the statutory
provisions in force in Ontario respecting the formation of
limited partnerships and the compulsory registration of
business firms. Slight alterations in the Ontario provisions
appear in the Act. This is an Act which will doubtless
prove of great benefit to the mercantile community. 10
An Act Respecting Witnesses and Evidence.
This Bill is evidently intended to be a fairly complete
codification of the various rules of evidence respecting
witnesses and the proof of documents. The first twenty
sections are practically identical with the first twenty sections
of the "Canada Evidence Act, 1893," and the remaining
clauses consist of the sections of the English "Common Law
Procedure Act, 1852," dealing with this subject, together
with a number of provisions based on the Ontario Legislation,
with some few verbal variations.
An Act for the better prevention of Fraudlent and
Misleading Statements by Companies and others.
This is a copy of the Act in force in Ontario, passed in
1893. This line of legislation apparently owes its origin to the
decision of the House of Lords in Derry vs. Peek, 14 Appeal
. Cases, 337, which has been so much criticised by Sir Frederick
Pollock in the Law Quarterly Review, and elsewhere. Of
course, in tli3 Courts, the decision is now beyond criticism.
Prevention is, at all events, said to be better than cure.
The Act provides for a penalty not exceeding $200.00 and
costs nor less than $50.00 and costs, to be recovered from
any officer, agent or employee of any company, w^o causes
to be made and published in any document connected therewith, any false statement affecting the credit or financial standing thereof; the fine to be recovered on summary conviction
before a P. M. or J P., and in default of payment imprisonment for not less than one or more than three months.
Tne clause is rather cumbersome. It is noticeable
also that it does not provide that the false statement must
be knowingly made in order to be within the Act. That
may be intentional, but it must make the provision very
difficult to carry into effect. It is hard to understand a
penal offence disassociated from mens rea
Speaking of statutory provisions relating to Public Companies, the remarks of Mr. Justice Drake in his judgment in LAW notes.
the recently decided case of Twigg vs. The Thunder
II ill Mining Company, referring to the insufficient
protection afforded by the supervision of the Registrar of
Public Companies, are in point:—■" If the Registrar of Joint
" Stock Companies is to be merely a scribe to register what-
" ever is laid before him, and not to ascertain whether or not a
" Company claiming registration has or has not by its Memo-
" randum of Association complied with the stipulations of the
" Act, I think that his duties should be more clearly defined by
" statute. The Act is intended to protect the public dealing
" with limited companies, as well as shareholders who invest
" their money, and the utter neglect of all statutory require-
" ments by this Company points to the necessity of some more
" stringent regulations for compelling obedience to these
" provisions than at present exist."
An Act to Amend the Supreme Court Act.
This Bill provides for the establishment of a Nanaimo
Judicial District. It also provides that the territorial limits
of the C. C. Judges, when acting as local Judges of the
Supreme Court, shall be co-terminous with the limits of
their Judicial Districts as C. C. Judges. This is but fair.
It was held in Hendryx v Hennessey by Mr. Justice Walkem
on August 21, 1893, that the vicarious jurisdiction of a
Supreme Court Judge to sit for a County Court Judge,
under Sec. 15. C. C. Act, 1888 was subject to the
territorial limitations affecting the C. C. Judge himself,
vide post, p. 31.
An Act to Abolish the right to Access and Use of Light
by Prescription.
The title of this measure sufficiently explains its object.
It contains a clause saving prescriptive rights already acquired.    There are similar Acts in Ontario and Manitoba.
The Legal Professions Act.
We are informed that a number of " Inferior Courts
Practitioners " in Kootenay, Cariboo, Cassiar and Lillooet 12
intend to have an amendment to the Legal Professions Act
introduced this session providing that the Benchers may call
to the Bar and admit as solicitors, British subjects being
English or Irish barristers or attorneys or Scotch advocates
or writers to the Signet, or barristers or solicitors of any
Province or Territory in Canada and who have in any of such
cases been resident and actively engaged as inferior Courts
practitioners in any of said Districts for six months. Such
call and admission to be made without examination as to legal
knowledge or previous notice in the B. C. Gazette, upon
proof to the Law Society of the pre-requisites indicated
above, and of good moral character.
This is of course a very modest request, which should
only require to be mentioned in the legislature. BRITISH COLUMBIA.
January 20th, 1894.
Begbie, C. J.
[Divisional Court—McCreight, J.
Drake, J.
Master and Servant—Company—Contract of hiring—Construction of—;
Wrongful Dismissal—Evidence—Statements of Directors—
Ratification—Offer of Compromise—Divisional
Court.—Jurisdiction to set aside non-suit.
The action was for breach by Defendant Company of a
contract in writing under its corporate seal to employ the
plaintiff as brewmaster, in its lager beer brewery in Victoria,
for three years, and during that period to pay him, as such
brewmaster, a salary of $250. a month,, at the end of each
month. The claim alleged that the defendants wrongfully
dismissed the plaintiff at the end of a year. The action was
tried before Walkem, J., and a special j ury. The plaintiff
proved at the trial, that the President of the Company in
that capacity wrote him a letter, informing him that the
Company had amalgamated with another brewing company in
Victoria, and that the Secretary of the Company and the
President of the other Company had been appointed joint
managers of the amalgamated concern and asking the
plaintiff to attend a meeting next day in regard to the
matter. The plaintiff attended. The learned judge refused
evidence of what the President and Secretary of the defendant Company, and the joint Managers said to the plaintiff
at that meeting on the ground that it was necessary to prove 14
express authorization by tlie Company to them to do anything which would bind the Compamy as amounting to a
dismissal of the plaintiff. On an undertaking of counsel
the evidence went in. It was proved that both Presidents and the Secretary demanded the keys which plaintiff
held as brewmaster, and informed him of the amalgamation
He gave up the keys, under protest, and on promise of the
President of a settlement. The Brewery was dismantled and
abandoned and the stock removed to the other brewery,
where the amalgamated business was carried on under its
former brewmaster. One of the directors of the Defendant
Company endeavored to obtain other employment for plaintiff.
The Secretary of. the Company, being authorized at an informal meeting of the Directors, on its behalf made an unconditional offer of $1000 to the plaintiff in settlement of
his claim for wrongful dismissal.
The learned judge held that there was no evidence of
dismissal by the Defendant Company of the plaintiff to go
to the jury and non-suited the plaintiff with leave to bring
another action. Plaintiffs' Counsel asked to have the question
of damages left to the jury so as to avoid a new trial in the
event of the non-suit not being sustained. This was refused.
Rohert Cassidy for the plaintiff now moved to set aside
the non-suit and for a new trial.
E. V. Bodwell. contra, took the preliminary objection
that the Divisional Court had no jurisdiction to entertain
the motion on the ground that the judgment appealed from
was a final judgment.
Held— I
That the Divisional Court has jurisdiction, concurrent with the Full Court, to grant new trials, besides its
jurisdiction to entertain appeals from interlocutory
orders.    Objection over-ruled.
The motion for a new trial was then argued. LAW NOTES.
That there was abundant evidence to go to a jury
that the plaintiff was dismissed by defandants Co.
New trial granted.
January 21, 1894]
[In Chambers—Walkem, J.
Res judicata—Giving effect to order of Higher Court—Costs—Taxation—
Divisional Court—Printed Appeal Book on motion to.
The action was under the Employer's Liability Act, for
damages to a servant occasioned by the negligence of his
master. It was tiied before Crease. J., with a special jury.
The plaintiff got a verdict for $3,500. The defendent moved
the Divisional Court for a new trial, which was granted on
the ground of misdirection, and it was provided in the order
that the defendant's costs of the motion were to be paid by
the plaintiff, as a condition precedent to his going down to
a new trial. The plaintiff, after the order was drawn up and
issued, moved the Divisional Court upon notice to reconsider
the order as to costs, as being without precedent and unjust.
The Court refused to vary its order. The defendant, on taxation, was allowed by the Registrar the costs of a printed
appeal book used on the motion, the printer's charges for which
were $312.20 ; the whole costs being taxed at $486. The
plaintiff reviewed the taxation before Drake, J., who affirmed
the allowance of the cost of the printed appeal book. The
costs were not paid. The plaintiff obtained a summons to fix a day for the new trial.
Theodore Davie, A. G-, and II. Barnard, now moved
same absolute.
The Court will not give effect to a clearly erroneous
order which must have been made originally per incuriam.
A plaintiff who has a verdict which has been set aside for no
fault of his own, but for misdirection, has a constitutional 16
right to go to a new trial, unhampered by restrictions.
There was no fact upon which to found a jurisdiction to impose the terms in question.
E. V. Bodwell, contra. Newington vs. Levy, L. R. 7,
S. B., is authority that so long as it is unreversed effect must
be given to all the terms an order of the Court.
That a judge in Chambers has no jurisdiction to
reconsider an order of the Court, particularly of a Court
of Appeal, and that effects must be given to it. That
as the payment of the costs was made a condition precedent to the plaintiff's right to go down to trial again;
the summons must be dismissed with costs.
Note—The plaintiff appealed from this order to the
Divisional Court. The appeat was argued on 1st February,
when the court reserved judgment.
January 26, 1894.
[In Chambers.    Drake, J.
Arrest.—Ca.   Sa.
-Discharge   from   Custody.—Maintenance   money.-
Rules 976 and 977.
Application under Rule 977 for the release of defendant
from custody under a writ of Ca. Sa. The affidavit of James
Eliphalet McMillan was read in support of the summons. It
set out: (1) That the depondent is sheriff of the County of
Victoria and that the defendant was arrested by his deputy
on the 2nd day of January, 1894, on a Writ of Ca. Re., and
on the 4th day of January on a Writ of Ca. Sa. and (2) On
the 3rd day of January the Plaintiff's solicitor paid him $3.50;
and on the 10th day of January, a further sum of $3.50
for the defendant's maintenance ; (3^ That since
the   10th  day  of   January   (the  affidavit   was    sworn   on
he 22nd day of January) he had not received  any further LAW NOTES.
sums for the defendant's maintenance, and that there was
still due since the 17th day of January the sum of $3.50;
(4) That the defendant was still in cnstody in the Provincial
Gaol in and for the County of Victoria under the said Writ
of Ca. Sa.
J. S. Yates, for the defendant contended that the
language of Rule 977 is imperative; and as it was not complied with, the defendant should be discharged. It was a matter
affecting personal liberty. He cited Fisher v. Bull, 5 Term
Reports, 36., in which it was held that an insolvent debtor
has a right to his discharge if his groats be not paid before
ten at night of the day on wnich they were payable; and that
this right was not waived by the turnkey on the felon's side
accepting them after that time.
J. A. Aikman, for the plaintiff submitted that as the
maintenance up to the 31st January was paid on the 23rd of
January, that cured the defect and that there was nothing now
due and owing.
Drake, J.:—In this case the plaintiff is held in
custody under a Writ of Ca. Sa. The plaintiff paid the
weekly allowance to the sheriff up to the 17th day of
January ; the next weekly allowance was due on the
17th—this was not paid until the 23rd. The defendant
applied to be discharged on the ground of non-payment
of the weekly allowance due on the 17th day of January.
The summons was dismissed as it had not been served
on the plaintiff as required by the Rules. On the day
of the dismissal of this summons, the plaintiff paid to
the Sheriff the allowance up to the 31st January. On
the 25th the defendant again applied for his discharge
on the ground of the omission to pay on the 17th,
claiming that no subsequent payment could cure the
omission of payment in accordance with the terms of
Rule 976. The language of Rule 977 is precise:—" in
case the maintenance money is not paid as aforesaid, the
defendant  shall  be  entitled  to  be discharged."    The BRITISH   COLUMBIA
money, by the previous Rule is required to be paid in
advance, $3.50 a week. Not being so paid I think the
defendant is entitled to his discharge.
Defendant discharged.
GRAYS, et al, vs. McCALLUM, et al.
January 27,1894.]
Begbie, C. J.
-r-,       ^ Crease, J.
Jbull Court—-.,,- n T
Walkem, J.
Agency—" Placer Mining Act, 1891," Sees. 98 and 99.—Authority of Person other than foreman to bind Mining Partnership.—Ratification.
McCallum, a member, but not the foreman, of a mining
partnership or   Company,   registered under the   provisions
of the " Placer Mining Act, 1891," purchased with his
own money certain stores or mining supplies which
were at that time on premises belonging to the Company,
intending the purchase to be on behalf of the Company.
He subsequently, in submitting certain accounts to the Company credited himself as against the Company, with the
amount so paid by him. At a meeting of the Company
afterwards held, a resolution was passed levying an assessment upon its members for the purpose of answering
the claims submitted, including that in question.
C. E. Pooley, Q. C, for the appeal, amongst other
grounds, contended that the purchase of the stores in question
was outside the scope of the objects of the Company ; and
also, that as McCallum was not the foreman the Company
was not liable, whether it then intended so to be or not, and
that the transaction was incapable of ratification.
Theodore Davie, A. G., for the defendant McCallum,
Per   Begbie,  C.  J.:—The  purchase  in  question
could have been  made by the Company  and  such  a LAW NOTES.
purchase would manifestly have been for its convenience
since it is apparent that as there were no supplies to
be had, and no trading posts in that District from
which stores could readily be purchased from time to
time as required, it was almost essential to the interests
of the partnership to have a quantity of such stores on
hand. But there is nothing in the Act to prevent a
mining partnership or company formed thereunder
from itself contracting liabilities, as, for instance, by a
meeting at which a proper proportion of the shareholders  are  represented,   and   by   proper   resolutions.
I am of opinion therefore, that the act of the company in passing a Resolution levying an assessment
upon its members for the purpose of paying the amounts
of the account produced to the meeting, among which
amounts was that paid by Capt. McCallum for the purchase in question, constituted a distinct ratification by
the Company of that purchase.
Per Crease, J.:—If Capt. McCallum had not
authority at the time of the purchase, there was a clear
ratification afterwards.
Per McCr eight, J.:—I am inclined to the opinion
that the company might have repudiated the action
of Capt. McCallum, as he was not the foreman of the
partnership. Ratification must be by a solemn act
binding on the company and with the intention of
ratifying—which I think was the case here.
Per Walkem, J.:—Sections 98 and 99 of the
" Placer Mining Act, 1891," provide :—-
98. Every such partnership shall appoint a foreman or manager who shall represent the partnership,
and who shall sue and be sued in the name of the
partnersnip ; and his contracts in relation to the
business of the partnership shall be deemed to be the
contracts of the partnership. ^^^^^i^^^Mi^^^^^iMtm^^mm^^
99. No such partnership shall be liable for any
other indebtedness than that contracted by its foreman
or manager, or by its agent duly authorized in writing-
The policy and intention of those provisions was to
prevent any mining partnership or company from being
bound for debts contracted, except by the one person
selected for that purpose ; and it may be that, as Capt.
McCallum was not the foreman of the company, it
would not have been bound by the purchase made by
him in its name.
I agree, however, that there had been a distinct rati-
fieation by the partnership of the purchase.
Appeal dismissed with costs.
Begbie, C. J.
January 29th, 1894.]     [Divisional Court—McCreight, J.
Drake, J.
Practice.—Divisional Court.— Extending time to appeal to.—Exparte
The action was tried on the 31st July, 1893, when the
Plaintiff was non-suited. Vacation commenced August 1st,
and ended September 30th. Plaintiff on 3rd August obtained
from Walkem, J., an ex parte order extending the time for
applying to the Divisional Court for a new trial to the
10th October. On the 8th August, Defendants served
Notice of Appeal to the Divisional Court from the
ex parte order, on the ground that there was no
jurisdiction to make the same ex parte, and set down the
appeal on the same day. The Plaintiff after receiving this
Notice of Appeal, and on the same day, set down his Motion
to the Divisional Court for a New Trial. That Motion and
the Defendants' appeal from the ex parte order now came on
to be heard, the Defendants' appeal first. LAW NOTES.
E. V. Bodwell for the Defendant.
Robert Cassidy> for the Plaintiff, contended that there
was jurisdiction to make order ex parte, because although
prior to the passing of the B. 0. Rules, 1890, by Rule
375, of 1880, every application at Chambers authorized by
those Rules must be made in a summary wray by Summons,
that rule is omitted in the Rules of 1890, and Rule 572
provides for the making of applications in Chambers
ex parte, and otherwise than by summons. That the
motion for an extension of time, if it was not unnecessary was, at all events, a motion of course. See Dan.
Ch. Pr. 6 Ed. 1546-47. In Re Laurence, 4 Ch. Div. 139,
it was held that after the time for appealing has expired,
special leave will not be granted ex parte, implying that
before it has expired, it can be so granted. See also re
Universal Discount Co., 32 Solicitors' Journal, 721. The
Plaintiff, in effect abandoned the ex parte order by setting
down his appeal within eight days after the day of trial, as
provided by Rule 434. At all events, there is nothing involved in this appeal but costs, since the plaintiff can take
nothing by it, as the plaintiff is entitled to proceed with his
motion for a new trial. The Court should not permit an appeal to be argued for the purpose only of deciding who is to
pay the costs of it. Even if the plaintiff were out of time,
the Court could now extend the time and hear the Appeal.
Re Manchester Economic Building Soc, 24 Ch. Div. 496.
That the Court had jurisdiction to extend the time
for appealing and hear the motion for a new trial,
whether the ex parte order extending the time was
proper or not, but the order extending ought not to have
been made ex parte. The Court expressed no opinion
as to whether the words in the Rule " within eight days
after the trial" excluded the day of trial or not. OQ
Order that plaintiff pay the costs of the defendant's
appeal from the ex parte order.
The plaintiff's motion for a new trial was then argued.
January 29, 1894.]
In Chambers—Drake, J.
Practice—Pleading—Amendment—Counterclaim—Adding after case in
paper for trial.
Robert Cassidy for the defendant applied for leave to
amend the Statement of Defence by adding to it a Counterclaim .
Notice of Trial had been given for February 3rd, and
the case was in the paper for trial.
Thornton Fell for the plaintiff, contra, opposed the
motion on the ground that the order could not be made after
the action was set down for trial ; citing Ware vs. Gwynne,
W. N. 1875-7, page 240.      ^        ^ |
Held— |P    % •    - x*
It was a matter of discretion to grant or refuse the
motion, dependent on the convenience of the parties ;
and as it was not shown that any inconvenience would
result to the plaintiff or that he was taken by surprise ;
the application must be granted. Costs of the application, and costs occasioned to the plaintiff by the
amendment to be costs in the cause to him in any event.
January 30th, 1894.
Drake, J.
Practice.—Examination of Judgment Debtor.—Whether necessary to
have return of nulla bona on execution before obtaining.—Rule
486.—Con. Stat. B. 0., Cap. 42, Sec. 11.
Application  upon  Summons by the  Plaintiff for an LAW NOTES.
Order requiring the Defendant to attend and be examined
before the Registrar as to whether any and what debts are
owing to him, and as to what property and means he has of
satisfying the judgment, and that he produce any books or
documents relative to the matter.
The affidavit in support of the Motion set out that on
4th January, 1894, the Plaintiff recovered a Judgment
against the Defendant for 1316.36; that the said Judgment
remained wholly unsatisfied, and that the Defendant was in
the city of Victoria, Within the jurisdiction of the Court.
J. A. Aikman for Plaintiff,  supported the application.
Lampman, (Yates & Jay) for the Defendant, contra,
contended that no Order for the examination of a Judgment
Debtor could be made until &EiEa, Goods, had been placed
in the Sheriff's hands, and had been returned nulla bona, or
the Sheriff had notified the Judgment Creditor that, if called
upon to return the execution, such would be his return.
Rule 486 is similar to the Out. Rule 926, which is
taken from R. S. Out., 1877, Cap. 49, Sec. 17, and Cap. 50,
Sec. 304, and which are in effect the same as Con. Stat. B.C.,
Cap. 42, Sec. 11. Under the Ontario Rule 926, it was held
in Ontario Bank vs. Trowern, et al, 13 Prac, Rep. 422—that
the examination could not take place until a Fi Fa had been
issned and returned nulla bona. See also Carscaden vs»
Zimmerman, Can. Law Times, Vol. 13, p. 414.
That under the "Execution Act" Con. Stat. B. C,
Cap. 42, Sec. 11, and Rule 486, the Order could
properly be made against the Judgment Debtor, even
before a Writ of Fi Fa was issued.
Order made. 24
January 31, 1894.]        [Divisional Court—
Begbie, C.J,
-MoCreight, J.
Drake, J.
Practice—Ex parte Order extending time—Discretion to  make   any
necessary order on Appeal.
This was an appeal from an ex parte order of Mr.
Justice Crease, dated 22nd instant, extending for tAvo days
the time (seven days) limited by an order of Mr. Justice
Drake, made upon Summons on the 15th instant, within
which the Plaintiffs were to give security for the costs of the
action, and providing that otherwise the action should be
dismissed ; this order read :
" I do order that this action be for want of prosecu-
" tion, dismissed, with costs, to be paid by the plaintiffs to
" the defendants, unless the said plaintiffs do within one
" week from the date of this order give security to the. satis-
u faction of the Registrar for the costs of each of the
" defendants to the extent of $75.00." fk
The Defendants had moved in Chambers to rescind the
ex parte order of Crease, J., but that Motion had been refused.
The grounds of appeal were :—
1. That there is no jurisdiction to vary by an. ex parte
order the terms of an order, made upon summons after hearing the parties.
2. That the order of Mr. Justice Crease made no provision for dismissing the action on default of the security
being given within the extended time.
W. J. Taylor for the defendant, appellant.
J. P. Walls for the plaintiffs, respondent.
The Court expressed an opinion that the ex parte order
was irregular, and that the plaintiffs were out of time. law notes.
J. P. Walls, for the Respondents, submitted that the
Court had now jurisdiction to grant the extension of time.
The reason the security was not given within the extended
time was owing to the question raised as to the validity of
the ex parte order, as, if it were held to be inoperative, the
giving of the security would have been too late to prevent
the dismissal of the action ; but the plaintiffs were now prepared to submit to terms, and give the security if the Court in
the exercise of its discretion, extended the time. Re Manchester Economic Building Society, 24 Ch. Div., 496.
W. J. Taylor, contra :—By the terms of the order of
Mr. Justice Drake, the action was out of Court upon the
lapse of the time for giving the* security ; and if the extending order of Mr. Justice Crease is inoperative, the whole
matter is now coram nonjudice, and the Court has no jurisdiction to extend the time or make any order.
Per  Begbie, C. J.:—The   Court has   jurisdiction
by Rule 674 to give any judgment and make any order
which may be just and which the case may require. We
do not think that it would be just to dismiss the action
and put the parties to the cost of another action,
when the plaintiff is now ready to give the security.
The Order will therefore be that, upon payment by the
plaintiffs of the costs of this Appeal and of the defendant's Motion to review the ex parte Order in Chambers,
and upon giving the security under the Order of Mr.
Justice Drake within forty-eight hours, the plaintiffs be
at liberty to proceed, otherwise the action to stand dismissed with costs.
Per Drake, J.:—Our judgment is not to be taken
as an expression upholding the granting of ex parte
orders on such motions, or irregularities such as have oc-
curred here. The next case of the kind that comes
before the Court may be dealt with in a different
manner. 26
February 1, 1894.
Full Court
Begbie, C. J.
-McCreight, J.
Drake, J.
Pleading—Order XIX, Rule 19—Partnership—Denial of as alleged—Negative pregnant—Party, on appeal, held estopped by
implied admission, in a pleading treated
at the trial as a complete traverse.
Action against defendants, as partners to recover money
lent. The plaintiff signed judgment by default against
defendant Jackson, who was her son. The statement of
claim against the defendant Oelia Mylius alleged. 2. "The
defendants (Alexander James Jackson and Celia Mylius)
entered into partnership as watchmakers and jewellers on the
22nd day of April, A. D, 1891 for a period of five years."
5. That the defendants have paid to the plaintiff, interest
on the sums so advanced at the respective dates aforesaid
amounting to the sum of $976.75 but have not repaid to the
plaintiff the principal sums so advanced or any portion thereof.
The statement of defence of Celia Mylius alleged.
" The defendant denies that on the 22nd day of April, A. D.
" 1891 or at any other time she entered into partnership
I with the defendant Alexander James Jackson as alleged in
I paragraph 2 of the statement of claim."
The advancing of the money was then denied and
paragraph 3 continued:—" This Defendant has no knowledge
" of the matters alleged in paragraphs 4, 5 and 6 of the
"statement of claim, except as therein alleged."
Issue was joined by the Plaintiff and the case came on
for trial before Mr. Justice Crease without a jury, who gave-
judgment in favor of the Plaintiff for the full amount claimed
with costs.
In the course of his judgment, which was iui writing,
Mr. Justice Crease said " The pleadings in this case are
simple.   The plaintiff's claim is that the defendants Alexander LAW NOTES. A i
James Jackson and Celia Mylius entered into partnership.
* * The defence denied the partnership. * * Another
document which Jackson claimed was the new and real deed
of partnership was tendered in evidence but could not be
either accepted or examined, and the plaintiff had to fall
back on the evidence which existed, oral and documentary,
to show that the two defendants had given themselves out to
be partners."
Defendant Celia Mylius appealed asking that the judgment be set aside and judgment entered for heron the grounds
that there was no evidence to sustain the judgment against
her on the issue of the partnership.
2. That she was a married woman and there was no
evidence that she had separate estate so as to be capable of
It was objected on behalf of the plaintiff, on the appeal
for the first time, that the defendant admitted the partnership
in paragraphs 1 and 3 supra of her defence.
II. D. Helmcken for the plaintiff.
F. B. Gregory for the defendant Celia Mylius.
Per Begbie, C. J., and Drake, J.:—That there was
an   admission   of  the  partnership by defendant Celia
Mylius, in her statement of defence.    That paragraph 3
was a clear admission of the payment of interest.    The
defendant has no knowledge, save as therein alleged, in
other words the allegation is true.    She knows the facts
is as alleged and not otherwise ; and that paragraph 1
of the  Statement of Defence, by not complying with
Rule 173, must be read as admitting the partnership.
' o sr sr
Per McCreight, J.:—That there could not be a more
distinct answer than is contained in the defence to the
point of substance.    The partnership is the basis of the
allegation, and it is most distinctly traversed.    This is 28
the usual form of traverse laid down in Bullen & Leake.
Our rule is the same as the English rule, and these
forms of traverses are especially framed in compliance
with those rules. We must give the authority to these
precedents, to which their use and established standing
entitles them. On hurriedly glancing over this copy of
Bullen & Leake, which I have just had placed in my
hands (Library Edn. 1888.) I find no less than a dozen
precedents ; p. p. 92, 93, 96, 97, 104, 109, 146, 156
twice, 177, 199 and 217. I cannot understand how
such a traverse can be held to be an admission.
Per Curiam (McCreight, J. dissenting)—Judgment
reduced for error in amount to $5,270 No costs of appeal
to either party. Defendant may amend and have a new
trial on terms.    (This was refused.)
Per McCreight, J.:—The appeal should be allowed. LAW NOTES.
January 4th, 1894.
[Crease, J. R.
The Seal Fishery (Behring Sea) Act, i891.— Ship found within prohibited
limit8 with skins on board.— Vis mayor.—Lawful excuse.
It was found, as a fact, that the ship, a sealing schooner,
was driven into the prohibited waters of Behring Sea by a
succession of gales, assisted by a current of the existence of
which her master was ignorant.
C. E. Pooley, Q. C, for the Crown.
H. Dallas Helmcken, for the owners.
Held— '%■'■
That the presence of the schooner at the point in
question was sufficieLtly accounted for as being involuntary and with lawful excuse. Judgment for the
vessel's owners, without costs.
January 26, 1894] [Crease, J.
Maritime Law.—Towage Contract.—Concealment of circumstances affecting
—Extraordinary towage or Salvage.
Action by the owners of the Tug Lorne for $5,000.00
for alleged salvage services rendered above ship in  towing
■ her-from the vicinity of Race Rocks, a dangerous reef in the
Straits of Fuca, about 5 miles from Victoria, into Esquimalt
On the morning of 16th Nov., 1894, the Harold ran
ashore at Race Rocks, sustaining some injuries which caused
the leakage of a certain amount of water. She got afloat
without assistance about six o'clock and shortly afterwards 30
the tug came alongside when an agreement was entered into
between the masters of the ship and tug to tow the ship into
Esquimalt Harbour for $50.00. On arrival at Esquimalt it
was found necessary to dock the vessel for repairs.
C. E. Pooley, Q. C, for the plaintiffs, contended that
by reason of the injuries which the Harold had received and
her critical position when discovered, she was in such danger
that the services rendered by the tug, if there had been no
contract, would have entitled her to a salvage reward; that
the contract to tow for $50.00 was void for non-disclosure of
the fact that the ship had been ashore and was in a leaky
and dangerous condition.
E. Y. Bodwell and P. *E. Irving, for the defendants,
contended that it was not incumbent on the master of the
ship to disclose to the master of the tug when making the
contract, a circumstance which was immaterial to the trouble
and risk incurred by the tug in performing the towage services
and, as the evidence did not show that there had been any
additional trouble or risk to that involved in an ordinary
towage service, the contract for $50.00 should stand.
That the services were more than ordinary towage
services, and that there was an additional risk dans
locum contractui assumed by the tug in making the
tow, over and above that contemplated at the time of making
the agreement, of which there was a non-disclosure, for
which the owners of the tug were entitled to avoid the
agreement. The services were extraordinary towage
services, though not salvage services.
Judgment for plaintiff for $250.00 for extraordinary towage with costs. LAW NOTES.
Auoust 21, 18931 I'Walkbm, J
County Courts—Jurisdictionof Supreme Court Judges in—Limitiations
of-C. C. Act, 1888, Sec. 15.
The action was pending in the County Court of Kootenay. Defendant moved to set aside a lis pendens filed by
plaintiff against certain Mineral Claims, the title to which
was brought in question in the action, on the ground that the
plaintiff had no claim and that the proceedings and lis pendens
were vexatious and without colour of right.    There was no
affidavit that the office of C. C. Judge of Kootenay was vacant.
Robert Cassidy, for defendant, showed cause. He objected to the jurisdiction to hear the motion, on the ground
that the pre-requisite of the vacancy of the office of 0. C.
Judge of the domicile was not proved ; and also, that, apart
from that, the jurisdiction conferred on the Supreme Court
judges by the act was vicarious and co-terminus with that
of the C. C. judge of the District, and consequently could
not be exercised outside the territ-oral limits of the County
Court in question.
Until a/ Crease, contra, contended that by section 10 of
«/ mj
of Supreme Court Act, the Supreme Court and its judges
had cognizance of all pleas whatsoever.
Cassidy in reply : That is admitted when the action
is brought in the Supreme Court, when the only question is
one of costs.    THE
British Columbia Law Notes.
Yol. 1.
MARCH, 1894.
No. 2.
January 10, 1893.]
[Begbie, C. J.
Sanitary By-law, 1886—Overcrowding—" Suffering to be Occupied "—
Scienter—Mens rea.
Case stated by Farquhar Macrae, a Police Magistrate
under Rev. Stat. (Can.) 53 Vict., Cap. 37, Sec. 28, on the
conviction of' one Wing Kee for a breach of Victoria Con.
Health By-Law, 1886, Sec. 17, by \ unlawfully suffering a
certain room to be occupied as a dwelling or lodging, which
did not contain at least 384 cubic feet of space for each
person occupying the same.
The room in question was in a building of which defendant was lessee, containing in all 54 rooms and was, at the
time of the alleged offence, sub-let by him for $1.50 per
month. Defendant, who did not reside in the building or
exercise any control over rooms sub-let, had notified his
sub-lessees to comply with the terms of the by-law.
Lindley Crease for the appeal :—There is no evidence
of the over-crowding having been with the privity or consent of the defendant.
Evidenceis necessary of actual or constructive knowledge by the person charged of the commission of the offence 34
on his premises, going to show connivance by him.    Bosley
vs. Davies, 1 Q. B. D., 84.
D. M. Eberts, Q. C, contra:
The intention of the By-law being to fix the responsibility upon the owner or superior landlord, constructive
knowledge will be imputed and is sufficient. A man
" suffers a thing to be done | if done through his negligence.
The dominion of a house is in the landlord.
Halligan vs. Granly, 19 L. T., N. S., 268.
Tho facts in evidence were insufficient to fix the
defendant with guilty knowledge or participation in the
Appeal allowed with costs and conviction quashed.
(In the matter of the "Mineral Act, 1891," and Amendments.)
Begbie, C. J.
January 10, 1893.]        [Divisional Court—Crease, J.
Walkem, J.
Mineral Act—Adverse Claim—Extending statutory time for bringing
Action—Appeal—Divisio nal Court—Jurisdiction—Practice—
Notice abandoning appeal—Introduction of fresli
facts and reviewing order after judgment
and before order drawn up.
Appeal from an order of Mr. Justice Drake made in
Chambers on 10th December, 1892, on the application of
Alex. F. McKinnon, owner of the Maple Leaf Claim, extend- LAW NOTES.
ing for a further period of 30 days, the 30 days within which
he was bound under the Mineral Act (1891) Amendment
Act, 1892, sec* 37, to commence proceedings in respect of
an adverse claim filed by him on 10th November, 1892,
against the issuance of a certificate of improvement in favor
of N. P. Snowden for the Lanark Mineral Claim.
W. J. Taylor for the Maple Leaf Company (respondents) :—
We take the preliminary objection that the appeal does
not lie. The order was not made in any action or proceeding pending in any court. The right to make such orders
in mining matters is a special jurisdiction conferred by the
Statute, and there is no appeal from them unless provided in
express terms. Sec. 67 of the Supreme Court Act does not
cover the case, as its language cannot be extended further
than to cover appeals from orders, filial or interlocutory,
made in actions or matters pending in the Supreme Court.
To cover the case the Statute should have provided for an
appeal from any order which the Court was by any Statute
empowered to make, whether in a matter pending in the
Court or not.
E. Y. Bodwell for the* Lanark Company (appellants):
Sec 67 (supra)  is  wide  enough to cover the right  to
Held— I
The Court had jurisdiction to entertain the appeal.
Objection overruled.
E. Y. Bodwell for the appeal:
At the time of the motion for the order appealed from
the respondents  had commenced  an  action  by  issuing  a
Supreme Court writ.    Mr. Justice Drake  was  not  made 36
aware of this fact, which rendered his order useless, and left
no foundation for the exercise of the discretion.
W. J. Taylor, contra:
We admit the issue of the writ before the motion to
Mr. Justice Drake ; the fact of its issue was immaterial and
would not have affected his discretion in granting the extension. Respondents did not intend to prosecute the Supreme
Court writ if the extension was granted but to proceed in the
County Court in the mining district.
The suggestion of suppression of facts in the original
motion cannot be urged on an appeal, but should be raised
by motion to the Judge below to rescind his own order.
That the commencement of the action was a fact
material to be shown on the motion to the Judge below,
and that its non-disclosure could be taken advantage of
on appeal as well as on a motion to rescind.
Appeal allowed with costs, and order below dismissed
with costs.
January 12, 1893.
By special leave, counsel spoke to the question of the
order to be made upon the appeal.
W. J. Taylor for the Respondents:
After the judgment allowing the appeal and adjournment of the Court, Respondents' counsel were instructed
that, before the argument of the appeal, appellant's solicitor
had served notice of abandonment. Upon receipt of this
notice the appeal was at an end, and no order could be made
except to strike it out of the paper. LAW NOTES.
Conybeare vs. Lewis, 13 Ch. D., 469.
E.  Y. Bodwell, contra.
By not instructing counsel of the notice and permitting
him to argue the appeal, respondents are estopped from now
going back to the notice. In Conybeare vs. Lewis the action
was discontinued. Neglect to place material before the
Court is no ground to open a motion after judgment.
The appeal was at an end on the giving of the
notice abandoning it, and the Court had no jurisdiction
but to strike it out of the paper. The order allowing
the appeal not having been drawn up, the appeal would
stand as if struck out, and no order could be drawn up.
Appeal struck out of the paper.
17th January, 1893.1        [Divisional Court—-r. V
J        L Drake, J.
Appeal from County Court—Co. Ct. Amendment Act, 1892. Sec. 3—
Question of Law—Jurisdiction.
Appeal from County Court of Westminster to two
Judges of the Supreme Court sitting as a Court of Appeal
from the County Court under County Court Amendment
Act, 1892, 55 Vic, (B.C.), cap. 10, sec. 2, on the grounds :
Verdict against weight of evidence.
Non-suit should have been granted.
Question of contributory negligence not left to the
to the inry.
Verdict did not decide  question  of contributory
©    © 38
The Action was for damages, plaintiff's claim charging
that the Defendant, who had hired the Plaintiff's horse, had
so ill-used it that it died. The trial took place before Bole,
Co. J., and a jury, and on the finding of the jury judgment
was entered for Plaintiff for $125. No objection in point
of law was taken at the trial except that there was no
evidence to go to the jury.
Robert Cassidy, for the Respondent:
The County Court Amendment Act, 1892, (supra) sec.
3, excludes all grounds of appeal going to questions of fact
or weight of evidence, and no objection to the alleged misdirection appears on the notes. The question of nonsuit is
possibly open, but, it appearing there was some evidence to
go to the jury, the Court on this appeal cannot inquire further. A nonsuit was moved for at the close of Plaintiff's
case but no motion for nonsuit on the whole case was made.
The question of law must appear to have been distinctly
raised at the trial.—Smith v. Baker, App. Cas., 1891, p. 325.
J. Stttart Yates, contra.
Held :—
The only question open to appellant was whether there
was any evidence to go to the jury, and as it appeared that
there was such evidence.
Appeal dismissed with costs.
CROFT v. HAMLIN et al.
January 18th, 1893.]     [Divisional Court—Begbie, C. J.
Drake, J.
" Bills of Exchange Act"—Presentation for payment of note payable
at particular place—Necessity for as against maker—Practice—
Judgment under Order XIV—Special endorsement—
Sufficiency of.
Appeal from an Order of Walkem, J., refusing an application to sign judgment under Order XIV upon a writ specially LAW NOTES.
endorsed to recover $1,850, the amount of a promissory note
made by the Defendants, payable to Plaintiff at Bank of Montreal, Victoria. The endorsement did not state that the note
had been presented for payment, and upon motion for jndg
ment under Order XIV, Walkem, J., dismissed the application
on the ground that the special endorsement disclosed no cause
of action.
P. uE. Irving, for the appeal :
The words in the English Act "in order to render the
maker liable " being omitted in the Canadian Statute it is
not in Canada necessary to prove presentation in order to
maintain an action against the maker of a promissory note,
whether, made payable at a particular place or not.
D. M. Eberts, Q. C, contra.
Held :■
Per Begbie, C. J.:
Presentment at the proper place, or facts excusing
such presentment, must be averred and proved in the
pleadings if there are pleadings, and if judgment be
desired under Order XIV., it must be endorsed on the
writ according to all the cases from Spindler v. G-rellet,
1 Ex. Rep., 384, down to Fruhauf v. Grosvenor, 8, The
Times L. R., 744, and see Bullen and Leake, 4th Ed.,
108, and authorities there cited. (More v. Paterson, 2
B. C, 302, distinguished.)
Drake, J., concurred.
Judgment   of   Walkem, J.,  affirmed,  and  appeal dismissed, with leave to amend the special endorsement. 40
March, 1893.]
Bole, Co. Ct. J., sitting as
Local J., Supreme Court.
Costs—Taxation—Scale—Procedure—Eetrospective legislation.
Appeal from decision of the Registrar—upon taxation of
costs of proceedings, some taken before the introduction by
Statute on January 1st, 1893, of a new scale of taxation, and
others since such introduction,—that costs incurred prior to
January 1st, 1893, must be taxed according to the old scale,
and the remainder according to the new scale.
E. A. Jenns for the Appellant.
A. J. McColl, Q. C, contra.
Bole, Co. J.:
Having regard to the rule laid down by Lord Blackburn
in Gardner vs. Lucas, 3 App. Cas., 582, I think it is perfectly settled that if the Legislature intended to frame a new
procedure then, clearly, the settlement of by-gone transactions must be conducted according to the new form of
procedure. Alterations in the form of procedure are always
retrospective, unless there is some good reason to the contrary. Now, the taxation of costs has been by Regina vs.
Lon. Ch. and Dover Ry. Co., L. R. 3 Q. B., 170, 37 L. J.,
Q. B., 428, decided to be'a " proceeding," and further, having regard to Brown vs. Burdett, 37 Ch. D. (C. A.) 207, and
Todd vs. Union Bank of Can., 6 Man. L. R, 457; Wright
vs. Hale, 30 L. J., Ex. 40; Atty.-Gen. vs. Sillem, 10 H. L.
Cas., 704; Freeman vs. Moyes, 1 Ad. & E., 338; Burn vs.
Carvalho, ibid, 883; Kimbry vs. Draper, L. R., 3 Q. B., 160;
Ings vs. London & S. W. Ry., L. R., 4 O. P., 17, I am of
opinion that the taxation of costs being a matter of procedure, the new rules must be taken to be retrospective, and
that the costs incurred prior to 31st December  1892, should LAW NOTES.
be taxed according to the scale laid down in the New Rules,
and I direct the said costs to be taxed accordingly.
Appeal allowed.
In re AH GWAY, ex parte CHIN   SU.
March, 1893.]
[Begbie. C. J.
Habeas Corpus—Custody of infant—Affidavit—Translation from deponent's language—Evidence—Admissibility.
Motion for a rule nisi for a writ of habeas corpus
directed to the managers of the Chinese Home, commanding
them to produce Ah Gway alleged to have been forcibly
seizen by them and detained from the custody of Chin Sn,
the applicant.
H. D. Helmcken for the motion, tendered the affidavit
(drawn up in English) of the applicant, who, counsel stated,
did not understand English, but that the affidavit had been
read over and explained to her in her own language before
it was sworn.
Inadmissible. An affidavit must be drawn up and
sworn to in the language of the deponent, and a sworn
translation of it may be read.
Leave granted to renew the application.
H. D. Helmcken afterwards obtained the rule nisi upon
an affidavit in the language of the deponent, of which a
sworn translation was read, and now moved rule absolute.
Thornton Fell for the managers of the Chinese Home,
contra, 42
The infant refused to return to the applicant. Evidence
was given shewing that no restraint was placed upon the
movements of the infant by the managers.
(a.) The applicant had not shown any valid right
to the custody of the infant.
(b.) The Court will not interfere by habeas corpus
to take an infant out of the custody of a person not
lawfully entitled thereto, for the purpose of enabling a
person equally unentitled to obtain possession of it.
Application refused without costs.
April 13th, 1893.]
[Divisional Court—Walkem, J.
Drake, J.
Practice—Reference back by Divisional Court to supply evidence
necessary to decision of motion for a new trial—Rule 446—
Motion by defendant for a new trial upon the grounds
that the verdict for plaintiff, for $400 damages found by Bole,
Co. J., sitting as a local Judge of the Supreme Court without a jury on the trial of the action, was against the weight
of evidence, and that there was no evidence upon which the
amount of the damages could be calculated. The only
evidence upon the question of damages consisted of
expressions on the part of the plaintiff that he would not
have been turned off in the manner described for $500, and
other general expressions as to the extent to which he considered himself injured ; but there was no specific evidence
as to the amount of profits which the plaintiff would have LAW notes.
made had the agreement been carried out ; or any evidence
upon which a calculation could be made as to Iris damages
for the breach of the contract.
Thornton Fell for the Plaintiff Respondent.
A. C. Brydone-Jack for the Defendant appellant.
Held— '$ •§    .
(a.) The Judge at the trial was the sole Judge as
to the credibility of the witnesses, and his findings upon
the issues should not be interfered with.
(b.) There was no evidence upon which damages
could have been properly estimated, and the verdict
could not be sustained.
(c.) The Court would not re-open the question of
the findings upon the issues, but under Rule 446,
direct the present motion to stand over for further consideration, and direct an enquiry as to the amount of
damages sustained by the plaintiff, to be taken before
Bole, Co. J.
Order directing further enquiry as to damages,  before
Bole, Co., J.
TAI  YUEN CO. vs. BLUM et al.
May, 1893.]
Crease, J.
[Divisional Court—Walkem, J.
Drake, J.
Divisional  Court—Jurisdiction—Refusal   of   ex   parte   application-
Appeal to the Divisional Court from an order of Beg
bie, C. J., dismissing an ex parte  application by the plain- 44
tiffs for leave to issue concurrent writs of summons against
all the defendants and to serve notice thereof on two of them
who are citizens and residents of the United States.
A. P. Luxton for the Appeal.
Held— f
There is no appeal to the Divisional Court from
the refusal of such application as such application is
not an interlocutory matter within sec. 60, Supreme
Court Act.
Semble:—Such application is not a proceeding in  an
action.    Smith vs. Cowell, 6 Q. B. D., 75.
Order refused.
May, 1893.]
Begbie, C. J.
[Divisional Court—Crease, J.
Walkem, J.
Practice—Order    LVIIL,    Bul6    15—Appeal—Security   for   costs—
Appeal from an order of Drake, J., dismissing the
application of Plaintiff under Order LVIIL, Rule 15, (684)
for security for his costs on Defendant's motion to the Divisional Court for a new trial.
Robert Cassidy for the appeal.
The defendant's motion to the Divisional Court, is a
motion by way of appeal within the meaning of the rules;
the Divisional Court here, having a purely appellate jurisdiction.
A. E. McPhillips and G. H. Barnard, contra. LAW NOTES.
An application to the Divisional Court for a new
trial is an appeal within the meaning of Rule 684, and
a Judge has, under it, jurisdiction to order the applicant to give security for costs of the motion.
Referred back to the Judge below to order the giving of
proper security.
May, 1893.]
[Crease, J.
Exemption from execution—Homestead amendment Act, 1890.
Summons for an order declaring the defendant entitled
to exemption to the extent of $500 out of the proceeds of
sale by the Sheriff of a horse, appraised at $1000, taken in
execution to satisfy judgment herein. The horse was the
only property of the defendant exigible, or taken in execution.
Prior (Eberts & Taylor) for the summons.
E. E.  Wooton, contra.
Held— -'-|^i^K^
Defendant entitled to order for payment to him of
$500 by the Sheriff out of the proceeds of the sale of
Order accordingly. 46
A i'<-
[Crease, J.
Estoppel—Default judgment whether operates as—Mental unsoundness-
Practice—Res judicata.
Motion for judgment. The action was for a declaration that certain promissory notes dated 18 th November,
1887, for $20,000, $10,000, and four for $5,000 each, made
by the plaintiff, payable one year after date to the order of the
defendant, and which were substituted for a note of the
same tenor and date made by the plaintiff to defendant for
$50,000, were obtained by defendant by fraud and without
consideration and while the plaintiff was,  to the knowledge
S. ' D
of the defendant, of unsound mind, and for an order setting
a*ide a judgment obtained by the defendant on 10th Decern
her, 1888, in default of appearance, for $50,029 debt and costs,
in an action brought by him on the 28th November, 1888,
against the plaintiff to recover the amount of said notes; and
also to set aside all proceedings under said judgment and for
1 © V ©
repayment by the defendant to the plaintiff of $20,000
realized and paid over to him by the receivers appointed
under the judgment. The receivers were appointed on 18th
Decern ber, 1888, upon affidavit showing that all the available
property of the defendant, the plaintiff herein, was mortgaged
and the equitable estate alone outstanding.
On 14th January, 1889, the receivers being about to
effect a sale of certain of the property, the plaintiff herein
intervened and resisted the sale on the terms proposed but
the Chief Justice before whom the motion was heard authorized the sale, whereupon the plaintiff appealed from that
order to the Divisional Court which dismissed the appeal.
On 12th July, 1889, the Chief Justice made an order
on consent of the solicitors for both plaintiff and defendant
for the sale by  auction of a mill,  part of the assets in the LAW NOTES.
hands of the receivers, and on 6th August, 1889, upon a
similar consent, made an order postponing the sale.
On 17th August, 1889, the Chief Justice approved of
a tender of $225,000 for the purchase of the whole of the
remaining real and personal property in the hands of the
On 26th August, 1889, the plaintiff having appealed
from the last mentioned order to the Divisional Court that
Court dismissed the appeal.
On 12th February, 1890, Mathew Warmsley, the plaintiff's next friend therein filed a petition in the Supreme
Court setting forth that +he plaintiff herein was then and
had for some time previously been of unsound mind and
praying for a commission de lunatico inquirendo and certificate thereunder and the said petition was shortly thereafter
heard before the Chief Justice and dismissed.
On 15th May, 1890, the plaintiff obtained a summons
in Cameron v. Harper, calling upon the plaintiff therein, the
defendant herein, to show cause why "the judgment signed
herein on the 10th day of December, 1888, should not be set
aside and the defendant be at liberty to appear and defend
upon the ground that the promissory notes sued on were
obtained from the defendant while he was in an unfit state
of mind " and in support of the summons set up on affidavit
in effect the same case as that made on the statement of
claim herein. The summons was heard before Sir M. B.
Begbie, C. J., and was dismissed. The plaintiff appealed to
the Divisional Court, which, on 15th July, 1890, dismissed
the appeal.
This action was commenced on the 12th day of September, 1890.N The statement of claim alleged that plaintiff
was a person of  unsound  mind, not so found by inquisi- 48
tion and sueing by his next friend. It set out that the he had
receive an injury from the kick of a horse on 1st July,
1884, whereby he became and ever since continued of
unsound mind and incapable of attending to business, and
that defendant had taken advantage of his condition to
obtain from him the note, ana substituted notes, in question
upon which the default judgment had been obtained.
The defence denied the allegations in the statement of
claim. It also set forth the various proceedings taken in
Cameron v. Harper, as above referred to, and maintained
that the issues were res judicata by the judgment of the
Chief Justice and of the Divisional Court on the motion
ao-ainst the judgment and that the plaintiff was further
estopped by his laches, consents, acquiscence and waiver,
arising out of his conduct during the proceedings under the
The action was tried before Crease, J., and a special
jury. At tbe close of the case the learned Judge left the
questions to the jury, which they answered as follows ;
1. Q—Was Harper at the time of the contract of unsound mind ?    A—Yes.
2. Q—Was the transaction of the $50,000 note fair
and bona fide ?    A—No.
3. Q—Was the consideration inconsumable % A—
There was no consideration.
4. Q—Was the act without deliberation \    A—Yes.
5. Q—Was it without independent advice \    A—Yes.
6. Q—If Harper was of unsound mind at the time of
the making of the notes was Cameron then aware of it % the
jury (having been out more than three hours, C. S. B. C.,.
1888, cap. 31, sees. 48 and 49) by a majority of 6 to 2
answered yes. LAW NOTES.
The jury also, mero motu stwrum, said that they were
all for a verdict for the plaintiff.
27th January, 1892.
Hon. A. N. Richards, Q. C, and E. V. Bodwell, now
moved for judgment for plaintiff and resisted a cross
motion for judgment for defendant.
The findings of the jury are conclusive for judgment
for plaintiff. He is not estopped by the judgment by default
in Cameron v. Harper or by the judgment of the Chief
Justice or of the Divisional Court on the motion to set it
aside, or by his course of conduct or that of his solicitor in
that action after notice of the judgment, from raising in this
o © ©
action the question of his mental unsoundness throughout
from the time of the making of the note and substituted
notes in question down to the date of the verdict, and the
incidental question of the fraud of the defendant. A judgment
by default does not operate as an estoppel. (Howlett v. Tart,
10 C. B., N. S., 813.) There must be an adjudication upon
the merits for that purpose. (Baker v. Booth, 2 Ont. O. S.,
373 ; Chisholm v. Moore, 11 U. C, C. P., 589 ; Palmer v.
Temple, 9 A. E., 508 ; Sedden v. Tutop, 6 T. R., 607 ;
Baggott v. Williams, 2 B. C, 235 ; Earl of Bandon v.
Becher, 3 CI, F., 479.) The application against the
judgment was for leave to raise the issue of plaintiff's insanity in that action, and was to the discretion of the Court for
an indulgence, which the Chief Justice, in view of the delay
in moving, and the rules relating to waiver affecting such
applications, refused, leaving the plaintiff to his remedy by
independent action. A judgment may be relieved against
by independent action upon the ground that the defendant
was incompetent to defend himself. (Carew v. Johnson, 2
Sch. and Lef. at p. 292.) The Court could only have
admitted plaintiff to defend by deciding in his favour on
that motion the question of his unsoundness of mind up to
that date, for, if he was of responsible and competent under- 50
standing, his conduct, laches and acquiescence barred him
from setting it aside ; and that question of his then or previous mental condition the Court rightly refused to decide
in Chambers upon affidavit, as it was a proper subject of
enquiry before a jury as a main issue in an independent
action. It cannot be said that the plaintiff was estopped
from bringing this action, or that the question of his mental
unsoundness and the incident fraud of the defendant became
res judicata by a judgment which refused to admit him to
be heard upon those issues. The question must now be
regarded in the light of the finding of the jury that plaintiff
was of unsound mind. There are no laches as against a
lunatic. (Oarew v. Johnson, supra.) There is no express
finding by the jury that plaintiff was of unsound mind at
the date of or since the judgment by default, but insanity
once found is presumed to continue. The verdict is also in
effect a general verdict for plaintiff and includes all findings
necessary to sustain it. Rules 36, 66, 117, 134, 357 and
244, for the protection of persons under mental disability in
regard to legal process against them apply, and that judgment is
now, by the finding of the jury, void as against the plaintiff
for non-compliance with those rules.
Charles Wilson and A. E. McPhillips, contra :
The proper course for the plaintiff was to apply as he
did to set aside the judgment by default. (Vint v. Huds-
pith, 29 Ch. D., 322.) The conduct of the plaintiff after the
judgment bars him from setting it aside in this action to the
»»      o ©
same extent as it did upon his motion in that action, the
question being one of estoppel by waiver, which can only be
rebutted by an express finding that he was not of competent
mind to defend himself or to understand the nature and
effect of the judgment against him. There is no such finding by the jury. The contrary was found by the Chief
Justice on the plaintiff's affidavits made at the time, and the
fact of his moving against the judgment shows that he knew
its nature and effect, but, though he swore that he was of
unsound  mind at  the time of giving the notes, he did not LAW NOTES.
pretend that he was so then, or that it was by reason of
want of understanding that he suffered the judgment to go
against him. A judgment by default constitutes an
estoppel. (Williams v. Richardson, 36 L. T., N, S., 505 ;
Kendall v. Hamilton, L. R., 4 App. Cas. 504.) No presumption of continuation of insanity arises except upon a
general finding by inquisition ; in any case it is a presumption of fact and rebuttable, and must be left to the jury as
a fact and a finding obtained upon it. It is not a conclusion
of law. There is no such presumption as against a judgment, which, at all events, if it is not an absolute estoppel
shifts the onus and is prima facie evidence of every fact
necessary to sustain it. Where there was a finding of a jury
on an inquisition of insanity which over-reached the period
in dispute, it was held that the finding afforded a presumption of insanity, but there being some evidence that some
time after the lunacy was stated to have existed or commenced, the party was not of unsound mind, an issue was
directed whether he was of unsound mind at the time in
question. (French v. Mainwaring, 2 Beav. 115.) Here
there is evidence, and a previous finding, that the plaintiff
was not of unsound mind at the date of the judgment and no
finding to the contrary. The contract of a lunatic, who,
by reason of lunacy, is not capable of understanding its
terms or forming a rational judgment of its effect on his
interests, is not void but only voidable at his option, and this
only when his state is known to the other party, as was
found here. (Pollock on Con. 4th Ed., p. 160 ; Moulton v.
Camroux, 2 Exc. 487. 4 Exc. 17 ; Jacobs v. Richards, 23 L.
J., Ch. 557 ; Matthews v. Baxter, L. R., 8 Exc, 132.)
Adopting therefore the findings of the jury as to the unsound
condition of plaintiff's mind at the time of making the original note, or even of the substituted notes, although that is
not found, and that defendant knowingly and fraudulently
obtained the notes, the contract was one capable of being
ratified in a subsequent lucid interval, and the suffering of
judgment to be obtained upon it, and the subsequent conduct 52
of plaintiff, in the absence of a finding of the jury that he was
of unsound mind at that time, constitutes a ratification.
The contract Avas also executed and the parties can not be
restored to their original position.
1. That the Plaintiff was not estopped by the
default judgment.
2. That the issues were not res judicata by the
judgment of the Chief Justice, or of the Divisional
Court, refusing to set aside the default judgment and
admit the Plaintiff to defend in Cameron vs. Harper on
grounds made the basis of Plaintiff's case herein, that
motion being interlocutory on affidavit and an appeal to
discretion, and did not decide but merely refused to
admit in that action the introduction of the issue in
question in this action.
3. That the answers, and general verdict, of the
jury covered a finding that in fact the Plaintiff was
non compos mentis at the time of and ever since the
transaction in question, covering therefore the period of
the proceedings in Cameron vs. Harper and the Plaintiff
was not estopped thereby or by the part taken by him
or on his behalf therein.
4. That, in order to set aside a contract as having
been made by a person of unsound mind it is not necessary first to obtain a finding under a commission de
lunatico inquirendo that the person in question is
Judgment for Plaintiff. IN THE VICE-ADMIRALTY COURT.
April, 1893.]
[Sir M. B. Begbie, L. J. A.
Navigation   Act—Articles 16 and 20—Party to Blame.
Action for damages for collision brought by the owners
of the steamship Joan against the owners of the steamship
Cutch. The trial took place on 26th and 27th April, 1893,
before Sir Mathew Baillie Begbie, L. J. A., with Lieut.
Masters, R. N., (H. M. S. Garnet) and Lieut. Nugent, R. N.,
(H. M. S. Champion) as nautical assessors.
The facts as proved at the trial, shortly stated, were,
that the two steamships cleared from the same wharf at
Nanaimo Harbour almost at the same time; the Joan, it was
found as a fact, first. Each backed from the wharf in a
direction different to the other, and each executed a manoeuvre in the harbour for the purpose of making exit to the
sea, between an island at the mouth of the harbour and a
shoal, through a narrow channel. They approached its
entrance and each other in directions convergent and almost
at right angles, the Joan being on the starboard  side of the
© ©    " ©
Cutch. Their relative courses and speed were such that unless
there was an alteration of either or both by one or other, or
both of them, a collision was imminent. Both held on their
courses, and, in a few seconds the collision took place ; the
Cutch stopped and reversed her engines notwithstanding
which she struck the Joan, which was then crossing her bow,
forward of amidships, and almost at right angles.
C. E. Pooley, Q. C, for the owners of the Joan the
E. Y. Bodwell and P. *d£. Irving for the owners of
the Cutch, the Defendants.  COUNTY COURT OF VICTORIA-
March, 1893.J
[Begbie, C. J.
Liquor License—Summary conviction—Appeal—Practice—Jurisdiction
Evidence—Construction of words "spirituous liquor."
Appeal from a conviction dated 24th January, 1893,
whereby the appellant, Kwong Wo, was convicted of having
sold spirituous liquor without a license, contrary to the
Municipal Act, 1892, sec. 204, sub-sec. 3, and the Revenue
By law, 1889, Victoria City, and ordered to pay $50, and in
addition the license fee of $75.
The convicting Magistrate, although notified, had not
returned the conviction appealed from, or the deposit made
by the appellant undei sec. 77, Summary Convictions Act,
1886. .* j| fjj
C. J. Prior for the convicting Justice and the City of
Victoria :
The appeal should be dismissed. Till it is made to
appear to the Court that the appeal is duly lodged, the jurisdiction to hear or adjourn it will not attach.—Trotter's
Appeals from convictions, p. 54 ; Reg. v. Allen, 15 East,
333 ; Ryer v. Plows, 46, U. iff Q. B., 206, per Osier, J.;
Paley on Convictions, 5th Ed., p. 367. If the Magistrate,
after notice, fail to return the conviction, he is liable to an
action for special damages.—Prosser v. Hyde, 1 T. R., 414;
Ex parte Hayward, 3 B. and S., 546. See Summary Convictions Act, (Can.), sees. 77 and 85, from which sees. 71
and 81 of the B. O. Act are copied. Decisions on the Can
adian Act therefore apply. 56
H. D. Helmcken, for the appellant, contra :
This is a hearing, de novo, a re-opening ab initio of the
prosecution at the instance of the defendant, and it is
immaterial whether the original conviction is before the
Court or not. The default is not that of the appellant,
and, if necessary, we will ask an adjournment to obtain the
Prior :—There is no power to adjourn, as the adjournment must be by endorsement on the conviction.—Sum.
Con. Act, sec. 71, (B. C.)
Helmcken :—That provision is not imperative. Beg*
v. Read, 17 Ont. R., 185.        1
Held :—
The Court had power to hear and determine the
appeal notwithstanding the failure of the Magistrate to
return the conviction and deposit.
Objection as to jurisdiction overruled.
Evidence was then called in support of the charge and
contra. The prosecution did not prove the Revenue By-law
1889, referred to in the information.
Helmcken :—The appeal must be allowed. The charge
is that of infraction of the By-law, and there is no power to
substitute another charge on the appeal, but merely to amend
formal defects in the charge as laid. There is no evidence
that the liquor sold was spirituous liquor.
Prior, contra : The words u and the Revenue By-law,
1889," are surplusage. The offence was fully provided for
by 55 Vic. (B. C), cap. 33, sees. 204 and 208. The Court
may entertain the appeal and upon conviction amend the
charge in accordance with the case made on the evidence.—
McKenna v. Powell, 20 U. C, C. P., 394. LAW NOTES.
Held :
(a.) That an appeal from a conviction is a proceeding denovo, as if the information were then first
brought to be tried.
(b.) That sec. 208 of 55 Vic. (B.C.) cap. 33, made
it an offence to sell liquor by retail, without a license in
that behalf, independently of whether a By-law providing for the issue of such licenses and fixing the amount
of fees thereon had been passed or not, and that the
appeal could proceed as a hearing de novo, for such
statutory offence.
(c.) It having been shown that the liquor sold was
intoxicating, but no evidence being given as to its having been produced by distillation, that the evidence was
insufficient to sustain a charge of selling spirituous
(d.) That the absence of proof of the By-law would
have been fatal, on proceedings by way of certiorari and
motion to quash the conviction.
Conviction quashed without  costs,  the  deposit  to  be
February 4, 1893.]
[Walkem, J.
Criminal   Law—Speedy   Trials   Act—Substituting  charge   at   trial—
Adjournment during trial—Depositions—Evidence  of witness
being out of   Canada—Forgery.
The prisoner, having been committed for trial and
elected to be tried under the Speedy Trials Act, now came
up for trial upon the charge that he I on the 18 th January,
u 1893, did forge and utter, well knowing the same to be
" forged, a certain cheque upon the Bank of British Colum-
" bia, Victoria, for the sum of $65, with intent to defraud."
Evidence was given that the prisoner cashed the cheque
in question, pretending that he hac1 received it from and
that it was the cheque of one H. F. Sieward, by whom it
purported to be signed.
Gordon E. Hunter, for the Crown, proposed to put in,
under Sec. 222, Criminal Procedure Act, the deposition of
H. F. Sieward taken at the preliminary examination, upon
proof that he was absent from Canada ; and called for that
purpose a Customs' Clerk who produced the Outward Report
of the vessel of which Sieward was master, for the North
Pacific Ocean, and a seaman who saw the vessel preparing to
leave but did not actually see her leave the harbour and
could not state where the vessel was; and submitted that he
had furnished evidence sufficient to warrant a finding that
Sieward was out of Canada, citing Reg. vs. Nelson,   1 Ont.
Rep. 500. &m
No sufficient evidence on which to admit deposition.
Hunter then moved for an adjournment to procure
further evidence.
Robert Cassidy, for the prisoner, contra.
In order to justify the postponement there must be a
clear case of legal necessity, which can be created only by
the act of God or the conduct of the prisoner or his friends
(Hale, P. C, note to Reg. vs. Windsor, 4 F. & F. at p. 268),
and even in a civil case a Judge could not adjourn the trial
after the jury were charged with the evidence (ibid, p. 371,
Reg. vs. Russell, 4 Taunt, 129.) The discretion should be
exercised according to the rule governing at the Assizes.
Walkem, J.:—Some definite rule should be adopted.
My own opinion was that I ought not to remand the prisoner, and, after retiring for that purpose, without stating
my own opinion, I put the point to the Chief Justice, who
thought that to remand in such a case would be contrary to
the spirit of the Speedy Trials Act. I will, therefore, refuse
the adjournment
Adjournment refused.
The Crown conceded that the evidence was insufficient
to secure a conviction upon the charge as laid, but moved to
substitute the charge of obtaining money by false pretences.
Argument of this question was adjourned by consent.
February 7.
Gordon E. Htmter, for the Crown :
The lesser charge is necessarily included in the charge
laid.    The Crown have proved the falsity of the  pretense 60
and of the document, and only failed to prove the actual
forgery because of the strictness of proof required* Forgery
is very closely allied to obtaining by false pretences. (Fitz
J. Stephen, 141; Harris' Criminal Law, 306.) We admit that if
the prisoner had elected to be tried speedily for the lesser
offence there would be no jurisdiction to try or convict him
for the greater. Goodman vs. Reg., 3 Ont. Rep., 18, but
having elected to be tried for the greater, prisoner is not
injured by being convicted of a lesser offence included in it.
Robert Cassidy, for the prisoner, contra.
The test is whether a j ury, on an indictment for forgery,
could, as an alternative, find the prisoner guilty of obtaining
the money by false pretences. They could not. The Judge
here has no more power. Sec. 13, Speedy Trials Act,
Walkem, J.:—Whatever my opinion as to the merits of
this case may be, 1 am clear that I cannot convict the prisoner. When he was brought before me to elect as to the
mode of his trial, I stated to him, as was my duty under sec.
7 of the Speedy Trials Act, that he was charged with the
offence of forging and uttering the cheque in question, and
that he had the option of being tried upon it speedily before
me or awaiting trial at the next assizes before a jury. He
elected to be tried before me. Now, in the proceedings
under this Act, there is no formal indictment, but the prisoner stands charged with the offence stated in the same
manner as if there were one drawn up formally, setting out
the charge stated to the prisoner. He cannot be tried for
any offence with which he is not charged, or which is not
included in that charge. Here I have proceeded to the
end of the trial, and find no evidence upon which I can convict him of any offence included in the charge stated to him.
It is suggested that I should convict him of a different
offence, on the ground that the evidence adduced  would
Ui ZO -■■-»» -- XX 2 LAW NOTES.
support a charge for that offence. 1 am in the same positron as a jury would occupy if the prisoner were on trial
before them on the charge of forgery. I do not see how I
can convict the prisoner of one offence after trying him for
another. I think a Court of Appeal would look upon that
with considerable astonishment. The prisoner must be discharged.
Prisoner discharged. NOTES   OF   CURRENT   DECISIONS.
BUSE et al.
February, 1894.1
Divisional Court—
Beobie,  0. J.
Walkem, J.
Practice—Divisional  Court—New Trial—Extending  time  for motion
after lapse of the 8 days.
Appeal from an order of Drake, J., made on 15th
February, at Vancouver, extending the time for giving
notice of motion for a new trial until the 6th day of March.
The trial was concluded and verdict entered for the plaintiff
on 23rd January. Crease, J., upon application to him made
within 8 days from the verdict had made an order extending
the time for giving the notice until 13th February, and a
notice of motion for a new trial was given on the 12th
February, returnable 8 days thereafter, but the motion was
not set down nor the appeal books entered.
A. E. McPhillips for the appeal.
The order is wrong in form. The notice of motion for
a new trial had been given and the order should have been
to extend the time for bringing on the appeal, but the order
allowed a fresh notice to be given. [Per Cur. The order
is incorrect in form but is in effect an order extending the
time for the hearing of the appeal.]
Bodwell, contra.
Held— I
The Court has power under Rule 743 to extend the
time for appealing after the lapse of the 8 days.
Appeal dismissed. Costs to be costs in the cause to the
Respondent in any event. ^mmm
Wm\  *M- mm
February, 1894.] [Divisional Court—pE       ' T*
Crease, J.
Costs—Taxation—Copies of  Appeal Book  on  Appeal  to  Divisional
Court—Printed copies disallowed—Rule 678—Amendment
of Bill of Costs after successful appeal from
Taxation  not  Allowed.
Appeal from an order made by Mr. Justice Drake on
June 16th, 1893, upon a motion made before him by way of
review of the decision of the Registrar allowing certain items
in the Defendant's Bill of Costs of a motion to set aside the
verdict and for a new trial, which was granted upon the
ground of misdirection by the learned Judge at the
trial, with costs, and Plaintiff was ordered to pay the costs
as a condition precedent to his right to take the case down
to trial again.
The Plaintiff without paying the costs had taken out a
summons to fix the day of trial, which was dismissed by
Walkem, J., on January 21st, (see ante, p. 15). The Plaintiff appealed from that order to the Divisional Court which
(Crease and McCreight, J. J.) dismissed the appeal upon the
ground that it was concluded by the order as to costs of the
Divisional Court upon the motion for a new trial though they
did not agree with it, but being of opinion that the items in
question—(Reading proof of printed case, $43.20. Paid for
printing case, $312.75)—ought not to have been allowed on
taxation; gave the Plaintiff leave to bring the present appeal
from the order of Mr. Justice Drake notwithstanding the
lapse  of time
A. E. McPhillips for the appeal.
E.  Y. Bodwell, contra. 64
That there was no provision in the Rules or item
in the schedule of costs permitting the printing of
appeal books upon appeals to the Divisional Court.
Appeal allowed with direction to the Registrar to reopen the taxation and disallow the items.
Bodwell then moved for an order to amend the Defendant's Bill of Costs by inserting a charge for five written
copies of the appeal baok, which would have been a proper
charge under Rule 678, in place of the charge for printing.
That after a successful appeal from a taxation the
Court should, in a proper case, exercise its discretion
by refusing such an amendment and as defendant had
made and maintained an improper charge.
Amendment refused.
February 22.]
[In Chambers—Drake, J.
Pleading—Slander—Alternative  Denial.
Motion to strike out paragraph in defence as embarrassing. The action was for slander, which as stated in the statement of Claim was in the following words alleged to have
been spoken by the Defendant: "He (Atherton) kept over
" one hundred dollars of my money during the fair." The
defence was a denial of the utterance and an alternative (par.
6) as follows: "If it should appear that the defendant spoke
" the said words as alleged, then the defendant in the alter-
" native says that before speaking the same the plaintiff on
" or about the said 10th day of October,, dishonestly con-
" verted to his own use $25 and more, the property of the
"Plaintiff." LAW NOTES.
Potts (Belyea & Gregory) for the Plaintiff applied to
strike out par. 6, as irrelevant, disclosing no answer to the
Plaintiff's statement of claim and tending to prejudice and
delay the fair trial of the action. He contended that if the
defence is justification the proper plea is that alleged words
are true in substance and in fact, Odgers, p. 44.
A. E. McPhillips contra.
Following  Rassam   vs.   Budge,  1893, 1 Q. B. D.,
that the plea was embarrassing.
Editor's Note—A number of notes of current cases have been crowded
out and will appear in the next number. PLEADING UNDER THE JUDICATURE RULES.
That the system of pleading provided by the Judicature
Rules in place of the old common law and Chancery systems
has proved itself, after a long trial, to be of very questionable
utility for the purpose which it was intended is exemplified
by the fact that the new English rules of December, 1893,
do away with formal pleadings except where specially
ordered, and provide for the trial of actions upon a mere
denial of the claim as endorsed on the writ. Tlie profession
have indeed long regarded the pleadings in an action under
the existing system as rather a source of danger than an
assistance. The advantages of pleadings which consist of a
mere recital of the facts relied on, " divided unto paragraphs,
" numbered consecutively, and each paragraph containing as
nearly as may be, a separate allegation" usually put in
chronological order—though there is no rule of which we
are aware why they should not be put in alphabetical or any
other order—are not so easy to see as the disadvantages.
They serve the purpose of affording a discovery of the stoiy
of the other side, arranged in accordance with his views, but
a more substantial discovery is obtained by examination of
parties. It is of course.of.the highest consequence, if possi
ble, accurately to understand the causes of action or defence
which are respectively proposed to be maintained at the
trial by the different parties, but that is precisely the most
difficult thing to pick out of Judicature pleadings. In
practice, ac least in Common Law* actions, counsel have to
arrive at the legal effect of the pleadings and get at the
issues as they must be presented by re-arranging the facts
alleged in the old form as they necessarily group themselves
in the mind of a lawyer. So long ago as January, 1886,
Lord Justice Bowen took the rather unusual course, for a
Lord Justice of Appeal, of setting forth his views upon the LAW   NOTES.
operation of the Judicature system generally in an exhaustive criticism in the Law Quarterly Review, (Vol II., p. 1)
under the title "The Law Courts under the Judicature Acts."
Upon the question of pleading he said, " What was believed
" ten years ago by the authors of the J udicature Rules to be
u a simplification of pleading, and an abolition of pleading
" technicalities, turned out to be the introduction of a mode
" of pleading so confused and inartistic as to be, in many
" instances, only a source of embarrassment and expense."
There is only too much support for this pronouncement
to be found in the pages of the Reports, and a great deal
more resides in the minds of practising counsel. To solicitors the new system of " pleading made easy " may have
appeared, at first, a boon, avoiding the intervention of the
special pleader, who has naturally become as extinct as the
Dodo. The fact of the matter is that the drawing of pleadings cannot be made easy. It is not too much to say that,
under the old system, the highest test of the pure lawyer was
the drafting of pleadings. In the days of special demurrers,
writs of error, motions in arrest of judgment, and for judgment non obstante verdicto, and before the extension of full
powers of amendment, so highly refined a system often
defeated its purpose.
That the system itself was superior to that which took
its place is, we believe, generally conceded, and ample powers
of amendment, liberally exercised, should have been a sufficient guarantee against permitting the process of adjusting
the pleadings in an action to defeat the merits which they
were intended to present for determination in the most
accurate possible form.
The effort to conduct a difficult Common Law action
upon Judicature pleadings is somewhat similar to the difficulty of picking up a needle with one's hands encased in a pair
of duffle mittens.    Sir Matthew Begbie in his judgment in 68
Hudson s' Bay Co. vs. Green, delivered in 1881, shortly after
the introduction of the Judicature system into this Province,
regretfully observed in speaking upon the same subject:
" The voice is the voice of the Common Law, but the hands
" are the hands of the Court of  Chancery."
The most serious objection to the existing method of
pleading is that a system, inherently loose and lacking in
scientific accuracy, has been hedged about with a number of
rules of the strictest application; so that estoppels by pleading are in full force. The Courts in England have recently
shown a tendency to disregard the strict letter of some of the
rules. For instance, Order XIX, R. 7, reqigres a defendant
to deal specifically with each allegation of fact of which he
does not admit the truth. In Adams vs. North Metropolitan
Tramways Co., the Divisional Court, (1894, Q. B. D., Dec.
19) had to consider, upon a motion to strike out as embarrassing a defence which merely alleged that defendants
" denied each and all the several allegations in the statement
" of claim." The statement of claim was for injuries alleged
to have been caused by the defective state of the defendants
tramway line. The Court (Hawkins and Lawrence, J. J.) in
giving j udgment held that "the form of defence might not
" be in strict accordance with Rule 17, which does say that
" each allegation of fact to be denied is to be specifically
"dealt with, yet as the plaintiff had to admit that if the
" statement of defence were lengthened out so that there was
" an actual denial to each and every of the statements in the
" statement of claim, he could not complain, that was a
" ground for saying that a form of defence which did, in
" effect, deny each and every allegation ought not to have
" been complained of and was not embarrassing."     This was
S- ©
in effect saying, that there was no sound reason for the
requirements of the rule and that the Court would not apply
it strictly. In our own Court, Jack°on vs. Jackson and Mylius,
ante p. 26, is a strong illustration of the truth of Lord Justice
Bowen's remarks above quoted.     There the statement of LAW   NOTES.
defence in an action against defendants, as partners, to
recover money lent alleged " The defendant denies that on
" the 22nd day of April, A.D., 1891, or at any other time
" she entered into partnership with the defendant Alexander
" Jackson as alleged in paragraph 2 of the statement of
" claim " and the Court held it a bad traverse, and therefore
an implied admission of the partnership, under Rule 173,
which provides " if an allegation is made with divers circum-
" stances it shall not be sufficient to deny it along with those
" circumstances." The case of Thorp vs. Holdsworth, 3 Ch. D.
637, and Tidesley vs. Harper, 7 Ch. D. 403, which are
referred to in the written judgment of Mr. Justice Drake
support the strict application of the rule, at least where the
objection is taken at or before the trial ; though we should
say that where the discussion arises after verdict the course
taken at the trial ought, if possible, to be looked at rather
than the form of the pleadings and the latter amended to
The loss of the demurrer as piece of machinery for the
determination of that large class of disputes, in which if
parties are compelled to state their cases with strict accuracy
of form, it is found that there is nothing but a point of
law between them is perhaps, the greatest loss of all.
Nothing so greatly tended to saving of expense, and swift
quietus to untenable propositions.
Odgers in his work on pleading cynically advises the
pleader not to take on the pleadings objection in point of
law to the case set up by the opposite party. As he says
you are not bound, but only " entitled " to raise such an
objection, (Rule 233) and not much benefit to you comes of
it. You merely teach the other side his case, and put his
pleadings in order. He says (p. 96): "Unless the defect is
" seriously embarrassing it is of ten better policy to leave it
" unamended, you only strengthen your opponent's position
by reforming his pleading.    But be careful in drawing the
a 70
" defence not to aid the defect in any way, the less said about
I that part of the pleading the better. Do not admit it, if
" need be traverse it in so many words but after such denial
" avoid the whole topic, if possible, leaving the plaintiff's
" counsel to explain it at the trial, if he can."
As a commentary on the conditions, induced by the
present system of pleading, under which actions are tried,
the above advice is almost sardonic. We will be very much
surprised if the old scientific system of pleading with proper
safeguards against any defeat of the merits in the process of
arriving at an accurate statement of the issues, is not reverted
to before many years wherever the Common Law of England
still holds it own.
If    University of British Columbia Library
FORM NO. ET-6  mf"wF«i ami


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