plied to intangible property. He held, therefore, that the shares in question were actually situate in Quebec and were liable to duty in that province. Brodeur, J., and Mignault, J., concurred in this opinion. Appeal was taken from the judgment of the Supreme Court of Canada in Levesque v. Smith to the Judicial Committee of the Privy Council and this appeal is reported as above mentioned, sub nom Brassard v. Smith et al (supra). The appeal was confined to the decision of the Supreme Court regarding the situs of the Royal Bank shares. The following is a quotation from the judgment of Lord Dunedin: "Their Lordships consider that the question was really settled by the case of Atty.-Gen. v. Higgins (supra). Baron Martin in that case says in so many words: 'It is clear that . . . the evidence of title to these shares is the register of shareholders, and, that being in Scotland, this property is located in Scotland.' It is quite true that in that case the head office as well as the register was in Scotland, but in their Lordships' view it is impossible to hold that in that case the position of the head office was the dominant factor, merely on the strength of a phrase used by the reporter of the Attorney-General's argument, and a casual reference made to the case by Lord Esher in a subsequent case of Atty.-Gen. v. Sudeley. In the present case, Duff, J., dealing with the "no local situation" argument, said as follows: And the Chief Baron's judgment, I think, points to the essential element in determining situs in the case of intangible chattels for the purpose of probate jurisdiction as the circumstance that the subjects in question could be effectively dealt with within the jurisdiction.' This is, in their Lordships' opinion, the true test. Where could the shares be effectively dealt with? The answer in the case of these shares is in Nova Scotia only, and that answer solves the question." Regina. S. QUIGG. CONVICTION FOR CRIMINAL OFFENCE APPLICATION FOR BAIL PENDING APPEAL.-In granting the application for bail pending the hearing and determination of appeals in the cases of Rex v. Smith and Barnard, who were convicted and sentenced for offences committed] * (1896). 1 Q. B. 354. 127 O. W. N. 253. against the provisions of the Bank Act (Canada, 1923, chap. 25), the learned Chief Justice of Ontario pointed out that while a person convicted of an offence is presumably guilty that presumption may be erroneous and should his conviction be set aside as illegal he is still innocent in the eyes of the law. Thus it is necessary to so administer the law as to prevent injustice to an innocent person, but a person convicted of an offence punishable with imprisonment who appeals from his conviction should not be admitted to bail unless there is reasonable certainty that he will surrender himself, nevertheless bail should be allowed if the circumstances be such as to convince the Court that the ends of justice will be served. In deciding such a question consideration should be given to the nature of the offence; the amount of bail to be given; the previous character of the prisoner; his family ties and obligations; whether the appeal is frivolous or substantial; and any other circumstances which may enable the Court reasonably to determine whether the prisoner will or will not surrender himself in accordance with its order. The defendants were directors of the Home Bank and had been found guilty-Smith of negligently signing, approving or concurring in an account containing false or deceptive statements, and Barnard of wilfully making a false statement, wilfully using a false statement and negligently approving or concurring in a false statement contrary to the provisions of the Bank Act. The allowing of bail in cases such as this is in the discretion of the Court, and it is not now considered necessary to obtain the consent of the Crown prosecutor, as was done under the former practice. He should, however, be notified of the application for admittance to bail and where no such notice has been given it is reasonable that the application should be refused. Rex v. Ridley. In the case of Rex v. Wilkes, Lord Mansfield is reported, at page 2,539, as follows: "It is, indeed, in the discretion of the Court, to bail a person so circumstanced (after conviction). But discretion, when applied to a Court of Justice, means sound discretion guided by law. If a person 3 convicted be taken upon a Capias pro Fine, he is liable to be committed, unless the prosecutor consents to his being bailed. . . . I do not remember any case where such a person has been bailed without consent." This course was followed in the case of Regina v. Sage et al., where prisoners were refused bail pending appeal unless the Attorney-General consented. Coleridge, J., in Rex v. Scaife," refers to the principle which is adopted in applications for bail as being in reference to the certainty of their appearing to take their trial, "it is not a question as to the guilt or innocence of the prisoner." The Criminal Appeal Act, (1907) Imp. 7 Edw. VII, Chap. 23, Sec. 17, gives any judge of the Court of Criminal Appeal power to admit the appellant to bail, and in Canada similar power is given under subsection 1 of section 1019, Criminal Code (1923), chap. 41. The Courts exercise great care in admitting a convicted prisoner to bail pending appeal and will not do so unless sufficient reason is shown: see Gordon, Gott," where the applications were refused. The question of bail after conviction pending appeal is exhaustively discussed in Johnston v. Atty.-Gen., which decided that the trial Judge had power to bail the prisoner pending the trial and determination of the reserved case. This decision was followed in Rex v. Burke and Wilson, where the accused was admitted to bail pending the hearing of the appeal. The Johnston case, however, arose upon a motion by the Crown to estreat the recognizance or breach of the condition thereof; and by the sureties for an order to re-commit the accused to gaol to complete his sentence and discharge their liability, the accused not having surrendered himself to gaol after the dismissal of his appeal. In Garnham,10 where sentence was 12 months with hard labor, the Court held it unusual to grant bail where the term of imprisonment is a long one. Bail was allowed in Gerhold, Gray," Golding," and in Berry, but it is only granted in exceptional and unusual cases. Greenberg,15 Fitzgerald.10 14 Instances of bail being allowed in such cases are very rare, both in England and Canada, but it would seem that, having regard to the circumstances, in admitting to bail in the present case the learned. Chief Justice had exercised a "sound discretion guided by law." (1841), 9 Dowling 553, at page 554. 6 (1912), 7 Cr. App. R. 182. ' (1922), 16 Cr. App. R. 86. 8 (1911), 16 Can. Cr. Cas. 296. 10 (1910), 4 Cohen 150. 11 (1909), 1 Cohen 104. 12 (1909), 1 Cohen 154. 13 (1910), 4 Cohen 83. 14 (1924) 18 Cr. App. Cas. 65. 15 (1923), 17 Cohen 106. 16 (1923), 17 Cohen 147. ANNEXATION TO FREEHOLD CONTRACT FOR SALE OF MACHINERY -RIGHTS OF MORTGAGEES OF FREEHOLD.-In his reasons for judgment in the case of Dominion Bridge Co. v. British-American Nickel Corporation, Riddell, J., deals with several important points of law. The action arose upon the failure of the defendants to pay the full contracted price of machinery, purchased from the plaintiffs. The plaintiffs, a Montreal company, contracted in writing to supply certain heavy machinery to the defendants "f. o. b. the plant at the place of shipment." The defendants upon receiving the plant set it up on their freehold in Ontario on concrete abutments placed in the ground for the purpose and fastened it to them with bolts. At the time the plant was placed in position the freehold was mortgaged to a trust company. The defendants became bankrupt before full payment was made, but they had paid the freight and part of the purchase price. The freight was to be allowed on the price of the plant, but by an agreement was allowed on another account. The plaintiffs contended that absolute ownership vested in them because the contract was made in Quebec and that the Conditional Sales Act of Ontario (R. S. O., 1914, Ch. 136, Sec. 9) did not apply. The contention of the defendants was that the machinery was the absolute property of the mortgagees, or, in the alternative, it came under section 9 of the Act. The learned Judge found that the plaintiffs were entitled to payment when they placed the plant on board cars in Quebec, and Quebec law governed the interpretation of the contract; that machinery affixed to the freehold becomes part of the freehold and passes to the mortgagee and this obtained apart from the particular contract, the statute and the Quebec law; that the lex loci rei sitae must be resorted to in order to ascertain what is or is not immovable on real property; that section of the Conditional Sales Act is part of the real property law of Ontario and applies to chattels affixed to the realty, therefore the mortgagees could only "retain the goods upon payment of the amount owing on them." They could not deduct the amount paid for freight, their rights being merely those of the corporation. Since the case of Mather v. Fraser, it has been consistently held that chattels affixed to the soil become part of the freehold. The old rule of law was that if a chattel was affixed to the soil by a nail, screw or otherwise, it passed along with the soil to which it was affixed. But this rule was relaxed in regard to the relationship existing between landlord and tenant, as it was early perceived that injury to trade 127 O. W. N. 278. would result if a tenant were compelled to conduct his trade with property which must not be affixed to the soil, because if he so affixed it he would be held to have made it a present to his landlord. At first the doctrine appears to have turned upon the fact of the chattels being affixed to the soil by the owners of the freehold. In Mather v. Fraser, (supra) Wood, V. C., says: "the mortgagors bought the land as tenants in common in fee . . . They conceived that the most profitable purpose for which they could use it would be the business of copper roller manufacturers. I apprehend, therefore, that the case comes clearly within that of machinery affixed to the land by the owner of the land for the purpose of better and more beneficially using and enjoying the land of which he is the owner." The question as to there being a difference in the rule as between mortgages of freehold and mortgages of leasehold was discussed in Southport and West Lancashire Banking Co. v. Thompson, and it was there held that, in a mortgage of freehold all things which are annexed to the place are a part of the mortgage security and the deed need contain no mention of fixtures and the effect is the same when the mortgage is of leasehold property by sub-demise, but in the latter case if the mortgagee seeks to remove and sell them he must have express power given him by the mortgagor to do so; otherwise he can only take them with the land without any right of removing them; the right to sever remains in the mortgagor at the end of the term. Hobson v. Gorringe, and Reynolds v. Ashby and Son," are among the more recent decisions on the point. In the latter case machines were purchased by the lessee of a factory under a hire-purchase agreement. Default having been made in payment, the owner brought action to recover the machines or their value from a mortgagee of the premises who had taken possession. The Court held that the machines had been so affixed as to pass by the mortage to the mortgagee. Lord Halsbury, L.C., was not satisfied with the mode in which the case had been disposed of and only agreed to affirm the judgment upon the special facts and from the absence of any evidence which could alter the rule that had been so many times affirmed. Section 9 of the Conditional Sales Act gives relief in so far as Ontario is concerned, because the mortgagee can only retain the chattels upon payment of the amount owing on them. Under the laws of Ontario and Quebec machinery so affixed passed to the mortgagee.. Reference was made to the absence of a controlling statutory provi 3 1888, 37 Ch. D. 64. 1897, 1 Ch. 182. *1904. A. C. 466. |