« PreviousContinue »
('ounty of York. The motion was argued before Vr. Justice Rose in Chambers on Monday, 12th October, 1925. N. W. Rowell, K.C., and 1. G. Slaght, K.C., for the motion. McGregor Young, K.C., for himself and other counsel concerned. Counsel in support of the motion contended that the case was in the Court of General Sessions mainly on the ground that it had appeared on what was alleged to be an official list submitted to the learned ('ounty Court Judge, and that in the order for bail the Supreme Court Judge had directed his appearance for trial at the next court of competent jurisdiction. It was also pointed out that all the charges against the accused were within the jurisdiction of the general sessions.
At the conclusion of the argument judgment was delivered dismissing the motion. Ilis Lordship intimated that in his view the (ase at present was neither before the Sessions nor the Assizes and would not be before either Court until a bill should be presented, and in so far as the motion was based upon that assumption it failed accordingly. The learned Judge also stated that apart from that question he was entirely at a loss to understand in what way a Judge sitting in Chambers had jurisdiction to direct the Crown Attorney, or counsel appointed by the Attorney-General, to proceed with prosecutions generally or in any particular ('ourt. The reference to the next court of competent jurisdiction in the order for bail had no application whatever to the question now before him. Nor was it a question of general gaol delivery as counsel supporting the motion had endeavoured to intimate, and even if it were he did not see how that question could be ra sed before him. The motion was therefore ill conceived and should be dismissed.
WHAT ARE“ FIXTURES"?-One branch of the very vexed question as to whether particular chattels which have been attached to the realty, become “fixtures,” arose in the recent action of Murphy Wall Bed Co. of Detroit v. Lerin. In that case, the alleged "fixtures" were certain articles known as “ wall-beds,” which had been placed in un apartment house. Steel plates were screwed to the floor of the bedroom and to the side of a closet door therein. The floor plates had holes or sockets in which the legs of the beds were set, while the plates on the side of the closet door had similar sockets, into which a piece of iron attached to the side of the bed sank when the bed was closed up. The bed might be removed by lifting it out of these sockets. It was held by the Appellate Division, affirming the judgment of the County Court of Essex, that the articles were not part of the realty. The Court distinguished the decision of Mr. Justice Smith in IlooverOwens-Rentschler Co. v. Gulf Navigation Co., upon the ground that the articles in question in the latter case, namely, cylinders built into an engine of a ship, had become part of the ship. The case also involved certain questions under “The Conditional Sales Act," which it is not necessary to discuss. For other recent cases dealing with the effect of the latter Act on the question of fixtures, see Liquid Carbonic Co. v. Roundtree, 54 0. L. R. 75; Dominion Bridge Co. v. B. A. Nickel Co., 56 0. L. R. 288, and Agricultural Development Board v. De Laval Co., 29 O. W. N. 142.
157 O.LR. 105.
The above decision seems to be inconsistent with that in MoCarthy v. McCarthy. In the latter case, one of the articles in question was a hay-fork, which was part of a plant consisting of a track, a truck, pulleys, a rope and the fork. The track was fastened with bolts or screws to the barn roof, and the truck was propelled along it. All the other articles were necessary to a complete operation of the hayfork, but none of them except the track were fastened to the building. It was held by the County Court of Perth, that the hay-fork was a “ fixture," and that the circumstance that it could be used elsewhere in connection with a similar plant did not deprive it of that character. A brief note at the end of the report states that an appeal to a Divisional Court was dismissed on March 6th, 1900, but it is not otherwise reported, and it was not referred to in the Levin case. The judgment of the County Judge purports to follow the dec.sion in Gooderham et al. v. Denholm. In that case it was held that certain tools ordinarily in use for the purpose of operating machines in an iron foundry, were fixtures,” and certain other tools were not. As these comprised 27 different articles, all of which are adjudicated upon separately, it is not practicable to deal fully with that decision.
The latest work on this subject is “The Law relating to Fixtures by B. W. Adkin and David Bowen, which was published in England in 1923, by a corporation called “The College of Estate Management,” as one of its series of textbooks. It deals very fully with the various kinds of fixtures, and points out clearly the difference between what are known as “ tenant's fixtures" and "landlord's fixtures," as well as the difference in the law applicable thereto. No reference is made to this book in the Lerin case. Since it was published, an important decision has been given in England in the case of Boswell v. Crucible Steel Co., and which is referred to in the Levin case. It was held on appeal in the Bosuell case, over-ruling the previous decisions, that the term “landlord's fixtures" applies only to chattels which are brought by the landlord to the premises and affired to the structure, but do not form part thereof. It was further held that plate glass windows, which were fixed in steel beadings and not made to open, formed part of the structure of the house, and consequently were not “landlord's fixtures.”
2 24 O.W.N. 614. 320 C.L.T. 211. * 18 U.C.R. 211.
M. J. G.
BUILDING CONTRACT INSURANCE ON BUILDING EFFECTED BY OWNER-SUIT BY BUILDER TO RECOVER.-The case of Smith v. Dawson,' seems at first sight to offend against justice. The plaintiffs were huillers and agreed to build a house for the defendant for $6,164. Until completed the building was at the plaintiffs' risk as to fire, and they did not insure it. The defendant however did insure it and (on the building while in course of erection being destroyed) she received $2,150 from the insurance company to cover her loss. The plaintiffs were bound under their contract to complete the work but the defendant verbally promised if they did so, to give them the $2,150. They completed the work and sought to recover $2,150 to recoup their loss occasioned by the fire but their action was dismissed, the Court hold ng that the promise to proceed with the work which under the contract they were bound to do, did not constitute any consideration for the alleged promise to pay the $2,150, and therefore the plaintiffs could not succeed. Thus it would appear that the defendant was entitled both to the $2,150 and also to have the building as originally contracted for, but it must be remembered that insurance is an indemnity and the insurance company was entitled to recover from the defendant any part of the $2,150, which was more than sufficient to cover the loss she actually sustained; and therefore if she had paid the $2,150 to the plaintiffs it might have resulted in her also having to pay it back to the insurance company as well. See Darrell v. Tibbits;? West of England Fire Ins. Co. v. Isaacs. In the circumstances the agreement to pay the $2,150 to the plaintiffs was an improvident one, and it was fortunate for the defendant that it was unenforceable at law.
G. S. H. 5 (1925) 1 K.B. 119. 153 0.L.R. 615. 25 Q.B.D), 560. 3 (1896) 2 Q.B.D. 377; (1897) 1 Q.B. 226.
AMENITIES OF THE BAR.—We are privileged to publish the following piece of testimony to the good-will subsisting between the Bar of Paris and the Canadian Bar Association.
CONSEIL DE L'ORDRE DES AVOCATS A LA COUR DE PARIS.
(Extrait Du Procès Verbal de la séance du 13 octobre, 1925.)
“Le Conseil, aprés avoir entendu de Monsieur le Bâtonnier Fourcade le compte rendu du Congrès de Winnipeg, envoie à la Canadian Bar Association et à son éminent Président Sir James Aikins l'expression des vifs remerciements de l'Ordre pour l'accueil fait à son Chef et l'assurance cordiale de ses sentiments de confraternité.
Le Bâtonnier, Henry Aubépin; Le Secretaire du Conseil, Georges Cauchy; Les Membres du Conseil de l'Ordre: A. Arrighi, Manuel Fourcade, C. Chenu, Gaston Drucker, Henri Robert, Albert Salle, Albert Flageul, Chs. Radot, A. Vaunois, Raoul Rousset, R. Poincaré, Ch. Jovart, Pierre Masse, A. Millerand, G. Mennesson, Poultier, Félix Liouville, Paul Cresson, Albert Rodanet, Hild, Antony Aubin, Armand Fraisse.”
MARFLEET LECTURES, 1925.—The third series of Marfleet Lectures at the University of Toronto was delivered by the Honourable John Bassett Moore, a citizen of the United States. He is one of the Judges of the Permanent Court of International Justice, which came into existence in consequence of the provisions contained in Article 14 of the Covenant of the League of Nations. His subject was Judicial Power-Its Possibilities and Limitations." In his opening lecture Judge Moore discussed his subject in a general way, surveying the history of judicial power and its practical operations from the times of the ancient Greeks and Romans. He said: “We find a tendency in a highly civilized State towards a separation into executive, legislature and judiciary. ... In a sense the judicial power is most important of all. It is essential to the preservation of a balance of things, and peace in the State.”
“ The Judicial Power in the Political Sphere” was the theme of Judge Moore's second lecture in the series, and he dealt particularly with Constitutional Law. Speaking of the Imperial Privy Council he said:--
“ Your lawyers are in the habit of saying that the judicial committee of the Privy Council is not a court but only a committee. That is more or less a question of nomenclature, but in substance and in reality the Privy Council is a great judicial tribunal exercising judicial powers and preserving balance between the different parts of the British Empire and securing fair and impartial decisions on the validity of the Acts of various component parts of the empire. More than that, it administers, I believe, more different kinds of law than any other judicial tribunal in the world." " It is certainly one of the most august tribunals in the world; and I would place it beside the Supreme Court of the United States and say they are the two most august tribunals that to-day exist."
In his third and closing lecture of the series Judge Moore discussed “ Judicial Power in the International Sphere." He dealt at some length with the origin and constitution of the Permanent Court of Interna. tional Justice, remarking in this connection that while Canada had a part in this great Court the United States had not. However, the proposal that the United States should become a party to it was now before the Senate and would be discussed in December. It had been supported by the Harding administration, and was favoured by President Coolidge.
Before concluding his last lecture Judge Moore sharply criticized the project of codifying International Law. He was of opinion that “ International Law can never be reduced to a written code. There is at present a committee in the United States at work on the codification of that branch of legal science, but the chances are ten to one that they will not produce it; and if they did, the chances would be a million to one that it would never be adopted by the world." That statement does more credit to the prejudice of the learned lecturer against the codification of law than it does to his diffidence in making rash prophecies.
For our understanding of the matters dealt with by Judge Moore we are indebted to “The Varsity ”-a newspaper published by the Undergraduates of the University of Toronto—and the daily press of Toronto. We hope to have the benefit of perusing an authoritative text of the lectures in due course.
CHIEF JUSTICE PERDUE RECEIVES CONGRATULATIONS.-On the 19th of June last the Honourable W. E. Perdue, Chief Justice of the Province of Manitoba, celebrated the seventy-fifth anniversary of his birthday. On the assembling of the Court of Appeal on that day, the Judges of the Court of Appeal and of the King's Bench were present to share in the congratulations of the Bar to his lordship. Speeches of felicitation were made by Sir James Aikins, K.C., Lieutenant-Governor of the Province; Chief Justice Mathers of the Court of King's Bench; Mr. A. J. Andrews, K.C., representing the Bar of Manitoba; Mr. E. Loftus, K.C., speaking as President of the Manitoba Bar Association; and Mr. J. D. Suffield, speaking on behalf of the Blackstone Club, consisting of members of the Junior Bar. Chief Justice Perdue responded in feeling terms to the congratulations so warmly tendered him, assuring those who had honoured him with their presence on the occasion that his judicial duties had proved so congenial to him that he really had not taken account of the swift-flying years of his long tenure of office—some twenty-two years. He rejoiced that his health had been such that he was privileged to give unremitting attention to the work he loved so well.
LAWYERS WHO HAVE TAKEN SILK.-Fifteen barristers of the province of Manitoba were recently appointed to the honourable office of His Majesty's Counsel. Ten of the newly appointed K.C.'s. practise their