Page images
PDF
EPUB

ment was rendered by the Court of Appeal in November last (not yet reported). The relevant facts may be summarized as follows: On March 2nd, 1922, the accused, having made option for a speedy trial, appeared before the district magistrate, on an indictment under section 355. Witnesses were heard on both sides, and the prisoner was remanded to March 7th. On the last mentioned date, the accused was declared guilty, and, according to the entry in the Crown Book, was condemned to pay $1,095 to the person from whom he was accused of stealing—the pronouncement of sentence being suspended to April 3rd. Counsel for defence immediately moved for a stated case, which motion was granted.

Greenshields, J., rendering the unanimous judgment of the court, on the so-called "stated case” as sent up by the magistrate, took occasion to point out what a stated case, in such circumstances, should contain. It should, he says, be composed of: (a) Part I, in which should be set out the facts as proved before the magistrate, according to the magistrate's opinion, and upon which he bases his rulings or decisions in law.

(b) Part II, containing the questions of law upon which the appellate court is asked to pronounce.

In the present instance, the stated case consisted practically of a copy of the entries in the crown book, followed by two questions: 1. Does the charge contain every necessary ingredient of a criminal offence under sec. 355 of the Criminal Code?

2. Does the evidence submitted on behalf of the accused (sic) warrant the judge to come to the conclusion that an offence has been committed by the accused ?

There was no statement of the facts as found by the magistrate, consequently the appeal tribunal was hardly in a position to decide whether or not there had been an error in law. When & motion for a stated case is granted and the case is sent up by the magistrate it is not for the appellate court to appreciate the evidence (unless, indeed, there be an allegation that there is no evidence upon which to convict); it should take the facts as found by the magistrate and pronounce upon the questions of law on the assumption that the findings of fact were correct. When the magistrate refuses to grant a motion for a stated case, and appeal is taken from that ruling, then and then only should the court look into the evidence, to ascertain whether there is ground for the application. In the case in question, as no statement of the facts as found was submitted, the court was obliged, acting under sec. 1017, sub. par. 3, to remit the case to the magistrate for restatement. And so the wheel of justice is set back a revolution.

Incidentally, Greenshields, J., commenting with characteristically humorous sarcasm on the wording of the second question, points out that one of the essential elements of an offence under sec. 355 is that the accused must have received the money or valuable security, etc., on terms requiring him to account therefor to someone other than the person from whom he received it. This is clear from the wording of the section itself, and as the accused (an attorney) had got control of the money by inducing his client to endorse a cheque, given to him for her, so that he might cash it and remit the proceeds to her, the indictment as drawn was bad. In all probability, therefore, when the case comes up again, on the restatement, the wheel of justice will again be set back.

0. S. T.

(c) Canadian Provinces Generally. In the Western Canada Hardware Co., Ltd., v. Farrelly Bros. Ltd. (1922) 3 W.W.R. 1017, the plaintiffs sought a declaration that they were entitled under The Mechanics' Lien Act of Alberta to & lien upon a portion of an irrigation ditch for material supplied to a subcontractor. The ditch was the property of an irrigation district formed under a provincial statute and described by Stuart, J.A., as "a public municipal corporation of a special kind established to effect a definite public purpose." The authority to construct the work was, however, obtained under The Irrigation Act, a Dominion statute, R.S.C. 1906, c. 61, public waters being reserved to the Dominion by section 21 of the Alberta Act. The court, on this state of facts, held that a declaration of the existence of a mechanic's lien upon the ditch would be such an interference with federal property and federal legislation with respect thereto as could not be justified under any section of the B.N.A. Act.

This was sufficient to dispose of the case but the court went on to consider the general question of the application of The Mechanics' Lien Acts to public and quasi-public corporations. The cases most in point were those concerning railways. In King v. Alford (1885) 9 O.R., 643, Boyd, C., adopted the view that property exempt from sale under execution must be equally exempt from the operation of the mechanics' lien law, and he held that railways, being generally in these days essential to

public use and convenience, are “protected on grounds of public policy from being cut in pieces and destroyed by sale under legal process.” A similar view was taken by Meredith, J.A. in Crawford v. Tilden (1907) 14 O.L.R. on page 575 where he says “where power to build and maintain a railway is conferred, the rights of the public in the concern, as a highway, are of paramount importance.” In Redfield v. Corporation of Wickham (1888), 13 A.C. 467, Lord Watson recognized the same principle but held that the Dominion Act, 46 Vict. c. 24, had rendered a railway, or any part of it which could be operated as an integer, liable to sale under execution.

Coming now to municipal property, Killam, J. in McArthur v. Dewar, 3 Man. R. 72, held that a mechanic's lien could attach upon the city hall at Winnipeg, but this was mainly because the statute expressly rendered property of the corporation liable to execution.

With regard to school buildings and grounds there has been a diversity of opinion. In Scott v. Burgess and Bathurst School Trustees, (1859), 19 U.C., Q.B. 28, Burns, J., holding that a school house and site could not be sold under execution, placed his decision upon the ground of public policy: “I think it is against public policy to permit public property of this description to be sold under execution.” The full court of Saskatchewan, however, held in Lee v. Broley, (1909) 2 Sask. L.R. 288, that the lands of a school district were liable to be sold under the provisions of The Mechanics' Lien Act, Wetmore, C.J., declaring that while it might be allowable to argue that creditors could not under execution take by piece-meal the road bed or buildings of a railway, “a great public utility,” and thus stop the running of the road, this reasoning did not apply to a school, because “if the property of a board of school trustees is taken from them under execution the most it can mean is that they have got to build another school house." A similar view had been taken in Moore v. Bradley, (1888) 5 Man. R. 49. In 1912 the Supreme Court of New Brunswick held in Connely v. Havelock School Trustees, 9 D.L.R. 875, that public school buildings were subject to the Mechanics' Lien Act, although not liable to seizure in execution, and although not liable to be sold to satisfy the lien. In Hazel v. Lund, (1915) 9 W.W.R. 749, the Court of Appeal of British Columbia divided evenly on the question as to whether a mechanic's lien attached upon school property, but this conflict of opinion was due to the judges drawing precisely opposite conclusions from a provision of the Public School Act that property acquired for school purposes "shall not be subject to taxation nor be liable to be taken in execution."

Is there any clear principle running through these decisions? In the case from Alberta under consideration Stuart, J.A. states what, he thinks, was the usual rule, “that it is against public policy that such an enterprise (as an irrigation ditch) should be permitted to be practically destroyed by process of execution." In the railway cases public policy governs. Nihil quod inconveniens est licitum. Private rights must yield to the public welfare. What is the difference between a railway and a school house from this point of view? Is it anything but a matter of degree? On principle the better opinion would seem to be that, in the absence of special legislative provisions, not only railways, but court houses, city halls, fire halls, schools and other public buildings should be exempt from sale under execution or under mechanics' lien proceedings. The problem is to some extent being met by statute. Manitoba defines the “owner," against whose property a lien may be filed, as including “a municipal corporation,” and Ontario includes "a municipal corporation and a railway company,” but until legislation is generally adopted dealing specifically with the various classes of property involved, the principles and authorities discussed by Stuart, J.A., will require consideration.

R. W. S.

Re Union Bank of Canada v. Turner, (1922) 3 W.W.R. 1138, in the Manitoba Court of Appeal, contains, in the judgment of Cameron, J.A. a contribution to the discussion of the much vexed question of the exact effect of a caveat under the Torrens System. It falls, unfortunately, far short of being an authoritative clarification of the law on this point, even as regards Manitoba. There was an appeal from the judgment of Adamson, J. discharging a caveat. It has been laid down frequently that on a summary application to discharge a caveat or to maintain it after notice given, where it appears that important questions of law or disputed questions of fact are involved, a judge will not determine the matter but will direct an issue. In this appeal all five judges evidently agreed that the case at bar fell within the foregoing category. Cameron, J.A. expressly states that, whether or not the views he presents as to the effect of a caveat be correct, an issue should have been directed on other grounds. Dennistovn, J.A., while expressing his concurrence with Cameron, J.A. in his statements of law, does not think they are relevant to the issue. The remaining three judges merely concur in the result.

On February 1st, 1917, one Kennedy agreed to sell to The Chalfont Estate Company of Winnipeg, Limited, his interest in certain land. Subsequently, on March 23rd, 1917, Kennedy mortgaged his interest in that land to the Union Bank, evidently without reserving the rights of the Chalfont Company. The latter company filed no caveat. On May 17th, 1917, the Union Bank filed a caveat under its mortgage of March 23rd, 1917. Cameron, J.A., was of opinion that by reason of its caveat, the Bank obtained unimpeachable priority over the Chalfont Company's interest in the same way as if Kennedy had been registered owner and had given two successive registrable charges to the Chalfont Company and to the bank, the second of which had been (without fraud) registered first.

This is the exact opposite of what was held to be the result by Macdonald, J. in McKay v. McDougall, 14 Sask. L.R. 111. In that case the essential facts in order of time, as found by MacDonald, J. were that McDougall agreed orally to sell land to McKay; then orally agreed to sell the same land to Rusconi; then the oral agreement to sell to McKay was attempted to be reduced into writing but in such a way that the writing was held as a fact to create a new contract; then Rusconi's contract was put into writing; then McKay registered a caveat claiming under his written agreement; then Rusconi took transfer, obtaining certificate of title subject to the McKay caveat. MacDonald, J. held that McKay's claim under his written agreement, being subsequent in time to, and therefore weaker in equity than, Rusconi's oral agreement, could not be strengthened by the mere filing of a caveat, and he directed the registration of the caveat to be discharged. Rusconi being a defendant, the Statute of Frauds did not enter into the question. The decision of MacDonald, J. was reversed on appeal to the Court of Appeal and the reversal affirmed by the Supreme Court of Canada but on a finding of fact in such a way as to leave the law, as laid down by MacDonald, J. on the point under discussion, unconsidered and neither reversed nor affirmed.

These two decisions illustrate clearly what appears to be a very substantial difference in the function of a caveat under the Torrens Acts of the prairie provinces, which are generally assumed to be built up on similar lines; that is to say, between

« PreviousContinue »