Division was not a "final judgment" as that term is defined in the On appeal from the Appellate Division of the Supreme Court of Ontario. Judges present:-The Chief Justice, and Idington, Duff, and Mignault, JJ., and Maclean, J., ad hoc. ROMAN CATHOLIC 22nd May, 1924. SEPARATE SCHOOL BOARD V. CITY OF TORONTO. Municipal law-By-law-Building restrictions-Prior status of owners— Deposit of plans—Legal right to permit—Municipal Act, 1 Geo. V. c. 13, s. 10. The Municipal Act of Ontario by sec. 399a, passed in 1921, empowers the council of a city inter alia, to pass a by-law to prohibit, within a defined area, the erection of any building other than a private dwelling, but such by-law is not to apply to any building the plans for which were approved by the City Architect before it was passed. The City of Toronto passed such a by-law in respect to part of a street on which the Separate School Board owned two lots on which it intended to erect a school house and had filed the plans therefor with the architect who refused to grant the permit to build by direction of the Board of Control in view of the contemplated by-law. Held, reversing the judgment of the Appellate Division (54 Ont. L. R. 224), and applying Cridland v. City of Toronto (48 Ont. L. R. 266), Idington, J., dissenting, that the architect had no right to refuse to issue the permit; that under the law as it stood the Board was entitled to have its plans considered and approved if in conformity with the law; and the by-law in this case was not a valid exercise of the statutory authority. Appeal allowed with costs. On appeal from the Appellate Division of the Supreme Court of Ontario. Judges present:-Sir Louis Davies, C.J., and Idington, Duff and Mignault, JJ., and Maclean, J., ad hoc. SMITH V. ATTORNEY-GENERAL OF ONTARIO. 22nd May, 1924. Constitutional law - Temperance legislation Canada Temperance Act, Part IV., 10 Geo. V. c. 8 (D.)—Ontario Temperance Act-Prohibition of sale of liquor-Action for declaratory judgment-Parties-Status. Part IV. of the Canada Temperance Act, enacted by 10 Geo. V. c. 8, pro hibiting, in a province which adopts it, the manufacture and importation of intoxicating liquor, is in force in Ontario. The Ontario Temperance Act, 6 Geo. V. c. 50, and its amendments, is an Act prohibiting the sale of intoxicating liquor for beverage purposes and enables the Legislative Assembly, by resolution followed by a vote favourable thereto to make Part IV. of the Canada Temperance Act a law of the Province notwithstanding it permits the manufacture and sale of wine containing a large percentage of alcohol, the manufacture and export of malt and spirituous liquors and extra-provincial transactions in liquor. S., residing in Ontario, gave an order to a firm in Montreal to send him a specific quantity of intoxicating liquor. The firm refused the order on the ground that by filling it the Ontario Temperance Act would be violated and S. brought an action against the Attorney-General of Ontario asking for a judgment declaring that Part IV. of the Canada Temperance Act was not in force in that Province. Held, that S. had no status to maintain such action. Judgment of the Appellate Division (53 Ont. L. R. 572), affirmed. Appeal dismissed with costs. 2. PROVINCE OF ALBERTA. (Supreme Court, Trial.) BARCHA v. ATLAS ASSURANCE COMPANY, LIMITED. Fire insurance Insurable interest Non-disclosure to insurance com panies of tax sale-Change material to the risk. Plaintiff bought property in April, 1922, assuming, as part of the consideration, payment of the taxes in arrear. He had it insured by a policy of defendant company issued September 19th, 1922, without a written application. The property had been sold to the town under tax sale in November, 1921. Before the period for redemption expired plaintiff began negotiating for redemption. The town became the registered owner in January, 1923. It had retained a sum tendered in November, 1922, by plaintiff on account of taxes. Negotiations for redemption were continued. The town mayor and secretary told plaintiff he could have until September 2nd, 1923, to redeem. The property was assessed to him for 1923. He occupied it. It was destroyed by fire July 2nd, 1923. Held: 1. Plaintiff had an insurable interest at the time of the fire. 2. That under the circumstances the sale for taxes was not such a material fact as to make its non-disclosure, when the policy was issued, even if plaintiff knew of it (which did not appear) fatal to the policy under statutory condition I, the plaintiff having in fact (as the Court found) told of the back taxes and his efforts to pay and get time therefor. 3. That, though the plaintiff before the fire knew of the vesting of the title in the town and did not notify defendant thereof, the policy was not avoided under statutory condition 2; such vesting, under the circum C.B.R.-VOL. II.-27α stances, made no change in plaintiff's right to redeem, and it was therefore not a change material to the risk; moreover, the Court was inclined to the opinion that the change covered by statutory condition 2 is a physical change in the property insured, such as an alteration in its structure or in its method of heating or lighting or in the character of its occupancy. (Appellate Division.) BURD v. MACAULAY. Limitation of actions-Plaintiff struck by motor car-Interpretation of 21 Jac. 1, ch. 16, sec. 3. The period of limitation for an action for damages for personal injuries suffered by being struck by a motor car through the alleged negligent driving thereof by defendant is four years next after the cause of action arose. The act complained of in such a case is one of "assault" and "battery" within the meaning of 21 Jac. 1, ch. 16, sec. 3, even though due to negligence and not intentional; and the statute clearly intended that for direct violence to the person, whether intentional or negligent, an action could only be brought within four years after the occurrence. The expression "action of trespass" in said enactment is not intended to express a single category. It is a general term which in the several clauses of the section is defined and limited by the words which follow and which express particular types of the action of trespass. The real enquiry in the present action would be whether it comes properly within "action upon the case" or "actions of assault, battery," under the statute. Although it is probably true that under the old system the plaintiff in the present claim would have had the option of pleading in "case” or in "trespass," the period of limitation was not intended to depend upon the choice in form of pleading but upon the facts alleged to have occurred. Judgment of Harvey, C.J., 1 W. W. R. 369, affirmed. 3. PROVINCE OF SASKATCHEWAN. (Court of Appeal.) HOGAN ET AL. v. CITY OF REGINA. Damages-Street railway accident-Nervous shock-No apparent actual physical injury. Damages claimed for nervous shock, as a result of an accident arising from negligence, cannot be recovered where the nervous shock produces only a mental disturbance unaccompanied by any actual physical injury" (Victorian Ry. Commrs. v. Coultas, 13 App. Cas. 222, 57 L. J. P. C. 69). If impact is not necessary to entitle a plaintiff to recover, and their Lordships of the Privy Council carefully guarded themselves in the Coultas case, supra, against saying that it is, it is a question of fact in each case whether or not the plaintiff sustained physical injury and whether such injury was the natural and reasonable result of the defendant's negligence. In the case reported, where there had been impact, a plaintiff claimed damages for illness, suffering and shock. There was no apparent actual, physical injury, such as broken bones, bruises, or abrasions of the skin. The jury at trial had been properly charged as to their duty not to award damages for mere mental shock unaccompanied by actual physical injury. The jury found that the plaintiff had suffered physical injury as a result of the defendants' negligence and awarded to the plaintiff general damages $5,000, and to her husband $2,000. Held, that the jury on the evidence before them were entitled to say that, as a result of the impact and the nervous shock thereby caused, the plaintiff had suffered physical injury although no bones were broken and there was neither bruise nor abrasion of the skin. (Court of Appeal.) MACDONALD-CRAWFORD LIMITED v. BURNS ET AL. Guarantee-No primary liability attaching to principal debtor-Transac tion ultra vires of association. 66 Where an association, incorporated under The Agricultural Cooperative Associations Act, R. S. S. 1920, ch. 119 (which provides that the association shall, except as hereafter provided, pay for all goods purchased upon delivery") purchases and receives delivery of goods on credit, the transaction is ultra vires and the association is not liable for the price. There being no primary liability on the part of the association in respect of the price, there is also no liability on the part of guarantors who have guaranteed the due payment of the price. Where, in such circumstances, the guarantors are directors of the association they cannot be held liable on the ground of breach of warranty of authority. It is as much the business of the vendor as of the directors to know what the law is. All persons dealing with the association must be held to know the provisions of the statute and the limits set by it to the authority of the association and its directors. BOOKS AND PERIODICALS. Publishers desiring reviews or notices of Books and Periodicals must send copies of the same to the Editor, care of THE CARSWELL COMPANY, LIMITED, 145 Adelaide Street West, Toronto, Canada. Man and Mystery in Asia, By Ferdinand Ossendowski (in collaboration with Lewis Stanton Palen). Toronto: Longmans, Green & Co. This book is a happy blending of exhaustive information and spacious adventure-adventure encountered while on a journey of discoverywhich, despite its seeming incredibility, rings with a tone of authority and truth. It finds a fairly close English analogy in the works of W. H. Hudson, and the reader who enjoyed "Far Away and Long Ago," and "Idle Days in Patagonia," will turn eagerly to this record of primitive peoples and conditions in Asia. But Dr. Ossendowski adds fire and strength to the Hudsonian charm. The very nature of the country through which he passed, the uncivilized habits of its people, provided him with a variety of hazardous experiences that awaken every adventurous instinct. Dr. Ossendowski is, with justice, described as a remarkable writer. 'Beasts, Men, and Gods," which tells of his escape from the Bolsheviki, has been termed one of the outstanding adventure-records of the twentieth century. The following are but a few of his titles to distinction. He is a recognized authority on coals and carboniferous deposits; and acted as Fuel Administrator under Kuropatkin during the RussoJapanese War; he is well known as a journalist and writer in both the Polish and Russian languages; besides many scientific brochures, he has published more than fifteen volumes of a general character; under Kolchak, he served in the Ministry of Finance and Agriculture, and at the disintegration of the Siberian Government, he went into the Yenesei forests, a trip that inspired his previous book and enabled him to acquire the Mongolian language. After sixty turbulent days as President of the Far Eastern Revolutionary Government, Dr. Ossendowski was arrested and condemned to death. Through the intervention of Count Witte to whom he had been Industrial Adviser, the sentence was commuted to two years imprisonment. Before his final incarceration in the Fortress of Peter and Paul, the doctor was introduced to four other prisons. Thus, he added first-hand knowledge of Russian criminal procedure to his general store, and found himself well qualified to make the terrible revelations concerning Sakhalin and its convict population. Truly, as some wit has observed, "We Poles have two countries; one is Poland and the other is Siberia." The style is easy and conversational, free from pedantry and selfconsciousness. The man never overshadows the event he is relating. The most profoundly moving incidents are told so simply that the casual reader might not suspect the sheer artistry inherent in the telling. One example is that of the manner in which Cossacks hunt down and slaughter |