RECENT DECISIONS.

1.-EXCHEQUER COURT OF CANADA.

MACLENNAN, L.J.A.

December 4th, 1923.

(Quebec Admiralty District.)

GEORGE HALL CORPORATION v. THE SHIP "FIFETOWN.” Shipping-Collision-Canal-Rule 22 of Rules of the Road for the Great Lakes-Unseamanlike manoeuvre-Negligence.

This was an action in rem for damages arising out of a collision between the steamship MacTier and the steamship Fifetown on the night of October 2nd in the Soulanges Canal. The plaintiffs herein are the owners of the MacTier and action is brought to recover damages by reason of the collision between the Fifetown and the MacTier.

The M. was upbound on the Soulanges Canal, light in ballast, being high out of water forward, drawing 3 feet 2 inches with 30 feet above water and drawing 12 feet 8 inches aft only 15 feet out of water, and the F. was coming down with the current loaded with grain. The night was fine and clear with south-west wind of 18 to 20 miles, blowing across the canal. The vessels had all regulation lights burning and the M., before leaving lock No. 3, saw the lights of the F. There is a slight bend in the canal about three-quarters of a mile above this lock and when the M. had rounded the bend the ships were four or five boat lengths apart. A two-blast signal was then given and answered. Both ships were in mid-canal at the time and when they met and were passing, the bluff of the M.'s starboard bow 25 feet abaft the stem collided with the bluff of the F's starboard bow about 15 feet abaft the stem.

Held, that under the facts as stated above the M. should not have attempted to pass the F., which had the right of way under the rules, but should have moored to the bank until the F. had passed her; and to continue her course was not good seamanship on the part of the M.

2. That the F. coming down the canal with the current had the rightof-way, under Rule 25 of the Rules of the Road for Great Lakes.

3. That the burden of proof was upon the M. to establish that the collision was caused by the improper navigation of the F.

AUDETTE, J.

Action dismissed.

October 22nd, 1923.

KIDD V. THE KING.

Crown-Dismissal of a civil servant or military officer-Prerogatives of the Crown-Power of Parliament to take away-Conditions.

Held, that the right of the Crown to fix the amount of a pension or superannuation allowance, must be deemed to be imported into every

C.R.R.-VOL. II.-5

appointment of a civil servant or a military officer. This is a right of the Crown in virtue of its prerogative which Parliament may take away, but its intention so to do must be clear beyond all manner of doubt. In case of doubt the courts should regard the prerogative as unimpaired.

Petition of right dismissed.

AUDETTE, J.

Patents

November 14th, 1923.
December 15th, 1923.

THE PERMUTIT COMPANY v. BORROWMAN

Conflicting applications—Interference-Motion to amend claims in the application filed before Commissioner after notification of interference-Functus officio-Jurisdiction of the Court-Practice.

Patents Conflicting applications—Action to have it declared who was first inventor-United States Rules of reduction to practice—Applicability in Canada.

At the opening of the trial motion was made by the defendant to amend. Both plaintiff and defendant applied for a patent and the Commissioner found that there was conflict between them and gave notice of such finding to both parties. Thereupon plaintiff took action in this Court to have it declared he was the first inventor of the patent in question. After the institution of the present action defendant presented further claims to the Commissioner to be added to his application which were refused owing to the action having been instituted. At trial defendant moved to add further claims to his application as filed before the Commissioner and now filed in Court. Subsequent to the notice declaring conflict, correspondence was carried on between the defendant and the Department from which it is alleged it might be implied that the Department was still dealing with such application and the defendant contended that this kept the matter open in the Department and that it was not yet ripe to be brought before the Court.

His Lordship Mr. Justice Audette gave judgment from the Bench, holding that all acts of the Commissioner of Patents or the Department, subsequent to the notice given to the parties, declaring a conflict, were irregular, the Commissioner having then become functus officio. That the Court has no jurisdiction to pass upon any claims other than those which are referred by the Department and which have already been passed upon by the Commissioner of Patents, and that the motion to amend should be dismissed.

The trial was then proceeded with and final judgment was rendered on the 15th of December, 1923, whereby it was held that where the Commissioner of Patents under section 20 of the Patent Act has declared a conflict between two applications for patents for the same invention, and one of the applicants institutes proceedings in this Court to have it declared who was the first inventor, the Court ought to assume that the Commissioner of Patents has found that the patent applied for is meritorious and involves invention, and should restrict its finding solely to the issue of priority of invention between the parties.

2. That the American rule in interference cases of "reduction to practice" requiring corroboration of the discovery by way of disclosure, drawings and even models, being based upon an elaborate code of patent office rules, has not been adopted in Canada and ought not to be applied by the Court in dealing with conflicting applications.

AUDETTE, J.

(On appeal from Toronto Admiralty District).

December 1st, 1923.

THE NIAGARA, ST. CATHARINES AND TORONTO RY. CO. v. THE LAKES AND ST. LAWRENCE TRANSIT COMPANY.

This was an appeal from the decision of the local Judge in Admiralty for Toronto Admiralty District. In this case the defendant owned and operated a swing bridge over the Welland Canal. Plaintiff's ship the L.. on the night preceding the accident, was forced to tie up on account of stormy weather. Next morning, the weather being still stormy with a high gusty wind blowing across the canal, the L. cast off, steamed up towards the bridge and attempted to pass through before it was fully opened. When the L. was partly through the opening, the swing of the bridge was stopped by a great gust of wind and the bridge was blown back striking the L. which had ventured into the gap, causing her considerable damage. Hence the present action. The bridge had been in operation for years and the brakes had been inspected a few days before and found in perfect condition.

On appeal it was held, by Judge Audette, reversing the judgment appealed from, that, on the facts, that neither the machinery nor the handling of the bridge in any way caused or contributed to the accident, but that the L., in attempting to pass through before the bridge was fully opened was, per se, apart from any rules forbidding it, guilty of negligence and of reckless and unseamanlike manoeuvre, which was the sole originating and determining cause of the accident.

2. That under section 22 of the rules and regulations for the guidance and observance of those using and operating canals, the onus is thrown upon the master in charge of any vessel to ascertain for himself, by careful observation, whether the bridge is prepared to allow him to enter or pass; and furthermore, that the regulations of the Board of Railway Commissioners of the 30th of April, 1914, passed under sections 30 and 232 of the Railway Act (R. S. 1906, ch. 37), governing the opening of railway bridges, and providing that a bridge is not so prepared until it is fully opened, are valid and binding on vessels passing through the same.

3. That, the fact that it may have been customary to enter the bridge before the swing was fully opened did not absolve the ship from negligence; such a custom being dangerous and unreasonable could not be the

foundation of a claim against another person where an accident had occurred by the injured ship putting the custom into practice.

(Turgeon v. The King, 15 Ex. C. R. 311; 51 S. C. R. 588, referred to).

AUDETTE, J.

Appeal allowed. November 15th, 1923.

THE KING v. THE SAYWARD TRADING AND RANCHING COMPANY LIMITED AND OTHERS.

Crown Soldier Settlement Board-Principal and agent-Right to sue in Crown's name 9-10 Geo. V. ch. 71, secs. 4 and 41 settler disposing of property-Validity.

Agreement by

Under the provisions of the Soldier Settlement Act, B., H., M. and A., four of the defendants, applied for a loan from the Soldier Settlement Board, which thereupon entered into an agreement to sell to them certain lands, stock, machinery, etc. The Board then acquired such land, stock and machinery and conveyed same to said B., H., M. and A., under the agreement, and placed them into possession thereof. Previous to their application (namely, on the 25th of June, 1919), B., H., M. and A. had entered into an agreement with the S. Co., the other defendant, for the acquisition of the K. property (afterwards purchased by the Board), the purchase price to be procured out of a loan to be obtained by B., H., M. and A. from the Board. In compliance with said agreement, B., H., M and A. assigned to the S. Co, all redeemable interest they might have in the property, and the company thereunder took possession and assumed ownership of the same, and still hold a certain part thereof as against the Board. Said assignments were not deposited with the Board, and B., H., M. and A., without have obtained the permission of the Board for the purpose, were not living on their farms. Action was now brought to recover said property and to have the agreements with the S. Co. declared null.

Held, that the said action was properly instituted in the name of the Crown.

2. That as the Soldier Settlement Act was passed solely for the benefit of returned soldiers, the Board could not recognize transactions between the settler and the S. Co., whereby others than the returned soldier would benefit, and any such transactions are illegal.

3. Inasmuch as the settlers were still indebted to the Board, for advances made in their behalf, nothing passed under the agreement of the 25th June, 1919, and the assignments referred to above, with respect to the property in question. The King v. Powers, 1923 Ex. C. R. 131, referred to.

LENNOX, J.

2. PROVINCE OF ONTARIO.

6th December, 1923.

High Court Division.

GARDNER v. CITY OF NIAGARA FALLS.

Wrongful dismissal—Municipal Act, R. S. O. 1914, ch. 192, sec. 246-Officers hold office during pleasure.

The defendant by the ordinary New Year by-laws appointing officers for the municipal year engaged the plaintiff as its engineer for the year

1922. He was dismissed on 25th August, 1922, by resolution of the Council without assigning any reason for its action.

The plaintiff brought this action claiming damages for wrongful dismissal.

The defence rested its case solely upon the provision in the Municipal Act R.S.O. 1914, ch. 192, sec. 246: "All officers appointed by a Council shall hold office during the pleasure of the Council."

The section in its present form was enacted by 3-4 Geo. V. ch. 43, the earlier section having read: "All officers appointed by the Council shall hold office until removed by the Council." Held, that the action failed. The learned Judge said that in the present section the legislature had adopted the meaning assigned to the earlier Act by Armour, J., in Wilson v. Corporation of York, 46 U.C.R. 289, followed in Hellems v. St. Catharines (1895) 25 O.R. 583. Held, also, that the Council is not bound at the time of dismissal or at any time to assign a reason or justification therefor, but that does not imply that they ought not to satisfy the conscience of the Court, if they can, that their action was not harsh, arbitrary or unfair.

The action was dismissed without costs.

Habeas Corpus Children's Protection Act-Father's religious faith.

This was an application by the father for an order directing that his infant children be placed in Roman Catholic foster homes as the Children's Protection Act R.S.O. 1914 c. 231 provides.

The applicant was an illiterate man who neither spoke nor understood English. He was left a widower with several infant children whom he was too poor to support. According to his evidence he applied to the Roman Catholic Church, of which he and his wife and children were members, for help in securing a home for his children, but failed.

He was then advised by his father and a cousin, Catholics who had become Protestants, to give the children into the care of the Children's Aid Society of Prescott and Russell Counties to be brought up as Protestants. He executed an instrument, in which he was described as a Protestant, directing that his children should be placed in a good and approved family home where they should be treated kindly and brought up in the tenets of the Protestant faith.

The learned Judge found that the applicant was made to understand and did in fact understand that this society was an exclusively Protestant society and that he must do as he did or let his children starve or become vagabonds. He did not know that this was directly contrary to the Act