Page images

should thereafter be paid to him, and the trustees, bonâ fide, continued to pay it to the mortgagor for about a year and a half, when the plaintiff brought the present action claiming to recover all income which had accrued since the giving of the notice; but Sargent, J., who tried the action, held that the mere giving of notice of the mortgage was not equivalent to taking possession of the mortgaged property, but had no further effect than the giving notice of a mortgage of real estate, and did not deprive the mortgagor of the right to continue to receive the income. He held therefore that the action failed as against the trustees; but he was also of the opinion that even if the payment were wrong, it was a case for granting the trustees relief under the Judicial Trustees Act, 1896, s. 3 (see R.S.O. c. 121, s. 37), and that it was not necessary for them to plead the Act as a defence.




In re Crawford (1917) 1 Ch. 550. This was an application to register the name “Crawford” as a trade mark for biscuits, cakes and shortbread, and the application was refused, it appearing that it was a common surname in Scotland, and not uncommon in England, although it was shewn that the name had been identified for twenty years with the applicants' goods, for which they had acquired an extensive trade in Scotland and England.



Great Western Ry. Co. v. Wills (1917) A.C. 148. This was an appeal from the decision of the Court of Appeal, 1915, 1 K.B. (noted ante vol. 51, p. 234). The case turns upon the construction of a consignment note for 752 carcasses of frozen mutton, whereby it was provided that they should be carried at a reduced rate and that the defendant railway company should be relieved from all liability for loss, damage, misdelivery, delay or detention" unless arising from the wilful misconduct of their servants, but not from any liability they might otherwise incur in the case of “non-delivery of any package or consignment fully and properly addressed” and that "no claim in respect of goods for loss or damage during the transit" should be allowed

unless made within three days after delivery of the goods in respect of which the claim was made, or “in the case of non-delivery of any package or consignment" within fourteen days after despatch. When the consignment arrived at its destination there were twelve of the carcasses missing. A claim was made by the consignor within fourteen days from the despatch of the whole consignment, but not within three days from the delivery of the rest of the carcasses. The Court below considered that the non-delivery of the twelve carcasses was “the non-delivery of a consignment," and therefore that the plaintiff's claim was made in time. The majority of the House of Lords considered that the "non-delivery of a consignment" in the consignment note, meant non-delivery of the consignment as a whole, and that it was really a question of fact whether the delivery of the 740 carcasses was a substantial delivery of the consignment, notwithstanding the shortage in delivery, and that, strictly speaking, there ought to be a new trial on that question ; but the amount involved being small, the parties agreed to waive a new trial, and their Lordships (Lords Loreburn, Haldane, Kinnear, and Parmoor-Lord Shaw dissenting), disposed of the case on the assumption that the delivery of the 740 carcasses was a substantial delivery of the consignment,' and therefore that the time for making claim was limited to the three days from that delivery and the plaintiff was therefore too late. Lord Shaw considered that "the delivery of the consignment" meant the delivery of every part of it, and that the omission to deliver any part of it was a "non-delivery of the consignment;" but the majority thinking otherwise the appeal was therefore allowed.



Montreal Street Ry. v. Normandin (1917) A.C. 170, deserves attention. It was an appeal from a Quebec Court and the question raised thereby was as to the validity of a verdict given in a civil action, where the proper officers had neglected to revise the list of jurors as required by R.S.Q. c. 909, art. 3426; and it was claimed that one of the jury was disqualified from being a juror under art. 455 (2) of the Code. Their Lordships the Judicial ('ommittee of the Privy Council (Lords Haldane, Buckmaster, Dunedin, and Parker, and Sir A. Channell), found that there was no evidence in support of the alleged disqualification of a juror, and that it had not been established that the appellants had been really prejudiced, and they therefore came to the conclusion that in the circumstances the statutory provisions as to making the jury panel should be regarded as directory, and the omission to comply therewith did not render the jurors who tried the case disqualified from acting as jurors. The appeal therefore failed.


Inter arma legis silent does not seem to be a maxim of universal application. Recently a mob gathered around a jail in a Virginia city clamouring for the blood of a prisoner confined therein and manifesting a strong disposition to overcome the guards and break in the jail door. The Judge of a local Court mounted the jail steps, accompanied by his clerk and bailiff, opened Court in due form, and announced that any person disturbing the peace in that vicinity would be committed for contempt. The crowd promptly withdrew and the riot was over. Even allowing something for the American sense of humour, the incident affords some scope for reflection. Every man in that mob was guilty of a felony and liable to a penalty more severe than any which could be imposed for contempt, but that did not in the least deter them from their unlawful enterprise. What made the difference? Simply that in the one case the apprehended penalty was certain and immediate, while in the other it existed only in the dim future, beyond a hundred delays and a myriad of possible salvation-working quibbles. The lesson is plain and emphatic. When criminal trials are prompt and businesslike, with technicalities summarily brushed aside, punitive justice will gain immeasurably in its deterrent effect, and penalties can be humanized without detracting from that result.Law Notes.

Reports and Aotes of Cases.

Province of Alberta.


Harvey, C.J., and Stuart,
Beck, and Walsh, JJ.)


[34 D.L.R. 514.

1. False pretences-Fraud of employee tendering under cover of a

trade name— Obtaining rejection of lower tender. Where an employee makes representations to his employer to the effect that a tender for the supply of goods to the latter is an actual bonâ fide one from an independent tenderer, whereas it was in fact, although unknown to the employer, the employee's own tender, submitted in a different trade name through such employee's nominee, the employee may properly be convicted of obtaining by false pretences the additional money which, by means of such tender and his employer's reliance on the same as independently made, he obtained for the goods supplied over and above the amount for which the employer would have obtained them by acceptance of a competitive tender which the employee fraudulently caused to be rejected.

R. v. Cooper, 2 Q.B.D. 510, 46 L.J.M.C. 219, considered.

2. Indictment-False pretences.

An indictment or charge for obtaining money under a false pretence is not bad for not setting out what the false pretence was or stating to whom it was made. (Code secs. 852, 1152, Code form 64 (c)).

A. A. McGillivray, for the Crown; J. McKinley Cameron, for accused.


In a charge for obtaining goods by false pretences it must be proved (1) that a false pretence was made, (2) that the prosecutor believed the pretence, and (3) that the goods were obtained by means of the pretence. R. v. King, (1897) 1 Q.B. 214. The offence declared by Code sec. 405 of the Criminal Code 1906 applies to "anything capable of being stolen” and which is obtained by any false pretence as defined by sec. 404. And sec. 405A makes it an indictable offence for a person in incurring any debt or liability to obtain credit “under false pretences or by means of fraud.” The definition of "false pretense" contained in Code sec. 404 is as follows:

"404. A false pretense is a representation, either by words or otherwise, of a matter of fact either present or past, which representation is known to the person making it to be false, and which is made with a fraudulent intent to induce the person to whom it is made to act upon such representation.

“(2). Exaggerated commendation or depreciation of the quality of anything is not a false pretense, unless it is carried to such an extent as to amount to a fraudulent misrepresentation of fact.

“(3). It is a question of fact whether such commendation or depreciation does or does not amount to a fraudulent misrepresentation of fact."

The false pretence need not be made in words or writing, it may be made “otherwise" and it will suffice if it is signified by the conduct and acts of the accused. R. v. Létang (1899), 2 Can. Cr. Cas. 505.

To render a defendant liable, his false representation must have been with regard to a past or existing matter, not to a future undertaking as that he will pay for goods on a certain day. Mott v. Milne, 31 N.S.R.372; Regina v. Bertles, 13 U.C.C.P. 607.

The false pretence must be a false representation, express or implied, as to the past or present existence of some fact; a mere promise as to future conduct, or representation as to future expectations are not sufficient. For instance, the giving a cheque in exchange for goods is ordinarily a representation that the drawer has an account at the bank on which the cheque is drawn, and that that account is in such condition that in the ordinary course of events the cheque will be met. If the drawer knows that these conditions do not exist, the giving of the cheque is in law a false pretence. But representations of future expectations, unless they are representations of existing facts, do not constitute a false pretence, and obtaining goods on credit by means of such representations is not obtaining goods by false pretences. The false pretence may be made in any way, either by words, by writing, by conduct. It is no excuse to say that a person of common prudence could easily have found out the pretence was untrue, nor to say the existence of the alleged fact was impossible, or that it was intended to make compensation for the goods in the future. Tremeear's Criminal Code sec, 404; R. v. Martel, 27 Can. Cr. Cas. 316.

« PreviousContinue »