CURRENT COMMENTARY UPON ENGLISH AND CANADIAN DECISIONS.

ENGLISH DECISIONS.1

Rights under contract for sale of land before conveyance executed.-The first case in the Law Journal reports for March is a decision of the Judicial Committee upon the effect of a certain section of the British Columbia Land Registry Act, 1906, which is not to be found in our Ontario Land Titles Act, to the effect that an unregistered instrument affecting land shall not be receivable as evidence or proof of the title of any person to such land, as against the registered title of any person to the same land, except in an action questioning the registered title to such land on the ground of fraud. The case, however, (Howard v. Miller)1 is of general interest for two reasons. In the first place by virtue of that passage in their lordships' judgment where they say: "It is sometimes said that under a contract for the sale of an interest in land, the vendor becomes a trustee for the purchaser of the interest contracted to be sold subject to a lien for the purchase money; but, however useful such a statement may be as illustrating a general principle of equity, it is only true if and so far as a Court of Equity would under all the circumstances of the case grant specific performance of the contract. The interest conferred by the agreement in question was an interest commensurate with the relief which equity would give by way of specific performance." In the second place the judgment illustrates the discretionary nature of a decree for specific performance, their lordships holding that although by virtue of the section of the British Columbia Act, an unregistered deed was not admissible in evidence to disprove the plaintiff's registered title.

It will be noticed that in our monthly Current Commentary the LAW JOURNAL REPORTS are resorted to primarily. The excellence of these Reports has received many tributes in high places. They have the advantage of including all the cases for the month in a single volume. Cases are reported promptly and the judgments are, we are informed. revised by the Judges, just as they are in the case of the so-called "regular Law Reports."' As a matter of fact the Master of the Rolls stated (Ti. L. R., May 21st, 1887):-" All reports made by gentlemen of the Bar, and published on their own responsibility are equally regular. There is no superiority in the reports of the council of Law Reporting." The subscription price is exactly half that of the LAW REPORTS.-EDITOR C. L. T.

184 L. J. P. C. 49, [1915] A. C. 318.

yet, the action being one for specific performance of the contract, the unregistered deed was a material circumstance which the Court must take into account in deciding the extent to which specific performance ought to be granted, and was, as such, admissible. The plaintiff's registered title was as purchaser under the contract sought to be enforced; in other words, he was registered only in respect of an interest commensurate with the relief which equity would decree by way of specific performance of that contract. The unregistered deed, therefore, was not needed or adduced to dispute the plaintiff's registered title, but only as a material circumstance in defining the extent of it.

Appeal to Supreme Court after reference to fix damages. -Windsor, Essex and Lake Shore Rapid R. W. v. Nelles, is a decision of the Judicial Committee which is worth noticing chiefly to illustrate the change made in the Supreme Court Act by 3-4 Geo. V. ch. 51, sec. 1, D. since the question in that case arose. That question was, or rather during the greater part of the proceedings below had been assumed to be, whether, where a judgment had been given for the plaintiff, and a reference made to fix damages, an appeal to the Supreme Court would lies on the whole matter after the amount of damages was finally ascertained. It was held by the Supreme Court, in accordance with certain previous decisions of that Court, that an appeal would not lie, because a judgment containing a reference to ascertain damages is not a final judgment' within the meaning of sec. 37 of the Supreme Court Act. The Court held that an appeal would lie from a judgment of the provincial Court of Appeal affirming the judgment on further directions which had been made after ascertainment of the damages, but that the merits of the original judgment at the trial which had directed the reference could not be gone into on such an appeal. Now, however, 3-4 Geo. V. ch. 51, sec. 1D, enacts that- Save as regards appeals from the province of Quebec, "final judgmeans any judgment, rule, order, or decision which determines in whole or in part any substantive right of any of the parties in controversy in any action, suit, cause, matter or other judicial proceeding.'

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284 L. J. P. C. 54, [1915] A. C. 355.

VOL. XXXV. C.L.T.-28

The action, however, had been brought for specific performance of an agreement to deliver certain bonds and shares, and the reference to ascertain damages had been made in default of specific performance. The Board, therefore, held, affirming the judgment of the Court of Appeal on a motion. to extend time and for leave to appeal, that the action was in the nature of a suit or proceeding in equity' within the meaning of sec. 38 (c) of the Supreme Court Act, which provides that, in such case, an appeal will lie to the Supreme Court from the judgment, whether final or not, of the highest Court of final resort' or any province of Canada. Consequently their lordships say-" An appeal as of right against the judgment of April 21st, 1900," (i.e., the judgment of the Ontario Court of Appeal affirming the judgment of the trial judgment for specific performance, and in default damages) "lay under sec. 38 (c) of the Supreme Court Act. That appeal was not taken, and although their lordships are willing to consider that an application under sec. 71" (i.e., for an extension of time for appealing) quite competent, that application was made and was refused by the unanimous judgment of the Court of Appeal of Ontario of June 18th, 1912. Their lordships have come to the conclusion that, if these facts had been fully stated and understood as they now are, no leave to appeal would have been given in this case. In their lordship's view it would be most unfortunate that, where a matter could have been brought up in the ordinary course, and where the discretion of the Court has been exercised, of saying that indulgence as to extended time should not be given, the whole of the proceedings should be allowed to come to an end, a long lapse of time intervening, and then the whole matter be opened from the very beginning by an appeal to this Board."

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Powers of provincial legislatures in relation to Dominion railways. Attorney-General for Alberta v. Attorney-General for the Dominion of Canada, is an appeal to the Privy Council upon a point of Canadian Constitutional law, in which it is not surprising that the respondents were not called upon. The appellants sought to maintain the validity, of a provincial Act which assumed to empower a provincial railway company to take possession of, use, or occupy any lands belonging to a Dominion railway company, in so far as the

384 L. J. P. C. 58, [1915] A. C. 363.

taking of such lands do not unreasonably interfere with the construction and operation of' such railway. It also purported to authorise the provincial railway company, under a like condition, to use and enjoy . . the right of way, tracks, terminals, stations or station grounds of' a Dominion railway. Their lordships had no difficulty in holding the Act ultra vires; and that it would still be so even if the word 'unreasonably' were omitted. Their lordships say:

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Railways such as are described in sec. 92, sub-secs. 10 (a) and (c) (of the British North America Act) come under the exclusive legislative authority of the parliament of Canada. The provincial legislature, therefore, has no power to affect by legislation the line or works of such a railway. The provisions of the Act. of the legislature of Alberta constituted unquestionable legislation as to the physical construction and use of the track and buildings of a Dominion railway, and that of a serious and far reaching character. Their lordships have no hesitation, therefore, in pronouncing (it) ultra vires of the Alberta. legislature. They are further of opinion that it would not become intra vires if the word 'unreasonably' were struck out of the section. It would still be legislation as to the physical tracks and works of the Dominion railway, and as such would be beyond the competence of the provincial legislature." Perhaps the Board has never had an easier constitutional question to deal with. The judgment of the Board, however, requires notice for another reason than the point of Constitutional law decided in it. The matter came up originally before the Supreme Court upon questions admitted by the Governor-General in Council under the provision of the Supreme Court Act in that behalf. The questions were directed to the constitutionality as a whole of the provincial. legislation, but on hearing before the Supreme Court, counsel for the appellants practically confined their arguments to the single case of a provincial railway owning the track of a Dominion railway. Their lordships say, as to this, that they, "are of opinion that great care should be exercised in permitting questions thus referred to the Supreme Court to be varied, more especially when those questions come up on appeal for decision by their lordships. It may no doubt happen that the questions relate to matters which are in their nature severable, so that the answers given may cast

light upon the effect of the deletion or alteration of parts of the provisions the validity of which is being considered. But their lordships do not desire to give any countenance to the view that counsel may vary the questions by hypothetical limitations not to be found in the provisions themselves or in the questions that relate to them."

Railway Crossings.-Nevertheless, the Board say that they consider the case chosen by counsel has strong claims for separate consideration, and as to it they say:-" The parliament of the Dominion is entitled to legislate as to these crossings" (sc. by a provincial railway of the track of a Dominion railway) "because they are upon the right of way and track of the Dominion railway as to which the Dominion parliament has exclusive rights of legislation, and, moreover, as the provincial railways are there by permission and not of right, they can fairly be put under terms and regulations. But sec. 8 of the Railway Act of the Dominion and the clauses which are by it made binding on any provincial railway crossing a Dominion railway appear to their lordships to indicate that it is part of the functions of the Railway Board to permit and to regulate such crossings. . By these provisions the Dominion legislation has in their lordships' opinion given to provincial railways desiring to cross a Dominion railway all the locus standi that they need for making an application to the Railway Board for permission to do so. The Railway Board is bound to exercise these powers given to it just as much as all other powers given to it so as to advance the best interests of the public. In this way the legitimate claims of provincial railways are in fact met as fully as is practicable, and this without risking the chaos of overlapping legislative powers."

The John Deere. Plow Company Ltd. v. Wharton, we have already noticed at great length in our issue for February last.

Donationes mortis causâ. It is pointed out by Lord Hardwicke in Ward v. Turner, that donationes mortis causâ fall into two classes. There is first the class of cases in which a complete delivery or transfer takes place, such as would be sufficient in the case of an ordinary gift, and as in

84 L. J. Ch. 64, [1915] A. C. 330.

2 Ves. sr. 431.