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of his mother, and therefore the applicant was entitled to the grant, in preference to the representatives of the deceased child. and widow.

MERGER

INTENTION

EVIDENCE

SUBSEQUENT DEALINGS

WITH PROPERTY.

In re Fletcher, Reading v. Fletcher (1917) 1 Ch. 339. This was an appeal from the decision of Astbury, J. (1917), 1 Ch. 147 (noted ante p. 182), and the Court of Appeal (Lord CozensHardy, M.R., Warrington, L.J., and Lawrence, J.), have reversed his decision. The case really turns on a point of evidence, the Court below being of the opinion that evidence of an intention against merger must be concurrent with the transaction which would operate as a merger but for such opposite intention, therefore that a subsequent dealing with the property on the basis of there being no merger, was not sufficient to prevent a merger. The Court of Appeal on the other hand held. that the intention not to create a merger may be established by the subsequent dealings with the property. In this case it may be remembered that a leasehold term, and the reversion, became vested in the same person, and nine months subsequently the term was assigned by the transferee as a still subsisting term, and it was held that this was sufficient evidence of the intention not to create a merger.

VENDOR AND PURCHASER-OPEN CONTRACT TO PURCHASE LAND

SPECIFIC PERFORMANCE-INQUIRY AS TO TITLE-NOTICE TO
PURCHASER OF INCURABLE DEFECTS PRIOR TO CONTRACT-EVI-
DENCE.

Alderdale Estate Co. v. McGrory (1917) 1 Ch. 414. This wast an action for specific performance, in which judgment had been pronounced for specific performance in case a good title could be made by the plaintiffs, and a reference as to title was directed. On the reference the defendant objected (1) that there was a public right of way across the land; (2) that there was a public sewer under it, and (3) that the vendors had no title to the subjacent minerals. The plaintiffs offered evidence to prove that the defendant, prior to the contract, had actual knowledge of all these defects. The Vice-Chancellor of Lancaster held that such evidence was inadmissible, but the Court of Appeal (Lord CozensHardy, M.R., Warrington, L.J., and Lawrence, J.), held that it

was.

WILL-ADMINISTRATION ANNUITY CHARGED ON REAL AND PERSONAL ESTATE EXPRESS TRUST ARREARS OF ANNUITYACKNOWLEDGMENT IN WRITING-REAL PROPERTY LIMITATION ACT, 1833 (3-4 WM. IV. c. 27), ss. 1, 25, 40, 42-REAL PROPERTY LIMITATION ACT 1874 (37-38 VICT. c. 57), ss. 8, 10(R.S.O. c. 75, ss. 18, 24, 25, 47 (2) (b).

In re Turner, Klaftenberger v. Groombridge (1917) 1 Ch. 422. This was an action to recover arrears of annuity charged by a will on the real and personal estate of the testator. The plaintiff claimed to recover the whole amount due, which exceeded six years' arrears, on the ground that it was payable by the defendants as trustees under an express trust, but Neville, J., held that, under the Statutes of Limitations, no more than six years' arrears were recoverable either as against the real or personal estate.

ONTARIO SEPARATE SCHOOLS-ENGLISH-FRENCH SCHOOLSRESTRICTION OF USE OF FRENCH-B.N.A. Act, 1867 (30-31 VICT. c. 3) s. 93 (1)-PROVINCIAL LEGISLATURE.

Trustees of R.C. Separate Schools v. Mackell (1917) A.C. 62. The question at issue in this case was whether the Provincial Legislature of Ontario had power under the B.N.A. Act, 1867, s. 93 (1), to restrict the use of French as a language of instruction in Roman Catholic Separate Schools. The Judicial Committee of the Privy Council (Lord Buckmaster, L.C., and Lords Haldane, Atkinson, Shaw, and Parmoor) held that it had, and the validity of Regulation 17 was upheld.

ONTARIO SEPARATE SCHOOLS-TRUSTEES-ACT SUPERSEDING TRUSTEES INVALIDITY-5 GEO. V., c. 45, ONT.-B.N.A. ACT, 1867, s. 93 (1).

Trustees of R.C. Separate Schools v. Ottawa (1917) A.C. 76. The question in this case was whether the Provincial Legislature of Ontario had power under the B.N.A. Act, s. 93 (1), to pass a statute (5 Geo. V., c. 45 Ont.) purporting to supersede the school trustees of Roman Catholic Schools who refused to carry out a regulation of the Department of Education restricting the use of French as a language of instruction in such schools. The. validity of the regulation was in litigation, and there being no reason to believe that, when determined, as it was in the preceding case, the decision would not be accepted and obeyed, and it

appearing that the Act in question was too wide in its scope, in that it purported to enable the Government of the Province permanently to withdraw from the trustees power to control the schools under their care, the Judicial Committee of the Privy Council (Lord Buckmaster, L.C., and Lords Haldane, Atkinson, Shaw, and Parmoor) declared the Act in question to be ultra vires.

These two cases are palmary instances of the value of the appeal to His Majesty in Council, where questions of this kind, involving a good deal of feeling, can be adjudicated in the calm. atmosphere of a Court absolutely free from all local prejudices and prepossessions.

Their lordships absolutely disclaim the idea that the trustees cannot, by due process of law, be compelled to discharge their duties according to law.

ONTARIO TORONTO ELECTRIC LIGHT Co.-MUNICIPALITY OF TORONTO-LETTERS PATENT-RIGHT TO ERECT POLESFRANCHISE-45 VICT. c. 19, s. 2 ONT.

Toronto Electric Light Co. v. Toronto (1917) A.C. 84. The appellant company was incorporated by letters patent issued under R.S.O. 1877, c. 150, and 45 Vict. c. 19 (Ont.). It was empowered to conduct electricity by any means through, under, or along, the streets of the municipalities named in the patent, but only upon, and subject to, such agreement in respect thereof as should be made between the company and the municipalities respectively. The company erected poles in the streets of the city of Toronto for the purpose of their business, which had been suffered to remain without objection by the city for sometime, but which the city had recently ordered the company to remove, and in default had proceeded to remove some of the poles. The action was brought to restrain the city from so doing. Middleton, J., granted an injunction as prayed, and his decision was reversed by the Appellate Division, 33 0.L.R. 267. The Judicial Committee of the Privy Council (Lords Haldane, Atkinson, Shaw, and Parmoor) now affirm judgment of the Appellate Division, holding, that mere acquiescence on the part of the city was not sufficient to satisfy the requirements of the statute, which required a formal agreement to be made; and secondly, that the city had an absolute right to prohibit the company from constructing any works through, under, or along the streets of the city, and not merely a right to regulate by agreement the manner in which the work should be carried out.

Reports and Motes of Cases.

Province of Saskatchewan.

SUPREME COURT.

ANDERSON V. CANADIAN NORTHERN R. Co.

Elwood, J.]

[33 D.L.R. 418. Railways - Injury to animals at large-Owner's negligence— Wilful act or omission.

It is a wilful act within the meaning of sec. 294(1) of the Railway Act, 1906, to turn animals at large upon a highway within half a mile of an intersection at rail level despite a provincial Act permitting animals to run at large, and if the animals so at large get from the highway to railway property and are killed or injured there, the railway company is not liable.

[Koch v. G.T.P. Branch Lines (Sask. 1917), 32 D.L.R. 393 (annotated) considered; see also annotation following.]

G. E. Taylor, K.C., for plaintiffs. J. N. Fish, K.C., for defendant.

ANNOTATION ON ABOVE CASE IN D.L.R.

ANIMALS STRAYING ON RAILWAY.

In the above case the animals were turned out by the owner, to graze with other stock, where they would, upon unenclosed land; they got upon a highway, and thence upon the railway, at an intersection at rail level, where the cattle guards had been removed.

A provincial Act says that "it shall be lawful to allow animals to run at large." The only question of law really raised by these facts is this, is the intentional act of the owner in turning his cattle at large a "wilful" act, within the meaning of sec. 294(4) of the Railway Act, R.S.C. 1906, in view of the fact that it is legalized by the provincial Act, so far as such an Act can legalize it? Elwood, J., said: "The mere fact that there is a (provincial) statute permitting them to be at large cannot affect the owner's position and responsibility with respect to the railway company. It (the owner's act) is none the less intentional (that is, wilful) that it is permitted.

Elwood, J., seemed to see some significance in the word "permitted" where it occurs in sec. 294(1) "No horse, etc., shall be permitted to be at large." In face of that word he thought a provincial Act could not grant permission,

but manifestly, provincial power, if it existed under the B.N.A. Act 1867, could not be limited by any such prohibition. "Permitted" is mere surplusage in sec. 294(1) which should be read as if it ran: No horse, etc., shall be at large.

The offence is not in permitting, but in being at large; it is not the owner who is at fault, by permitting, but the animal in being at large.

In arriving at this conclusion, Elwood, J., considered himself at liberty to disregard certain opinions upon this point expressed by the Saskatchewan Court of Appeal in Early v. C.N.R. Co., 21 D.L.R. 413, and Koch v. G.T.P. Branch Lines Co., 32 D.L.R. 393, upon the ground that those opinions were not necessary to the findings in the cases, and, therefore, were obiter. It is true that in the Koch case it was found as a fact that the owner had not been guilty of negligence, and therefore was entitled to damages, but it is also true that a by-law permitting animals to be at large was proven, and relied on, and that the Court based its judgment on this point as well as on the other. The opinion, therefore, cannot properly be considered as obiter, and the decision of Elwood, J., must be attributed to the very strong conviction he evidently felt that the Court of Appeal was wrong. Those who have read the annotation in 32 D.L.R., at p. 397, will notice that this is the opinion there expressed. The remarks made by Elwood, J., himself in relation to injuries to animals which get upon a railway through a defective railway fence are clearly obiter, as the point was not in issue before him. They are based upon what appears to us a misapprehension of a remark made by Boyd, C., in McLeod v. C.N.R. Co., 18 O.L.R., at 624, and are apparently intended to suggest a ground upon which Greenlaw v. C.N.R. Co., 12 D.L.R. 402, could have been decided, but was not; a suggestion made, apparently, in order that the grounds given by the Manitoba Court of Appeal for its decision might also be treated by Elwood, J., as obiter, because he did not agree with them. In that case, the animals which were running at large got upon the railway from unenclosed lands, not by using a highway, but through a defective railway fence; but a municipal by-law permitted cattle to run at large, and the Manitoba Court held that because of the by-law the intentional act of the owner in turning his cattle at large was not "wilful," within the meaning of the Railway Act. Elwood, J., now comments that these animals were not "at large" within the meaning of sec. 294(4), and this rather amazing conclusion he deduces from the remark made by Boyd, C., that "cattle on the lands of the owners are not at large, but at home." So also, says Elwood, J., are cattle of other persons permitted by an owner to be on his land, or cattle there "by virtue of a statute or municipal by-law." In passing, it may be remarked that while it is possible that the rights of an owner of land against an adjoining railway may be attributed to the owner's licensee, it is difficult to conceive how they could be attributed to a trespasser who had no other defence than that a municipal by-law said that his cattle might run at large. It may also be pointed out that if the cattle in Greenlaw case were not "at large" within the meaning of sec. 294(4), their owner had no remedy under that section, and as the land was unenclosed, the railway was not bound to fence it (sec. 254), so that the railway would not be liable under sec. 427. The Manitoba Court saw this difficulty, and avoided it by finding that the municipal by-law had the effect of making an intentional

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