PATENT CLAIM OF PRINCIPLE SPECIFICATION OF PRINCIPLE

TO BE CLEARLY MADE.

Ridd Milking Machine Co. v. Simplex Milking Machine Co. (1916) A.C. 550. This was an appeal from the Court of Appeal of New Zealand. The action was for the alleged infringement of a patent. The plaintiffs claimed that their patent covered not merely apparatus, but a principle. The Court below dismissed the action, on the ground of want of novelty, and the Judicial Committee of the Privy Council (Lord Buckmaster, L.C., and Lords Loreburn and Shaw and Sir A. Channell) dismissed the appeal on the ground that where a principle is claimed by a patentee, it must be clearly and specifically claimed in his specification, which had not been done by the appellants.

CANADA-PROVINCIAL TAXATION- -ASSESSMENT-DOMINION LANDS

-LESSEE OF CROWN-B.N.A. ACT 1867 (30 VICT. c. 3) s. 125.

Smith v. Vermillion Hills (1916) A.C. 569. By the B.N.A. Act 1867, s. 125, it is provided that no lands or property belonging to Canada, or any province shall be liable to taxation. The appellant in this case was a lessee of certain Dominion lands, and was assessed under Provincial Statutes of Saskatchewan, in which statutes land is defined as including, for the purposes of the Act, any estate or interest therein. The appellant contended these Acts were ultra vires, as being in conflict with the B.N.A. Act, s. 125, and an interference with the Dominion's rights in the land, as the appellant's lease provided that it should not be assigned without leave. The Judicial Committee of the Privy Council (Lord Buckmaster, L.C., and Lords Haldane, Atkinson, Shaw, and Parmoor) affirmed the decision of the Supreme Court of Canada, holding that the Statutes could be read as imposing the tax upon the appellant's interest in the lands, and should be so read, to make them consistent with s. 125 of the B.N.A. Act.

CANADA-LEGISLATIVE AUTHORITY-WORK DECLARED BY STATUTE

TO BE FOR GENERAL ADVANTAGE OF CANADA-REPEAL OF ACT-B.N.A. Act 1867 (30 VICT. C. 3) s. 91 (29), s. 92 (10e). Hamilton Grimsby & B. Ry. Co. v. Attorney-General for Ontario (1916) A.C. 583. This was an appeal from the Appellate Division of the Supreme Court of Ontario. The question in controversy was as to the jurisdiction of the Ontario Municipal & Railway Board over a railway in Ontario which had been declared by the

Dominion Parliament for the general advantage of Canada, but which Act had been subsequently repealed except as to such parts of the railway as crossed any Dominion railway. The Judicial Committee of the Privy Council (Lord Buckmaster, L.C., and Lords Haldane, Shaw and Parmoor) affirmed the decision of the Appellate Division, though not for the same reasons as that Court proceeded on. That Court held that the Act relied on as declaring the railway to be one for the general advantage of Canada did not really apply to the railway in question. Whereas the Committee thought that, even if it did, nevertheless its subsequent repeal restored the railway to provincial control.

SPECIFIC PERFORMANCE-VENDOR AND PURCHASER-TIME OF ESSENCE OF CONTRACT-PURCHASER IN DEFAULT-UNDISCHARGED MORTGAGE-VENDOR ALBE TO CONVEY.

Brickles v. Snell (1916) A.C. 599. This was an action by a purchaser for specific performance of a contract for the sale of land. It appeared by the evidence that time was of the essence of the contract, and that the plaintiff was in default (although the Judge at the trial found the contrary, and granted specific performance). The Appellate Division of the Supreme Court of Ontario found that the plaintiff was in default, and dismissed the action. The Supreme Court of Canada, though agreeing that the plaintiff was in default, considered that the decision of the Judicial Committee in Kilmer v. British Columbia Orchard Lands, 1913 A.C. 319, governed the case, and therefore restored the judgment pronounced at the trial. (The Chief Justice, and Anglin, J., dissenting). The Judicial Committee (Lord Buckmaster, L.C., and Lords Haldane, Atkinson, Shaw, and Parmoor) distinguished the Kilmer case on the ground that there, there was a waiver of the condition as to time, and here there was none. The appeal was consequently allowed, and the judgment of the Appellate Division restored.

RULE OF PROVINCIAL LEGISLATURE-CONTRACT EXTENDING OVER TWO YEARS NOT TO BE BINDING UNTIL APPROVED BY LEGISLATURE-CONTRACT IN CONTRAVENTION OF RULE.

Commercial Cable Co. v. Newfoundland (1916) A.C. 610. By a Rule of the House of Assembly of Newfoundland it is provided that in all contracts extending over two years, entered into by the Government of that Colony, there is to be inserted a condition that the contract shall not be binding until it is approved by the House of Assembly. In 1909 the Governor-in-Council

entered into a contract with the appellants extending over 25 years, whereby it agreed that they should have entry, duty free, for all cables etc., necessary for carrying out their operations. The contract did not contain the provision required by the Rule, and was never approved by the Assembly. The Supreme Court of Newfoundland held that the agreement was not binding on the Government, and the Judicial Committee of the Privy Council (Lord Buckmaster, L.C., and Lords Haldane, Atkinson, Shaw and Parmoor) affirmed the decision. Their Lordships, in doing so, held that an Act of the Colony authorizing the Governor-inCouncil to remit any duty or toll payable under an Act of the Colony extended only to the remission of duties, or tolls, in a particular case, and not to granting a prospective and continuing exemption.

MUNICIPAL CORPORATION-CONSTRUCTION OF SEWER-INTERFERENCE WITH GAS MAIN "LAND"-INJURIOUS AFFECTION -ONTARIO MUNICIPAL ACT (R.S.O. 1913, c. 192) s. 321, s. 325 (1).

Toronto v. Consumers Gas Co. (1916) A.C. 618. This was an appeal from the Appellate Division of the Supreme Court of Ontario. The appellants, a municipal corporation, constructed a sewer under a street in Toronto, the freehold of which was vested in them. In doing so, it became necessary to lower the respondents' gas main, and the question at issue was, whether or not the corporation was bound to compensate the Gas Company for the expense occasioned to them by this interference. The Judicial Committee of the Privy Council (Lord Buckmaster, L.C., and Lords Haldane, Shaw and Parmoor) agreed with the Court below, that as the word "land" under s. 321 (b) of the Municipal Act includes a right or interest in, and an easement over land. the Gas Company was under s. 325 (1) entitled to compensation as for land injuriously affected by the corporation's operations, and the appeal was accordingly dismissed.

PRIZE COURT

FREIGHT.

JURISDICTION

ABANDONMENT OF VOYAGE

The St. Helena (1916) A.C. 625. The facts in this case were that a British vessel before the outbreak of the war shipped a cargo for an American corporation to be delivered to the consignor's order at Hamburg. Before the voyage was completed war broke out with Germany, and the vessel abandoned the voyage, and proceeded to a British port where the cargo was seized as prize, but subsequently released, without any formal order of the Prize Court, to the owners. The cargo being then

in the Manchester Canal Co's. warehouse, the shipowners notified the Canal Company of their claim for freight, and the Canal Company delivered the cargo ot the owners against a deposit of £1,680 to meet the claim for freight. The shipowners then commenced an action claiming to be entitled to be paid freight, but this action was dismissed on the ground that, as the voyage had been abandoned, no freight was payable. The shipowners then applied to the Prize Court for a declaration that they were entitled to some remuneration in lieu of freight for carriage of the goods and Evans, P.P.D., referred it to the registrar and merchants to determine what remuneration the shipowners were entitled to in the circumstances, and it was from this order that the owners of the cargo appealed, claiming that the Prize Court had no jurisdiction to make any such order, and even if he had, it ought not to have been made. The Judicial Committee of the Privy Council (Lords Parker, Sumner, Parmoor, and Wrenbury) were of the opinion that the Prize Court had jurisdiction to determine all incidental matters arising in regard to property seized as Prize, even though it may be released, but on the merits of the case they reversed the order of Evans, P.P.D., on the ground that, the voyage having been abandoned, the shipowners could have no right to freight, or any compensation in lieu of freight, in respect of cargo seized in an English port subsequent to the abandonment of the voyage.

ALBERTA HUSBAND AND WIFE MARRIED WOMEN'S RELIEF ACT (ALBERTA 1910 c. 18) s.s. 2, 8, 10.

Drewry v. Drewry (1916) A.C. 631. By a statute of the Province of Alberta 1910, c. 18, it is provided that the widow of a testator whose will gives to his widow, in the opinion of the Court, less than she would get if he had died intestate, may apply to the Supreme Court for relief, and on any such application the Court is empowered to make such allowance to the applicant out of her deceased husband's estate disposed of by his will as may seem just and equitable; but it is also provided that any answer or defence that would have been available to the husband in any suit for alimony shall be equally open to his executors or administrators, in any application under the Act. The widow of the deceased testator in this case, had twenty-four years prior to his death, without any legal justification, separated from him, and lived apart from him during the remainder of his life. Notwithstanding this fact, the Courts of Alberta granted the widow relief. The Judicial Committee of the Privy Council (Lord Buckmaster, L.C., and Lords Haldane, Atkinson, Shaw and Parmoor) reversed the decision, holding that in such circumstances the wife could have had no claim to alimony.

Que.]

Reports and Motes of Cases.

Dominion of Canada.

SUPREME COURT.

[Oct. 18, 1916.

MONTARVILLE LAND CO. v. ECONOMIC REALTY, LIMITED. Appeal Jurisdiction-Matter in controversy-Supreme Court Act s. 46 (b) and (c)—Action to remove cloud on title· Discharge of mortgage-Deferment of payment of instalments or of price-Title to land-Future rights.

The judgment appealed from maintained the plaintiff's action brought to obtain an order that it should not be obliged to pay certain deferred instalments of the price of land sold to it by the defendants (appellants) with warranty against all hypothecs, save one for $2,000, until the discharge of certain other incumbrances alleged to be registered as affecting the said lands and for costs of protest, etc., amounting to $33.90. On motion to quash an appeal taken from this judgment to the Supreme Court of Canada:

Held (Duff, J., taking no part in the judgment), that, as there was no amount in controversy of the sum or value of $2,000, nor any matter in controversy relating to the title to lands or to matters where future rights thereto might be bound, the Supreme Court of Canada had no jurisdiction to entertain the appeal under the provisions of s. 46, s.s. b and c of the Supreme Court Act, R.S.C. 1906, c. 139. Carrier v. Sirois (36 Can. S.C.R. 221) applied.

Appeal quashed with costs.

C. Dessaules, K.C., for the motion; St. Germain, K.C., contra.

Ont.]

[Dec. 30, 1916.

CITY OF TORONTO v. LAMBERT AND INTERURBAN ELECTRIC RWAY.

Co.

Negligence-Electric shock-Action agains: two defendants-Findings of jury-Joint liability-Agreement between defendantsRight to indemnity.

In an action against two parties claiming from them jointly and severally compensation for the death of plaintiff's son from electric shock caused by negligence of both defendants, may be