BURTON J.A. and that to entitle herself to recover in an action, she must Judgment. shew that all conditions precedent were observed on her part. I express no opinion of what her rights might have been under such a state of facts, but in the view which the Master took, amply supported by the evidence, that the defendant was mortgagee of the plaintiff's property, I think no sufficient ground existed for interfering with the award, and without enquiring whether the finding of the arbitrator that the defendant was really the purchaser of the stock was right, I think that he ought to be held estopped by his conduct from saying that the sale was not a sale for cash, so that if he chose to give credit instead of exacting cash, as was made a peremptory condition of sale with every other intending purchaser, it was something he was not authorized to do without the plaintiff's consent, and he was properly held liable for the amount for which the stock was sold. I do not think it necessary to discuss the question of the relative rights of the plaintiff and defendant if we had to deal with the simple fact of a sale made in good faith, and a refusal by the purchaser to carry out the sale. What we have to deal with under this decree is, whether there was any evidence to warrant the Master in arriving at the conclusion that the defendant did receive, or might with due diligence have received, the purchase money for the stock. Looking at all the facts, can it be said that there was no evidence to lead to such a conclusion? [The learned Judge discussed the evidence and continued:] Regarded in the light in which I am now looking at it, viz. that in substance this was purely a question between mortgagor and mortgagee, and looking also at the fluctuating value of this description of property, I think the defendant has estopped himself after a delay of two months, and after putting the plaintiff to rest, from disputing that there was a completed sale, as it was his duty towards the plaintiff, especially having regard to the rigid BURTON Judgment. terms of the sale, to have notified her at the earliest possible moment that the sale had for any reason become abortive. I do not care to enquire whether there was or was not any legal obligation upon him of that kind, but there was, beyond all question, an obligation not to lead her to believe for that long period that the sale had been carried out; whether or not he might have remained passive is another question. We cannot, in considering his responsibility, avoid looking at all the circumstances attending the sale, and whilst I think he was not justified in offering the whole of the stock in one lot, but was bound to consider the interests of the plaintiff, and whilst I quite admit that that has been condoned by her, so that she cannot now complain on that score, it furnishes strong evidence to show that the defence now set up was an afterthought, and if the learned arbitrator, who saw the witnesses and heard the evidence more in detail than we have it in this book, has found in it sufficient to warrant his conclusion on the ground of estoppel or otherwise, we should not be astute to disturb. his finding. The defendant led the plaintiff to believe, either that he had received the money for the sale, or something which he was willing to accept in lieu of money. In a conversation with Wells some two or three weeks before the commencement of the action, he mentioned that his reason for not paying over the money was that he had received notice of a claim by creditors of Brown & Wells, and said he thought he would pay the money into Court, and I do not find any intimation that there was a difficulty with the purchaser. The plaintiff had a right upon the correspondence to assume, either that the money had been paid, or that the mortgagee had, without consulting her, given time to the purchaser. That the stock has now fallen, and had so fallen when the action was commenced, is clear; so that I am at a loss to understand Mr. Justice Rose's statement that no damage was shown. I think the learned arbitrator was J.A. quite warranted in arriving at the conclusion he did, and Judgment. that the award was fully warranted by the evidence, and BURTON is in accordance with justice and the true merits of the case, and I am of opinion that the order appealed against should be reversed, with costs. Appeal dismissed without costs, REGINA V. WASON. Constitutional law-Criminal law-Criminal procedure-B. N. A. Act, sec. 91, sub.-sec. 27-51 Vic. ch. 32 (0)-52 Vic. ch. 15 (0). The "Act to provide against frauds in the supplying of milk to cheese or butter manufactories," 51 Vic. ch. 32 (0), though penal' in its nature, does not deal with criminal law within the meaning of section 91, subsection 27, of the B. N. A. Act, but merely protects private rights and is intra vires. So also the "Act respecting appeals on prosecutions to enforce penalties and punish offences under Provincial Acts," 52 Vic. ch. 15 (0), is not legislation dealing with criminal procedure within the meaning of that sub-section and is intra vires. Judgment of the Queen's Bench Division, 17 O. R. 58, reversed. Whether proceedings to quash a conviction under an Ontario Act should be taken before a single Judge, or a Divisional Court. Quere. THIS was an appeal from the judgment of the Queen's Statement. Bench Division, reported 17 O. R. 58. The defendant was convicted under the "Act to provide against frauds in the supplying of milk to cheese or butter manufactories," 51 Vict. ch. 32 (0), of sending to a cheese factory at the village of Warsaw milk from which the cream had been partially removed, and was fined $20 and costs, and in default of payment was ordered to be committed to jail for ten days. The conviction was removed by certiorari into the Queen's Bench Division and on the 4th of February, 1889, was by that Court quashed on the ground that the Act in question was ultra vires. The Act provides by section 1 that no person shall knowingly and wilfully sell, supply, bring or send to a 29-VOL. XVII. A.R. Statement cheese or butter manufactory, etc., milk diluted with water. or in any way adulterated, or milk from which cream has been taken, etc., without distinctly notifying in writing the owner or manager, etc., that the milk so sold, etc., has been so diluted with water or adulterated, or had the cream so taken from it, etc., and by section 4 that any person who violates any of the provisions of the Act shall upon conviction before any justice or justices of the peace forfeit and pay a sum of not less than $5 nor more than $50, together with the costs of prosecution, and in default of payment shall be liable to be committed to jail with hard labour for any period not exceeding six months, unless the penalty and costs be sooner paid. Section 5 provides that the owner or manager of a cheese or butter manufactory may have any milk sold or supplied to the manufactory tested. By 52 Vic. ch. 15 (O.), assented to on the 23rd of March, 1889, it is provided that an appeal to the Court of Appeal shall lie from a judgment or decision of the High Court, or a Judge thereof, upon any application to quash a conviction made under a statute of the Legislature of Ontario creating an offence punishable by summary conviction before a justice, provided that the Attorney-General for Ontario, or the Attorney-General for Canada, certifies his opinion that the decision involves a question on the construction of the British North America Act, and that the question is of sufficient importance to justify the case being appealed; and certain provisions are made as to the steps to be taken in bringing on the appeal for hearing. Under the provisions of this Act the Attorney-General for Ontario certified that he was of opinion that the decision of the Queen's Bench Division in this case involved a question on the construction of the British North America Act of sufficient importance to justify the case being appealed to the Court of Appeal, and an appeal was accordingly taken, and came on to be heard before this Court (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ.A.) on the 17th of October, 1889. The respondent took the preliminary objection that Statement. there was no right of appeal, the Act assuming to give that right of appeal being ultra vires, and the Court directed that this question should be argued with the appeal on the merits. E. Blake, Q.C., (with him Irving, Q.C.) for the appellant. In order to properly decide the matters involved in this appeal it is necessary to bear in mind propositions almost axiomatic as to the proper way to view questions arising under the Constitutional Act. The first is that all reasonable presumptions are to be made in favour of the validity of the Act in question. If one available construction will maintain, while another will destroy it, the former is to be chosen. An example of this is to be found in the case of City of Fredericton v. The Queen, 3 S. C. R. 505, where the title and preamble of an Act were rejected, as indicative of a legislative object said to be ultra vires, while the enacting clauses were upheld, they being within the authority of Parliament under its power to regulate trade and commerce. Then it is necessary also in the consideration of the Constitutional Act to look even more closely than commonly at the whole law, to avoid detached views and the microscopic investigation of isolated words and phrases. It is also clear that all powers reasonably required in order to the full execution of powers specifically given are to be liberally implied. Now the efficacy of all laws depends upon their sanctions. A law without a sanction is brutum fulmen, so that the power to make a law would necessarily imply a power to provide for the enforcement of the law and for the execution of the sanction. It is true that in the British North America Act there is the express power to affix certain sanctions, but this power was given ex majori cautelâ, and it is clear that in addition to this expressed power further power must be implied. In cases of divided sovereignties, such as ours, it would seem to be the obvious. course to assign to each sovereignty its own adequate and independent measure of executive, legislative, and judicial |