OSLER person against whose acts the covenant is made, and the Judgment. word means has a similar meaning, something proceeding from the person covenanting: Spencer v. Marriott, 1 B. & C. 457; Dennett v. Atherton, L. R. 7 Q. B. 316; Carpenter v. Parker, 3 C. B. N. S. 206. The defendant was an actively consenting party to what was done, and the council in making the improvement and imposing the assessment derived their power to do so from, and acted at, his instance and that of his fellow petitioners. The defendant was active in promoting the petition and he caused it, when signed by a sufficient number, to be presented to the council for the express purpose of inducing them to make the improvement petitioned for and to charge the cost of it by a special assessment upon his land and that of the other signatories. It is true that the council might have rejected it, but they did not reject it. On the contrary they adopted it and acted upon it as all their subsequent proceedings shew. The defendant meant and intended that they should act upon it, and their doing so was the probable and direct consequence of his act in promoting it and urging it upon them. In cases of this kind, where the council proceed upon a petition, they are, in a sense, the agents of the property owners in making the improvements and imposing the assessment. I think the Court below were right in saying that the plaintiff and his friends set the council in motion and that the tax was imposed by his instrumentality and procurement. Through his act and by his request the council imposed the tax and occasioned the encumbrance. And through an act done by him by inducing them to make the improvement and impose a tax for it the premises sold to the plaintiffs were encumbered. As he himself puts it, the city lent him and the others the price of the expropriated land and advanced money in paying for the improvements and assessed it back upon the frontages, and this was done at their request. That is the pith of the matter, and I think it comes within the defendant's covenants. Suppose the defendant had procured a burden or OSLER Judgment. encumbrance to be imposed upon the land by means of a private Act, I see not but that upon the principles applicable to such acts they would come within the qualified covenants: Maxwell, p. 363, Wilberforce, pp. 220, 222; King v. Toms, 1 Dougl. at p. 406. I have noticed one case in which the point was raised but it did not become necessary to decide it: Blatchford v. Plymouth, 3 Bing. N. C. 691. The final by-law distributing the assessment upon the several properties was not passed until after the conveyance to the plaintiffs, but that was only the necessary act for the completion of the proceedings which had been already taken at the defendant's instance. The observations of Brett, L. J., in Anderson v. Oppenheimer, 5 Q. B. D. 602, are very much in point. Distinguishing that case from others cited he says: (p. 607.) "In the cases which have been cited to us, an authority to do an act had been given by the lessor before the granting of the lease, and afterwards an act had been done pursuant to that authority; that is to say an act had been committed by some person authorized by the prior authority of the lessor to do it, which had diminished the tenant's enjoyment of the premises demised to him. In these cases, although the authority had been given before the lease, the act had been done after it; it was, therefore, an act for which the lessor was responsible, he having conferred the authority to do it, and the act was done during the enjoyment by the lessee." Here the city had acquired a paramount right to complete the proceedings begun and taken at the instance of and for the defendant, and the last by-law is as much attributable to his action as the first. No argument was addressed to us on the subject of the damages, and I have no doubt the Court below rightly held that the amount recoverable was the smallest amount necessary to discharge the encumbrance, viz.: the amount at which the assessment might be commuted under the by-law. I need hardly say that when the council initiate the proceedings sua sponte the tax imposed is not in any sense an encumbrance attributable to the act of vendor. Judgment. J.A. So also where a general by-law has been passed direct- OSLER ing all improvements to be made on the local improvement system under section 625. I think the appeal should be dismissed. MACLENNAN, J. A.: I have had some doubt in this case but have come to the same conclusion as my learned brothers, that the appeal should be dismissed. The covenant is that the defendant had done nothing whereby the lands were or should or might be in any wise encumbered, and what the defendant had done was that he had requested the corporation of the city of Toronto to open Margueretta street and to take steps to charge the lands in question and other lands with the expense of opening and grading the same. When the deed was made the corporation had so far complied with the request that they had opened the street. They had incurred the expense but they had not actually imposed the charge by passing the necessary by-law for the purpose. My doubt was, that inasmuch as it was entirely optional with the city corporation to comply or not to comply with the defendant's request, the encumbrance which it afterwards imposed as a deliberative and not an obligatory act, could hardly be regarded as the consequence, within the meaning of the covenant, of the defendant's request. It is however a general rule that every person is answerable for what is done at his request, though the person requested be under no obligation to do the act, as for example a request to commit a trespass or an assault or to make an arrest. And so I think that the encumbrance in question having been imposed at the request of the defendant, that request must be regarded as an act done by him, within the meaning of the covenant. HAGARTY, C. J. O., and BURTON, J. A., concurred. Appeal dismissed with costs. Statement. Judgment. THE ELECTRIC DESPATCH COMPANY OF TORONTO V. THE Contract Telephone Company-Covenant not to transmit orders. This was an appeal by the plaintiffs from the judgment of the Chancery Division, reported 17 O. R. 495, and came on to be heard before this Court (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ. A.) on the 11th and 12th of March 1890. Robinson, Q. C., and Moss, Q. C., for the appellants. May 13th, 1890. The Court being divided in opinion the appeal was dismissed with costs. Per HAGARTY, C J. O., and BURTON, J. A. The covenant in question was broken, subscribers being enabled by the active intervention of the defendants to give orders of the kind referred to to persons other than the plaintiffs. Per OSLER, and MACLENNAN, JJ. A. The covenant was not broken, the defendants taking no active part in the transmission of the messages, but merely allowing subscribers to communicate with one another in the usual manner. LEMAY V. CANADIAN PACIFIC RAILWAY COMPANY. Railways -Master and servant-Negligence—“ Any person injured”—51 A servant of a railway company is a "person" within the meaning of 51 Vic. ch. 29, sec. 289, (D.), and as such is entitled to recover dimages if injured by the negligence of his employers in omitting to comply with the provisions of section 252, by packing frogs as therein directed. Judgment of the Chancery Division, 18 O. R. 314, affirmed, THIS was an appeal by the defendants from the judg- Statement. ment of the Chancery Division, reported 18 O. R. 314. The plaintiff, while employed as a switchman by the defendants, had, on the 20th of October, 1888, his left foot caught in an unpacked frog, and was run over, his foot being so badly injured that amputation was necessary. The action was brought to recover damages, and was tried before FALCONBRIDGE, J., and a jury, at Port Arthur, at the Summer Assizes of 1889. The following were the questions submitted to the jury and their answers thereto. 1. Did the plaintiff, before the happening of the accident, have notice or knowledge, or ought he to have had notice or knowledge. that the frog was not packed? A. We believe he did not have notice, and should have had notice. 2. Did the accident happen to the plaintiff by reason of the frog not being packed in accordance with the statute? A. We believe that it did. 3. Did the plaintiff receive the injuries while engaged in the discharge of his duties as a servant of the defendants, and in consequence of the discharge by him of such duties? A. We believe he received the injuries in the discharge of his duties, and in consequence of them. 4. Was the plaintiff guilty of contributory negligence? A. We do not believe that he was. 5. If the plaintiff should be held entitled to damages, at what sum do you fix them? A. Twenty-five hundred dollars. Upon these findings judgment was entered for the plain38-VOL. XVII. A.R. |