Ont.]

[May 6.

FLEMING V. TORONTO RY. Co.

Negligence-Street railway-Explosion-Defective controller— Inspection.

S. was riding on the end of the seat of an open street car in Toronto when an explosion occurred. The car was still in motion when other passengers in the same seat, apparently in a panic, cried to S. to get off, and when he did not do so, endeavoured to get past him, whereby he was pushed off and injured. In an action for damages the jury found the company negligent in using a rebuilt controller in a defective condition and not properly inspected, and the motorman negligent in not applying the brakes.

Held, affirming the judgment of the Court of Appeal (27 O.L.R. 332) that the evidence justified the jury in finding that the controller had not been properly inspected and that a proper inspection might have avoided the accident:

Per Idington and Brodeur, JJ., Anglin and Davies, JJ., contra, that the motorman should have applied the brakes.

Appeal dismissed with costs.

D. L. McCarthy, K.C., for defendants appellants. Gamble, K.C., for respondent.

Ont.]

[May 6.

MERRITT V. CITY OF TORONTO.

Riparian rights-Interference-Evidence.

M., claiming to be a riparian owner on the shore of Ashbridge Bay (part of Toronto harbour), claimed damages from, and an injunction against, the city for interference with his access to the water when digging a channel along the north side of the bay.

Held, affirming the judgment of the Court of Appeal (27 O.L.R. 1), by which an appeal from a Divisional Court (23) Ont. L.T. 365) was dismissed, that the evidence established that between M.'s land and the bay was marsh land and not land covered with water as contended, and therefore M. was not a riparian owner.

Appeal dismissed with costs.

Mowat, K.C., for plaintiff appellant. Geary, K.C., and Colquhoun, for respondent.

Province of Ontario.

SUPREME COURT.

Middleton, J.]

RE DORWARD.

[May 5.

Will-Construction-Residuary devise-Ignorant use of printed forms-Intention gathered from will.

Motion by the executrix for an order declaring the construction of the will of Walter Dorward, who died on the 22nd February, 1911.

MIDDLETON:The country conveyancer" and "The man who makes his own will" are favourite toasts at lawyers' gatherings. "The man who invented printed will-forms' will soon be equally popular. As excellent as these forms often are, so many errors arise in filling them up, that already a formidable list of cases can be found dealing with the problem prescribed. This testator used the same form as that considered in re Conger, 19 O.L.R. 499, and filled it up in the same way, save that he inserted his wife's name in the clause for the appointment of executors, and left the space blank in the residuary devise. So the will reads: "All the residue of my estate not herein before disposed of I give devise and bequeath unto and I nominate and appoint Mrs. Isabella Dorward to be executrix of my last will and testament." This can, I think, be read as an awkward sentence by which the wife is made residuary devisee as well as executrix. Dorward did not mean to die intestate, and I think that from the will itself his intention can be gathered, and that intention was to give his property to his wife.

May v. Logie, 27 O.R. 505 and 23 A.R. 785, shews that the intention may be gathered and given effect to, even when the actual words used do not form a sentence, and are quite incapable of grammatical analysis.

Shirley Denison, K.C., for the executrix and for William and David Dorward. H. M. Ferguson, for the other next of kin.

Mulock, C.J.Ex., Clute, Riddell,

Sutherland, and Leitch, JJ.]

RE ROYSTON PARK and TOWN OF STEELTON.

[May 13.

Registry Act-Subdivision of lands-Plan-Approval by Municipal Council or by County Judge-Jurisdiction.

By 10 Edw. VII. c. 60, s. 80 (18) it is provided that "The registrar shall not register any plan upon which any street, road or lane is laid out unless there is registered therewith the approval of the proper municipal council or the order of the judge of the County or District Court

approving of

such plan made upon notice to such council." The contention was as to the construction to be placed on this section in reference to the respective jurisdictions of municipal councils and county judges.

Held, 1. That although the word "or" was to have its ordinary alternative meaning and should not be read "and," there being two courses prescribed by the statute, either of them might be adopted by the owners of the land, and the fact of their having chosen one of the alternatives did not preclude a resort to the other.

2. The refusal of the council to grant the approval of the plan was not a judicial determination of the rights of the parties, and such refusal was no bar to application for approval by the County Judge. See Elliott v. Turner, 2 C.B. 446; Birley v. Toronto, Hamilton and Buffalo Ry. Co. (1898) 25 A.R. 88; Town of Aurora v. Village of Markham (1902) 32 S.C.R. 457.

A. R. Clute, for the applicants (appellants). H. S. White, for the town.

Canada Law Journal.

VOL. XLIX.

TORONTO, JUNE 16.

THE KING v. THE ROYAL BANK.

No. 12

The strictures of Mr. J. S. Ewart, K.C., on the decision of the Judicial Committee of the Privy Council in the above case which appeared in a recent number of a legal contemporary do not appear to be well founded.

Where a critic of the decisions of the Highest Court of the Empire feels compelled to confine his criticism to a mere technical view of the case, one may rest assured that it is because he can find no fault with the substantial justice of the decision-such we think is the result of Mr. Ewart's criticism. Technically and as a matter of law he thinks the decision is at fault, but as a matter of substantial justice there is no fault to be found with it. We entirely agree with Mr. Ewart in so far as he finds no fault in the justice of the decision, and as regards his legal and technical objections, we are inclined to think his arguments have the singular merit of shewing that they are without any reasonable foundation.

Looking at the matter from the point of view of abstract justice and right, the merits of the decision are manifest. It is merely the giving effect to a well established principle of the Common Law which we cannot express better than in the Lord Chancellor's own words, viz. :—

"That where money has been received by one person which in justice and equity belongs to another, under circumstances which render the receipt of it a receipt by the defendant to the use of the plaintiff, the latter may recover as for money had and received to his use."

Let us recall the facts. A company was empowered by the Provincial Legislature of Alberta to build a railway within the province, and, for the purpose of providing funds for the under

taking, it was authorised to issue bonds which were to be a charge on the undertaking, and were also to be guaranteed by the Provincial Government. The money required was raised by the sale of bonds in England, and the money finally found its way to the Royal Bank, whose head office is in Montreal. This was apparently effected in the usual way such transactions are effected, if not by the transmission of so much gold from England to Montreal, but by the usual method of bankers in one place giving credit to bankers in other places; thus the money appears to have been credited to a New York firm, and then by the New York firm credited to the Royal Bank in Montreal. This bank had a branch in Alberta, and without any money being actually transmitted the branch was authorised by the head office to credit the amount of the deposit to the Provincial Government; to be applied, of course, in accordance with the provisions of the Act, under which the money had been borrowed. This would, in substance, be that, as the work of the building of the road progressed, the money raised by the sale of the bonds would be applied in payment for its construction, and the bondholders would thus have acquired a mortgage on the undertaking as it progressed, together with the guarantee of the Provincial Government as a security for the payment of the bonds.

For some reason or other the railway company was unable to proceed with the undertaking and made default in payment of the interest on the bonds, whereupon an Act of the Provincial Legislature was passed practically confiscating the interest of the railway company in the proceeds of the bonds, and vesting the whole of the money in the province, which assumed full liability for the payment of the bonds.

It must be admitted that the Act in question was a very extraordinary and unusual piece of legislation. It took from the bondholders part of the security on which their money was advanced, namely a constructed railway, and required them to be content with the liability of the province alone; surely a very high handed proceeding, and one hard to be defended on any