FRAUDS, STATUTE OF.
See BANKS AND BANKING, 4-
SALE OF LAND, 4.
Place of Residence of-Action on
Foreign Note.] See DIVISION
COURTS.
See BANKS AND BANKING, 2-
COMPANY, 3.
1. Fire Insurance Lease
Change in Nature of Risk-Ab-
sence of Notice or Knowledge by
Landlord-3rd Statutory Condition
-"Control" of Landlord-Omis-
sion to Notify Insurers.]-The
judgment of a Divisional Court in
favour of the plaintiffs was affirm-
ed by the Court of Appeal
(MEREDITH, J.A., dissenting), sub-
stantially for the same reasons as
those appearing in the opinion of
the Divisional Court delivered by
BOYD, C., 13 O.L.R. 540. London
and Western Trusts Co. v. Can-
adian Fire Insurance Co., 217.
2. Life Insurance Changing
Beneficiary Identifying Policy—
"By number or otherwise"-Ex-
Appeal to Divisional Court.]-trinsic Evidence-R.S.O. 1897, ch.
See APPEAL, 1.
See SURROGATE COURTS.
HOUSEHOLD GOODS.
See WILL, 2.
203, sec. 160.-R.S.O. 1897, ch.
203, sec. 160, "The Ontario In-
surance Act" provides that the
assured may vary a policy previ-
ously made so as to restrict, ex-
tend, etc., the benefits, or alter
the apportionment, inter alia, by
a will identifying the policy by a
number or otherwise.
The assured, in this case, being
the holder of a beneficiary certi-
ficate in a benevolent society made
payable to his wife, by his will
bequeathed "out of my life in-
surance funds the sum of $200 to
my sister," and "all the rest,
residue and remainder of my in-
surance funds
to my
daughter":-
the date of the commencement of
the action:—
Held, (1) that the words, "hap-
pening of the event insured
against," in the statute, had refer-
ence to the death of the person
insured, and not to the accident.
which caused his death, and, con-
sequently, the time within which
the action should be brought be-
gan to run at the date of his death.
(2) The trial Judge had no
jurisdiction to give leave to the
Held, that this did not suffi- plaintiff to commence her action
ciently identify the beneficiary by his order made at the trial, as
certificate above mentioned, nor it was then more than eighteen
was it permissible to prove by ex- months after the death, and the
trinsic evidence that the testator plaintiff's action failed because it
must have referred to it as he held was not begun in time.
no other policies.
Re Cheesborough (1897), 30 O.R.
639, specially discussed.
Semble, even were it otherwise,
the widow's claim would have
been good to the extent of the
$200 assumed to be bequeathed to
the sister. In re Cochrane, 328.
There was a direct conflict in
the evidence as to whether de-
ceased died from disease, as
alleged by the defendants, or from
the result of the injury he re-
ceived, and there was also a ques-
tion as to whether the plaintiff's
own evidence did not support the
conclusion that the injury was
3. Accident Policy R.S.O. 1897, sustained by the deceased while
ch. 203, secs. 148 (2), 159 Con- lifting, in which case it would not
struction of Statute "Happening be covered by the policy. There
of the Event Insured Against". was other evidence, however,
Commencement of Action-Leave tending to explain this circum-
Given by Judge after Lapse of Time stance, and to establish that the
-Nunc Pro Tunc-Condition Pre- injury was caused, not by lifting,
cedent-Pleading-Evidence-Ver- but by slipping, and the jury
dict of Jury-Beneficiary.]—An found in favour of the plaintiff on
action brought by the widow of a the questions submitted to them
deceased person, on an accident
on these points:-
insurance policy issued to him by
the defendants, was commenced
more than one year, but less than
one year and six months, after his
death, without the leave required
by the Ontario Insurance Act, sec.
148 (2). Leave was, however,
granted by the trial Judge after
the expiry of eighteen months
from the death, the order being
dated nunc pro tunc as if made on
Held, that the case was properly
left to the jury, and that where
there is evidence on both sides
properly submitted to the jury,
the verdict of the jury, once
found, ought to stand.
Commissioner for Railways v.
Brown (1887), 13 App. Cas. 133,
followed.
Held, also, that the defendants.
were not bound to plead the fail--
ure of the plaintiff to comply with Required Majority-Necessity for
the condition of the policy requir--Ballot Boxes-Use of, for Voting
ing the action to be brought for Other Objects-Voters' Lists,
within three months from the Preparation of-Containing More
time when the right of action than Requisite Number of Voters—
accrued, as it was by the terms of Appointment of Deputy Returning
the policy a condition "precedent Officers and Poll Clerks-Illiterate
to the right of the insured to re- Voters-Marking of Ballots-Ir-
cover" thereunder, and the onus regularity Result of Vote Not
lay upon the plaintiff to shew that Affected-Oath, Useless Form of—
her action was brought in time. Effect of Public Harbour, Appli-
Home Life Association of Can-cation of By-law to-By-law, Pub-
ada v. Randall (1899), 30 S.C.R.lication of Whether True Copy-
97, followed.
Words, Meaning of.]-By sub-sec.
(1) of sec. 141 of the Liquor Lic-
ense Act, R.S.O. 1897, ch. 245,
the Municipal Council may pass a
local option by-law, provided that
before the final passing thereof it
has been approved by the electors
"in the manner provided by the
sections in that behalf of the
Municipal Act"; but by sec. 24
See BANKS of 6 Edw. VII. ch. 47 (0.), if
three-fifths of the electors voting
on the by-law approve of it, the
council shall within six weeks
thereafter finally pass it, and that
the duty so imposed may be en-
forced by mandamus or otherwise.
Judgment of Clute, J., including
his order extending the time for
bringing the action, reversed. At-
kinson v. Dominion of Canada
Guarantee and Accident Co., 619.
INTEREST.
Compounding.]
AND BANKING, 1.
INTERLOCUTORY
JUDGMENT.
See DEFAMATION.
INTERLOCUTORY ORDER.
See COMPANY, 4.
A local option by-law was sub-
mitted to the electors of the town
of Midland, and, on the day follow-
ing the voting, the clerk of the
council declared the result of the
voting, which was in its favour by
the requisite majority. A week
after, the council purported to
finally pass the by-law.
INTOXICATING LIQUORS.
1. Local Option By-law-Muni- Per OSLER and GARROW, JJ.A.,
cipal Corporations Requisite in the Court of Appeal:-The pro-
Three-fifths Majority Obtained-visions of the Municipal Act, as
Two Weeks Allowed for Scrutiny-contained in secs. 369-374 as to
Final Passing by Council Before the ascertainment by the clerk of
Expiry Thereof-Refusal to Quash the result of the voting and as to
-Irregularities in Voting-Voters the right to a scrutiny apply to a
Depositing Ballots in Box-Pub- by-law of this kind; and, there-
lication of Notice-Computation of fore, the by-law should not be
Time for Council, whether Law- finally passed by the council until
fully Constituted-Right to Inquire the expiration of the two weeks
into-Knowledge of Council as to next after the clerk has declared
the result of the voting, but there (4) The question whether the
being here the requisite three- council, when it passed the by-
fifths majority, and no attempt law, was properly constituted or
made to obtain a scrutiny, the not, will not be considered on a
only objection made being as to motion to quash.
the faulty third reading, the pass- Re Vandyke and Village of
ing of the by-law being a purely Grimsby (1906), 12 O.L.R. 211,
formal and ministerial act only, followed.
which the council could be com-
pelled to do, nothing would be
gained by quashing it.
(5) Knowledge by the council,
when finally passing the by-law,
that the three-fifths majority has
been obtained, is not essential.
Per MACLAREN and MEREDITH,
JJ.A. The by-law could prop-
(6) The ballot-boxes used for
erly be passed by the council at
any time within the six weeks, voting on the by-law can properly
be used for concurrent voting for
notwithstanding the non-expiry
of the two weeks allowed for the other objects, the Act in no way
scrutiny, so long as there was the restricting their use to voting on
three-fifths majority, there being the by-law only.
nothing to prevent a scrutiny
being had afterwards.
Moss, C.J.O., agreed in the re-
Judgment of the Divisional
Court affirmed, and that of Mu-
LOCK, C.J., reversed.
Held, by the Divisional Court,
BRITTON, J., concurring in the
result:-
(1) No proceedings after the
polling, such as summing up the
votes, or a declaration by the
clerk of the result of the voting are
necessary.
(2) Where a voter, instead of
handing the ballot paper to the
deputy returning officer, puts it
into the box himself, but with the
officer's approval, the vote is not
invalidated.
(3) In computing the three
weeks required for the publication
of the by-law, the word "week"
is used in its ordinary signification,
and includes Sundays and holi-
days.
Re Armour and Township of
Onondaga (1907), 14 O.L.R. 606,
approved of.
(7) Objections, that the voters'
lists were not properly prepared;
that the list for one of the polling
divisions contained more than the
requisite number of voters; and
that certain deputy returning
officers and poll clerks were not
properly appointed, were
ruled.
(8) The declaration of inability
to read or physical incapacity to
mark the ballot is a pre-requisite
to open voting, and its absence
invalidates the vote, even though
it is done with the consent of the
scrutineers for and against the
by-law; but the defect was im-
material, for, even if struck off,
the result here would not have
been affected.
(9) A voter is not to be deprived
of his vote by reason of the sub-
mission to him by the deputy re-
turning officer of a useless form
of oath.
(10) The fact that a public har-
bour, which is subject to the legis-
lative authority of the Dominion,
was within the territorial limits of
the township does not necessarily
raise the presumption that the
council intended the by-law to
apply thereto, even assuming that
the council had not power to do
by-law was dependent on the
good faith of the council in passing
it, and it being apparent that the
object was not with regard to the
(11) The copy of the by-law as continuance of the business, but
advertized was: "In every tavern, either to altogether prohibit it, or
inn or other house of public enter- to so restrict it as to create a
tainment," omitting the words monopoly, the by-law was bad,
"or place" between the words and must be quashed. Rowland
"other house" and "public enter- v. Town of Collingwood, 272.
tainment," which were contained
in the original by-law:-
3. Local Option By-law Scrut-
iny of Ballots-Finality of Voters'
Held, that the phrases "tavern, List-Right of Deputy Returning
inn or house or place of public en- Officers and Poll Clerks to Vote-
tertainment" and "houses of en- Ontario Voters' List Act-7 Edw.
tertainment" were equivalent VII. ch. 4, sec. 24 (O.)—R.S.O.
terms, and an objection that the 1897, ch. 245-6 Edw. VII. ch. 47
copy published was not a true (0.)-Consolidated Municipal Act,
copy was overruled. In re Duncan 1903, 3 Edw. VII. ch. 19, secs. 369,
and the Town of Midland, 132. 371 (0.).]-Under sec. 24 of the
2. Liquor License Act-Muni- Ontario Voters' List Act, 7 Edw.
cipal Corporations By-law In- VII. ch. 4, the voters' lists finally
creasing License Fees-Effect of-settled by the Judge are, upon a
Prohibition or Monopoly-Bona scrutiny, conclusive evidence that
Fides.]-Under 6 Edw. VII. ch. all persons named therein, and
47, sec. 10 (O.), amending the none others, are qualified to vote
Liquor License Act, R.S.O. 1897, on a local option by-law, under
ch. 245, the license duties were the Liquor License Act, R.S.O.
increased, the duties imposed 1897, ch. 245, as amended by 6
being, in cities of a population Edw. VII. ch. 47 (0.), except as
of over 100,000, $1,200 for a therein mentioned, and therefore
tavern and $1,000 for a shop no evidence can be then given,
license; in cities of a population touching alienage, or minority of
of 10,000 only, and towns of over any voters named therein, or as
5,000 and not more than 10,000, to whether the name of a married
$450 for a tavern and shop license woman is properly on the list or
respectively. By sec. 11, the not.
council of any municipality, with
the approval of the electors, could
increase the above amounts; but
by sub-sec. 5, where in cities there
had been an increase made by the
Act, no further increase should be
made.
In a town with a population of
about 7,000, the council, with the
electors' approval, passed a by-law
increasing the amount to be paid
for a tavern license to $2,500:-
Held, that the validity of the
Deputy returning officers and
poll clerks are entitled, if qualified
otherwise, to vote on such a by-
law, if their names appear on the
voters' list certified by the Judge
and transmitted to the clerk of
the peace. They may vote at the
place where they act, though it be
not their proper polling division.
In re Armour and Township of
Onondaga (1907), 14 O.L.R. 606,
610, not followed.
As the law now stands under
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