It is rather late in the day to raise the question of the representation of Canada in Imperial tribunals, because it is evident that appeals from this country are every year becoming fewer. Last year there was but one case from this Province decided by the Judicial Committee, while on the last Supreme Court list there were sixteen appeals from our provincial Court of Appeal. An appeal from Canadian courts to England will soon be a very rare event, so that the question of representation does not now seem to be an important one, unless the right of appeal from the Supreme Court should be granted. The Law Times replies that a barrister who every day is in several cases before several judges has more opportunity of learning law than a judge who does not leave his own court, and who has to teach himself law. "The great school of law in the courts is the Court of Appeal. A judge of the Chancery or Queen's Bench Division never goes there to learn; he is taken there to be reviewed, to be differed with, dissented from, reversed, affirmed or-dropped, as some judges are who give no reasons for their judgments, or find things so clear that nothing is to be said. In his own court he may administer what he believes to be law, but which may be nothing of the kind. How can he be said to learn in doing that? No; barristers learn more law than judges, because they have to inform the judges what the law is. Teaching always impresses principles upon the mind more than the learning and application of them. And if Baron Huddleston, during his sixteen years, learned more law than most judges--which we respectfully doubt-he did so by an industry and a method peculiar to himself." REAL.* The Green Bag, for January, opens with a biographical notice and portrait of Benjamin Vaughan Abbott, author of the National Digest and numerous other works. Mr. Abbott was born in Boston, in June, 1830. After COURT OF QUEEN'S BENCH-MONTsome years of practice in partnership with a younger brother, he devoted himself entirely to the preparation of reports and digests. A New York Digest was followed by the National Digest on the same plan. In June, 1870, he was appointed by President Grant one of three commissioners to revise the statutes of the United States, a work which occupied three years, and resulted in the consolidation of sixteen volumes of United States laws in one large octavo. Another work of some note was his Digest of the law of corporations, prepared with the assistance of his brother Austin. Mr. Abbott died in Brooklyn, Feb. 17, 1890. A question which seems to create some difficulty in England is whether a judge or a barrister has the better opportunity of acquiring knowledge of law. The statement is attributed to the Master of the Rolls, that judges must acquire greater knowledge than barristers, however eminent the latter may be, because they are in every case they try. Lessor and Lessee-Arts. 1612, 1614, 1618 C. C. --Disturbance of lessee's use-Claim for reduction of rent-Trespass-Judicial disturbance. Held:-(Affirming the judgment of Wurtelle, J., M. L. R., 6 S. C. 74). 1. Until a judicial disturbance has arisen, and a partial eviction has been the consequence thereof, no claim by a lessee for a reduction of rent can be maintained. A judicial disturbance may arise either by an action of a third person setting up a claim of right to the detriment of the lessee, or by an exception seting up a claim of right, in answer to an action of damages brought by the lessee against a trespasser. 2. A lessee who is disturbed in his possession by the material act of a third party, whatever may be the assertion of right made by such third party at the time of the commission of the act, should treat such disturb *To appear in Montreal Law Reports, 6 Q. B. ance as a mere trespass, and should bring suit against the trespasser for the recovery of the damages which he has suffered by reason of such trespass, and to prohibit the trespasser from further disturbing him in his enjoyment. If the trespasser by his pleas raises a claim of right, the lessee should notify the lessor of the disturbance, and can❘ then bring an action in warranty against the lessor for the purpose of obtaining a reduction of rent, and damages. the belt before six o'clock while the shaft was still in motion, it was held that he had no right to be indemnified for the injury sustained.-Desroches & Gauthier, 5 Leg. News, 404; St. Lawrence Sugar Refining Co. & Campbell, M. L. R., 1 Q. B. 290, followed.-Dominion Oil Cloth Co. & Coallier, Dorion, C.J., Tessier, Cross, Baby, Bossé, JJ., (Tessier and Baby, JJ., diss.) Sept. 22, 1890. Constitutional Law -City of Montreal-Licensing sale of meat-37 Vict. (Q), ch. 51, 8. 123, ss. 27, 31. Held:-Following Pigeon & Cour du Re Per DORION, C. J. :-On the merits the action should be dismissed, the appellants by the agreement in question having assumed all risk of diminished income in the work-corder, M. L. R., 6 Q.B. 60, affirmed by Suing of the telegraph lines transferred by respondents, and having entered into this agreement after the Canadian Pacific Railway Company had obtained authority from Parliament to establish telegraph lines for the transmission of messages for the public.Great Northwestern Telegraph Co. of Canada & Montreal Telegraph Co., Dorion, C.J., Tessier, Cross, Baby, Doherty, JJ., September 22, 1890. preme Court, 17 Can. S. C. R. 195, 1. That subsections 27 and 31 of sect. 123 of 37 Vict. (Q.), ch. 51, by which the council of the city of Montreal is authorized to regulate, license, or restrain the sale, in any private stall or shop in the city outside of the public meat markets, of fresh meats, vegetables, fish or other articles usually sold on markets, is within the powers of the provincial legisla ture. 2. That the by-law passed by the city Commercial corporations-Taxes on-45 Vict. council of Montreal under the authority of (Q.), c. 22. Held-Affirming the judgment of Johnson, J., M. L. R., 4 S. C. 394, That the Act 45 Vict. (Q.), c. 22, applies only to commercial corporations; and that persons associated as underwriters, but not incorporated, are not subject to the taxes imposed by the Act in question.-Lambe es qual. & Allan et al., Dorion, C. J., Tessier, Bossé, Doherty, JJ., Nov. 22, 1890. Master and servant-Responsibility of employer - Negligence. Held :-Reversing the judgment of Doherty, J., M. L. R., 5 S. C. 97, That where an accident occurs to an employee, not in consequence of any fault or neglect of his employer, but solely through his own negligence and disregard of the directions given to him, the employee has no action to be indemnified. So where an employee was directed to change a belt after six o'clock when the machinery would be stopped, and in disregard of the order he attempted to remove the statute above cited, fixing the license to sell in a private stall at $200, is valid.-Corbeil et al. & La Cité de Montréal, Dorion, C.J., Tessier, Baby, Bossé, Doherty, JJ., Sept. 24, 1890. SUPERIOR COURT-MONTREAL.* Accident sur la voie publique-Responsabilité des compagnies de transports-Irresponsabilité des enfants en bas dge-Employés et conducteurs de chars incompétents et n'ayant pas une vue normale-Expertise médicale— Dommages réels-Indemnité pour certains frais. Jugé :-1. Qu'une compagnie de chars urbains est responsable d'un accident par lequel un enfant de deux ans a été tué sur sa voie, par suite de l'infirmité du conducteur qui avait la vue trop courte pour voir à dis tance. 2. Que dans l'espèce l'enfant tué étant très n'a pas pu contribuer à l'accident. jeune ne pouvait pas discerner le danger et *To appear in Montreal Law Reports, 7 S.C. 3. Qu'aucune faute n'étant imputable aux parents de l'enfant décédé, il n'y a pas lieu d'appliquer la question de la responsabilité contributoire; qu'à tout évènement elle ne pourrait donner lieu qu'à une diminution des dommages. 4. Que dans l'espèce il y a eu négligence de la part de la compagnie défenderesse, et qu'il y a lieu d'accorder au père de l'enfant comme partie des dommages réels une compensation suffisante pour les frais encourus par lui depuis l'époque de la naissance de l'enfant jusqu'à sa mort.-Dufresne v. La Compagnie du Chemin de fer à passagers de Montréal, Loranger, J., 29 déc. 1889. FIRE INSURANCE. (By the late Mr. Justice Mackay.) ALIENATION OF SUBJECT AND ASSIGNMENT OF [Continued from p. 5.] 225. Endorsement on policy. remains in possession, and the contract is not performed.1 A contract by A to sell a house to B at a future time, if certain things be done by B, is not an alienation, within a policy stipulating against alienation by, sale or otherwise; though possession be at once given to B.2 Where warehouse receipts are given to banks, the banks are held to be the owners. Grain was insured. The plaintiff who insured it gave warehouse receipts to the banks. A fire happened. The insurance company was discharged.” 226. Insurable interest, how affected in certain cases. No change of movables is seen, though a charge on them was created for advances, with possession of them given in advance, the occupation of the owner having ceased in favor of the advancer. The advancer got the goods given to him where they were, and got a lease to him of the place where they were, and held the key. The clause following was held to operate only in case of real property insured: In Wilson v. Genessee,' an endorsement was required. The agent of the company was applied to for it, but he said it was not wanted. This was held sufficient. The notice in this case denied. Suppose A to insure, and six days after his In Lower Canada, by law, a sale of land is death, a fire to happen. Because there was no perfect without writing even, and without endorsement on the policy at the request of possession taken by the purchaser. Suppose his successor, shall the company (under Eng-A to own a house, insured for $10,000, and to lish clause supra), go free? If the interest in property to be insured be a leasehold, trustee mortgage or reversionary interest or other interest not absolute, it must be so represented to the company and exwas proved and not pressed in the policy in writing; otherwise the insurance shall be void.5 Under a literal interpretation, yes; but semble, a reasonable time should be allowed to the successor. Under a clause prohibiting "the subject insured" being alienated (à peine de nullité even), will alienation of a part vacate the policy in toto? (In leases prohibitions to sublet are, yet sublease of part may be, if prohibition be not exact.) A valid and binding agreement to convey the insured premises is not an alienation under this clause, so long as the assured 1 16 Barbour. put it up for sale at auction, and B to buy it for say $12,000, payable by twelve annual instalments, the first payable at the time of the adjudication. No deed of sale is signed, nor actual possession taken by B, though he has paid the first $1,000; no notice of the sale is given to the insurer; six days later the house is destroyed by fire. Is the insurer to pay? It says: "There has been a change of title in the property insured." Has there been such as to vacate the policy? At the time of the loss B stood proprietor; the insurer has not contracted with him, and is free from A. Yet! semble if, by agreement, before and at the auction, deed with mortgage in it for the unpaid price were stipulated for, to be passed before possession should be claimable (condition suspensive), the real proprietor at the fire might be held to have been A. No. 54, Troplong. (Vente.) Long leases are frequently made with the proviso that if the lessee should assign without the consent of the lessor, the term of the lease shall determine, and the lease become void. Such was held to apply to voluntary assignments only. So the clause is often expressed now, and providing for voluntary or involuntary assignments, so that lessor shall not have a stranger forced upon him without his consent. In case of a lawful bankruptcy commission such clause as the last would work. The lessor may say that on an act of bankruptcy In Lower Canada a mere promesse de vente by the lessee, lease shall end. Of course a will not avoid a policy. bankruptcy commission issuing improperly would not be such as to make term of the lease.1 A mortgage is not considered an alienation within a clause providing for the avoidance of the policy in case "the property insured shall be alienated by sale or otherwise.1 A fortiori in Lower Canada, where fee simple is in the mortgagor, who is the proprietor and remains possessor usually. A sale of the premises with a mortgage taken back immediately to secure the payment of the purchase money, thus changing the interest of the insured from that of a mortgagor to that of a mortgagee, was held in Tittemore v. Vt. Mut. Fire Ins. Co.2 to be an alienation within this clause. Assignments in bankruptcy or for the benefit of creditors have been held alienations within this clause.3 But a policy is not forfeited under this condition by a compulsory sale on execution, provided the assured retains a right to redeem the property by paying the debt.2 What of pawn, by the assured, of the subject insured, he retaining the right to redeem, but transferring possession, to secure the lender of the money? (Chapman case.) In Wolfe v. Sec. Fire Ins. Co., it was held that goods insured may be transferred, then reacquired by the assured, who will afterwards, if loss happen, recover (for stocks of goods may be freely sold.) The policy again becomes effectual on reacquisition of the goods, or like goods. But suppose a house So, in Lower Canada, except under the insured? Would it be so? Could the policy bankrupt law, semble. See Parsons. A descent of the property to the heir of the insured is a transfer by operation of law not within a clause against alienations.1 Sed? sometimes does not clause of policy control in such case, even? Generally, this is a matter of policy regulation. The insured sold the property insured, taking a judgment for part of the purchase money, and keeping the policy. The building was burned while the judgment was unpaid. Held, that an action did not lie upon the policy. 1 Jackson v. Mass. Mut. Fire Ins. Co., 23 Pick. 418; Conover v. Mut. Ins. Co. of Albany, 3 Denio, 254. 220 Vt., 546. 3 Dadmun Manufacturing Co. v. Worcester Mut. Fire Ins. Co, 11 Metcalfe, 429; Moore v. Protection Ins. Co., 29 Maine, 97. 4 P. 627 Am. Lead. Cas., vol. 2. Grevemeyer v. Southern Mut. Ins. Co., 62 Penn. Rep. revive if the condition read that policy is avoided on sale of the subject insured? Semble, land is different from goods. Conditio semel defecta non restauratur. In England and Upper Canada, the assignee of a fire policy cannot sue in his own name, but only in that of the original party.* (Not so in Lower Canada, and query now in England.) Shaw, upon Ellis, says: A subsisting interest at the time of the loss being the main test of the right of the insured to recover on the policy, it seems that a sale, and subsequent 1 See Doe v. Ingleby, 15 Mees. & W. 2 Strong v. Manufacturers' Ins. Co., 10 Pick. 40: Clark v. N. E. Mut. Fire Ins. Co., 6 Cushing, 342, So held of sale for taxes in Quebec, 4 Q. L. Rep. Tax titles in Lower Canada allow the land to be redeemed. 312 Tiffany 416 Q. B. Rep. Upper Canada. cannot approve; sale with resolutory clause in it had not been made. Under the Civil Code of Louisiana, as under the Code of France, the sale is not repurchase of the property before loss, will not, on general principles, affect his claim. Intermediate injuries to the property will, of course, not be protected because they are not losses to the party insured, but it is other-resolue de plein droit by the purchaser's nonwise with injuries after a repurchase, and it seems that they properly come within the scope of a contract of insurance, the spirit of which is to secure indemnity to the assured. Instances are frequent of the suspension of risks by reason of the unseaworthiness or hazardous use of the property insured, and their subsequent revival by the restoration of the navigability of the vessel, or the cessation of the hazardous use of the premises, and there appears to be no reason why, if the insurers are not thereby prejudiced, a similar suspension may not take place on account of the temporary want of an insurable interest.1 Dangerous principles ! Certainly totally unsound under clauses such as usual American policy one, making the insurance cease or the policy thenceforth void in case of any transfer of the interest of the insured in the property insured or of any change of title in the property insured. "The risk is merely suspended by the alienation and is revived by the repurchase," says Shaw, in a note to Ellis; and he cites Power v. Ocean Ins. Co., 19 La. R. That was a case decided upon special grounds. The law of Louisiana says that if the buyer do not pay, the seller may sue en resolution of the deed of sale. The judgment proceeded upon a finding by the court that an absolute sale had not taken place, but one with a resolutory clause in it (this not written, but implied). In this case the purchaser had held about six months, and the resolution of the deed of sale was by voluntary deed. The seller never absolutely divested himself of all interest, said the court. The policy read: "In case of any transfer or ter"mination of the interest of the insured, "either by sale or otherwise, without such "consent" (of the insurance company,) "this "policy shall from thenceforth be void and of no effect." The reasoning of the court in this case I 1 See 1 Phillips Ins. p. 63, and 2 Am. Lead. Cas., p. 434. payment of price. The risk, if the property perished, was on the purchaser, after his purchase until sentence of resolution, previously to which the seller must, of course, make a demande en justice. It is not on the principle that there never was a sale, says Merlin, that on default of payment the sale is resolu. Qu. de Droit, vo. "Enregistrement." Though a sale be on credit, that sale, followed by tradition of the property sold, expropriated the seller, and the judgment en resolution afterwards rendered, is an acte judiciaire translatif de propriété, says Merlin. Whether, after a sale, the resolution be by judgment, or by a voluntary deed, the consequences are the same. In 2 Am. Lead. Cas., it is said that the insurance of a house will endure after the right of ownership has been divested by a sale (for the protection of the interest of the vendor in the price.) The only effect of a sale of the house insured is to debar the owner from recovering damages for a loss which happens to others, without avoiding the contract or precluding right to show that the property was repurchased and again brought within the operation of the policy. (I cannot approve of this.) The risk is merely suspended by the alienation, and is revived by the repurchase.1 In Power's case he was not to sell. He agreed not to; his agreement was irrevocably broken on his selling; in vain afterwards could he or did he remit things to their first condition. Conditio quæ deficit non restaura tur. "Une fois que la condition a manqué les evénemens postérieurs ne peuvent plus la faire revivre." L. 41, 12, de fideicomm: lib: (semble) may be applied to insurance con tracts. Transfer, if merely nominal, is said not to defeat the right of the assured to recover ; sed? see 8 L.C.R. McGillivray case. If, during the policy, the insured transfer 1 Lane v. Maine Mut. Fire Ins. Co.. 3 Fairfield, 44; Power v. Ocean Ins. Co., 19 La. R., 28. |