1885.

Tye &

Fairman.

and until some one insisted on his selling the patent machines at a fair figure; and he would at all events have the monopoly of the sale of the patent machines. The question at issue is reduced down to one of fact, as to whether misrepresentations were really made by Tye to Fairman to induce the latter to enter into an agreement which he never would have made, unless deceived and misled by mispresentations of Tye.

The proof cannot be said to be very satisfactory, but it has been found by the judge of the Superior Court to meet the exigency of the case, and we have not been able to come to the conclusion that he was mistaken. It runs to the effect that after Fairman got fully into possession, he found that other parties were using the same process for the coiling of wire as that which had been handed over to him by Tye, and on enquiry he found that there was no existing patent whatever in Canada for the process of wire coiling handed over to him by Tye in execution of the agreement; moreover, that no patent could be obtained for it in Canada inasmuch as a patent had not been applied for in Canada, within a year from the time it had been patented in the United States, as required by the Canadian statute to entitle the owner to obtain a patent in Canada; moreover, that the patent which Tye had obtained in Canada was for a particular process called the pigtail, in connection with a machine which had not been in use by Tye, nor delivered over nor used by Fairman under his agreement of purchase, and which he, Fairman, considered absolutely useless; therefore, not having got a patented machine with exclusive privileges, according to his agreement and the representations made to him, but only an unpatented machine which every one who chose might use, he was not bound to pay the price, or should be indemnified in damages for this breach of the contract.

An attempt was made to show that the machine with the pigtail attachment had really been in use by Fairman, and was as good if not a better machine than the other, but it cannot be said to have been successful, and

the fact is strongly brought out in Fairman's evidence, that the machine really in use when he got possession, and in the use of which he was instructed by Tye, was not the one with the pigtail appliance patented under No. 10,334, but the Moody machine patented only in the United States, and wholly unpatented and not susceptible of being patented in Canada, and therefore evidently not the machine Fairman relied upon, or had reason to rely upon, as well from the terms of the contract as from the representations made to him. With regard to these representations it may be said that they are not wholly uncontradicted, but very strong proof of them is made, and the weight of the proof seems to be in favor of the respondent. It was so found in the court below, and we do not see that there is room for reversing this conclusion. The professional expert, too, found that the Moody machine referred to as the one patented in the United States and not in Canada, and in use by Fairman under his agreement of purchase, is in no way covered, protected, or secured by the patent No. 10,334 which is applicable to the machine with the pigtail appliance.

On the whole, the majority of the court think it their duty to confirm the judgment of the Superior Court, and it is accordingly confirmed.

Judgment confirmed, Tessier, J., diss.

T. P. Butler, Attorney for Appellant.

Macmaster, Hutchinson & Weir, Attorneys for Respondent. (J. K.)

1885.

Tye Fairman.

END OF VOL. I.

INDEX.

ACCOUNT. See PROCEDURE, 65.

ACQUIESCENCE IN JUDGMENT. See PROCEDURE, 373.
ACTION.

Reception of thing not due.] Where a fee had been exacted illegally
by a municipal corporation during three years in succession
before the validity of the exaction was contested, the same might
be recovered by the person who had paid the fee. The City of
Montreal & Walker, 469.

Authorization of action by Fabrique. See FABRIQUE, 333.
AFFIDAVIT. See PENAL ACTION, 22, 26.

ALTERNATIVE OBLIGATION. See RAILWAY BONDS, 112.
APPEAL BY FABRIQUE-Authorization. See FABRIQUE, 333.
APPEAL TO SUPREME COURT. See PROCEDURE, 482.

APPEAL BOND. See SECURITY IN APPEAL, 72.
ASSESSMENT ROLL. See MUNICIPAL LAW, 237.
ASSIGNEE. See INSOLVENT ACT OF 1875, 357.
AVEU. See JUDICIAL ADMISSION, 321.

BANK NOTES. See PRIVILEGE, 302.
BILL OF LADING.

1. Fulfilment of obligations under.] A bill of lading (for the terms
of which see head note on p. 75), under which wheat was ship-
ped from Toledo to Kingston, was held to have become effete
by the delivery of the wheat at Kingston, prior to the assign-
ment of the bill of lading to the plaintiffs in the cause. St.
Laurence and Chicago Forwarding Co. & The Molsons Bank, 75.
2. Usage of Trade]. An alleged usage of trade, imposing the obli-
gations incurred under the first bill of lading upon the carrier
who accepts a cargo carried to an intermediate port to forward it
to its final destination by an additional transit, so as to require
such ultimate carrier to procure the surrender of the original bill
of lading to free himself from responsibility, could not alter the
established significance of the documents used, or the legal rela-
tions of the parties according to the facts of the case, or make
liability depend upon obtaining the surrender of a document
after it had exhausted its efficiency. Ib. 75.

BONDS. See RAILWAY BONDS, 112.

BUILDER. See PRIVILEGE, 396.

CARRIER. See BILL OF LADING, 75.

CHARTER PARTY-Time-Rejection of Contract. See SHIPPING, 264.
CITY OF MONTREAL. See CONSTITUTIONAL LAW, 401; EDUCATIONAL

INSTITUTION, 367; MUNICIPAL LAW, 60, 469; PROCEDURE, 237.
COLLECTION ROLL. See MUNICIPAL LAW, 42.

COMMENCEMENT OF PROOF. See JUDICIAL ADMISSION, 321.
COMPANY. See CORPORATION, 340, 351; RAILWAY COMPANY, 353, 364.
CONSTITUTIONAL LAW.

1. Jury Law]. The Parliament of Canada, in declaring, by 32 & 33
Vic. c. 29, s. 44, that "every person qualified and summoned as
a Grand Juror, or as a Petty Juror, in criminal cases, according
"to the laws which may be then in force in any Province of
Canada, shall be and shall be held to be duly qualified to serve
as such juror in that Province, etc.," did not legislate ultra vires;
and the Jury Act of the Province of Quebec is constitutional.
Reg. v. Provost, 477.

46

2. License for Storage of Gunpowder]. The Act 41 Vict. (Q.) c. 3,
s. 170, which imposes a penalty for failing to take out a license,
is not ultra vires, being in the nature of a police regulation, and
as such within the powers of the Local Legislature, even suppos
ing the provision of the Act requiring a fee of $50 to be paid for
a license were ultra vires as a revenue tax. Hamilton Powder Co.
& Lambe, 460.

66

3. Nuisance-Chimney sending out smoke in hurtful quantity]. While
the local legislatures have no jurisdiction to deal with an indict-
able misdemeanor, that being a matter of criminal law assigned
exclusively to the Parliament of Canada; they have authority to
legislate for the prohibition of things hurtful to public health not
matter for indictment at common law, such as factory chimneys
sending forth smoke in such quantity as to be a nuisance.”
The local legislatures possess this power as coming under “muni-
cipal institutions," under B. N. A. Act, s. 92, No. 8; and the fact
that a term of the criminal law ("nuisance") is used in a local
Act to characterize an offence within the jurisdiction of the local
legislatures does not make the enactment ultra vires so long as
the offence is not per se an indictable offence under the criminal
law. Pillow & City of Montreal, 401.

4. Tax on Commercial Corporations]. The taxes imposed on com-
mercial corporations by 45 Vict. (Q.) ch. 22, are direct taxes, and
authorized by the B. N. A. Act, sect. 92, s.s. 2; and even if not
direct taxes, they would be valid under sect. 92, s.s. 16 as matters
of a merely local or private nature in the Province.
British and Mercantile Ins. Co. & Lambe, 122.

CONTRACT.

North

1. Lease of Steam Power]. A contract of lease of steam power to the
extent of six horse power, held, not violated by subletting a por-
tion of the motive power,-there being no more power used than
was mentioned in the lease, and no prohibition against sub-
letting. Sharpe et al. & Cuthbert et al., 479,