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Court that it was entitled to the exclusive use of the name, and to compel the Defendant Company to change its name, and in default for an order authorizing the Plaintiff Company to be Licensed and registered so as to be able to carry on business and sue upon its contracts in B. C. It was held that in the case of a fraud, the Court could compel a registered company to change its name; but that a foreign company had no right to invoke the Court where its name was merely geographical and not fanciful, and where at the time when the local company was registered the foreign company "had not established such a business in the Province that the public would be deceived by the adoption of its name by a domestic or local or Provincial Company."

The following cases were discussed: G. T. R. v. James,1o Levy v. Walker,20 Hendricks v. Montague.21 Residence or Domicile.

There is quite a difference! A bank may reside in many places, but it can only have one domicile-the place of its origin or where its head office is fixed.

22

So rules Middleton, J., in Bank of Toronto v. Pickering,2 on an appeal from an order of the Registrar sitting as Master in Chambers refusing an application to change the place of trial from Toronto to Barrie. The Defendant resided in Barrie, and the Plaintiff Bank where all the transactions out of which the action arose took place in Barrie, where the witnesses for both parties were also to be found.

The question was raised that under Rule 767, there was no appeal from the Master's ruling. But the Court rejected this; and changed the venue.

Reservation of Mines and Minerals.

In Fuller v. Garneau,23 it was held that a reservation out of a grant of all mines and minerals with power to work the same, and for that purpose to use

19 (1916) 10 Alt. L. R. 109; 34 W. L. R. 1007.

20 (1897) 10 Ch. D. 436.

21 (1881) 17 Ch. D. 638; 50 L. J. Ch. 456.

22 46 O. L. R. 289.

23 1919, W. W. R. 154 (Alta.).

and occupy the necessary surface land was no more than the rights that would have been implied by a bare reservation of the mines and minerals themselves. Earl of Cardigan. v. Armitage, and Rowbotham v. Wilson,25 being cited as authorities for the law that in the absence of words giving authority to work or extract minerals from a reservation the right to do so enures to or is inherent in the reservation itself.

Donatio Mortis Causa.

24

In Young v. Bentley," an important question as to what constitutes a valid donatio mortis causa was before the Supreme Court of Alberta. The best corroboration of the claim which is essential to the validity of the gift according to McDonald v. McDonald," lay in the fact that the donor had made a will precisely identical with the claim of the donatio; but this will after the donor's death, was found invalid, because it had only one witness. Yet Hyndman, J., held the donatio was not corroborated and that what the donor had done by way of handing over the gift was quite as consistent with the will as with the donatio.

Bank Manager's Authority.

29

Stevens v. Merchants Bank of Canada,25 is another of the cases where a bank has escaped liability through repudiating the authority of its manager. The case of Banbury v. Bank of Montreal, has quite recently been decided by the House of Lords; and this case was largely relied upon in Stevens v. Stephens. In both cases the manager, if not acting within the scope of his authority, was certainly using his position and by the strength-I cannot call it "by virtue"-of his position, inducing parties to invest money which certainly would not have been invested but for his action and conduct.

The facts were hardly in either case in dispute. But in both cases the want of the manager's authority was

242 B & C. 197.

25 1860, 8 H. L. C. 348.

26 1920. W. W. R. 341.

27 33 S. C. R 145.

28 1920 W. W. R. ». 52.

29 1918, A. C. 626; 87 L. J. K. B. 1158.

pleaded by the bank; and as the onus of proof of authority rests, according to Pole v. Leask,3° on the person alleging it, the defrauded plaintiffs failed because they could not prove that the thing done was within the scope of the employment or the authority of the manager.

Winding-up Act.

In re Meaford Manufacturing Company,31 Meredith, J., decided a matter of importance that is constantly presenting itself, namely, that proceedings under the Winding-up Act cannot be resorted to for the purpose of having determined the validity of a claim against the company which it bona fide disputes.

In the case before the Court, there was a claim against the company for $9,000 balance of salary; a demand for payment had been served, and had not been met; and the petition to wind-up the company as insolvent was filed by the creditor.

33

It was manifestly a ruse to force the hand of the company. In re Public Works Contract Co.,32 In re Gold Mines, were relied upon and the petitioner was ordered to make his claim good by a judgment in an independent action, and then if he saw fit to re-present his petition.

Chattel Mortgage Act.

34

In Petinato v. Swift Canadian Company, an interesting question arose before the Appellate Division.

Under sections 5 and 7 of the Bill of Sale and Chattel Mortgage Act, R. S. O. 1914, cap. 135, a chattel mortgage is void if registered without an affidavit of execution. That was the fact in the case. But the mortgage contained a covenant to insure the chattels covered by the mortgage, the insurance money to be payable to the mortgagee. The chattels were destroyed by fire; and afterwards the mortgagor made a further assignment of the insurance money to the mortgagee.

30 23 L. J. Ch. 155.
31 46 O. L. R. 282.

32 (1884) 4 Times L. R. 670.

33 (1882) 23 Ch. D. 210.

34 46 O. L. R. p. 247.

The general creditors of the mortgagor claimed a right to participate in the insurance money. On an issue it was held that the mortgage was null and void and all that it contained including the covenant to insure; and that the insurance moneys were not the property of the mortgagee but were properly available to the creditors. The Appellate Court reversed this decision and held that while the mortgage as affecting the chattels was void the covenant to insure was a quite independent obligation; and as this did not require registration, it was valid even though it formed an integral part of the chattel mortgage which the statute declared to be null and void.

35

38

36

Pickering v. Ilfracombe, Mumford v. Collier, In re Isaacson, McPhillips v. London Mutual, were referred to and relied upon.

Meredith, C.J.C.P, dissented from this judgment. Absolute Covenant and Vis Major.

39

In Kerrigan v. Harrison, an interesting subject is discussed as to how far the "Act of God" will excuse non-performance of an absolute covenant; and Chief Justice Falconbridge laid it down affirming Atkinson v. Ritchie, Paradrue v. Jane," and Halsbury," that where from the nature of a contract it is evident the parties contracted on the basis of the continued existence of the state of things, the subsequent perishing of the subject matter of the contract will not excuse its performance. This was a case to maintain a road as a right of way to property sold by defendant to plaintiff; and the road is being gradually encroached upon by the erosion arising from the action of the waters of the Ontario Lake.

The Chief Justice held that the covenant contemplated the maintenance of the road in spite of erosion, from which he was bound a priori to protect it, so as to be able to "maintain the right-of-way" itself.'

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BOOK REVIEWS.

Kerr on Fraud and Mistake. By Sydney Edward Williams of Lincoln's Inn, Barrister at Law. London: Sweet & Maxwell, Limited. Toronto: The Carswell Company, Limited.

The fifth edition of this admirable and standard work will be welcomed at the advent of the new year; for it has been brought down till November, 1919, not only with respect to the English and Irish authorities, but to cases bearing on the subjects discussed, which have been decided by the Courts of Canada, Australia, New Zealand and even India. In several parts the work has been recast; but the great fundamentals which made it, from the first publication, an exact and reliable compendium of the Law, easy of reference to the practitioner, still remain its leading and cardinal features. In consulting it the practitioner will feel that he is in the congenial company of an authority whose reliability he has proved in the past, and which presents itself anew burnished with the latest judicial expositions of the wide and varied and highly complex subjects on which it deals-Fraud, Misrepresentation and Mistake. These are the most prolific subjects of legal controversy; and that the principles of the law which have been laid down by our great Judges and Jurists are as elastic as the commercialized inventions and consciences of men, is abundantly proved by their ready adaptability to the extraordinary variety of facts adduced before the Courts in the long array of cases quoted in this edition. But the author does not leave us in a maze of quotations. He sifts and refines the cases and applies for us the result-adds it to the accumulated principles already stated in his work, or points out its divergence from an established rule, and the reason of such divergence.

We are thus enriched in knowledge, and clarified by each chapter of the book.

We have tested the most recent quotations in several places, and found them not only absolutely accurate, but that out of some very long and desultory decisions a very fine and precise statement of the law had

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