ONT.] RECENT SUPREME COURT DECISIONS. U. S. PLAYING CARDS Co. v. HURST. [FEB. 4TH, 1919. Trade-mark-Playing cards-"Bicycle" design — Infringement— Passing off-Intent-Damages. The word "Bicycle," as the name given to a certain class of playing cards, may become a valid trade-mark. The sale by other manufacturers of cards described as Bicycle Series," with the word "Bicycle" occupying a line in letters larger than "Series," is an infringement of the right in the trademarks. Idington, J., dissenting. The finding of the trial judge that a foreign manufacturer and its agent in Canada conspired to defraud the owner of its trade name and the profits to be derived therefrom should not be interfered with on appeal. Idington, J., dissenting on the ground that the evidence did not justify such finding. In an action asking for an injunction to restrain the defendant from passing off its cards for those of the plaintiff, Held, that though there is no evidence of actual passing off by the defendant the injunction should be granted if the defendant's cards could be passed off for those of the plaintiff and there is sufficient evidence of an intention to do so. The plaintiff's relief in such a case would be a judgment for nominal damages with an inquiry at its own risk. Judgment of the Appellate Division (39 Ont. L. R. 249), reversed in part and that of the trial judge (37 Ont. L. R. 85), restored in part. · Appeal allowed in part with costs. D. L. McCarthy, K.C., and Britton Osler for appellant. SMITH V. PROVINCIAL TREASURER OF NOVA SCOTIA, N.S.] [FEB. 4TH, 1919. Constitutional law Succession duties Bank stock Mobilia sequuntur personam Head office of bank Local registry— Situs of property-Bank Act, 3 & 4 Geo. V. c. 9, s. 43. By application of the rule mobilia sequuntur personam the transmission of bank stock by death of the owner whose domicile was in the province is liable to the duties payable under the Nova Scotia Succession Duties Act. The head office of the bank is in Montreal, but under sec. 43 of the Bank Act a share registry office has been established in Halifax where all shares owned by persons residing in Nova Scotia must be registered and all transfers made. Held, per Davies, C.J., and Idington and Brodeur, JJ., Mignault, J., contra, that the situs of shares of the stock of the bank trans mitted by death of the owner resident in Halifax is in the Province of Nova Scotia and liable to pay succession duties there. Appeal dismissed with costs. Henry, K.C., for appellant. Newcombe, K.C., and Jeuks, K.C., for respondent. CLARKSON V. DOMINION BANK. ONT.] [MARCH 3RD, 1919. Banks and Banking-Loan to manufacturer · Security - Written promise-Advance for prior debt-"Bank Act," ss. 88, 90Mortgage as security-Insolvency-Knowledge of bank-Mortgage on land outside province. By sec. 88 of the "Bank Act" a bank may lend money to a manufacturer on security of his goods or raw material and by sec. 90 it shall not acquire any such security unless the liability is contracted "(a) at the time of the acquisition thereof by the bank; or (b) upon the written promise or agreement that such security would be given to the bank." Held, Anglin, J., dissenting, that sub-sec. (b) does not contemplate a general promise or agreement to give security for future advances, but it must have reference to a specific loan negotiated at the time on the security of specific goods. A manufacturing company by application in writing obtained a line of credit from a bank and agreed to give security under the Bank Act on its stock and material for each advance made thereunder. Advances were made and security given as agreed. By similar applications the credit was renewed from time to time and after each renewal the bank took security not only for the present advance but for the total indebtedness of the company to that date. Held, Anglin, J., dissenting, that this security taken for the whole debt was only valid for the amount of the loan made at the time it was acquired; but Held, Idington and Brodeur, JJ., dissenting, that the security acquired for each individual advance was never released and did not merge in the general security so taken; the bank, therefore, was entitled to the benefit of all the securities so acquired. In May, 1912, the company agreed to give to the bank, as further security, a mortgage on its factory site in St. Thomas, Ont., and also a mortgage on land in Montreal. The former was not executed until Nov., 1913, nor the latter until Jan., 1914. In March, 1914, the bank filed a petition for winding up the company. Held, that in Ontario it is the date of the promise to give the mortgage that governs, and as the mortgagor was solvent at that date the mortgage on land in Ontario was valid; but Held, Anglin, J., dissenting, that in Quebec only the date when the mortgage was executed can be considered and as the mortgagor was insolvent to the knowledge of the bank when the Quebec mortgage was given it must be set aside. Per Anglin, J. Insolvency to the knowledge of the bank at that date was not established and: Qu. Can an Ontario Court set aside a mortgage on land in Quebec? After the petition for the winding up the company had been filed the bank advanced $17,600 on security of the stock in trade and material on hand. Held, Idington and Brodeur, JJ., dissenting, that if this advance was made, under the terms of sec. 20, Winding-up Act, with the sanction of the liquidator and for the beneficial winding up of the estate, the bank was entitled to the benefit of the security. Judgment of the Appellate Division (40 Ont. L. R. 245), and of the trial judge (37 Ont. L. R. 591), reversed in part. Appeal allowed in part with costs. Hellmuth, K.C., and J. B. Davidson, for appellant. QUE.] VIEULLETTE V. THE KING. [APRIL 9TH, 1919. Criminal law-Mixed jury-Proceedings in one language onlyNew trial-Substantial wrong-Art. 1019 Cr. C. The appellant, being tried on an indictment for murder, made a statement, by counsel, that the language of the defence was French; and the trial judge directed the empannelling of a jury de medietate linguae. Each of the six French-speaking jurors stated to the Court at the time of their selection, that they understood and spoke both English and French. The trial proceedings were carried on in the English language. The questions submitted on a reserved case and on which there was a dissent in the Court of King's Bench, are, 1-the trial judge had not summed up the case to the jury in the French language; 2-the trial judge had commented "upon the failure of the prisoner" (who had elected to give evidence) "to testify that he had not actually committed the murder." Held, Brodeur, J., dissenting, that, even assuming these grounds to be errors in law constituting "something not according to law . done at the trial or some misdirection given," the conviction should not be set aside as "in the opinion of the Court," no "substantial wrong or miscarriage" has been thereby occasioned" to the appellant. (Sec. 1019 Cr. C.) Per Anglin and Mignault, JJ. Though the terms of the trial judge's charge may be thought unfair, the prisoner's evidence was open to comment by him as that of any other witness. Per Idington, Anglin, Brodeur and Mignault, JJ.-After the election of the accused for a mixed jury, he had a right to have the case conducted in both English and French. Appeal dismissed. W. K. McKeown, K.C., and A. J. McDonald for the appellant. CENTRAL VERMONT RY. Co v. BAIN. QUE.] Negligence GRAND TRUNK RY. Co. v. BAIN. [APRIL 9TH, 1919. Master and servant Railway companies "Joint operation "-Control-Limited liability of each company-Art. 1054 C. C.-Art. 1384 C. N. The G. T. R. Co. was operating a line of railway between Montreal and St. John, P.Q.; and the C. V. R. Co. was also operating a line between St. John P.Q., and St. Albans, Vt. An agreement was entered into between the companies "to operate jointly, and as one line, the railway from Montreal to St. Albans." The same train crew was to remain in charge during the trip; but it was provided "that each party shall pay the train and engine men employed in the joint service for the service performed by them on its only line," and "that . . . the rules and regulations of" either company "shall apply while the trains are upon the lines of that company." A through train, thus operated between St. Albans and Montreal, met with a collision, on the G. T. R. Co.'s line, caused by the negligence of an engineer in charge of the train from the starting point; and the respondent's husband was killed. Held, that, at the time of the collision, the engineer was in the employment and under the sole control of the G. T. R. Co., and the C. V. R. Co. could not be held liable for the accident. Held, also, that "the joint service," referred to in the agreement, could only be construed as joint in the sense of being a continuous service, one part being controlled by one company and the other part by the other. Per Brodeur and Mignault, JJ.-The agreement between both companies is not res inter alios acta with regard to the respondent and her husband, Judgment of the Court of King's Bench (Q. R. 28 K. B. 45), reversed. Appeal allowed with costs. Lafleur, K.C., and Beckett, K.C., for appellant C. V. R. Co. Surveyer, K.C., and Ogden, K.C., for respondent. ONT.] DIAMOND V. WESTERN REALTY. [FEB. 17TH, 1919. Contract-Sale of land-Right of resale-Sales at stated periodsPower to cancel contract-Waiver-Estoppel. A land company agreed to sell and D. agreed to buy certain lots of land at a specific price per lot. By clause six of the contract D. had the right to sell said lots, remitting to the company half of every payment by a sub-purchaser until the whole price of his purchase was paid and the balance due on any sale, when a deed was demanded by the sub-purchaser; the company to have the right each month to examine D.'s books. By clause nine, if D. did not sell fifty lots every six months from Dec. 1st, 1914, the company could cancel the agreement and then neither party would have any recourse against the other except that D. would be liable for the balance due on any of his sales for which a deed was demanded. In the six months ending 31st May, 1916, D. did not sell fifty lots. On July 4th the company wrote him demanding payment of arrears due on sales and threatening to cancel if adjustment was not made by the 15th. On July 5th they wrote saying that by D.'s statement for June $53 should be added to the amount demanded. On July 19th they gave notice of cancellation. Held, Davies, C.J., and Brodeur, J., dissenting, that the notice of cancellation was invalid. Per Idington and Mignault, JJ., Davies, C.J., and Brodeur, J., contra, and Anglin, J., dubitanti, that the company by demanding in July payment of moneys due, knowing that a part of the same was for sales made in June, had elected not to cancel the agreement for default in the six months ending May 31st. Per Anglin, J.-The company having in July intentionally demanded payment in the exercise of their rights under clause six, which rights could be exercised only while the contract was in force, that unequivocal act was an election to recognize it as still subsisting. Appeal from a decision of the Appellate Division of the Supreme Court of Ontario affirming the judgment at the trial by which the action was dismissed. Appeal allowed with costs. C. C. Robinson and Cohen, for appellant. N.S.] MITCHELL V. TRACEY. [MARCH 17TH, 1919. [MARCH 31ST, 1919. Appeal-Prohibition-“ Criminal charge "-R. S. C. C. 139, ss. 39 (c) and 48, Supreme Court Act-8 and 9 Geo. V. c. 7, s. 3. An appeal from the Court of final resort in any province except Quebec in a case of prohibition under sec. 39 (c) of the Supreme Court Act will not lie unless the case comes within some of the provisions of sec. 48 as amended by 8 & 9 Geo. V. ch. 7, sec. 3. Section 39 (c) allows an appeal from the judgment in any case of proceedings for or upon a writ of prohibition "not arising out of a criminal charge." Held, per Davies, C.J., and Anglin and Mignault, JJ., that application for a writ of prohibition to restrain a magistrate from proceeding on a prosecution for violating the provisions of the Nova Scotia Temperance Act arises out of a criminal charge and no appeals lies from the judgment thereon. Per Mignault, J., in Chambers. An order to stay proceedings on a judgment of the Supreme Court of Canada for purposes of a pro |