Scottish Union and National Ins. Co. of Edinburgh v. Lord

Scottish Union and National Ins. Co. of Edinburgh v. Lord
Collection
Supreme Court Judgments
Date
1925-02-26
Report
[1925] SCR 391
Judges
Idington, John; Mignault, Pierre-Basile; Newcombe, Edmund Leslie; Rinfret, Thibaudeau; Maclean
On appeal from
Prince Edward Island
Subjects
Appeal
Decision Content
Supreme Court of Canada
Scottish Union and National Ins. Co. of Edinburgh v. Lord, [1925] S.C.R. 391
Date: 1925-02-26
Scottish Union and National Insurance Company of Edinburgh (Defendant) Appellant;
and
W. Warren Lord and Others (Plaintiffs) Respondent.
1925: February 18, 19; 1925: February 26.
Present:—Idington, Mignault, Newcombe and Rinfret JJ. and Maclean J. ad hoc.
ON APPEAL FROM THE SUPREME COURT OF PRINCE EDWARD ISLAND.
Appeal—Final judgment—Demurrers to pleadings—Issues of fact— Verdict for plaintiffs—Non-suit or new trial refused—Demurrers undisposed of.
In an action on an insurance policy the defendant demurred to counts in the declaration and the plaintiff to some of the pleas. Pursuant to an order in chambers the issues of fact were first tried. A general verdict for the plaintiff was rendered after non-suit had been refused. On appeal to the court en bane a motion for non-suit, for which leave was reserved at the trial, or for a new trial was refused and the defendant obtained special leave to appeal to the Supreme Court of Canada. Before this appeal came on argument was heard on the demurrers but judgment was not rendered.
Held, that as long as the issues of law are undetermined the judgment on the issues of fact does not decide, in whole or in part, any substantive right of any of the parties and is not a final judgment.
Sec. 36 (b) of the Supreme Court Act provides that an appeal shall lie from "a judgment upon a motion for a nonsuit."
Held, that the judgment of the court en bane refusing a nonsuit was right; that there can be no judgment of non-suit when the issues of law are not before the court.
Judgment appealed from ([1924] 4 D.L.R. 259) stands.
APPEAL from a decision of the Supreme Court of Prince Edward Island ([1]) maintaining the verdict at the trial in favour of the plaintiffs. The only question decided on this appeal was that of jurisdiction of the court to entertain it. The conditions under which it came before the court are set out in the above head-note.
F. R. Taylor K.C. and J. D. Stewart K.C. for the appellant.
Johnson K.C. and Bentley K.C. for the respondents.
The judgment of the majority of the court (Mignault, Newcombe, Rinfret and Maclean JJ.) was delivered by
NEWCOMBE J.—The respondents (plaintiffs) in the Supreme Court of Prince Edward Island declared in two counts upon a contract of fire insurance against the appellant company (defendant). The appellant pleaded thirty-five pleas, twenty-six to the first count and nine to the second. The appellant also demurred to the first count of the declaration and the respondents demurred to four of the pleas which were pleaded to that count. By order of Arsenault J. of 8th January, 1924, it was directed that the issues of fact should be tried first, and a jury was summoned to try them and to inquire of and assess the damages. The issues of fact were accordingly tried before the Chief Justice and a jury on 15th, 16 and 17th January. The defendant at the trial moved for non-suit; the motion was refused with leave to move the full court; the jury found generally for the plaintiffs for $1,011.33; the defendant gave notice of motion, dated 26th January, to set aside the verdict as contrary to the evidence, against the weight of evidence and contrary to law, and for a direction that a non-suit should be entered, or that a new trial should be granted. This application was heard before the full court, consisting of Haszard and Arsenault JJ., in May, and on 14th July the court pronounced judgment refusing either a non-suit or a new trial. The appellant, on 29th July, obtained special leave from the Supreme Court of the province to appeal from this judgment to the Supreme Court of Canada; notice of appeal was given on 2nd August, and on 29th October the appellant deposited the requisite security and obtained an order of the Chief Justice of the provincial court allowing the security. There is a note in the record to the effect that on 29th July the court set down the demurrers for hearing at the ensuing Michaelmas term; that the demurrers were argued before the court en banc, consisting of the Chief Justice and Arsenault J., on 18th November, when the court reserved judgment, and that judgment had not been rendered.
When the appeal came on for hearing in this court, counsel for the respondents moved to dismiss it on the ground that the court was without jurisdiction, because the judgment is neither a final judgment, nor a judgment upon a motion for a non-suit or directing a new trial, within the meaning of section 36 of the Supreme Court Act. The court then expressed grave doubts as to the right of appeal, and suggested to counsel the advisability of considering further steps in the court below to fortify the appeal so as to bring up the whole case upon final judgment, and thus to avoid the question of the court's jurisdiction to entertain an appeal at the present stage of the proceedings; but counsel preferred to proceed with the argument upon the case as it stands; and, as the situation had not been made perfectly clear by the preliminary discussion, the court permitted the argument upon all points, reserving the question of its jurisdiction.
The final judgment from which it is provided that an appeal shall lie is declared to mean
any judgment, rule, order or decision which determines in whole or in part any substantive right of any party in controversy in any judicial proceeding.
The effect of the order under appeal is to deny the appellant's application in every particular—for non-suit, or to set aside the findings implied in the general verdict for the plaintiffs upon the issues of fact, or to grant a new trial. The order determines nothing upon the issues of law which involve the question of liability as between the parties, and which are not before the court upon the appeal, but remain outstanding. It would appear indeed that, so long as the issues of law remain undetermined, the findings of fact are not decisive in whole or in part of any substantive right, and therefore it cannot be maintained that there is a final judgment. There is certainly no judgment directing a new trial; the court has refused to direct that the issues of fact shall be retried. Therefore upon neither of these grounds is the judgment appealable.
But it is said that there was at least a motion for a non-suit, and that an appeal has been asserted from the judg- ment which was pronounced upon that motion. The judgment of non-suit was in common practice and well understood before the introduction of the rules of procedure under the Judicature Act. These rules have not been adopted in Prince Edward Island, and so, in that province, a plaintiff retains his privilege of becoming non-suit, and the court the authority which it formerly possessed to direct a non-suit, if it be clear in point of law that the action will not lie, or to allow the plaintiff to take a verdict with liberty to the defendant to enter a non-suit if the court above should be of opinion that the action will not lie. In this case the latter course was adopted; but, although the jury found under the directions of the learned Chief Justice a general verdict, which must be interpreted as a finding of the jury in the terms of the issues referred to them, it must be realized that if the appellant's demurrer were allowed, the verdict, being general, could not stand in any particular, and if the respondents were to succeed upon the demurrers, seeing that the court was of opinion not to disturb the verdict, they would be entitled to move for final judgment in the case; but, inasmuch as a judgment of non-suit disposes of the action, and according to the general rule a non-suit for part is a non-suit for the whole (Bacon's Abridgment, tit. "Nonsuit") it is obvious that there can be no non-suit at the trial of the facts when the issues of law are by order of the court excluded, and therefore I think that, in view of the state of the cause, the court was right in rejecting the motion. Non-suit involves considerations of law having regard to the facts as they appear; the questions of law were not before the learned Chief Justice at the trial, and a judgment of non-suit was not in the somewhat unusual proceedings either appropriate or available.
I would therefore dismiss the appeal with costs throughout.
IDINGTON J.—This appeal arises out of the following circumstances. The respondents, W. Warren Lord and J. Herbert Lord, carried on business at Cape Traverse in Prince Edward Island as general merchants and, in course thereof were insured in respect of their stock in trade there by appellant and others. One of the policies held by said partnership was later dropped, but another for $2,000, said to have been by its terms made payable to the Royal Bank at Summer side in said Island, as collateral security, was continued in force for many years. For carrying out that collateral purpose it seems to have 'been handed to said bank, but the bank was paid off, and the manager, having no further interest in the policy, seems to have forgotten it, when asked years afterwards, on an occasion when for carrying out the changes I am about to refer to, it was deemed necessary to formally transfer it. The partnership, named Lords Company, moved part of their goods to another shop at Carleton, a mile or so away, and in course of time moved the entire stock into that shop and proceeded to have the partnership along with other subscribers formed into a joint stock company, under the name of " Lords Limited," and explained to one Brow, an insurance agent at Charlottetown, that it had done so; and it was, of course, desirable to have that change made in the policy.
Brow was the local agent of the appellant for Prince Edward Island and, when the policy could not be found in the bank, it occurred to him that possibly he had it at his office in Charlottetown, and he made search there, but failed to find it.
Brow was the agent through whom the yearly premiums were paid for renewals of said policy, and, in meeting one of the said Lords Company, he undertook to see that it was made all right, or words to that effect, and the said firm, known as the Lords Company, and registered as such, accepted his assurance and continued to pay through him the annual premiums.
This arrangement was testified to by one of said Lords Company, and set forth by Brow in a letter to appellant's St. John, New Brunswick, agents.
The said firm, on the 10th January, 1921, became incorporated under the name of Lords Limited, soon after opening up business in said Carleton shop. The said incorporated company included a considerable number of other shareholders than the said Lords, respondents herein; the latter, however, were the largest shareholders.
The entire assets of the said partnership including said policy of insurance, then passed to the incorporated company, whom it became operative. The renewal receipts were not only passed through the hands of the said Brow but in later years, from and including that of 1918, had, generally, the name of "E. R. Brow, Agent, Charlottetown" stamped thereon.
The last of these which is dated as of 24th January, 1923, reads as follows:—
SCOTTISH UNION & NATIONAL
Insurance Company of Edinburgh, Scotland.
Head Office for North America,
Hartford, Conn.
Renewal Receipt No. 734451.
Agency at St. John, N.B.
Policy No. 4,821,280 issued to Messrs. Lords Co. for two thousand dollars ($2,000.00).
In consideration of the stipulations named in said policy and of a Premium of forty-two and 00/100……………………………..dollars ($42.00)
is hereby renewed and continued in full force and effect for one year from 13th February, 1923 to (at noon) 13th February, 1924, subject to all the conditions therein stated.
Not valid unless countersigned by authorized agent at St. John, N.B.
Sgd. J. H. Vreeland,
Manager.
Countersigned 24th day of January, 1923
Sgd. C. R. Brow. Sgd. J. M. & C. W. Hope Grant,
Agent.
On the night of the 19th of February, 1923, a fire took place which burnt up the whole shop and stock and led to the company passing into bankruptcy.
On the 23rd of February, Lords Limited made an assignment in bankruptcy, under the provisions of the Bankruptcy Act, to The Canadian Creditmen's Trust Association, Limited, an authorized trustee under The Bankruptcy Act, and under the provisions of The Bankruptcy Act, the assets of Lords Limited became vested in the Canadian Creditmen's Trust Association, Limited, as
the trustee of the property of Lords Limited, Authorized Assignor, for the general benefit of the creditors of Lords Limited.
And at that time there was written (by pen) across said receipt above quoted, the following:-—
February 23,/23, assigned to Canadian Credit Men's Association.
E. W. Manson,
Trustee Lords Limited.
W. W. Lord.
The appellants were notified of said fire loss and, as I hold, proofs of loss were clearly made out.
There were seven other policies on the goods in question besides that of appellant, and the goods in the shop were found by the adjuster to be reduced in value so much from what had been there that in fact the share of liability as fixed by the adjuster was about half of the insurance.
Hence the claim on this $2,000 was fixed by him at $1,011.23.
Each of the other seven insurance companies concerned paid its respective share of the loss to the said respondent, the Assignee in Bankruptcy, but the agents of the appellant, at St. John, N.B., seemed inclined to pursue a devious course from the outset, and finally referred the claim to some superior, and appellant declined to pay anything.
Hence this action, which seems to me to have been fairly tried by the learned Chief Justice of Prince Edward Island, with a jury. No objection was taken to his charge to the jury by counsel on either side.
Counsel for the appellant moved for a non-suit and that was overruled, but leave reserved to move before the court en banc.
The jury found for the respondents for the said sum of $1,011.33.
The appellant availed itself of the leave to move for a non-suit and at same time asked for a new trial, but it is asserted in respondents' factum that no exception was then taken to the admission or rejection of evidence or the learned trial judge's charge. And that seems amply borne out by reading the notice of motion which takes no such objection, though objections from (a) to (h) were taken at which I am surprised to see in (i) that it is objected no proof of the incorporation of the company and yet I find the certified copy of the original patent therefore amongst the exhibits and, in the evidence of Mr. Lord, a statement as to who were appointed the officers, in way of organization thereunder.
I need not be surprised therefore that when dealing with such notice of motion it took five days to hear it.
It seems the trial took three days.
The appellant seems to have had ample scope given it to present its case. Yet it presented no evidence, though Brow was present under a subpoena duces tecum, issued by and served on him for the plaintiffs.
I am sorry to find that for want of a stenographer we have not a sentence of the learned judge's charge, but must assume that he dealt properly with the mass of written evidence, as well as the oral evidence, and that the jury were given to understand its import in law if found by them true in fact.
If they were, then certainly there was ample evidence which the learned trial judge was bound in law to submit to the jury for its consideration to find upon and hence he could not properly have either ruled upon the motion for a non-suit, or directed the jury to find for the defendant as if in law no case made out.
The appellant pretends before us that its New Brunswick office never knew of the transfer of stock insured, from Cape Traverse to the Carleton shop, previously to the fire or of responsibility in respect of such loss.
I submit that the correspondence on file amongst the exhibits herein demonstrates that this is quite unfounded.
Its local agent, Brow, having been notified immediately after the fire of what had occurred, sent the appellant's agent at St. John, New Brunswick, a telegram on the 20th February, 1923, and immediately after, on same date the following letter of same date:—
Charlottetown, P.E.I.,
February 20, 1923.
The Scottish Union & National Insurance Company, St. John, N.B.
Gentlemen:
Re 4821280 Lords Co.
I beg to advise that a loss occurred about 11.30 last night under above policy, from cause unknown.
It appears that there was an open rink near the premises, and the assured allowed the skaters to take off their skates in his office, and while he was in the basement the fire originated in his office.
I am sorry to report that it is considered a total loss.
Yours truly,
E. R. Brow.
And another of same date enclosing copy of the said telegram, and got in reply the following:—
St. John, N.B.
20th February, 1923.
E. R. Brow,
Charlottetown, P.E.I.
Dear Sir,—Your two wires of this idem to hand, contents noted. Loss Policy No. 4821280 (Lords Co.). As Mr. Beer is adjusting for all the other companies, we will be glad to have his services for the "Scottish." We presume, of course, that Mr. Beer will make a thorough investigation of the financial condition of the assured, as Dun's Reports lately have shown several judgments recorded. Loss Policy No. 4824424 (Pomeroy). We presume that Mr. Beer will attend to this claim also. Our records shew an endorsement of additional insurance of $1,000, on the Household Furniture.
Any information in connection with the above-mentioned1 claims that you can favour us with, as to origin of fires, etc., please do so by an early mail. And oblige,
Yours very truly,
J. M. & C. W. Hope Grant.
And of same date the following telegram:—
St. John, N.B. 109P Feb. 20, 1923.
E. R. Brow,
Insurance,
Charlottetown, P.E.I.
Wire day letter companies interested and amounts Lords when, known what adjusters act.
J. M. & C. W. Hope Grant.
113P
And that was followed on the 23rd February, 1923, by the following:—
St. John, N.B.
23rd February, 1923.
E. R. Brow, Esq.,
Charlottetown, P.E. Island.
Dear Sir,—On receipt of your favour of 20th inst., advising origin of fire, we considered it advisable to wire you as follows, which we confirm:—
"Letter received. Notify Beer not to compromise company, Lords Loss." We are of the opinion that the origin of fire and occupancy of premises should be first fully placed before the Head Office of interested companies.
Re Pomeroy Loss:
We will be glad to receive particulars in connection with this claim. Is it the same loss in which an aged widow was burned to death?
Yours very truly,
J. M. & C. W. Hope Grant.
Per J.M.G.
On the 1st of March, 1923, Mr. Brow, the local agent, wrote the St. John, New Brunswick agents the following letter:—
Charlottetown, P.E.I.,
March 1, 1923.
Messrs. J. M. & C. W. Hope Grant,
St. John, N.B.
Gentlemen,—
Re Lord & Company Loss.
I have your wire stating "notify Beer not to compromise company Lord loss." Am I to understand that the company repudiates the liability, owing to the office being used that night by the skaters for changing their boots? Or would you mind telling me what is the objection held by the company? At the same time I would be very much obliged if you would kindly give me Mr. Beer's instructions in the matter, as no doubt this week matters will be adjusted one way or the other.
Yours truly,
E. R. Brow.
And their reply thereto contains, in the first paragraph thereof, the following:—
Your esteemed favour 1st inst. to hand, contents noted. Our wire to you conveyed no advice as to the company repudiating liability, but simply asked you to advise Mr. Beer not to compromise the company. The custom among adjusters is when a case of a similar nature such as change in occupancy takes place, is to send his report to the head offices, giving full particulars of the occupancy of the building at the time of fire, origin of fire; then the Loss Departments go into the situation.
and after explaining further, ends by saying they are practically ignorant of the particulars of the loss.
I submit that the foregoing correspondence in which New Brunswick people were so prompt in responding and giving directions relative to the course to be pursued by Brow the local agent of the appellant, and Beer the adjuster, sheds some light upon the pretence that these New Brunswick agents should have known, but did not, that the stock had been moved to Carleton and a new business started there intended to be covered by appellant's policy herein in question. No inquiry made in course thereof as to what it meant that there had been a change in occupancy, though the expression in the quotation above, to my mind, conclusively demonstrated that the writer was quite conversant with the fact of change of occupancy itself.
I have read all the remaining correspondence in evidence herein, including numerous letters, and find nothing inconsistent with my drawing the conclusion that I have just suggested; and I, therefore, am confirmed therein.
I am, however, left in doubt as to what respective fields of authority the agents at St. John, New Brunswick, and Mr. Brow at Charlottetown, possessed.
We have no direct evidence bearing upon the point although Mr. Brow was in court during the trial and could easily have been called by appellant to explain definitely all relating thereto.
Hence we are driven by reason of the objections taken herein to consider the circumstances which are in, evidence.
The entire business of the appellant in Prince Edward Island, except the issuing of the policy of insurance and of receipts for premiums of renewals thereof, would seem in fact to have been entrusted to Brow, the local agent.
And the sworn statement required by the provisions of the "Companies Taxing Act, 1915, of the province of Prince Edward Island" the appellant's manager at Hart ford shews that its head office, without the province, then was in Edinburgh, Scotland, and its chief office, within the province, at Charlottetown.
The provisions of said Act are continued in the Taxation Act of 1920, to which we have our attention called.
It continues, I think, the provisions of the Taxation Act of Prince Edward Island for 1915.
Brow, according to the testimony of Mr. Newberry, the Assistant Provincial Secretary-Treasurer, was named in some letter he refers to, or seems to have referred to, when in the witness stand, as the agent of appellant.
Then we have the provisions of the provincial Act, 11 Geo. V, assented to 27th April, 1921, which seem to render it imperative that a general agent must be appointed for the province for each of such companies, as of the appellant's class, to carry on business therein. Indeed it is so inconceivable that either Brow or his superiors could venture to do so and incur the penalties for its non observance, that it must be presumed the law was observed, and that Brow was appellant's general agent for Prince Edward Island.
I am of the opinion that the evidence in this case on behalf of the respondents at the trial (including the written as well as oral evidence) presents such a case of holding out by appellant of Mr. Brow as the general agent for Prince Edward Island, ever since 1915, that his acts bind appellant, and that view is greatly strengthened by these enactments for the times over which they were in force.
It is to be observed that all that legislation was in force at the time in question when the respondents Lords and Lords Limited had to apply to Brow as appellant's agent in respect of the transfer of the policy in question from them to the Lords Limited, and failed to find it, but got the assurance above referred to.
Since so writing of it I have found in the correspondence filed herein, the following letter from Brow to the New Brunswick agents:— March 10, 1923.
Messrs. J. M. & C. W. Hope Grant,
St. John, N.B.
Gentlemen,—
Re 4821280— Lords & Co.
You will notice by the wording of above policy that the stock insured was located at Cape Traverse, while the fire was at Carleton, about a mile farther north. I called on Messrs. Lords in September last, and I have a memoranda made that day on a piece of wrapping paper on which I put the number of company " Lords Co. to Lords Ltd., transfer to Carleton," meaning that this policy was to be transferred from Lords Co. to Lords Ltd., and transfer covering the policy to Carleton instead of Cape Traverse as formerly.
I am enclosing a copy of a letter written to Lords Ltd., on my return home, dated 27th September, in which I stated that the policy might be in the Royal Bank as they could not find it for me on Saturday. This policy is still made payable to the Royal Bank and its location at Cape Traverse, but I presume the inference would be that the risk would be covered at Carleton, because as soon as the policy could be delivered to us the endorsement would be made.
I may say that nothing further has been done in the matter of adjustment of claim, as Lords Ltd. made an assignment some days ago, and the meeting of the creditors is to be held next Wednesday. I have been served with attaching orders, and I am enclosing same herewith.
As soon as anything definite is arrived at, I will inform you.
Yours truly,
Sgd. E. R. Brow.
The reply of the New Brunswick office thereto was as follows:—
St. John, N.B.,
13th March, 1923.
E. R. Brow, Esq.,
Charlottetown, P.E. Island.
Re Policy No. 4821280 Lords Co.
Dear Sir,—We are in receipt of your favour under date 10th inst., with enclosures as noted. We hardly think it necessary to remind you not to in any way, under existing conditions, compromise the company.
We wrote you on the 7th inst., asking for Mr. Beer's report on. the situation and assume that it will come to hand at an early date.
Yours very truly,
(Sgd). J. M. & C. W. Hope Grant.
P.S.—Please return Pomeroy loss payment receipts mailed you 3rd inst., for stamp affixment and oblige.
J. M. & C. W. Hope Grant.
It is to be observed there is not a word of repudiation of Brow's authority to act, as he tells them what had transpired.
These gentlemen seem to have been inclined to hide everything lest the appellant company would be compromised, for they had tried the same expedient in a variety of ways with Beer, the adjuster, who, notwithstanding, in his report as such, refers thus to the matter:—
In the meantime it transpired that a policy for $2,000, issued by the Scottish Union and National Insurance Company had not been properly endorsed to transfer the covering from Lords Company's store in Cape Traverse, where they formerly did business, to their store in Carleton, where the entire business had been removed some year or more ago. This endorsement had been asked for by Lords Limited of Mr. E. R. Brow, the Agent of the Scottish Union and National, and he had made a memorandum and agreed to the transfer, verbally, and asked Mr. Lord to send him the policy for endorsement, it being distinctly understood between Mr. Brow, the Agent, and Mr. Lord, the Manager, that the transfer had been made. Owing to the inability of Mr. Lord to find the policy, which apparently had been in the hands of the bank, the endorsement was never made, but the agent here claims that he considers the company was on the risk at Carleton and not at Cape Traverse, where the Lords Company had ceased to do business and had no goods.
Following this, on the 13th day of February, this policy was renewed by a renewal receipt duly sent to the Lords Company which would shew that the company were still on the risk and as this was the only store and stock which Lords Limited owned the intention was to cover same notwithstanding the fact that the policy read Cape Traverse instead of Carleton.
Upon presentation of the facts to Messrs. J. M. & C. W. Hope Grant, the General Agents of the Scottish Union and National, at St. John, N.B., and for whom Mr. Brow is a subagent, they after consideration declined to admit any liability under the policy. As Adjuster and after going into the matter carefully and thoroughly with Mr. Lord, the Manager, and Mr. Brow, the Agent of the company, I am convinced that the Scottish Union and National should be liable for their proportion of the loss, but they refuse to have claim papers completed including them in the adjustment.
At the meeting yesterday between the Trustee, Inspectors, Mr. Lord and the Adjuster the facts regarding this policy were explained and the Trustee and his Advisers suggested that inasmuch as the Scottish Union and National consider themselves not liable that the other insuring companies should contribute the total amount of the loss. As Adjuster I objected that this did not seem fair to the other issuing companies and I refused to make out claim papers on that basis and now wish to submit the matter to you and ask for instructions.
This from any one engaged, as he testified he had been, in the insurance business since 1890, and as adjuster since 1917 or 1918, should have been considered by appellant.
In connection with this I may as well advert to the evidence of Mr. Beer, where he says, incidentally, that the rate for Cape Traverse is lower than for Carleton; that the rate at the former seems to have been $35 on this policy and later moved up to $42.
For the foregoing reasons I am of the opinion that the first two grounds of this appeal, as to error of the court below, as stated in appellant's factum, are as follows:— (1) In failing to hold that the defendant did not insure the goods in the store at Carleton (unless the same was effected by an oral policy, which was not within the authority of the local agent).
(2) In holding that there had been a waiver of conditions 3, 5 and 11a of the original policy.
(3) In failing to hold that there was misjoinder of the parties plaintiff,
and have been fully answered.
And as to the third ground there is I submit, nothing involved but a question of procedure regarding which this court has uniformly refused to interfere, unless there has been some grave question of natural justice sure to be done to the appellant, which clearly is not this case.
Indeed we have many times had to send cases back for a new trial because all the parties concerned had not been brought before the court.
The appeal should be dismissed with costs thereof and of the motion made to quash the appeal.
I cannot imagine it ever was intended by the subsection (b) of the now section 36, to extend the operation of the Supreme Court Act to deal with such a record as this was at the date when the leave to appeal was given with two demurrers then still undisposed of.
The purview of the Act has always been held to be, and, I submit, still has to be, that the final decision of the last court of resort in the province has been reached before coming here. To allow an appeal with outstanding and undisposed of demurrers in the case is not desirable, and was never intended.
I may be permitted to add that a motion to quash this appeal was fully argued at the opening of this case before us which I, at the close thereof, very firmly announced my opinion that the appeal should be quashed, but, as I seemed to stand alone in that view, I suggested, as has often been done in such like cases, that the hearing of the appeal be gone on with and both the motion to quash and the merits of the appeal be considered together, and the appeal was then argued fully by counsel for each side respectively.
It seemed to me then unlikely that the motion to quash would prevail and hence I fully examined the case on its merits, with the foregoing result, written prior to our final conference.
At our conference thereafter to finally consider the case I discovered that the majority had reconsidered their atti- tude to the motion to quash, and hence the result that will appear in the respective notes of judgment herein.
When motions to quash and hearing of them and the appeal are left to be considered together, it has frequently happened heretofore that some members of the court adopt one ground and others another for disposing of the case.
Appeal dismissed with costs.
Solicitor for the appellant: J. D. Stewart.
Solicitor for the respondents: J. A. Bentley.
[1] [1924] 4 D.L.R. 259.