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1900.

that the directions of the section have not been complied with, and that it follows as a legal consequence that the Judgment. non-compliance is fatal to the claim of the Crown.

It

The patent was registered under the old system of registration, and its registration was completed when the District Registrar indorsed the certificate of registration upon it. (The Registry Act, s. 50.) This certificate shows that it was registered on the 23rd of May, 1899, at 1.25 o'clock p. m. Then in the "Abstract Book" the quarter section was entered as having been patented by the Crown to Fawcett, but no entry or reference was made to the certificates that accompanied the patent. At the time, or just immediately after, the patent was thus registered, an application was made by Fawcett for a certificate of title to the quarter section under the Real Property Act, and the District Registrar thereupon made the entry set out in his evidence on which the Crown relies. Mr. Beynon describes the book in which this entry appears as a docket or note book in which he keeps a record of all applications received and examined by him. seems to be, in fact, a book that he keeps for his own convenience as examiner of titles; it has nothing to do with the old system of registration; and, however convenient or necessary it may be in the office work, it is not a book that is referred to or that is necessarily kept under the Real Property Act, and I think that it is quite impossible to consider it to be the "proper register or other record book" spoken of in section 18. The object of requiring the necessary entries respecting the indebtedness to be made in the register is that persons dealing with the land may have notice that it is charged with the amount of the indebtedness; and the land having been registered under the old system, the object of the enactment sufficiently designates the abstract book as the only one that can be described as the proper register or record book in which to make the entries.

BAIN, J.

1900.

It was argued by Mr. Howell that, if the entries were Judgment. not made in the proper register, it was because the official BAIN, J. charged with the duty of making them neglected his duty, and that the Crown should not be made to lose its lien by the neglect of an officer over whom it has no control. But the object of the section is to confer a right or interest in the Crown adverse to the interest of the patentee, a right which could not exist apart from its provisions. The prescriptions of the section primarily relate, therefore, not to the performance of a public duty by an official, but to the acquisition of a right or interest in the land, and the right or interest cannot arise until those things which Parliament has prescribed for acquiring it have been performed. In my opinion, then, the case comes within the rule stated in Maxwell on Statutes, p. 453, that when a statute confers a right, privilege or immunity, the regulations, forms or conditions which it prescribes for its acquisition are imperative, in the sense that the non-observance of any of them is fatal. In the express words of the section, it is after the necessary entries have been made in the proper register or record book that the indebtedness is to be and remain a charge upon the land.

I think the Crown has failed to show that it has the charge or lien on this land that it claims in the caveat, and that the petition should be dismissed.

I think the respondent Fawcett is entitled to his costs. against the Crown. In Attorney-General v. Richard, 4 M. R. 336, Wallbridge, C. J., thought he could not give costs to the defendant because the Imperial Act, 18 & 19 Vic., c. 90, was not in force in this Province. Now, however, Rule 277 is taken from this Act, and provides that if" in any information, action or other proceeding, judgment is given against the Crown, the defendant is entitled to costs, subject to the same rules as though such proceeding had been had between subject and subject.” By the Queen's Bench Act, s. 2, s-s. 8, the word "defendant "

1900.

will apply to the respondent in proceedings like this; and I think the rule should be held to apply to the Crown Judgment. whether the proceedings in the court affect Dominion or BAIN, J. Provincial interests. The Crown representing Dominion interests is entitled to sue in any of the Provincial Courts, but when it does sue it is bound by the practice and procedure of the Court, as a subject would be: Reg. v. Grant, 17 P. R. 165. If the parties here had both been subjects, I would allow the respondent costs, and I think the same order should be made against the Crown. Mr. Mathers suggests that there may be a difficulty in enforcing orders for the payment of costs against the Crown; but if there be this difficulty, it will be time enough to consider it when it arises.

As the respondent is indebted to the Crown, the amount of his costs will be set off pro tanto against his indebted

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The City of Winnipeg having by resolution of its council proposed to enter into a contract of purchase of certain land to be paid for in five yearly instalments, notwithstanding the provisions of section 396 of The Municipal Act, R.S.M., c. 100, this action was brought by a ratepayer and a motion made for an injunction to prevent the proposed purchase.

1900.

After several adjournments of the motion, and before it finally came on for hearing, a new arrangement was entered into so far varying the original proposition that the injunction was not pressed for on the argument, and the only question for decision was as to the disposition of the costs.

Held, following Hoole v. The Great Western Railway Co., (1867) L. R. 3 Ch. 262, that a suit for an injunction was proper in such a case and that the defendants should pay the costs. It is not necessary that such a suit should be brought in the name of the Attorney-General.

Smith v. Raleigh, (1882) 3 O. R. 405; and Wallace v. Orangeville, (1884) 5 O. R. 37, followed.

ARGUED: 11th April, 1900.

DECIDED: 23rd April, 1900.

Statement. THIS action was brought by a ratepayer of the City of Winnipeg for an injunction restraining the city from entering into a certain agreement for the lease and purchase of a parcel of land for use as a hay market.

are set out at length in the judgment.

tiff.

The facts

J. S. Tupper, Q. C., and F. H. Phippen for the plainOwing to the new arrangement entered into between the City and Cummins since the last adjournment of the motion, it is unnecessary to ask for the injunction. The City is, however, liable for costs, as the plaintiff was entitled to the injunction when the action was brought. The original agreement between Cummins and the City was so improvident as to be fraudulent. If the facts in the statement of claim show fraud it is not necessary to expressly charge it: Attorney-General v. Poole, 4 M. & C. 27. At all events the agreement was clearly illegal, as the Council had no power to incur an expenditure not payable within the municipal year: R. S. M., c. 100, s. 396. The City cannot escape from this statutory provision by resorting to the various subterfuges which have been attempted here: Barclay v. Darlington, 12 U. C. R. 86; Scott v. Tilsonburg, 13 A. R. 233; McLean v. Cornwall, 31 U. C. R. 314. The Council having

1900.

definitely decided to enter into the agreement, the plaintiff would have been too late, if he had waited until the Argument. money had been paid over. It is not pretended that the City solicitor on being notified of our intention to apply for an injunction informed us that the City would not enter into the agreement. The cases show that the plaintiff had undoubtedly the right to ask the interference of the Court by injunction, without the intervention of the Attorney-General: Wilkie v. The Village of Clinton, 18 Gr. 557; Helm v. Town of Port Hope, 22 Gr. 273; Smith v. Township of Raleigh, 3 O. R. 405; Wallace v. Town of Orangeville, 5 O. R. 37.

J. S. Ewart, Q. C., and Isaac Campbell, Q. C., for the City of Winnipeg. The by-law submitted to the electors was not one for the purchase of the property in question. It was merely one for borrowing money for the purchase of some site. There was a numerical although not a statutory majority for the by-law. The plaintiff knew when statement of claim was filed that the question of ultra vires was being got rid of by a change of method, and should not have taken proceedings. Plaintiff did not think the city intended to attempt to become liable. There is no suggestion the market is a nuisance or will injure the plaintiff's property. It would not have hurt the plaintiff for the city to enter into an illegal agreement, and no injunction will issue to restrain such an act: Archibald v. Youville, 7 M. R. 480. If the contract was executed by payment, the city could have enforced it: Bernardine v. North Dufferin, 19 S. C. R. 581; Roland v. La Caisse, 24 S. C. R. 405; Thompson on Corporations, vol. 1, §518; vol. 4, §§52, 74; Re Coltman, 19 Ch. D. 64. The council was supreme as to paying $2,500 this year, and the fact of paying it on an agreement illegal as to the next year does not make the transaction one that can be restrained. There was no intention at the time the ac

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