The only interest I can conceive of which the plaintiff might have in the new lease would be its possible value to a purchaser of the business as a going concern as it would doubtless tend to increase the selling-value. There is no evidence whatever to show that the partnership or either member of it had ever contemplated securing a renewal from the landlord. The receiver, however, did not follow the usual course of transferring the lease along with the stock-in-trade and the business as a going concern but sold the stock-in-trade separately with the intention of disposing of the lease apart from the business subsequently. In such circumstances I do not see on what ground the plaintiff can claim to be interested in the new lease and I am of opinion that either partner became free to acquire it for himself if he could arrange to do so with the owner. The rule seems to be that "One partner cannot treat privately and behind the backs of his co-partners for a lease of the premises, where the joint trade is carried on for his own individual benefit; if he does so treat, and obtains a lease in his own name, it is a trust for 'the partnership." Featherstonhaugh v. Fenwick, 17 Ves. 298. That was a case where the defendant clandestinely obtained the renewal before the dissolution and with the object in view of afterwards dissolving the partnership and thus gaining an unfair advantage over the plaintiff partner. I cannot see that in this case such a relationship existed, for in the words of the Chief Justice, "the then existing lease had several months to run, no renewal was necessary for the purpose for which the partnership then continued to exist, and apparently no one would have any right to obtain a new lease in the interests of the partnership.' If the premises were necessary for the proper winding-up of the partnership beyond the expiration of the old lease it might be a very different matter but that necessity did not exist here. Having come to the conclusion that the defendant has satisfactorily rebutted the presumption against him that the re App. Div. 1918 Mah Kong V Mah Cap Doon et al Hyndman, J. App. Div. 1918 Mah Kong Doon V. Mah Cap Doon et al Hyndman, J. newal should be considered as acquired for the benefit of the partnership I would dismiss the appeal with costs. Appeal dismissed with costs. Ewing, Harvie & Bury, solicitors for plaintiff, appellant. Robertson, Winkler & Co., solicitors for defendants, respondents. 1919 April 30 [APPELLATE DIVISION] REX V. JOHN IRWIN COMPANY, Limited Criminal Lare-Adulteration Act, R.S.C., 1906, Ch. 133— Statutes-Dominion Legislation-Desirably of Uniformity The limitation of six months, fixed by sec. 1142 of The Criminal Code, for In order that there may be uniformity of interpretation of Dominion legislation, it was held that the decision of the highest Court of another province interpreting a Dominion statute, on a matter of procedure, should be followed. Case stated by W. S. Davidson, police magistrate, as to whether the limitation of six months, fixed by sec. 1142 of The Criminal Code, for laying a complaint for an offence punishable on summary conviction applies to offences under The Adulteration Act, R.S.C., 1906, ch. 133. The case was argued before HARVEY, C.J., BECK, SIMMONS and MCCARTHY, JJ. H. S. Patterson, for the accused. No one, contra. April 30, 1919. The judgment of the Court was delivered by Cur, adv. vult. HARVEY, C.J.-This is a case stated by W. S. Davidson, police magistrate. The question is whether the limitation of six months, fixed by sec. 1142 of The Code, for laying a complaint for an offence punishable on summary conviction applies to offences under The Adulteration Act, ch. 133, R.S.C. 1906. App. Div. 1919 Rex V. John Irwin Exactly the same question was raised before the Supreme arvey, C.J. Court en banc in Saskatchewan in 1917 in Rex v. Regina Trading Co., 10 Sask. L.R. 242, [1917] 2 W.W.R. 363, and the Court there unanimously held that it was not, but that the time limit of two years fixed by the Inland Revenue Act, ch. 51, R.S.C., 1906, applies. While I am not sure that I would have reached the same conclusion, there is much to be said for either view, and inasmuch as it relates only to a matter of procedure and it is desirable that there should be uniformity of interpretation of Dominion legislation, I would accept the judgment in that case. and give the same answer to the question stated. Patterson and Macdonald, solicitors for the accused. [APPELLATE DIVISION] REX V. SCHMOLKE Criminal Law-Inland Revenue Act, R.S.C., 1906, Ch. 51, Statutes-Interpretation-Decisions of Highest Court of Upon a conviction under sec. 180 of the Inland Revenue Act, R.S.C. 1906, Appeal from an order of Stuart, J., (ante, p. 485) quashing a conviction under the Inland Revenue Act, R.S.C., 1906, ch. 51. Appeal allowed. 1919 Sept. 23 App. Div. 1919 Rex V. Schmolke Harvey, C.J. Frank Ford, K.C. and H. L. Landry, for the Crown, appel lant. Alex Stuart, K.C., for the accused, respondent. September 23, 1919. The judgment of the Court was delivered by Cur, adv. vult. HARVEY, C.J.-This is an appeal from an order of Stuart, J. quashing a conviction under the Inland Revenue Act, reported, ante, p. 485, where the facts are stated. In Rex v. Brennan, 6 C.C.C. 29, the Supreme Court of Nova Scotia had exactly the same question before it and came to the opposite conclusion to that reached by Stuart, J. That decision was apparently not drawn to his attention for if it had been, following the opinion of this Division expressed in Rex v. John Irwin Co., Ltd., ante, p. 600, he would have deferred to that decision. In the last-mentioned case we accepted and followed the decision of the highest Court of Saskatchewan upon a point of procedure under a Dominion Statute. There is even more reason why we should follow a similar decision here since it was given some 17 years ago and apparently has been accepted as the proper interpretation of the Statute since that time. The appeal should, therefore, be allowed. The conviction is however in excess of the magistrate's jurisdiction in imposing the penalty under sec. 180 which might be $500, the limit of the magistrate's jurisdiction, and also adjudging the forfeiture under sec. 181. Our right to amend the conviction by eliminating what is in excess of jurisdiction is declared in Rex v. Crawford, 5 Aita. L.R. 204, 2 W.W.R. 952, 22 W.L.R. 107, 6 D.L.R. 380, 20 C.C.C. 49, if the evidence satisfies us of the guilt of the accused. There seems no room for doubt on this point and we therefore amend the conviction by eliminating all that refers to the adjudging of the forfeiture under sec. 181. Appeal allowed and conviction amended. Landry and Landry, solicitors for the Crown, appellant. Stuart and Stewart, solicitors for the accused, respondent. APPENDIX CASES APPEALED FROM THE SUPREME COURT OF ALBERTA TO THE SUPREME COURT OF CANADA OR THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL AND REPORTED THEREIN SINCE THE PUBLICATION OF VOLUME XIII. ALBERTA LAW REPORTS: BOARD V. BOARD, 13 Alta. L.R. 263, [1918] 2 W.W.R. 633, 41 D.L.R. 286, affirmed on appeal to the Judicial Committee of the Privy Council, [1919] 2 W.W.R. 940, 48 D.L.R. 13, 35 T.L.R. 635. CALGARY & EDMONTON RAILWAY Co. v. SASKATCHEWAN LAND & HOMESTEAD Co., ante, p. 416, reversed on appeal to the Supreme Court of Canada, [1919] 3 W.W.R. 1011, 50 D.L.R. 16. CALGARY MILLING CO., LTD. V. AMERICAN SURETY COMPANY OF NEW YORK, 11 Alta. L.R. 583, [1917] 2 W.W.R. 1253, 37 D.L.R. 589, affirmed on appeal to the Judicial Committee of the Privy Council, [1919] 3 W.W.R. 98, 48 D.L.R. 295. CHRISTIE V. ALBERTA ROLLING MILLS Co., 12 Alta. L.R. 445, [1918] 1 W.W.R. 98, 38 D.L.R. 488, reversed on appeal to the Supreme Court of Canada, 58 S.C.R. 208, [1919] 1 W.W.R. 572, 45 D.L.R. 545. DEVALL V. GORMAN, CLANCY & GRINDLY, LTD., 13 Alta. L.R. 557, [1918] 3 W.W.R. 21, 42 D.L.R. 573, reversed on appeal to the Supreme Court of Canada, 58 S.C.R. 259, [1919] 1 W.W.R. 836. HAGMAN V. MERCHANTS BANK OF CANADA, 13 Alta. L.R. 293, [1918] 2 W.W.R. 377, affirmed on appeal to the Supreme Court of Canada, [1919] 1 W.W.R. 500. JANSE-MITCHELL CONSTRUCTION Co. v. CITY OF CALGARY, ante, p. 214, affirmed on appeal to the Supreme Court of Canada, 59 S.C.R. 101, [1919] 3 W.W.R. 150, 48 D.L.R. 328. MC BRATNEY V. MCBRATNEY [1919] 2 W.W.R. 685, reversed on appeal to the Supreme Court of Canada [1919] 3 W.W.R. 1000, 50 D.L.R. 132. |