Taggart,
JA:-I
would
dismiss
this
appeal
for
the
reasons
given
by
the
trial
judge
now
reported
in
24
DLR
(3d)
753;
[1972]
2
WWR
518.
I
wish
only
to
add
that
the
evidence
makes
it
clear
that
the
shares
of
the
deceased
were
held
by
the
broker
in
Winnipeg
and
Toronto
on
a
“custodian”
basis
and,
though
represented
by
certificates
for
large
numbers
of
shares
held
on
a
similar
basis
for
the
deceased
and
others,
were
segregated
from
other
shares
held
by
the
broker
and
could
not
be
pledged
by
the
broker
as
security
for
bank
loans,
That
evidence
provides
the
foundation
for
the
conclusion
of
the
trial
judge
[at
p
757]
that
“the
property
which
passed
on
the
death
of
the
deceased
was
a
proprietary
interest
in
specific
and
identifiable
securities
which
were
..
.
not
situate
within
.
.
.
British
Columbia”.
In
support
of
his
argument
that
the
interest
of
the
deceased
in
the
assets
in
question
was
no
more
than
a
chose
in
action,
counsel
for
the
appellant
submitted
that
had
the
broker
refused
delivery
of
the
shares
on
demand
by
the
deceased
during
his
lifetime,
the
latter
would
have
had
only
an
action
for
damages
and
could
not
have
recovered
the
shares.
He
also
submitted
that
the
case
at
bar
was
analogous
to
such
cases
as
Re
Waite,
Reid
&
Co
Ltd
(1969),
5
DLR
(3d)
229;
12
CBR
(NS)
199,
where
a
purchaser
of
shares
on
margin
sought
to
obtain
the
shares
from
the
receiver
of
the
estate
of
a
bankrupt
broker.
The
unsoundness
of
those
submissions
is
demonstarted
by
the
decision
in
Carter
v
Long
&
Bisby
(1896),
26
SCR
430.
Sir
Henry
Strong,
CJ
said
at
pages
434-5:
Where
the
owner
of
chattels,
having
the
legal
property
in
them,
has
had
his
property
mixed
with
similar
chattels
belonging
to
other
persons
so
that
out
of
the
mass
thus
commingled
the
chattels
originally
belonging
to
each
person
are
indistinguishable,
as
in
the
case
which
has
so
frequently
happened
of
a
quantity
of
saw-logs
being
thus
mixed
(See
Cooley
on
Torts
(2
ed.)
p.
68
and
cases
there
cited),
the
rule
at
common
law
is
that
where
this
has
been
done
without
fraud
or
wrong
an
original
owner
is
entitled
to
take
from
the
mass
an
equivalent
in
quantity
and
quality
for
the
property
which
he
has
lost
by
the
mixing,
and
he
is
treated
as
having
a
legal
title
to
such
property.
That
decision
was
referred
to
in
Re
Stobie-Forlong-Matthews,
Ltd,
[1931]
1
WWR
304;
39
Man
R
477;
12
CBR
228
(on
appeal
[1931]
3
DLR
170;
[1931]
1
WWR
817;
39
Man
R
476),
and
in
Re
R
P
Clark
&
Co
(Vancouver)
Ltd,
[1931]
3
WWR
79;
44
BCR
301;
13
CBR
118.
In
the
case
at
bar
the
shares
in
question
had
been
bought
and
paid
for
by
the
deceased
and
were
his
property
held
for
him
by
the
broker.
In
these
circumstances
the
deceased
could
have
succeeded
in
an
action
for
a
declaration
that
the
broker
held
the
shares
for
him
on
trust
and
for
an
order
that
they
be
delivered
up
to
him.
Counsel
for
the
respondent
submitted
that
the
respondent
should
be
awarded
interest
at
the
rate
of
5%
from
the
date
of
the
judgment
of
the
trial
judge.
Even
if
such
an
order
could
be
made
against
the
Crown
in
the
right
of
the
Province,
as
to
which
I
express
no
opinion,
the
respondent
did
not
give
notice
of
his
intention
to
move
to
vary
the
judgment
and
consequently
I
would
not
accede
to
his
submission
but
would
dismiss
the
appeal
with
costs
to
the
respondent.
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