Davis,
J.:—This
appeal
arises
out
of
proceedings
by
way
of.
mandamus
instituted
by
the
respondents,
who
alleged
that
they
were
wrongfully
deprived
of
certain
land
or
an
interest
therein
situate
in
Victoria,
B.C.,
in
consequence
of
fraud
in
the
registration
of
a
certain
deed
of
conveyance,
against
the
Minister
of
Finance
of
the
province
of
British
Columbia,
to
compel
payment
of
the
amount
of
their
damages
by
him
out
of
the
Assurance
Fund
under
the
Land
Registry
Act,
R.S.B.C.
1924,
c.
127.
Under
the
terms
of
an
agreement
of
purchase
and
sale
of
the
lands
in
question,
the
deed
of
conveyance
was
put
in
escrow
to
be
taken
up
by
the
purchaser
upon
payment
of
the
purchase
price.
The
respondents
as
vendors
alleged
that
the
purchaser
fraudulently
obtained
possession
of
the
deed
without
payment
of
any
of
the
purchase
price,
registered
the
same
under
the
provisions
of
the
Land
Registry
Act
and
then
raised
money
upon
the
property
by
way
of
mortgage.
The
deed
of
conveyance
was
dated
September
25,
1925,
and
was
registered
October
13,
1925.
The
$30,000
mortgage
to
which
we
shall
later
refer
was
registered
on
May
13,
1926,
and
the
respondents’
action
to
set
aside
the
registration
of
the
deed
of
conveyance
and
to
revest
the
property
in
them
was
commenced
April
8,
1927.
The
judgment
in
the
action
in
favour
of
the
respondents
as
plaintiffs
was
delivered
October
27,
1933,
the
certificate
of
the
district
registrar
on
the
reference
directed
by
the
judgment
was
dated
November
22,
1933,
and
the
final
judgment,
dated
December
30,
1933,
adjudged
that
the
respondents
as
plaintiffs
recover
against
the
defendants
in
the
action
who
were
responsible
for
the
fraud
the
sum
of
$34,730.95
and
costs.
The
defendants
in
the
action
appealed
but
they
subsequently
abandoned
their
appeal
and
it
was
formally
dismissed
by
the
Court
of
Appeal
of
British
Columbia
on
March
7,
1934.
A
return
of
nulla
bona
having
been
made
by
the
sheriff
to
a
writ
of
fieri
facias,
the
respondents
on
March
21,
1934,
demanded
payment
from
the
Minister
of
Finance
under
the
provisions
of
sec.
281
of
the
Land
Registry
Act
of
the
amount
due
on
the
said
judgment,
$34,730.95
and
certain
costs.
The
Minister
refused
to
comply
with
the
demand
and
the
respondents
then
on
April
18,
1934,
moved
for
an
order
directing
that
a
writ
of
mandamus
do
issue
directed
to
the
Minister
of
Finance
commanding
him
to
pay
the
respondents
the
above
amounts
awarded
by
the
judgment
in
the
action
to
which
we
have
referred.
The
Minister
had
by
notice
of
motion
dated
April
9,
1934,
made
application
to
the
Chief
Justice
of
British
Columbia
for
leave
to
intervene
in
the
said
action
and
for
an
extension
of
time
within
which
to
appeal
from
the
judgment
in
the
action
but
this
application
was
dismissed
on
April
13,
1934.
Mr.
Justice
D.
A.
McDonald
on
May
3,
1934,
in
the
proceedings
instituted
by
the
respondents
against
the
Minister
granted
an
order
directing
a
peremptory
writ
of
mandamus
to
issue
directed
to
the
Minister
commanding
him
to
pay
to
the
respondents
the
amount
of
damages
and
costs—namely,
$34,730.95
damages
and
$381.95
costs—awarded
by
judgment
in
the
said
action.
The
Minister
appealed
to
the
Court
of
Appeal
of
British
Columbia
(ante,
p.
),
which
court
dismissed
the
appeal
on
October
2,
1934,
Martin
and
MePhillips,
JJ.
dissenting.
The
Minister
now
appeals
to
this
Court.
Before
entering
upon
a
discussion
of
the
particular
facts
of
the
case,
we
should
review
briefly
the
legislation
of
the
province
of
British
Columbia
respecting
the
creation
and
maintenance
of
the
Assurance
Fund
under
the
Land
Registry
Act
of
that
province.
The
fund
appears
to
have
been
first
created
by
sec.
14
of
the
Land
Registry
Act,
ce.
29
of
the
statutes
of
British
Columbia
of
1898,
which
section
became
sec.
136
of
the
Revised
Statutes
of
1911,
c.
127,
and
read
as
follows:
^136.
The
Assurance
Fund
shall
be
formed
by
deducting
from
the
amount
of
fees
received
by
the
registrar
after
the
thirtieth
day
of
June,
1898,
for
the
purposes
of
the
Land
Registry
Act
the
amount
of
twenty
per
centum
per
annum,
and
accumulating
the
same
with
interest
thereon
until
the
fund
shall
reach
the
sum
of
fifty
thousand
dollars,
after
which
the
twenty
per
cent
shall
not
be
deducted
unless
at
any
time
the
fund
shall
be
diminished
by
payment,
when
the
addition
to
it
of
a
like
sum
of
twenty
per
cent
shall
be
resumed
until
the
fund
shall
again
reach
the
amount
of
fifty
thousand
dollars,
and
so
on
in
perpetuity;
and
all
sums
of
money
so
received
and
deducted,
together
with
all
interest
and
profits
which
may
have
accrued
thereon,
shall
from
time
to
time
be
invested
by
the
Minister
of
Finance
and
Agriculture
in
such
securities
as
may
from
time
to
time
be
approved
of
by
the
Lieutenant-
Governor
in
Council
for
the
purposes
herein
provided.’’
Other
sections
of
the
1911
Act
to
which
reference
should
be
made
are
secs.
127
and
174,
which
read
as
follows:
"
i
127.
The
Minister
of
Finance
and
Agriculture
shall
pay
the
amount
of
any
judgment
obtained,
payable
out
of
the
Assurance
Fund,
notwithstanding
that
there
may
not
be
a
sufficient
sum
to
the
credit
of
the
Assurance
Fund.
"‘174.
There
shall
be
paid
to
the
registrar,
in
respect
of
the
several
matters
mentioned
in
the
Third
Schedule
hereto,
the
several
fees
therein
specified
or
such
other
fees
as
the
Lieutenant-Governor
in
Council
may
from
time
to
time
by
Order
direct;
and
all
fees
paid
to
the
registrar
pursuant
to
this
Act
shall
be
paid
into
the
Provincial
Treasury,
and
shall,
less
twenty
per
cent
thereof,
which
is
to
be
placed
to
the
credit
of
the
Assurance
Fund,
while
the
amount
to
the
credit
of
same
does
not
exceed
the
sum
of
fifty
thousand
dollars,
be
carried
to
the
Consolidated
Revenue
Fund.’’
v
The
Act
of
1911
and
subsequent
amendments
were
repealed
by
the
Land
Registry
Act,
being
c.
26
of
the
1921
statutes.
The
Assurance
Fund
was
continued
by
sec.
228
which
is
now
sec.
228
of
the
Revised
Statutes
of
1924,
ec.
127,
and
reads
as
follows:
"228.
The
Assurance
Fund
of
fifty
thousand
dollars
existing
on
the
thirty-first
day
of
May,
1921,
under
the
Acts
repealed
by
chapter
26
of
the
statutes
of
1921
shall
be
continued
for
the
purposes
of
this
Act,
and
together
with
all
interest
and
profits
which
have
accrued
or
accrue
thereon
shall
from
time
to
time
be
invested
by
the
Minister
of
Finance
in
securities
approved
by
the
Lieutenant-Governor
in
Council.
If
at
any
time
the
Assurance
F'und
is
reduced
to
an
amount
below
the
sum
of
fifty
thousand
dollars
by
the
payment
of
claims,
it
shall
again
be
brought
up
to
that
sum
by
deducting
onefifth
of
all
fees
received
by
the
registrars
and
adding
the
amounts
so
deducted
to
the
fund.”
Sec.
127
of
the
1911
Act
remains
the
same
in
the
present
Act
as
sec.
220.
Sec.
174
in
amended
form
is
now
sec.
254.
It
is
to
be
observed
then
that
the
Assurance
Fund
was
created
by
setting
aside
a
portion
of
the
registration
fees
collected
under
the
Land
Registry
Act
until
the
sum
of
$50,000
was
reached,
the
balance
of
the
fees
collected
being
paid
into
the
Consolidated
Revenue
Fund.
Provision
was
made
that
if
the
Assurance
Fund
should
become
reduced
below
$50,000,
a
certain
portion
of
the
registration
fees
should
again
be
set
apart
to
reimburse
the
fund
and
in
so
far
as
the
fund
might
be
insufficient
at
any
time
to
meet
the
lawful
claims
upon
it,
what
is
in
effect
a
loan
from
the
Consolidated
Revenue
Fund
is
made
available
to
bring
the
fund
up
to
the
fixed
amount.
For
the
purpose
of
these
proceedings
it
may
be
assumed
that
the
Assurance
Fund
was
at
the
time
of
the
demand
and
refusal
of
payment
thereout
of
the
amount
claimed
sufficient
without
any
encroachment
upon
the
Consolidated
Revenue
Fund,
for
it
appears
to
have
been
stated
by
counsel
for
the
respondents
on
the
hearing
for
the
issue
of
the
writ
of
mandamus
and
not
challenged
by
counsel
for
the
Minister
that
the
Assurance
Fund
at
the
time
in
fact
exceeded
the
sum
of
$140,000.
We
may
now
turn
to
the
provisions
of
the
Land
Registry
Act
governing
the
rights
of
persons
who
are
wrongfully
deprived
of
their
land
in
consequence
of
fraud
in
the
registration
of
documents
under
the
Act.
The
relevant
sections
of
the
Land
Registry
Act
(R.S.B.C.
1924,
c.
127)
read
as
follows:
"216.
Any
person
wrongfully
deprived
of
land,
or
any
estate
or
interest
in
land,
in
consequence
of
fraud
or
misrepresentation
in
the
registration
of
any
other
person
as
owner
of
such
land,
estate
or
interest,
or
in
consequence
of
any
error,
omission,
or
misdescription
in
any
certificate
of
title,
or
in
any
entry
in
the
register
may
bring
and
prosecute
an
action
at
law
for
the
recovery
of
damages
against
the
person
by
whose
fraud,
error,
omission,
misrepresentation,
misdescription,
or
wrongful
act
such
person
has
been
deprived
of
his
land,
or
of
his
estate
or
interest
therein.
The
bringing
or
prosecuting
of
an
action
as
aforesaid
shall
not
prevent
proceedings
being
taken
against
the
registrar
in
respect
of
any
loss
or
damage
not
recovered
in
such
action:
Provided
that
no
action
shall
in
such
case
be
brought
against
the
registrar
without
first
proceeding
as
above
provided
unless
authorized
by
the
fiat
of
the
Attorney-General.
"217.
Nothing
in
this
Act
contained
shall
be
so
interpreted
as
to
leave
subject
to
action
for
recovery
of
damages
as
aforesaid,
or
to
action
of
ejectment,
or
to
deprivation
of
the
estate
or
interest
in
respect
of
which
he
is
registered
as
owner,
any
purchaser
or
mortgagee
bona
fide
for
valuable
consideration
of
land,
on
the
plea
that
his
vendor
or
mortgagor
may
have
been
registered
as
proprietor
through
fraud
or
error,
or
may
have
derived
from
or
through
a
person
registered
as
owner
through
fraud
or
error;
and
this
whether
such
fraud
or
error
shall
consist
in
wrong
description
of
the
boundaries
or
of
the
parcels
of
any
land,
or
otherwise
howsoever.
"218.
In
case
the
person
against
whom
such
action
for
damages
may
be
brought
as
aforesaid
shall
be
dead,
or
cannot
be
found
within
the
province,
then
in
such
case
it
shall
be
lawful
to
bring
such
action
for
damages
against
the
registrar
as
nominal
defendant
for
the
purpose
of
recovering
the
amount
of
the
said
damages
and
costs
against
the
Assurance
Fund;
and
in
any
such
case,
if
final
judgment
be
recovered,
and
also
in
any
case
in
which
damages
may
be
awarded
in
any
action
as
aforesaid,
and
the
sheriff
shall
make
a
return
nulla
bona,
or
shall
certify
that
the
full
amount,
with
costs
awarded,
cannot
be
recovered
from
such
person,
the
Minister
of
Finance,
upon
receipt
of
a
certificate
of
the
Court,
shall
pay
the
amount
of
such
damages
and
costs
as
may
be
awarded,
or
the
unrecovered
balance
thereof,
as
the
case
may
be,
and
charge
the
same
to
the
account
of
the
Assurance
Fund.
"226.
In
any
case
where
it
appears
that
the
Assurance
Fund
is
clearly
liable
for
any
loss
or
damage
to
any
person
under
any
of
the
provisions
of
this
Act,
and
where
it
appears
that
the
claim
for
loss
or
damage
is
a
fair
and
reasonable
one,
the
Minister
of
Finance
may,
without
an
action
being
first
brought,
pay
the
amount
of
any
such
claim:
Provided
that
no
such
claim
shall
be
paid
unless
the
Minister
of
Finance
is
authorized
to
do
so
by
the
reports,
advising
such
payment,
of
the
Attorney-
General
and
the
registrar
of
the
district
in
which
the
land
which
is
the
subject
of
such
claim
lies
or
is
registered.’’
The
statute
requires
that
the
respondents
shew
that
they
were
wrongfully
deprived
of
land
or
of
any
estate
or
interest
in
land
in
consequence
of
fraud
in
the
registration
of
some
other
person
as
owner
of
such
land,
estate
or
interest
and
that
they
recovered
damages
in
an
action
at
law
brought
and
prosecuted
by
them
against
the
person
by
whose
fraud
they
were
deprived
of
their
land
or
of
some
estate
or
interest
therein,
and
that
the
sheriff
has
made
a
return
of
nulla
bona.
Upon
receipt
of
a
certificate
of
the
court,
the
Minister
of
Finance
shall
pay
the
amount
of
such
damages
and
costs
as
may
be
awarded,
or
the
unrecovered
balance
thereof
as
the
case
may
be,
and
charge
the
same
to
the
account
of
the
Assurance
Fund.
Counsel
for
the
appellant
contends
at
the
outset
that
proceedings
by
way
of
mandamus
do
not
lie
against
the
Minister
of
Finance
in
respect
of
the
claim
in
question
upon
the
ground
that
the
Minister
of
Finance
is
a
servant
of
the
Crown
and
as
such
is
not
amenable
to
the
ordinary
process
of
the
courts.
Reliance
is
put
upon
the
words
of
Cockburn,
C.J.
in
The
Queen
v.
Lords
Commissioners
of
the
Treasury
(1872)
L.R.
7
Q.B.
387
at
p.
394:
"‘I
take
it,
with
reference
to
that
jurisdiction,
we
must
start
with
this
unquestionable
principle,
that
when
a
duty
has
to
be
performed
(if
I
may
use
that
expression)
by
the
Crown,
this
Court
cannot
claim
even
in
appearance
to
have
any
power
to
command
the
Crown;
the
thing
is
out
of
the
question.
Over
the
sovereign
we
can
have
no
power.
In
like
manner
where
the
parties
are
acting
as
servants
of
the
Crown,
and
are
amenable
to
the
Crown,
whose
servants
they
are,
they
are
not
amenable
to
us
in
the
exercise
of
our
prerogative
jurisdiction.’’
and
upon
the
words
of
Lush,
J.
at
p.
402
of
the
same
case:
"When
the
money
gets
to
the
hands
of
the
Lords
Commissioners
of
the
Treasury,
who
are
responsible
for
dispensing
it,
it
is
in
their
hands
as
servants
of
the
Crown,
and
they
are
accountable
theoretically
to
the
Crown,
but
practically
to
the
House
of
Commons,
and
in
no
sense
are
they
accountable
to
this
or
any
other
Court
of
Justice.’’
If
the
Minister
of
Finance
was
acting
as
a
servant
of
the
Crown
in
discharging
his
duties
with
reference
to
the
Assurance
Fund
there
can
be
no
doubt
that
he
would
not
be
subject
to
a
writ
of
mandamus
to
compel
him
to
pay
the
respondents
out
of
that
fund,
for
it
is
beyond
question
that
a
mandamus
cannot
be
directed
to
the
Crown
or
any
servant
of
the
Crown
simply
acting
in
his
capacity
of
servant.
As
Lord
Echer,
M.R.
said
in
The
Queen
v.
The
Secretary
of
State
for
War
[1891]
2
Q.B.
326
at
p.
338:
"‘Assuming
that
the
Crown
were
under
any
obligation
to
make
this
allowance
to
the
claimant,
a
mandamus
would
not
lie
against
the
Secretary
of
State,
because
his
position
is
merely
that
of
agent
for
the
Crown,
and
he
is
only
liable
to
answer
to
the
Crown
whether
he
has
obeyed
the
terms
of
his
agency
or
not:
he
has
no
legal
duty
as
such
agent
towards
any
individual.
‘
‘
But
a
classic
statement
of
the
distinction
between
a
Minister
acting
as
a
servant
of
the
Crown
and
acting
as
a
mere
agent
of
the
legislature
to
do
a
particular
act
is
that
of
Sir
George
Jessel
when
counsel
in
The
Queen
v.
The
Lords
Commissioners
of
the
Treasury
case
((1872)
L.R.
7
Q.B.
387
at
p.
389)
:
‘Where
the
legislature
has
constituted
the
Lords
of
the
Treasury
agents
to
do
a
particular
act,
in
that
case
a
mandamus
might
lie
against
them
as
mere
individuals
designated
to
do
that
act;
but
in
the
present
case,
the
money
is
in
the
hands
of
the
Crown
or
of
the
Lords
of
the
Treasury
as
ministers
of
the
Crown;
in
no
case
can
the
Crown
be
sued
even
by
writ
of
right.
If
the
Court
granted
a
mandamus,
they
would
be
interfering
with
the
distribution
of
public
money;
for
the
applicants
do
not
shew
that
the
money
is
in
the
hands
of
the
Lords
of
the
Treasury
to
be
dealt
with
in
a
particular
manner.
‘
‘
Here
we
have
a
particular
fund
established
by
the
legislature
and
created
by
the
setting
aside
of
a
certain
proportion
of
the
fees
paid
by
persons
registering
documents
under
the
Land
Registry
Act
so
that
a
fund
may
be
available
to
compensate
those
persons
who
have
registered
their
documents
and
become
deprived
of
their
land
or
some
interest
therein
in
consequence
of
some
fraud
by
other
persons
in
procuring
registration
of
documents
under
the
Act.
The
fund
is
not
public
money
of
the
Crown
but
the
Minister
of
Finance
for
the
province
has
been
designated
by
the
legislature
to
pay
out
of
that
fund
damages
sustained
by
persons
who
have
been
wrongfully
deprived
of
their
land
in
consequence
of
fraudulent
registrations,
upon
proof
by
certificate
of
the
court
of
certain
conditions
prescribed
by
the
statute.
We
are
of
opinion
that
in
a
proper
case
a
mandamus
lies
against
the
Minister
to
compel
payment
out
of
the
fund
when
as
here
there
is
no
suggestion
that
the
fund
itself
is
not
sufficient
to
meet
the
claim
without
resort
to
any
moneys
of
the
Consolidated
Revenue
Fund.
But
counsel
for
the
Minister
takes
the
position
that
even
if
mandamus
lies
in
a
proper
case,
there
has
been
in
this
case
no
action
at
law
in
which
damages
have
been
awarded.
Taking
the
pleadings
in
the
action
and
judgment
therein
it
was,
he
submits,
plainly
an
action
for
a
declaration
that
a
deed
of
conveyance
was
fraudulently
registered
and
for
an
order
setting
aside
the
same
and
for
an
account
of
the
rents
and
profits
and
of
any
payments
made
under
the
contract
of
purchase
and
sale
and
not
a
common
law
action
for
damages.
The
statutory
obligation
of
the
Minister
to
pay
is
upon
an
award
of
damages
by
the
court
in
an
action.
Upon
the
very
face
of
the
record
of
the
action
no
damages,
strictly
speaking,
were
either
sought
or
awarded.
I
confess
to
have
been
much
impressed
by
this
argument
during
the
hearing
but
upon
reflection
I
have
concluded
that
if
the
substantial
effect
of
the
judgment
in
the
action
was
the
establishment
of
the
amount
of
the
damages
actually
suffered
by
the
respondents
in
consequence
of
the
fraudulent
registration,
we
should
not
allow
the
form
of
the
action
or
judgment
to
becloud
the
real
substance
of
the
matter.
That
brings
us
to
a
consideration
of
the
judgment
in
the
action
in
an
effort
to
ascertain
what
if
any
damages
were
in
fact
established.
The
lands
were
by
the
judgment
revested
in
the
respondents
but
subject
to
the
$30,000
mortgage
that
had
been
charged
against
them.
No
question
is
raised
as
to
the
bona
fides
of
that
mortgage
in
the
hands
of
innocent
third
parties,
and
though
the
value
of
the
lands
was
not
proved
except
in
so
far
as
the
contract
of
purchase
and
sale
fixed
the
price
at
$55,000
on
terms
of
payment
of
$10,000
in
cash
and
the
balance
by
a
promissory
note
to
be
secured
by
a
mortgage
on
properties
in
California,
we
may
reasonably
infer,
I
think,
that
the
lands
were
worth
at
least
the
amount
of
the
mortgage.
It
was
proved.
that
the
amount
of
the
mortgage
was
actually
received
by
the
parties
who
committed
the
fraud.
If
the
fact
of
the
$30,000
mortgage
stood
alone,
we
might
not
feel
much
difficulty
in
dealing
with
the
matter
on
the
basis
that
the
damages
were
the
amount
of
the
mortgage
with
which
the
respondents
found
their
property
charged
upon
its
return
to
them
by
the
vesting
of
the
court
made
in
the
action.
But
the
judgment
directed
a
reference
as
to
payments
made
upon
the
contract
of
purchase
and
sale
and
as
to
the
rents
and
profits
and
these,
together
with
the
$30,000
mortgage,
were
respectively
debited
and
credited
in
arriving
at
the
final
sum
of
$34,730.95
for
which,
with
certain
costs,
the
respondents
demanded
payment
from
the
Minister
out
of
the
Assurance
Fund
as
damages
awarded
to
them
for
the
wrongful
deprivation
of
their
property
or
some
interest
therein
in
consequence
of
the
fraudulent
registration.
Now
it
is
to
be
observed
that
the
account
of
the
rents
and
profits
was
taken
by
the
registrar
for
a
period
of
time
that
not
only
commenced
thirteen
days
prior
to
the
date
of
the
fraudulent
registration
but
extended
beyond
the
date
of
the
judgment.
Not
only
this,
but
it
would
appear
that
in
the
action
a
receiver
had
been
appointed
by
the
court
pendente
lite
and
that
the
accounts
for
the
period
covered
by
the
reference
were
divided
into
two
groups,
one
relating
to
the
period
prior
to
and
the
other
to
the
period
subsequent
to
the
appointment
of
the
receiver.
The
balance
of
the
moneys
in
the
hands
of
the
receiver,
some
$3,721.75,
should
be
treated
as
moneys
to
which
the
respondents
as
successful
plaintiffs
in
the
action
were
entitled.
But
in
any
event
the
loss
of
the
rents
and
profits
did
not
arise
"‘in
consequence
of
the
fraudulent
registration’’,
to
use
the
exact
words
of
the
statute,
and
stand
in
a
totally
different
position
to
the
registered
mortgage.
The
rents
and
profits
therefore
cannot
properly
be
taken
into
account
in
arriving
at
the
damages
sustained
in
consequence
of
the
fraudulent
registration.
If
we
disregard
then
the
rents
and
profits
and
consider
only
the
mortgage
the
damages
might
be
said
to
be
$30,000,
but
the
matter
is
not
so
simple
as
that.
The
property
has
been
revested
in
the
respondents
subject
to
the
mortgage
and
the
contract
of
purchase
and
sale
has
been
rescinded.
Substantial
cash
payments,
however,
were
found
by
the
registrar
to
have
been
made
by
the
purchaser
on
account
of
the
purchase
price,
$2,000
on
the
1st
December,
1925,
and
$8,000
in
June,
1926,
to
which
amounts
the
registrar
added
interest
calculated
to
the
date
of
his
certificate,
in
the
aggregate
sum
of
$0,320,
making
the
total
payments
so
found
with
interest
$15,320.
With
the
property
revested
in
the
respondents
the
total
principal
payments
of
$10,000
on
the
purchase
money
at
least
must
be
taken
into
account
if
the
actual
damages
suffered
by
the
respondents
are
to
be
arrived
at.
Moreover,
very
substantial
improvements
were
made
to
the
buildings
upon
the
lands.
The
defendants
in
the
action
in
giving
particulars
of
their
statement
of
defence
stated
that
they
had
expended
the
sum
of
$11,525
between
February,
1926,
and
January,
1927,
for
altering
the
front
of
the
buildings
and
show
windows,
redecorating
the
interior,
replacing
radiator,
rewiring
basement,
installing
awning
fixtures
and
for
architect’s
fees
in
respect
of
alterations;
and
while
the
repairs
and
improvements
are
not
specifically
dealt
with
in
the
registrar’s
certificate,
the
total
disbursements
during
the
first
period
for
maintenance
of
the
premises
are
given
at
$5,043.23,
and
during
the
second
period
at
$32,457.68
;
and
it
does
not
seem
unfair,
therefore,
to
infer
that
the
item
in
the
particulars
of
the
statements
of
defence
relating
to
alterations
and
improvements
and
amounting
to
$11,525
was
correct.
If
the
true
amount
of
damages
is
to
be
ascertained,
it
may
be
necessary
to
take
this
amount
into
consideration.
The
utter
confusion
into
which
one
falls
in
attempting
to
deal
with
the
subject
matter
of
the
judgment
as
substantially
one
of
damages,
though
in
form
something
quite
different,
is
best
evidenced
by
extracting
from
the
judgment
certified
by
the
Court
to
the
Minister
the
following
paragraphs
from
the
findings
of
the
registrar
on
the
reference
:
°
And
I
do
further
certify
that
the
moneys
received
for
the
period
from
the
12th
day
of
April,
1927,
to
the
18th
November,
1933,
on
account
of
rents
and
profits
of
the
said
lands
and
premises
amount
to
$49,241.93;
and
that
the
total
disbursements
during
the
said
period
for
maintenance
of
the
said
lands
and
premises
amount
to
$32,457.68
;
and
that
after
deducting
the
said
total
disbursements
from
the
total
receipts
for
the
said
period
there
remains
a
balance
of
$16,784.25,
being
the
net
rents
and
profits
during
the
said
period;
and
after
deducting
therefrom
the
sum
of
$3,721.75
now
in
the
hands
of
the
said
receiver,
J.
C.
Bridgman,
there
remains
the
sum
of
$13,062.50,
being
the
moneys
received
by
the
defendants
or
any
of
them
from
the
rents
and
profits
of
the
said
lands
and
premises
during
the
said
period.”
Upon
that
state
of
facts,
the
courts
below
directed
the
issue
of
the
old
peremptory
writ
of
mandamus
against
the
Minister
to
compel
him
to
pay
to
the
respondents
out
of
the
Assurance
Fund
the
full
amount
of
the
judgment
in
the
action,
$34,730.95,
in
effect
as
damages.
Obviously
that
sum
is
not
the
amount
of
the
damages
and
it
is
elementary
that
before
mandamus
will
lie
there
must
be
a
strict
legal
right
and
a
proper
and
sufficient
demand.
Even
with
the
analysis
of
the
case
that
I
have
sought
to
make,
I
cannot
approximately
arrive
at
the
amount
of
damages
sustained
in
consequence
of
the
fraudulent
registration.
I
cannot
help
thinking
that
it
was
precisely
in
order
to
avoid
questions
of
fact
such
as
have
been
raised
in
these
proceedings
that
the
statute
expressly
provides
that
the
certificate
of
the
Court
shewing
an
award
of
damages,
in
an
action
between
the
lawful
owner
and
the
wrongdoer,
is
a
necessary
foundation
to
a
proper
claim
against
the
Minister
under
sec.
218.
It
seems
to
me
that
it
is
the
duty
of
this
Court
to
hold
that
there
be
such
a
certificate.
The
alternative
is
a
very
difficult
alternative.
It
really
amounts
to
this,
that
the
Court
should
direct
the
Minister
upon
the
question
what
is
to
be
considered
as
damages
and
what
is
to
be
omitted.
In
other
words
that
the
Court
should
resettle
for
the
Minister
the
statement
of
the
damages,
if
any,
sustained
by
the
person
wrongfully
deprived
of
land
in
consequence
of
a
fraudulent
registration
by
another
person.
The
words
of
the
statute
completely
negative
the
right
of
any
further
tribunal
to
review
the
decision
of
the
action.
This
is
in
substance
the
language
of
Lord
Hewart,
C.J.
in
considering
the
certificate
of
value
by
the
district
auditor
in
the
recent
case
of
Rex
v.
Ayton,
Ex
Parte
Cardiff
Corporation
[1935]
1
K.B.
255
at
p.
234.
However
widely
we
might
be
disposed
to
relax
the
rigour
of
the
strict
requirements
governing
the
right
to
the
issue
of
a
peremptory
writ
of
mandamus
in
order
to
effectuate
the
spirit
and
intention
of
the
legislation
for
the
payment
of
claims
out
of
the
Assurance
Fund,
we
cannot
go
so
far
as
to
say,
upon
the
facts
and
circumstances
of
this
case
that
the
Minister
was
not
entitled
to
refuse
the
demand
and
that
a
writ
of
mandamus
should
be
peremptorily
issued
to
compel
him
to
pay
to
the
respondents
the
sum
demanded
or
in
fact
any
other
sum.
We
are
conscious
of
the
probability,
if
not
the
certainty,
that
the
respondents
suffered
substantial
damages
in
consequence
of
the
fraudulent
registration
complained
of,
but
we
cannot
give
the
relief
sought
in
these
proceedings
upon
that
basis.
We
feel
confident,
however,
that
the
responsible
advisers
of
the
Crown
in
the
province
of
British
Columbia
will
not
fail
to
see
that
in
some
way
the
respondents
are
fully
compensated
out
of
the
Assurance
Fund
to
the
extent
of
any
just
claim
they
may
have.
We
would
respectfully
draw
the
attention
of
the
Minister
of
Finance
to
sec.
266
of
the
statute,
to
which
we
have
referred
earlier
in
this
judgment,
as
affording
ample
authority
for
doing
justice
in
the
matter.
The
appeal
must
be
allowed
and
the
judgments
below
set
aside.
Appeal
allowed.
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