Davis
J.:—The
appellant
in
this
action
by
way
of
Petition
of
Right
seeks
to
recover
from
the
Crown,
in
right
of
the
Dominion,
the
sum
of
$268,338.32
paid
by
it
to
the
Crown
in
settle-
ment
of
a
prior
action
brought
by
the
Crown
against
the
appellant
in
respect
of
non-payment
of
certain
revenue
taxes
alleged
to
have
been
due
and
payable
by
the
appellant
to
the
Crown.
The
prior
action
was
commenced
in
October,
1927,
and
the
period
covered
was
from
January
1st,
1925,
to
May
1st,
1927.
The
settlement
of
that
action
in
June,
1928,
at
$260,000
included
the
Crown’s
further
claims
in
respect
of
the
period
from
May
1st,
1927,
to
March
31st,
1928.
The
amount
of
the
settlement,
though
large,
was
considerably
less
than
the
total
claim
for
taxes,
interest
and
penalties
in
respect
of
the
period
covered
by
the
settlement.
The
balance
of
the
sum
sought
to
be
recovered
in
this
action,
$8,338,32,
is
the
amount
subsequently
agreed
upon
and
paid
for
the
month
of
April,
1928.
There
was
considerable
discussion
between
the
parties,
after
the
settlement,
as
to
the
claim
for
April,
1928,
to
which
we
shall
refer
later.
The
appellant
was
a
brewery
company
incorporated
under
the
laws
of
the
province
of
Ontario
and
carried
on
business
at
the
town
of
Walkerville
near
the
international
boundary
between
Canada
and
the
United
States
across
the
river
from
the
large
city
of
Detroit,
Michigan.
This
action
is
founded
upon
the
allegation
that
the
settlement
of
the
prior
action
was
subject
to
the
condition
that,
broadly
speaking,
the
appellant
was
to
be
entitled
to
the
return
of
the
moneys
paid
under
the
settlement
in
the
event
that
a
similar
action
which
was
then
pending
against
the
Carling
company
should
be
finally
determined
in
favour
of
the
contention
of
both
companies
that
the
taxes
sought
by
the
Crown
were
not
in
law
recoverable
because
the
beer
in
question
had
been
manufactured
and
sold
for
export.
The
Carling
company
subsequently
carried
its
litigation
through
to
the
Judicial
Committee
of
the
Privy
Council
and
successfully
resisted
the
claim
against
it
for
payment
of
the
taxes.
Carling
Brewing
and
Malting
Company
Ltd.
v.
The
King
[1931]
A.C.
435.
There
was
no
formal
agreement
of
settlement
of
the
first
action.
On
June
7th,
1928,
the
appellant
sent
the
Minister
of
National
Revenue
its
cheque
for
$200,000
with
the
following
letter
:
"
"
Walkerville
Brewery
Limited
Walkerville,
Ontario
June
7,
1928.
The
Minister
of
National
Revenue,
Ottawa,
Canada.
Dear
Sir,—
Confirming
the
verbal
arrangement
arrived
at
between
your
Department
and
our
Mr.
Thistle,
we
herewith
enclose
you
our
cheque
for
$200,000.
The
understanding
is
that
we:
are
to
send
you
a
further
cheque
for
$60,000
within
sixty
days.
The
last
mentioned
cheque,
together
with
the
cheque
enclosed
is
in
full
settlement
of
the
claim
contained
in
the
Information
dated
27th
of
October,
1927,
and
also
all
other
sales
and
gallons
tax,
interest
and
penalties
up
to
the
30th
day
of
April,
1928,
and
it
is
understood
that
the
action
commenced
by
the
Crown
is
to
be
discontinued
without
costs
and
that
upon
payment
of
the
full
amount
of
settlement
of
$260,000,
your
Department
is
to
give
us
a
full
release
of
all
claims
up
to
the
30th
day
of
April,
1928.
Yours
truly,
Walkerville
Brewery
Limited.
(Sed.)
H.
Radner."
The
Commissioner
of
Excise
in
acknowledging
the
letter
and
cheque
pointed
out
that
the
settlement
did
not
go
beyond
the
end
of
March,
1928,
in
that
the
records
for
April
had
not
been
completed
and
consequently
no
assessment
for
April
had
been
made
at
the
time.
Mr.
Thistle
mentioned
in
the
letter
was
an
officer
of
the
appellant
company
but
he
died
before
the
trial
of
this
action,
which
did
not
commence
until
April
20th,
1936.
There
is
nothing
in
the
letter
itself
to
indicate
that
the
settlement
was
in
any
way
subject
to
the
condition
which
is
now
alleged.
The
further
payment
of
$60,000
that
was
to
have
been
made
within
sixty
days
was
not
in
fact
made
until
October
13th,
1928.
On
August
20th,
1928,
the
appellant
telegraphed
the
Minister
of
National
Revenue:
‘“Would
appreciate
extension
of
sixty
days
on
balance
owing
on
sales
and
manufacturers
taxes
wire
reply
collect.”
The
Commissioner
of
Excise
replied
the
same
day
as
follows:
Department
regards
terms
of
settlement
with
your
company
as
being
exceedingly
liberal
and
is
not
prepared
to
grant
any
extension
of
time
whatever
for
payment
of
sixty
thousand
dollars
due
ninth
instant.’’
Subsequently
the
Commissioner
telegraphed
the
appellant
on
September
4th
as
follows:
‘‘Reference
my
wire
twentieth
ultimo
regarding
payment
sixty
thousand
dollars
stop
unless
Department
hears
from
you
relative
to
settlement
by
eighth
instant
legal
proceedings
for
recovery
of
balance
due
will
be
proceeded
with
immediately
thereafter.
‘
‘
And
again
on
September
14th
the
Commissioner
telegraphed
the
appellant
:
“As
previously
stated
Department
not
prepared
to
grant
delay
of
sixty
days
for
payment
of
sixty
thousand
dollars
balance
sales
tax
stop
Necessary
legal
action
being
proceeded
with
at
once
to
collect
this
amount.’’
The
$60,000
payment
was
finally
made
on
October
13th,
1928,
with
the
following
letter
from
the
appellant
:
"October
13,
1928.
"‘Minister
of
National
Revenue,
Ottawa,
Canada.
Dear
Sir,—
We
are
enclosing
herewith
our
cheque
in
the
amount
of
$60,000
in
full
payment
of
all
claims
of
your
Department
against
this
company
in
respect
to
sales
and
gallon
age
taxes,
this
payment
being
the
balance
of
the
$260,000
amount
agreed
to
during
the
early
part
of
the
year.
Kindly
acknowledge
receipt
of
this
settlement
and
oblige.
Yours
very
truly,
The
Walkerville
Brewery
Limited,
(Sed.)
E.
Thistle.’’
It
is
to
be
observed
that
this
letter
was
signed
by
Mr.
Thistle,
with
whom
it
is
now
alleged
an
arrangement
for
the
conditional
payment
had
been
made.
Here
again
there
is
nothing
in
the
letter
to
indicate
that
the
settlement
had
been
made
upon
the
condition
now
alleged
by
the
appellant.
The
Hon.
N.
W.
Rowell
was
counsel
for
the
Government
in
the
first
action
and
in
his
evidence
at
the
trial
of
this
action
he
said
that
the
Minister.
shortly
after
the
case
had
been
fixed
for
trial,
had
informed
him
that
certain
proposals
for
settlement
had
been
submitted
and
had
asked
him
to
look
into
and
report
upon
certain
matters
in
connection
with
the
proposed
settlement.
Mr.
Rowell
said
he
went
into
the
matter
and
approved
and
recommended
a
settlement
for
the
lump
sum
of
$260,000
for
the
period
up
to
March
31st,
1928
;
that
he
never
heard
of
any
condition
to
the
settlement
and
if
there
was
any
condition
it
was
not
submitted
to
him
when
he
was
asked
to
recommend
a
settlement.
The
position
taken
by
the
appellant
in
this
action
was
stated
very
plainly
in
the
Information
and
in
the
appellant’s
factum
and
was
not
departed
from
by
the
learned
counsel
for
the
appellant
before
us,
that
the
alleged
condition
was
made
with
the
Minister
prior
to
the
settlement
and,
of
course,
prior
to
the
payment
of
$200,000
under
the
settlement
on
June
7th,
1928.
The
letters
to
which
we
shall
shortly
refer
between
the
Minister
and
Mr.
Odette
in
August,
1928,
are
not
relied
upon
as
evidence
of
any
agreement
made
at
that
time
but
as
confirmation
of
the
oral
agreement
alleged
to
have
been
made
prior
to
June
7th,
1928,
as
a
condition
of
the
settlement.
The
appellant
does
not
seek
to
obtain
the
repayment
of
the
moneys
upon
any
assurance
or
promise
of
the
Minister
subsequent
to
the
settlement,
but
upon
a
promise
which,
it
is
said,
formed
a
term
or
condition
of
the
settlement
of
the
first
action
at
$260,000.
It
is
not
unnatural
that
there
is
always
some
suspicion
attached
to
a
claim
based
upon
an
alleged
oral
agreement
set
up
as
a
term
or
condition
of
an
agreement
that
had
been
put
in
writing,
but
evidence
directed
to
prove
such
an
oral
agreement
is,
of
course,
admissible.
We
should
not
find
it
difficult
as
a
matter
of
law
to
enforce
against
the
Crown
on
a
Petition
of
Right
an
oral
condition
to
a
settlement
if
it
is
firmly
established
in
fact
that
the
condition
was
made
as
part
of
the
settlement
and
that
the
condition
has
been
satisfied.
Therefore
we
have
carefully
analyzed
and
examined
the
evidence
tendered
in
proof
of
the
alleged
condition.
Mr.
Odette,
who
gave
evidence
on
behalf
of
the
appellant,
was
at
the
time
of
the
settlement
the
Member
of
the
House
of
Commons
for
the
district
in
which
the
appellant
was
carrying
on
its
business.
We
quote
from
his
evidence:
"Mr.
Thistle
of
the
Walkerville
Brewery,
telephoned
me
at
my
office
in
Ottawa,
the
Parliament
Buildings,
and
asked
me
to
arrange
an
appointment.
At
the
request
of
Mr.
Thistle
I
arranged
an
appointment
with
Mr.
Euler,
Minister
of
National
Revenue,
and,
at
Mr.
Thistle’s
request,
I
accompanied
him
to
Mr.
Euler’s
office
and
Mr.
Thistle
requested
Mr.
Euler
to
withhold
the
present
claim
until
a
similar
claim
against
Carling’s
Brewery
was
settled.
It
was
then
before
the
Court.
Mr.
Euler
declined
to
do
that,
he
declined
to
withhold
action;
he
was
pressing
for
payment
of
the
claim.
If
my
recollection
serves
me
rightly,
Mr.
Euler
told
Mr.
Thistle
that
if
payment
was
made
the
Department
would
waive
the
interest
and
penalties.
Mr.
Thistle
asked
Mr.
Euler
what
the
position
would
be
if
the
court
determined
these
taxes
were
not
payable.
Mr.
Euler
said
if
the
court
determined
that
these
taxes
were
not
payable
then
the
amount
paid
could
be
refunded
as
the
Department
did
not
wish
to
collect
from
any
one
taxes
that
were
not
just.
Q.
Do
you
recall
the
final
amount
that
was
agreed
upon
between
the
Minister
and
Mr.
Thistle;
were
you
present?
A.
I
do
not
know
about
that.
Q.
Were
you
familiar
with
the
fact
as
to
whether
all
of
the
payment
that
was
agreed
upon
was
made
in
one
sum
or
otherwise
?
A.
I
know
it
was
not,
because
later
on,
after
Parliament
had
adjourned,
either
Mr.
Radner
or
Mr.
Thistle
telephoned
me
at
Tilbury
that
the
final
payment
on
this
claim
was
due
and
asked
me
if
I
would
be
good
enough
to
write
Mr.
Euler
and
ask
him
to
write
me
and
confirm
the
understanding
reached
between
the
representative
of
the
brewery
and
Mr.
Euler
when
l
was
present.
‘
‘
i
While
the
exact
date
of
the
interview
with
the
Minister
is
not
given,
it
was
admittedly
earlier
than
June
7th,
1928,
when
the
payment
of
$200,000
was
made.
Mr.
Odette
was
speaking
at
the
trial
in
April,
1936,
of
an
interview
that
had
taken
place
eight
years
before.
He
was
in
no
way
personally
concerned
in
the
matter
but
was
present,
as
he
says,
"
"
more
or
less
for
the
purpose
of
introducing
the
parties.”
In
attempting
to
recall
the
details
of
the
interview,
he
said
very
franky,
"if
my
recollection
serves
me
rightly.”
He
admitted
that
he
was
speaking
‘‘largely
from
the
letters,
as
to
the
matter’’
and
would
have
to
go
back
to
the
letters
to
refresh
his
memory.
Before
we
look
at
the
letters
themselves,
it
is
to
be
observed
that
Mr.
Odette’s
recollection
was
that
Mr.
Thistle
asked
the
Minister
what
the
position
"‘would
be’’
if
the
Court
determined
the
taxes
were
not
payable
and
that
the
Minister
said
that
in
that
event
the
amount
paid
‘‘could
be
refunded’’
as
the
Department
did
not
wish
to
collect
from
any
one
taxes
that
were
not
just.
We
now
turn
to
the
letters.
On
August
3rd,
1928,
Mr.
Odette
wrote
a
personal
letter
to
the
Minister
which
was
as
follows:
“Tilbury,
Ontario,
August
3rd,
1928.
Personal.
Honourable
W.
D.
Euler,
Minister
of
National
Revenue,
Ottawa,
Ontario.
Dear
Mr.
Euler
:—
Confirming
my
conversation
with
you
yesterday
regarding
payment
of
arrears
of
sales
and
gallonage
taxes
by
the
Walker-
ville
Brewery
Company,
Walkerville,
on
which
a
final
payment
of
$60,000
is
due
from
the
above
Company,
I
believe
on
the
5th
of
this
month.
The
President
of
the
Company
is
anxious
to
know
what
position
the
Company
will
be
in,
in
the
event
of
the
courts
deciding
that
sales
and
gallonage
taxes
are
not
payable
on
exported
goods.
I
stated
to
him
that
your
Department
did
not
desire
to
collect
taxes
that
were
not
justly
due
and
that
in
the
event
of
such
an
occurrence
as
above
mentioned,
or
in
the
event
of
the
Walkerville
Brewery
over-paying,
that
they
would
be
in
a
position
to
file
claim
with
your
Department
for
refund.
I
understand
that
this
is
your
attitude
in
the
matter,
and
I
would
thank
you
to
drop
me
a
line
confirming
same,
so
that
I
can
phone
the
Walkerville
Brewery
Company
previous
to
the
8th
instant,
so
that
their
check
may
go
forward
to
you
promptly.
Your
usual
prompt
attention
will
be
appreciated.
With
kind
regards,
I
am,
Yours
very
truly,”
And
on
August
14th,
1918,
the
Minister,
in
a
personal
letter
to
Mr.
Odette,
replied
as
follows:
Minister
of
National
Revenue
Canada
Ottawa,
August
14,
1928.
Personal.
Mr.
EK.
G.
Odette,
M.P.,
Tilbury,
Ont.
Dear
Mr.
Odette,
Absence
from
Ottawa
has
prevented
my
replying
earlier
to
your
letter
of
the
3rd
inst.
with
reference
to
arrears
of
Sales
and
Gallonage
Taxes
due
by
the
Walkerville
Brewery
Company,
Walkerville.
You
are
right
in
your
understanding
as
to
my
attitude.
We
do
not
desire
to
collect
any
taxes
not
properly
due
the
Crown,
and
if
it
ean
be
shown
that
any
overpayment
has
been
made
by
the
company
in
question,
or
if
it
is
established
that
they
were
not
liable
for
any
tax
that
they
may
have
paid,
you
can
assure
them
that
refund
will
be
made.
Yours
very
truly,
(Sgd.)
W.
D.
Euler.’’
Mr.
Odette
did
not
ask
the
Minister
to
confirm
in
writing
some
oral
understanding
or
agreement
that
had
been
made
prior
to
or
at
the
time
of
the
settlement.
He
wrote
that
the
president
of
the
appellant
company
"‘is
anxious
to
know
what
position
the
company
will
be
in’’
in
the
event
of
the
courts
deciding
that
the
taxes
were
not
payable.
He
states
what
he
understands
the
Minister’s
‘‘attitude’’
in
the
matter
to
be
and,
while
he
asks
the
Minister
to
confirm
that
understanding
"‘so
that’’
the
appellant
‘s
‘‘check
may
go
forward
to
you
promptly,
‘
‘
the
letter
does
not
even
suggest
the
then
existence
of
an
oral
agreement
by
way
of
a
condition
to
the
settlement
that
had
been
made
in
June
and
under
which
$200,000
had
already
been
paid.
Nor
does
the
Minister’s
reply
even
suggest
that
there
had
been,
up
to
that
time,
any
promise
or
assurance
that
in
certain
events
the
moneys
would
be
refunded.
Mr.
Euler,
who
was
the
Minister
at
the
time
of
the
settlement
in
1928
and
was
again
a
Minister
of
the
Crown
at
the
time
of
the
trial
of
this
action
in
1936,
was
not
called
at
the
trial.
It
is
convenient
at
this
point
to
refer
to
the
letter
that
Mr.
Thistle
wrote
on
behalf
of
the
appellant
on
January
9th,
1930,
to
the
Department
of
National
Revenue
when
there
was
a
dispute
as
to
the
taxes
for
the
month
of
April,
1928.
In
that
letter
Mr.
Thistle
advised
the
Department
that
the
matter
had
been
referred
to
the
company’s
solicitor,
Mr.
Barnes
of
Windsor,
and
that
the
Department
would
hear
from
him.
In
a
letter
of
Mr.
Barnes
to
the
Commissioner
of
Excise
on
January
6th,
1930,
he
said
in
part:
“It
is
our
contention
that
the
Department,
having
accepted
the
cheque
so
enclosed
with
the
letter
of
June
7th,
1928,
above
mentioned
and
the
further
cheque
of
$60,000,
which
was
sent
on
October
13th,
1928,
cannot
now
take
the
position
that
the
terms
of
settlement
were
not
as
set
out
in
our
client’s
letter
of
June
7th,
1928.”
The
appellant
was
at
that
time
insisting
that
its
letter
of
June
7th,
1928,
be
treated
as
setting
out
the
terms
of
settlement.
There
was
no
suggestion
that
the
settlement
was
subject
to
the
condition
now
alleged.
Notwithstanding
the
letter
of
the
Minister
to
Mr.
Odette
of
August
14th
(a
copy
of
which
Mr.
Odette
sent
the
appellant
by
letter
dated
August
17th),
there
is
not
a
word
in
the
subsequent
letter
of
the
appellant
of
October
13th
(above
set
out)
to
the
Minister
enclosing
the
final
cheque
of
$60,000
to
indicate
that
the
settlement
had
been
made
on
the
condition
that
the
payments
would
be
refunded
if
it
were
later
established
that
the
appellant
had
not
been
liable
for
the
taxes
claimed
in
the
action.
The
appellant
has
failed
to
establish
its
claim
that
the
settlement
at
$260,000
was
subject
to
the
condition
which
it
now
alleges.
The
entire
basis
of
this
action
is
the
existence
of
an
arrangement
or
understanding
made
prior
to
or
contemporaneous
with
the
settlement
as
a
condition
for
the
repayment
of
the
moneys.
It
was
not
contended
that
the
$60,000
payment
could
be
recovered
on
any
other
basis;
that
is,
that
it
could
be
treated
separately
and
recovered
upon
the
letter
of
the
Minister
of
August
14th.
The
settlement,
of
course,
had
been
made
in
June
and
$200,000
on
account
had
been
paid
at
that
time.
Payment
of
the
balance
of
$60,000,
had
it
been
withheld,
could
have
been
enforced
under
the
settlement.
We
do
not
overlook
the
fact
that
the
Minister
in
his
personal
letter
to
Mr.
Odette
of
August
14th,
1928,
said
that
‘‘if
it
can
be
shown
that
any
overpayment
has
been
made
by
the
company
in
question,
or
if
it
is
established
that
they
were
not
liable
for
any
tax
that
they
may
have
paid,
you
can
assure
them
that
refund
will
be
made.”
But
the
appellant
does
not
seek
to
recover
the
moneys
upon
the
basis
of
that
assurance
as
an
independent
agreement.
The
learned
counsel
for
the
appellant
no
doubt
fully
recognized
the
difficulty
there
would
have
been
in
any
such
claim,
in
that
the
Minister
had
not
authority
to
make
any
such
agreement
independent
of
the
settlement,
binding
upon
the
Crown.
The
moneys
paid
became
part
of
the
Consolidated
Revenue
Fund
of
Canada
and
it
would
require
a
statute,
or
something
of
like
farce,
to
clothe
the
Minister
of
a
Department
with
authority
to
agree
to
repay
to
a
subject
moneys
voluntarily
paid
by
the
subject
in
settlement
of
an
action
brought
by
the
Crown
for
payment
of
taxes
alleged
to
have
become
due
and
payable.
It
may
be
useful
to
mention
some
of
the
authorities
which
we
have
considered
:
Commercial
Cable
Co.
v.
Government
of
Newfoundland
[1916]
2
A.C.
610;
Mackay
v.
Attorney-General
for
British
Columbia
11922]
1
A.C.
457;
Auckland
Harbour
Board
v.
The
King
[1924]
A.C.
318;
Attorney-General
v.
Great
Southern
and
Western
Ry.
Co.
of
Ireland
[1925]
A.C.
754.
It
is
not
for
us
to
consider
whether
the
appellant
company
has
just
cause
for
complaint
against
the
Government
outside
a
court
of
law—that
is
to
say,
assuming
the
facts
to
be
the
same
as
those
in
the
Carling
case
([1931]
A.C.
435),
whether
the
Government
is
acting
arbitrarily
and
is
morally
in
the
wrong
in
declining
to
implement
the
assurance
of
the
Minister.
That
would
be
something
altogether
outside
our
province.
All
we
have
to
determine
as
a
court
of
law
is
whether
there
was
an
enforceable
agreement
made
by
the
Minister
binding
upon
the
Crown
to
refund
the
moneys
in
question.
The
assurance
given
by
the
Minister
in
his
letter
to
Mr.
Odette,
once
it
is
determined
that
it
was
not
confirmation
of
a
condition
to
the
original
settlement,
cannot
be
sued
upon
in
a
court
of
law’
as
an
independent
agreement,
for
the
reason
that
it
was
not
competent
for
the
Minister
to
fetter
the
future
executive
action
of
the
Government.
The
appellant
further
contended
in
the
action
that
in
any
event
the
payments
had
not
been
made
voluntarily
but
by
force
of
threats
by
the
Minister
and
officers
of
the
Department
that
unless
payment
were
made
the
appellant’s
licence
to
carry
on
the
trade
or
business
of
a
brewer
would
be
revoked
and
would
not
be
renewed
and
the
appellant
would
thereby
be
forced
to
discontinue
its
business
as
a
brewer.
It
may
well
be
that
the
appellant
had
some
fear
that
if
it
did
not
settle
the
Government’s
action
against
it,
the
Government
might
not
renew
its
licence,
and
there
is
evidence
that
the
renewal
of
the
licence
in
1928
was
held
up
for
some
little
time.
But
the
evidence
does
not
establish
any
threats
against
the
appellant
or
that
there
was
any
involuntary
action
on
its
part
in
entering
into
the
settlement
or
in
making
the
payments
sought
to
be
recovered.
In
view
of
our
conclusions,
it
is
unnecessary
for
us
to
consider
the
question
of
fact
whether
the
goods
in
this
case
were
manufactured
and
sold
for
export
as
was
proved
in
the
Carling
case
([1931]
A.C.
435).
The
learned
trial
judge
concluded
:
‘‘In
the
main
I
am
satisfied
that
the
goods
in
question
were
sold
by
the
suppliant
for
export,
that
it
saw
the
same
were
exported,
and
that
in
fact
they
were
exported,
within
the
meaning
of
the
Carling
case
(
[1931]
A.C.
485)
*
*
*
If,
therefore,
I
had
to
dispose
of
this
case
solely
upon
the
question
of
fact
as
to
whether
the
goods
were
manufactured
and
sold
for
export,
and
were
in
fact
exported,
I
would
feel
obliged
to
sustain
the
contention
of
the
suppliant.
If
the
suppliant
were
here
being
sued
for
the
taxes
in
question,
as
in
the
Carling
ease,
I
would
feel
obliged
to
hold
that
the
Crown
must
fail
in
its
action.”
Mr.
Tilley
made
a
powerful
attack
upon
this
finding
of
fact
of
the
learned
trial
judge,
but
we
do
not
find
it
necessary
to
examine
all
the
evidence
to
ascertain
whether
we
should
come
to
the
same
conclusion.
We
have
assumed,
for
the
purpose
of
determining
the
legal
question
involved
in
the
appeal,
that
the
facts
were
favourable
to
the
appellant.
The
appeal
should
be
dismissed
with
costs.
Appeal
dismissed
with
costs.
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