Cleary v. Boscowitz

Cleary v. Boscowitz

Section 28 of the Mineral Act makes a recorded certificate of work conclusive evidence that the freeminer satisfied the statutory work/rent requirements up to the date of the last recorded certificate; therefore evidence by private adverse claimants impeaching such certificates is inadmissible and only the Attorney-General may sue for fraud to impeach the certificate.

Citation
(1902) 32 SCR 417
Parties
Appellants / Plaintiffs: F. J. Cleary and Others; Respondent / Defendant: L. J. Boscowitz
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
15 May 1902
Procedural Posture
Appeal From Provincial Court Decision / On Appeal to the Supreme Court of Canada; Final Judgment
Outcome
Appeal dismissed with costs; judgment of the Supreme Court of British Columbia affirmed.
Legal Topics
Certificate of Work, Mineral Claims, Adverse Claim/jumping, Statutory Construction, Fraud
Source Language
English
Mining Law Property Law Evidence Certificate of Work Mineral Claims Adverse Claim/jumping Statutory Construction Fraud

Case Brief

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Parties

F. J. Cleary and Others

Appellants / Plaintiffs

L. J. Boscowitz

Respondent / Defendant

Procedural Posture

Appeal From Provincial Court Decision / On Appeal to the Supreme Court of Canada; Final Judgment

Legal Issues

  1. 1 Whether private parties may impeach a recorded certificate of work for a mineral claim
  2. 2 Whether s.28 of the Mineral Act bars challenges to pre-record irregularities except by the Attorney-General
  3. 3 Whether a recorded certificate of work is conclusive evidence that required work or rent was performed/paid

Ratio Decidendi

Section 28 of the Mineral Act makes a recorded certificate of work conclusive evidence that the freeminer satisfied the statutory work/rent requirements up to the date of the last recorded certificate; therefore evidence by private adverse claimants impeaching such certificates is inadmissible and only the Attorney-General may sue for fraud to impeach the certificate.

Court Disposition

Appeal dismissed with costs; judgment of the Supreme Court of British Columbia affirmed.

Orders

  • Appeal dismissed with costs
  • Judgment of the Supreme Court of British Columbia (8 B.C. Rep. 225) affirmed