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.