CURRENT COMMENTARY UPON RECENT ENGLISH AND CANADIAN DECISIONS.1 The last Law Reports which have reached us, consist of two very short numbers, one containing [1918] 1 Ch. and the other [1918] 1 K. B. and P. for January; neither of which contain any cases calling for notice here. Repton School Governors v. Repton School Rural District Council would require notice,-being a case of a local by-law being held void for unreasonableness, were it not that our Ontario statute 3-4 Geo. 5, c. 43, s. 249 (now R. S. O. 1914, c. 192, s. 249 (2)) for the first time enacted that 'A by-law passed by a council in the exercise of any of the powers conferred by and in accordance with this Act, and in good faith, shall not be open to question or be quashed, set aside, or declared invalid, either wholly or partly, on account of the unreasonableness or supposed unreasonableness of its provisions or any of them.' The Law Journal Reports for February are to hand and contains some cases calling for brief mention. 2a Contract for Sale of Real Estate Inability of Vendors to obtain release of mortgage-Purchaser's right to Damages. In re Daniel, Daniel v. Vassal, raised, before Sargant, J., the interesting question whether a purchaser of real estate towards whom his vendor has failed to perform his contract by reason of inability to obtain a release of the property by a mortgagee is entitled to general damages for loss of bargain, or is limited to the costs incurred in investigat 1 The aim of the Editor is to make this feature of the C. L. T. a really complete and conscientious review of recent English decisions likely to be of use to Canadian lawyers, so that readers of it from month to month may rely on no case important for them to be advised of, escaping their notice. Cases under the English Workmen's Compensation Act, 1906, are not considered as coming under this category. 2 [1918] 1 K. B. 26. 2a 87 L. J. (Ch.) 69. ing title. In the course of his judgment, Sargant, J., says 44 "The question seems to be covered by the following passage in the judgment of Lord Hatherley in Bain v. Fothergill,2b namely, Every vendor is bound by his contract to do all that he could to complete the conveyance. Whenever it is a matter of conveyancing, and not a matter of title, it is the duty of the vendor to do everything that he is enabled to do by force of his own interest, and also by force of the interest of others whom he can compel to concur in the conveyance." Here I think that the vendor could "complete the conveyance," and could compel the mortgagees to join in the conveyance within the meaning of that passage; and that mere pecuniary inability to do so forms no better defence than it ordinarily does to a claim for breach of contract." Trustee-Costs-Unsuccessful Action by Trustee. In re England, Dobb v. England is a decision of Eve, J., that a trustee who without the sanction of the Court commences an unsuccessful action on behalf of the trust does so at his own risk, and will not be allowed his costs out of the estate except under very exceptional circumstances; and that, a fortiori, such costs will not be allowed where the trustee commences an action not only without the sanction of the Court, but also without the knowledge of his co-trustee and of his beneficiaries. Trustee sued only as such-Charges of misconduct -Costs. Bruty v. Edmundson2d is a decision of the Court of Appeal, for which also a few words will suffice. It is to the effect that a plaintiff who fails to substantiate charges of misconduct against a trustee defendant cannot escape from liability to pay the costs reasonably incurred by that defendant in defending himself against these charges, by abstaining from claiming any relief against that defendant and by insisting in the pleadings that he is sued only as a trustee. 2b L. R. 7 H. L. 158, 209. 20 87 L. J. (Ch.) 73. 24 87 L. J. (Ch.) 108. Criminal law-Absolute duty imposed on principal -Mens rea-Criminal liability of corporation. Mousell Bros. v. London and North Western Railway" is a decision of the full Court, following upon principles well settled in former cases cited, to the effect that although it is a general rule of law that to constitute a criminal offence there must be something in the nature of mens rea, and, therefore, in ordinary cases, a corporation cannot be guilty of a criminal offence, nor can a master be liable criminally for an offence committed by his servant, yet where a statute imposes an absolute duty upon a principal, providing for the infliction of penalties for the breach thereof, and such duty is generally performed by an agent, the principal, whether a corporation or an individual, is liable to the penalty for the breach of the duty by an agent. This liability exists in the absence of mens rea on the part of the principal, and, semble, may be imposed even in the absence of mens rea on the part of the agent. CANADIAN DECISIONS.3 Accident-Snow piled by street railway company alongside of its tracks-Liability of railway company. The D. L. R. for February 1st contains a case of special interest after the kind of winter we have gone through, Elliott v. Winnipeg Electric R. W. Co. The plaintiff, while approaching a standing car of the defendants for the purpose of entering it, slipped and fell on a sloping bank of snow caused by the company removing the snow from the tracks and spreading it upon the street. Passing vehicles had pressed down the snow and so formed a hard smooth surface, sloping towards the rails. She brought this action for damages, and recovered judgment for $4,000, which 287 L. J. (Ch.) 82. 3 As most of our subscribers have ready access to the Canadian Reports, it is not deemed necessary to review the Canadian cases in the same detail as the English. Only those which seem of special interest and importance will, therefore, be noticed. 4 38 D. L. R. 201. the Manitoba Court of Appeal now reversed. It ap- person. . "The contractual obligation of the company in respect of the removal of the snow is to the city alone and not to any private The company in removing the snow and spreading it upon the rest of the street, was performing an obligation which i was authorised to perform and bound to perform under the by-law, the contract, and the Act of the legislature. There is no evidence which shews that the company acted negligently in doing the work... The defendants' Act of incorporation, which embraces the by-law of the city and makes it, in effect, a part of the Act, which are to be observed by the defendants. The language of the Act provides certain regulations as to the removal and disposal of snow prescribes the extent of their obligation in that regard, and when these regulations have been observed and complied with, there is no further duty imposed upon them and no further responsibility to be implied. has fulfilled the requirements of the by-law and contract with the of it over the rest of the street resulted in the formation of a dancity, the removing of the snow from the tracks and the spreading gerous slope leading to the tracks, which created a nuisance by the existence of which the accident was caused. I think there is ample authority for the proposition that where statutory powers have been conferred in respect of a public highway, the exercise of these powers in accordance with the provisions of the statute does not create a nuisance for which the donee of the powers is respon It was suggested that even if the company sible in damages." It seems somewhat strange that the plaintiff did not make an alternative claim against the city for obstructing the highway, as suggested by Haggart, J.A. (p. 210). Patent Act-Construction or manufacture of the invention patented.' The D. L. R. for February 15th contains an annotation by Russel S. Smart, of the Ottawa Bar, to the recent case in the Exchequer Court of Canada of Dominion Chain Co. v. McKinnon Chain Co., in which Cassels, J., held that a patented article made in the United States in detail, in the sizes required in accordance with specific orders, the parts merely being joined together in Canada, is not manufactured or constructed in Canada within the meaning of the Patent Act, R. S. C. 1906, c. 69, s. 38, which enacts that a patent, and all the rights and privileges thereby granted, shall cease and determine, and that the patent shall be null and void at the end of two years from the date thereof unless the patentee within that period commence, and . . . continuously carry on in Canada the construction or manufacture of the invention patented Mr. Smart discusses previous cases on the subject of importation and manufacture. There seems to be nothing further in this number of D. L. R. calling for special notice. car. Contributory negligence-Getting on to a moving In O. L. R. for February it seems proper to call attention to Hill v. Toronto R. W. Co., on account of the following dicta of Meredith, C.J.O., with which the other members of the Court express no disagreement: "Proof of the mere fact that a person attempts to board, or alight from, a street-car in motion, is not necessarily proof of contributory negligence. The question is whether in all the circumstances of the case, the attempt shews a want of ordinary care, a want of that care which is ordinarily taken in the like circumstances. It is dangerous, in a sense, of course: but so too is getting on or off a car not in motion; and the latter more dangerous to some than the former is to others for instance, to the crippled and the blind and to those hampered with a heavy "suit-case" in each hand, or a "baby-carriage in both, than the former to the active and unhampered. Tens of thousands of persons board and alight from vehicles in motion uninjured; it is a thing of the commonest and most frequent occurrence; and so it would be plainly erroneous to say that it is a want of ordinary care: it may be or 5 38 D. L. R. 345. |