CURRENT COMMENTARY UPON RECENT ENGLISH AND CANADIAN DECISIONS.1 Obstruction to Flowing Stream-Liability for Damage Caused "Act of God." The November Law Reports having now come to hand, the first case which arrests our attention is Corporation of Greenock v. Caledonian Railway Co. The headnote summarises the point decided thus: "It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damages results from the deficiency of the substitute which he has provided for the natural channel, he will be liable.' Their lordships point out the distinction between such a case, and that of a man keeping a reservoir on his property, as in the well-known case of Rylands v. Fletcher; and while they hold that an extraordinary rainfall is not a damnum fatale or "act of God," at all events in Scotland, they also intimate that in such a case as this of obstructing the course of a natural stream, it would not have excused the defendant, even if it had been. Lord Wrenbury puts the matter most plainly (p. 583): "In such a case the corporation" (i.e. the defendant) "is responsible, I conceive, for resultant damage howsoever arising. The responsibility to provide a substituted channel is not limited to providing a channel sufficient to meet all demands which might reasonably be anticipated, or even all demands (in excess of the ordinary) short of the act of God. The corporation must provide a substituted channel which will be equally efficient happen what will. Assuming an act of God, such as a flood, wholly unprecedented, the damage in such a case results, not from the act of God, but from the act of man in that he failed to provide (as there was 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 [1917] A. C. 556; 86 L. J. (P.C.) 185. before) a channel sufficient to meet the contingency of the act of God. But for the act of man there would have been no damage from the act of God." Lord Finlay, L.C., at pp. 570-572, Lord Dunedin at pp. 577-8; and Lord Shaw of Dunfermline, at p. 580, seem clearly to hold a similar view. Criminal Law of Canada - Common Nuisance Overcrowding Street Cars. Toronto Railway Company v. The King, also calls for notice. Sec. 221 of our Criminal Code defines a "common nuisance" as 'An unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all His Majesty's subjects.' Their lordships, in the first place, held that overcrowding the street cars on the Toronto street railway did not constitute a common nuisance within this definition, nor was it a common nuisance in any sense. As to this they say "The obligation of the appellants" (the Street Railway Co.) was a contractual obligation to the corporation" (i.e. the Municipal Corporation of Toronto). "There was no duty to the publie generally. . . . The overcrowding was not a matter that affected the public as such, but only those members of the public who had obtained from the appellants licenses to enter the cars." The sec. 223 of the Criminal Code enacts 'Any one convicted upon any indictment or information for any common nuisance other than those mentioned in the last preceding section, shall not be deemed to have committed a criminal offence; but all such proceedings or judgments may be taken and had as heretofore to abate or remedy the mischief done by such nuisance to the public right." As to this their lordships say— "The section provides that any one convicted under it is not to be deemed to have committed a criminal offence, and goes on to preserve the possibility of such consequential proceedings or judgments as may be taken or had under the existing law, not for the punishment of the person convicted, but for the abatement 3 [1917] A. C. 630; 86 L. J. (P.C.) 195. or remedy of the mischief done by the nuisance to the publio right. The wrong done is, therefore, in their lordships' opinion only a civil wrong. That indictment should be recognized in a statute as a method of trying a civil right is nothing new. Their lordships think that it was competent to the Parliament of Canada, under sec. 91, subs. 27, of the British North America Act, 1867, which enables it exclusively to legislate as to criminal law, including procedure in criminal matters, to declare that what might previously have constituted a criminal offence should no longer do so, although a procedure in form criminal was kept alive." Lastly this being so, their lordships held that it was unnecessary for them to express an opinion as to the prerogative in connection with sec. 1025 of the Criminal Code, which enacts Notwithstanding any Royal prerogative, or anything contained in the Interpretation Act or in the Supreme Court Act, no appeal shall be brought in any criminal case from any judgment or order of any Court in Canada to any Court of Appeal or authority, by which in the United Kingdom appeals or petitions to His Majesty in Council may be heard.' Husband and Wife-Wearing Apparel of Wife. In II K. B. and P. for November, there seems no case requiring special mention, unless it is Rondeau, Legrand & Co. v. Marks, which is a decision of Bailhache, J., upon the curious point that, although a husband is bound to provide his wife with her necessary apparel, he is not bound to give it to her; and, therefore, if the two agree that he is to purchase it retaining the absolute property, while she has no right or title to the apparel so purchased, except to wear it during his pleasure, such agreement is valid and enagainst judgment creditors of the wife. forceable as Statute of Frauds — Agreement for Lease - Payment of Rent not such Part Performance as Excludes the Statute. The only case calling for notice here in II Ch. for November would be Chaproniere v. Lambert, had we not already noticed it as reported in the Law Journal Reports in our last issue (Vol. 37, p. 857). [1917] 2 K. B. 636. 5 [1917] 2 Ch. 356. CANADIAN DECISIONS." Constitutional Law Abrogation by Provincial Statute of Privilege of a Witness in a Civil Proceeding to Refuse to Answer Questions upon the Ground that to do so would Incriminate him. In the December O. L. R. Re Ginsberg, upholds the constitutionality of the Ontario enactment (R. S. O. 1914, c. 76, sec. 7) that 'a witness shall not be excused from answering any question upon the ground that the answer may tend to criminate him,' as applied to the examination of an assignor under the Ontario Assignments and Preferences Act, upon the ground thus stated by Meredith, C.J.O. (p. 141) : "In my opinion the privilege is a civil right, and may be taken away by a provincial legislature as to matters with respect to which it has authority to legislate, as it undoubtedly has as to matters dealt with by the Assignments and Preferences Act. When legislative authority was divided between the Dominion and the provinces, so much of the law of evidence as relates to criminal proceedings fell to the Parliament of Canada, and so much of it as relates to civil proceedings to the provincial legislatures; and, the examination of an assignor being a civil proceeding, it was, in my opinion, competent for the legislature to fashion its law of evidence in reference to it as in its judgment it might deem proper." Hodgins, J.A. says (at p. 143): "When the right is set up in a civil suit, while its object is protection from future criminal proceedings, its assertion is a matter of civil right. The fact that its motive is a desire to escape the criminal law does not thereby associate it with the criminal law." Organization of a Provincial as a Dominion Company-Liability of Shareholders of Former as Contributories in Latter. In the D. L. R. for December we notice a British Columbia case, Re Dominion Trusts Co. and Allen, in which it is held that, the 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. 740 O. L. R. 136. 37 D. L. R. 251. directors of a provincial company 'together with such persons as become shareholders in the company hereby incorporated,' having been incorporated as a Dominion company by statute, certain shareholders of the former had not become shareholders of the latter, and liable as contributories in the liquidation of the latter, there having been no acts on their part from which it might be inferred that they had elected to become such, or which estopped than from denying membership, and no shares in the Dominion company having been in fact allotted to them. The authorized capital of both companies was the same; and the new company, as it was called, was formed for no other purpose than to take over the business and assets of the old company, so that it might conduct that business in a larger field in the interest of the sharehold ers. Municipal Corporations-Closing Restaurants on Sunday-Criminal Law. Rodrigue v. Parish of the Prosper, is a decision of the Quebec King's Bench (Pelletier, J., dissenting) to the effect that a municipal corporation cannot, under the pretext of police power, legislate upon the observance of Sunday, and a by-law requiring the closing of restaurants on Sundays is ultra vires. Archambault, C.J. (p. 326), after referring to Ouimet v. Bazin," says: "If the legislature of Quebec has not the right to pass an Act to forbid theatrical representations on Sunday, no more can a municipal council possess the power to close on Sunday establishments that the by-law in question designates under the name of restaurants. In the one case, as in the other, it is a criminal matter according to this decision of the Supreme Court." Broker-Commission Quantum Meruit. Jardine v. Prescott Lumber Co.," may be referred to as a decision of the New Brunswick Appellate Division, that where land is in fact sold through the instrumentality 37 D. L. R. 321. |