genuine business in buying and selling pigs, the mere fact that he did not keep any pigs in his own possession, nor hold an option of purchase, does not establish falsity of his advertisement offering pigs for sale where he was in the habit of having deliveries made direct by the breeders. If it were open to the jury to find that the advertisement meant that he was ready to supply pigs of the description advertised, although not in his possession or control, the practical withdrawal of that view in the charge to the jury will be a ground for quashing the conviction. R. v. Jakeman (1914), 10 Cr. App. R. 38.

In R. v. Lee, 23 U.C.Q.B. 340, the prisoner sold a mare to B. taking his notes for purchase money, one of which was $25 and a chattel mortgage on a mare as collateral security. After this note had matured he threatened to sue, and B. got one R. to pay the money, the prisoner promising to get the notes from a lawyer's office, where he said they were, and give them up next morning. This note, however, had been sold by the prisoner some time before to another person, who afterwards sued B. upon it, and obtained judgment:-Held, that the prisoner was properly convicted of obtaining the $25 by false pretences. Regina v. Lee, 23 U.C.Q.B. 340.

In Reg. v. Cooper, 13 Cox C.C. 617, 46 L.J.M.C. 219, the accused was charged with falsely pretending that he was a dealer in potatoes, and as such dealer, in a large way of business and in a position to do a good trade in potatoes and able to pay for large quantities of potatoes, as and when the same might be delivered to him. The only evidence thereof was a letter from the prisoner to the prosecutor, reasonably conveying to the mind the construction put upon it in the indictment. Lord Coleridge, C.J., is reported (at p. 620) as follows:

"The question for the Court, as I understand the case, is whether there was evidence upon which the false pretences alleged in the indictment could fairly be sustained. It was a question for the jury whether the false pretences alleged did or did not reasonably arise from the letter. The true principle applicable to this case was well enunciated by Blackburn, J., during the course of the argument in Reg. v. Giles, 10 Cox C.C. 44: 'It is not requisite that the false pretence should be made in express words, if the idea is conveyed.""

Denman, J., at p. 622, said:

"In Reg. v. Giles, 10 Cox C.C. 44, the prisoner pretended that she had power to bring the prosecutrix's husband back, and that was held to be a statement of fact. That warrants us in holding that where a man is not in a position to do what he professes he will do at a given time, he is making a false statement of fact. The indictment charges that the prisoner falsely pretended that he then was able to pay for large quantities of potatoes as and when the same might be delivered to him, and that pretence, I think, is proved by the letter."

And Pollock, B. (R. v. Cooper, 13 Cox C.C. 617, 622), says:"Having heard the whole of the argument, I have come to the conclusion that the conviction should be affirmed. It is not sufficient for the prisoner to shew that the letter might bear another meaning, if it is reasonably capable of bearing the meaning imputed to it in the indictment. It is the duty of the prisoner to shew by special circumstances that it bore the construction he contends for. I think that the false pretences charged may be fairly inferred from the letter, and that the conviction should be affirmed."

In the case of Edgington v. Fitzmaurice, L.R. 29 Ch.D. 459, at 483, Bowen, L.J., is reported as follows:

"There must be a misstatement of an existing fact, but the state of a man's mind is as much a fact as the state of his digestion. It is true it is very d fficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man's mind is, therefore, a misstatement of fact."

It is open to a jury to find that a trade name has been assumed with intent to defraud. R. v. Whitmore (1914), 10 Cr. App. R. 204.

If a person offers in exchange for goods the promissory note of another, he is to be taken to affirm, although he says nothing, that the note has not to his knowledge been paid either wholly or to such an extent as to almost destroy its value. R. v. Davies (1859), 18 U.C.Q.B. 180.

There are cases where the facts disclose that what was obtained by the false pretence was a contract, and that it was in pursuance of the contract that the goods were obtained; but on such facts a conviction for obtaining goods by false pretences was held to be good. R. v. Kenrick (1843), Davison & M. 208; 5 Q.B. 49; 12 L.J.M.C. 135.

The case of R. v. Gardner, 25 L.J.M.C. 100, has given rise to discussion. In that case the prisoner pretended to be a naval. officer, and by reason of that false pretence obtained lodging; after he had been there some little time he entered into a contract with the prosecutrix to be supplied with meat and drink on specified terms. It was held that it was in pursuance of the contract, and not of the false pretence, that the goods were obtained; he was indicted for obtaining the goods by false pretences, and in the circumstances the Court held that there had been no continuing false pretence, and that the goods had been obtained, not by means of the original false pretence, but by means of contract.

The decision in R. v. Kenrick, 5 Q.B. 49, was followed in R. v. Abbott, 1 Den. C.C. 273, 2 C. & K. 630, in which case a strong Court of ten Judges held that a false pretence knowingly made to obtain money is indictable, though the money be obtained

by means of a contract which the prosecutor was induced to make by false pretence of the prisoner; therefore the mere fact that the money was obtained by means of a contract does not seem to revent the operation of the law on the ground that the money was obtained equally by the false pretence as by the contract. R. v. Gardner, 7 Cox C.C. 136, which followed R. v. Abbott, 1 Den. C.C. 273, and cannot be said to overrule it, because two Judges were parties to the two decisions, was clearly decided on the ground that there was no continuing false pretence, and therefore, although at first sight the two cases seem a little out of harmony, when the facts are looked at it is not so. Per Coleridge, J., in R. v. Moreton (1913), 8 Cr. App. R. 214. In the last mentioned case, Coleridge, J., added: "R. v. Martin, L.R. 1 C.C.R. 56, 36 L.J.M.C. 20, leaves the law in no doubt; it was held there that the fact that the goods are obtained under a contract does not make the goods so obtained goods not obtained by a false pretence, if the false pretence is a continuing one and operates on the mind of the person supplying the goods." R. v. Moreton (1913), 8 Cr. App. R., 214, at p. 217.

The false pretence alleged in a Nova Scotia case was by representing himself to be the owner of a vessel, whereas at the time he had transferred ownership to another person who had again transferred to defendant's wife. The representation to the prosecutor that he was owner was made some three or four months before and was by appending the style "Owner" to his signature to a letter in relation to another matter:-Held, that the pretence was too remote to warrant a conviction. And that the term "Owner" has no definite meaning in law, and does not mean "registered owner" of a ship. Regina v. Harty, 31 N.S.R. 272, 2 Can. Cr. Cas. 103; and see R. v. Brady, 26 U.C.Q.B. 13.

"Obtaining money or property by false pretences" is an extradition crime within the meaning of the Extradition Act and the extradition arrangement between Great Britain and the United States of America. Re F. H. Martin (No. 2), 2 Terr. L.R. 304, 8 Can. Cr. Cas. 326.

Bench and Bar

JUDICIAL APPOINTMENTS.

Hon. John Alexander Mathieson, of the City of Charlottetown, New Brunswick, K.C., to be Chief Justice of the Supreme Court of Judicature of Prince Edward Island, vice Hon. Sir Wilfred Sullivan, resigned. (June 13, 1917.)

Canada Law Journal.

VOL. LIII. TORONTO, AUGUST-SEPTEMBER, 1917. Nos. 8 & 9

THE LAW OF COMMON CARRIERS.

THE RESPONSIBILITY OF THE CROWN WHEN ACTING AS A COMMON CARRIER.

BY CHARLES MORSE, K.C., D.C.L.

It has for a long time been accepted as a principle of law that the Crown, in respect of the conveyance of goods over Canadian Government railways, is not in the position of a common carrier. In the case of Lavoie v. The Queen, 3 Can. Ex. 96, the learned trial Judge made the following observation:—

"In The Queen v. McLeod (8 Can. S.C.R. 1), the majority of the Court, following The Queen v. McFarlane, 7 Can. S.C.R. 216, held that the Crown, in respect of government railways, is not a common carrier."

In view of its importance the soundness of this doctrine is well worth a careful enquiry.

Before discussing the opinions of the Judges in the two Supreme Court cases above mentioned, it would be well to examine some pertinent provisions of the Exchequer Court Act and the Government Railways Act, and then review the principles upon which the legal liability of a common carrier are based.

In the first place, by sec. 19 of the Exchequer Court Act, R.S.C. 1906, ch. 140, it is provided that "The Exchequer Court shall have exclusive original jurisdiction in all cases in which demand is made or relief sought in respect of any matter which might, in England, be the subject of a suit or action against the Crown, and for greater certainty, but not so as to restrict the generality of the foregoing terms, it shall have exclusive original jurisdiction in all cases in which the land, goods or money of the subject are in the possession of the Crown, or in which the claim arises out of a contract entered into by or on behalf of the Crown."

Then turning to the Government Railways Act, R.S.C. 1906, ch. 36, it is abundantly clear that parliament, in enacting certain of its provisions, contemplated that the government railways would carry on the business of common carriers. For instance, by sec. 46 of the said Act the Governor-inCouncil may impose and authorize the collection of tolls and dues upon any

railway vested in His Majesty. By secs. 49, 50 and 51 the Governor-inCouncil may make regulations for the ascertaining and collection of the tolls, dues and revenues on such railway; for imposing fines for the violation of any such regulation; and for the detention and seizure, at the risk of the owner, of any carriage, animal, timber or goods on which tolls or dues have accrued and have not been paid. It is also noteworthy that by clause (h) of sec. 2 of the Act, "toll" is defined to include any rate or charge, or other payment payable for any passenger, animal, carriage, goods, merchandize, matter or thing conveyed on the railway. Furthermore, clause (i) declares that "goods" includes things of every kind that may be conveyed upon the railway, or upon steam or other vessels connected therewith.

Our object in quoting these statutory enactments is merely to show, expressis verbis, how far parliament intended to place the Crown in the position of a common carrier, and to give a remedy for its breach of duty as such.

In the second place, we shall proceed to examine the principles underlying the common carrier's liability at common law.

A common carrier may be defined to be a person who undertakes for hire or reward to transport the goods of such as employ him from place to place. Dwight v. Brewster, 1 Pick. 50. The following definition from one of the older books has been specially commended both for brevity and exactness: "Any one who undertakes to carry the goods of all persons, indifferently, for hire, is a common carrier." Gisbourn v. Hurst, 1 Salk, 249 (91 E.R. 220) Cf. Liver Alkali Co. v. Johnson, L.R. Ex. 267. These definitions bring the obligations of a common carrier within that branch of the law of contract known as bailments. The bailment of common carriage falls within the fifth of Sir William Jones' classifications, viz., locatio operis mercium vehendarum. Jones, Bail. 36.

Yet the common carrier's liability is something more than that of an ordinary bailee. Cf. Van Zile on Bailments, 2nd ed., sec. 29 (c). Lord Mansfield in Forward v. Pittard (1785), 1 T.R. 27 (99 E.R. 953) at p. 33, says:"It appears from all the cases for 100 years back, that there are events for which the carrier is liable independent of his contract. By the nature of his contract, he is liable for all due care and diligence; and for any negligence he is suable on his contract. But there is a further degree of responsibility by the custom of the realm, that is, by the common law; a carrier is in the nature of an insurer. It is laid down that he is liable for every accident except by the act of God or the King's enemies.

Now as to railways. "That railroad companies are authorized by law to make roads as public highways, to lay down tracks, place cars upon them, and carry goods for hire, are circumstances which bring them within all the rules, of the common law, and make them eminently common carriers." Per Shaw, C.J. in Norway Plains Co. v. Boston & Maine Rd. (1854), 1 Gray 263, p. 269.

Now, while the Crown is liable in actions arising out of contract, it is clear law that it is not liable to the subject in actions of pure tort except where made so by statute. Tobin v. The Queen, 16 C.B. (N.S.) 355; City of Quebec v. The Queen, 24 Can. S.C.R. 420. However, it is equally certain that the Crown