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DAMAGES PAID FOR TORTIOUS ACT OF ANOTHER PARTY-INDEMNITY.-The judgment of the Appellate Court in McFee v. Joss, is especially interesting because of its bearing upon the question of indemnity. The Court decided that:

“ An implied contract of indemnity arises in favour of a person who, without fault on his part, is exposed to liability and compelled to pay damages on account of the negligent or tortious act of another, provided the parties were not joint tort-feasors in such a sense as to prevent recovery—that is, where the act done is not clearly illegal in itself. This right of indemnity is based upon the principle that every one is responsible for his own negligence, and if another is, by the judgment of a court, compelled to pay damages which ought to have been paid by the wrongdoer, such damages may be recovered from the wrongdoer. The right of indemnity exists independently of statute and whether or not contractual relations exist between the parties and whether or not the negligent person owed the other a special or particular legal duty not to be negligent.” See Moxham v. Grant," Mitchell v. City of Hamilton, Eastern Shipping Co. v. Quah Beng Kee.

This decision should have an important effect on cases where damages arise because of the negligence of third parties.

B. B. J.

LORD HALDANE AND THE RUSSELL CASE.—It is interesting to note how completely misunderstood has been Lord Haldane's description, in Toronto Electric Commissioners v. Snider, of the very violent presumption made by the Privy Council in the case of Russell v. Reg. This he thinks, in view of the intervening cases, could not now be made, but without it it would be impossible to support that decision. Upon the way in which he expressed this view animadversions have been made, as if he had thereby cast a slur upon Canada's good name in 1882. As a matter of fact he was rather politely ridiculing the assumption then made, but this diplomatic method of indicating his dissent has apparently escaped notice, as well as the fact that he is only quoting and amplifying what Sir Montague Smith himself, in that very case, had said, in these words:

“ The present legislation is clearly meant to apply a remedy to an evil which is assumed to exist throughout the Dominion.”

127 O.W.N. 447.

(1900) 1 Q.B. 88. 3 (1901) 2 0.L.R. 58, (1924) A.C. 177. 182. *[19:26] A.C. 396.


That evil was intemperance, which was not, as he pointed out, local or existing only in one province.

Cases subsequent to 1882 had completely undermined the authority of the Russell case, but it had never been definitely overruled. In the recent judgment Lord Haldane is pointing out the extraordinary state of facts which Sir Montague Smith's assumption would involve in the light of subsequent decisions. He is only illustrating this when he said that Russell v. Reg. could

“ Only be supported to-day on the assumption of the Board, apparently made at the time

that the evil of intemperance at that time amounted in Canada to one so great and general that, at least for the period, it was a menace to the national life of Canada, so serious and so pressing that the National Parliament was called on to intervene to protect the nation from disaster.”

He had, in the Board of Commerce case, practically said the same thing when he referred to Russell v. Reg. as assuming to deal with a subject of such paramount and overruling importance as to make it constitutionally possible in time of peace to interfere with normal provincial rights. This plainly meant that the Privy Council in 1882 must have considered that combatting the evil of intemperance was of such commanding importance as to justify such an interference.

It is well to remember that in 1882 extended Federal jurisdiction was rather an accepted theory. The appeal in the Russell case was from a decision of the New Brunswick Court, based upon a judgment of the Supreme Court of Canada in Fredericton V. The Queen, which had held the Act in question valid as being competent under the words “regulation of trade and commerce.”

The Privy Council decided against that view and put the subject of the legislation in the category of matters of national importance.

It is also interesting to find that Maclaren, Q.C. (afterwards Mr. Justice Maclaren) when arguing before the Privy Council and disputing the contention that this matter was one of local and private interest in the Province, supported legislation as properly belonging to the Dominion on the ground that “drunkenness affects the whole community, its character, health and efficiency more than any other matter," and likened its importance and magnitude to “education, public rights, health, etc.” To accept the assumption which Sir

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Montague Smith made in Russell v. Reg. while at the same time making a wry face at what is said in the Snider case, is to miss the whole point of Lord Haldane's dissent from what he thought was an unwarrantable assumption. We have lain under this supposed aspersion for 43 years and must recognize that the Snider case completely wipes it out.

F. E. H.

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DOMINION BRIDGE COMPANY VS. BRITISH AMERICAN NICKEL CORPORATION—56 O.L.R. 289.—This is a further contribution to the interesting list of cases bearing upon the question of when and why machinery becomes part of the freehold. It does not contain any new law, but it does indicate very neatly the state of the law.


TURTLE VS. CITY OF TORONTO—56 0.L.R. 252.- This is an action brought by the plaintiff on behalf of himself and other ratepayers upon a certain street in Toronto, for a declaration that the laying of the street railway tracks and switches on that street were without authority of the law, and complaining of a nuisance in respect of the operation of the street railway and car barns. It was held that the plaintiff could not maintain a class action with respect to a nuisance, but must be limited to this complaint as of a private nuisance, with its appropriate remedies. The statutory powers of the Toronto Transportation Commission are carefully considered, as well as the general principle of the exercise by a statutory corporation, without negligence, of the powers given to it, and the case is very interesting as indicating the practical application of the now well settled principles to the facts of a particular case.

G. F. H.


Ir The Editorial Board of the Canadian Bar Association does not hold

itself responsible for the opinions of Correspondents. Contributions to this department of the REVIEW will be published only over the genuine names of the writers.


To the Editor of the CANADIAN BAR REVIEW:

SIR.-With regard to the two Ontario statutes as to which a note in the April number of the REVIEW tells us that they are to come into force only upon proclamation, and that no proclamation has yet been issued in either case, permit me to point out that the report of the committee made no reference to that aspect of the question. The time when and the manner in which a given Act is to become effective are matters of importance for practical purposes; they are of little or no consequence in a survey of current legislation.

The Acts referred to have been placed upon the statute book, and therefore fall within the scope of the above heading. The legislature has done its part. The issue of a proclamation is a matter, not of legis. lation, but of executive action; and, as the provision for such issue does not affect the character of the enactment, it does not seem to call for any special notice.

R. W. SHANNON. Regina, May 4th, 1925.


Publishers desiring reviews or notices of Books and Periodicals must send copies of the same to the Editor, care of THE CARSWELL COMPANY, LIMITED, 145 Adelaide Street West, Toronto, Canada.

Gale on the Law of Easements. Tenth Edition. London, Sweet & Max

well Company. Toronto, The Carswell Company.

The appearance of a 10th edition of one of the best of English textbooks is naturally a subject of interest. The 9th edition was published in 1916, and the present Editor, Mr. W. J. Burn, is very frank in saying that he has made no change in the plan of the 9th edition, except to note some seventy or eighty cases which have been decided since 1916, or which had been decided before then, but were not cited in former editions, and to make such alterations in the text-book as these decisions have necessitated.

It is interesting to note that the 6th and 7th editions of this book

were prepared by the present Viscount Kaye, and it is fair to assume that the work of Mr. Burn will rank with that of the eminent gentlemen who have preceded him.

G. F. H.


The Faculty Digest. An Analytical Digest of Cases Decided in the

Supreme Courts of Scotland and on appeal in the House of Lords, 1868 to 1922. Vol. 1. Edinburgh and Glasgow: William Hodge & Company, Limited.

A Treatise in International Law. By William Edward Hall, M.A. Eighth

Edition by A. Pearce Higgins, C.B.E., K.C., LL.D. Oxford at the Clarendon Press, 1924.

Cases and Statutes on the Law of Evidence. By Ernest Cockle. Fourth

Edition by Sidney L. Phipson, M.A. (Cantab). London: Sweet & Maxwell, Limited, Toronto: The Carswell Company, Limited, 1925.

Foote's Private International Law. Fifth Edition by Hugh H. L. Bellot,

M.A., D.C.L. London: Sweet & Maxwell, Limited. Toronto: The

Carswell Company, Limited, 1925. Analysis of Foote's Private International Law. By Hugh H. L. Bellot,

M.A., D.C.L. London: Sweet & Maxwell, Limited, Toronto: The Carswell Company, Limited, 1925.

The Life of William Dummer Powell. By the Honourable William Ren

wick Riddell, LL.D., F.R.S.C., F.R.H.S., Lansing: Michigan Historical Commission, 1924.

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