enterprise, it is unreasonable to assert the immunity of the prerogative in cases where a citizen or corporation would be held responsible for the consequences of a wrong or tortious act. That, it seems to us, is a conclusion fully justified by the remarks of their lordships of the Judicial Committee in the cases of Farnell v. Bowman and Atty.General Strait Settlements v. Wemyss." It is only by the beguilement of some such theory as that of the Bavarian jurist, Seydel, who thinks that in order to constitute a State but two elements are logically necessary: (1) a territory occupied by individuals, and (2) a supreme will to which these individuals are subjected, that we can envisage in these times absolute power -a power above the law. Seydel posits the will of a Herrscher as the supreme power in the State, having the right to impose itself on all other wills collective or individual. As the Herrscher alone makes the law it is possible for him to break at will the law which he makes at will. That is, perhaps, very excellent logic, but it is futile constitutional doctrine so far as it confronts the facts of political life throughout any important part of the western world today. The nearest approach that England ever made to Seydel's conception of absolutism was during Tudor times, and it was soon abolished oth in doctrine and practice. As Professor Pollard puts it' Englishmen were swift to recognise that "it was well that Leviathan should have a giant's strength; but it was ill that he should use it in a giant's spirit England decided for unity of powers combined with responsibility for their exercise; it hitched a democratic waggon to le roi soleil." If, then, there is no such thing in the English-speaking world as a natural or artificial entity enjoying the absolute right to impose its will for good or ill on the community, it seems high time to slough off the doctrine of the impeccability of Crown or State. in civil proceedings generally. C. M. * DAMAGES FROM NERVOUS SHOCK.-In connection with the note re Penman v. Winnipeg Electric Ry. Co. in the June number of the REVIEW, it is interesting to note the widening divergence between British and Dominion jurisprudence on this subject as a result of the Coultas case. In a recent English case of Hambrook v. Stokes Bros.,' the doctrine definitely established by Dulieu v. White & Sons, that recovery may be (1887) 12 A.C. 643. 7 Erolution of Parliament, p. 229. 1 (1925) 1 K.B. 141. 2 (1901) 2 K.B. 669. had for nervous shock wholly apart from any physical injury, has received a new extension. In the latter case Kennedy, J., in giving judgment used the following language at p. 675, "There is, I am inclined to think, at least one limitation. The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself. A. has, I conceive, no legal duty not to shock B.'s nerves by the exhibition of negligence towards C., or towards the property of B. or C." In the Hambrook case the defendants were admittedly guilty of negligence in leaving a motor lorry at the top of a grade insufficiently braked. As a consequence it started down the grade on a narrow street, seriously injured a child and came to rest against a shop. The action was brought in respect of the death of the child's mother, alleged to have been caused by the nervous shock induced by apprehension for the safety of the child. The mother was nearby at the time of the accident, but it did not sufficiently appear from the evidence whether her apprehension arose from what she saw or realized from her own unaided senses, or from something which somebody told her. The learned trial Judge, following the dictum of Kennedy, J., in the Dulieu case, above referred to, charged the jury that the plaintiff could not recover unless the mother's apprehension was of injury to herself. The Court of Appeal, Bankes, L.J., Atkin, L.J.; (Sargent, L.J., dissenting), held that the dictum of Kennedy, J., was obiter and could not be regarded as authoritative. They said that it was "discreditable to any system of jurisprudence" to give damages to a mother who thought only of her own safety and to refuse them to a mother whose first consideration was the safety of her child. The law in England, therefore, is now that a by-stander occupying a close relationship to a person threatened with injury arising from an act of negligence may recover. But surely the principle cannot stop there. While Bankes, L.J., was careful to insist on the existence of the relationship of mother and child as influencing the decision of the case, the other members of the Court were, it is submitted with respect, more logical, and stated that they did not see why the rule once established should not apply to any by-stander. The majority of the Court emphasized that, following Polemis, et al. v. Furness, Withy & Co.,3 "once a breach of duty to the plaintiff was established, one has no longer to consider whether the consequence could reasonably have been anticipated by the wrong-doer. 3 (1921) 3 K.B. 560. The question is whether the consequences causing damage are the direct result of the wrongful act or omission." This being so, why limit recovery to cases of shock from what a person ascertains by his own unaided senses? It is surely the most natural thing in the world for someone to inform a relative of injuries which his kin have sustained. Of course, in cases similar to Riley's direct if tactless method of breaking the news of Murphy's sudden taking-off by his inquiry, " Does the widow Murphy live here?" the doctrine of independent cause might possibly be invoked. But even granted a messenger of reasonable suavity of approach, the ensuing shock to the nervous system of the relative must not only appear probable but practically inevitable. The vista which this juristic development opens would undoubtedly be hailed with pure delight by jury lawyers in some jurisdictions. On the whole, while the Coultas case is probably logically (and pathologically) incorrect, some would not wholly regret that it is still the law for the Dominions. Not all informed observers share the implicit, not to say childlike, faith of the efficiency of the jury system in civil negligence actions, which is so obviously a necessary part of the equipment of any judicial mind (when publicly articulate). That, however, is another story. I. S. F. * APPEAL PRIVY COUNCIL AND SUPREME COURT OF CANADA.— In the case of Post v. Langell, Mr. Justice Middleton discussed the principle relating to an appeal by the Plaintiff in a suit to the Privy Council, and also an appeal on the part of a Defendant to the Supreme Court of Canada from a judgment of the Appellate Division of Ontario. Under the terms of the Supreme Court Act, R.S.O. 1906, Ch. 139, sec. 75, it is the duty of the Judge, upon security being given to his satisfaction, to allow that security as an essential piece of the procedure necessary for the bringing of an appeal. The Privy Council Appeal Act, 1914, ch. 54, confers upon the Court appealed from jurisdiction not merely to allow the security, but to determine whether the case is one in which an appeal will lie as of right without special permission from the Judicial Committee. The question was governed by the decisions of the Supreme Court of Canada, and by the express terms of the Supreme Court Act, and the case must be determined in accordance with the view of the learned Judge based upon superior authorities. In the case of Montreuil v. Ontario Asphalt Block Co., Ltd.,2 it 128 O.W.N. 190. 2 (1920) 48 O.L.R. 18. was decided that an appeal to the Supreme Court of Canada should be allowed upon the theory that it was an appellant to the Supreme Court who took the first objective step towards prosecuting an appeal, and in this case it stood alone. The learned Judge considered that the present appeal to the Supreme Court of Ontario should be allowed and the appeal to the Privy Council disallowed, but the matter was removed from the region of doubt by other decisions of the Supreme Court of Canada. Eddy v. Eddy3 and Bank of Montreal v. Demers. The decision of the Eddy case was that where the respondent has taken an appeal from the same judgment as is complained of in the appeal to the Supreme Court of Canada to the Judicial Committee of Her Majesty's Privy Council, hearing of the appeal to the Supreme Court will be stayed until the Privy Council appeal has been decided. Upon the respondent undertaking to proceed with diligence in the appeal so taken by him. The Bank of Montreal case followed the same line. In the case of Gillett & Co. Ltd. v. Lumsden, it was held that "under the Revised Statutes of Ontario, 1897, c. 48, s. 1, it is essential that an appeal to the King in Council should be admitted by the Court of Appeal. The Court is bound to exercise its judgment whether any particular case is appealable or not; and where it appears by its order that it has left that question open, the appeal is incompetent." The learned Judge concluded that it was his duty to allow the security upon each of these proposed appeals leaving to the Plaintiff, in case the Defendant desires to prosecute his appeal to the Supreme Court of Canada, the privilege of applying to that Court for a stay of proceedings. B. B. J. CROWN'S PRIORITY FOR EXCISE TAXES.-The recent decision of the Second Appellate Division in Re Calcus Limited,' has left the law involved in the case in a somewhat unsatisfactory state. The question before the Court involved the interpretation of the Dominion War Revenue Act, 12 and 13 Geo. V. chap. 47, section 17, which provides in effect that notwithstanding The Bankruptcy Act or any other statute or law the liability of the Crown for payment of the excise tax specified in the Special War Revenue Act shall constitute a first charge on the assets and shall rank for payment, in priority to all other claims of whatsoever kind heretofore or hereafter arising, save and except only the judicial costs and lawful expenses of an as 1898, Coutlée's Digest, 130. 429 S.C.R. 435. (1905) A.C. 601. 128 O.W.N. 277. signee or other public officer charged with the administration or distribution of such assets. Upon its face this enactment would appear to give the excise tax referred to priority over every claim or right other than that of .an assignee or other public officer engaged in the administration of an estate, and would result in the Trustee being paid first, then the war tax, and then the landlord, as regulated by the provisions of The Bankruptcy Act. Sections 51 and 52 read in conjunction with said Section 17. This construction has judicial sanction as expressed in at least two decisions, namely, In Re Solomons Bochner Fur Company and In Re Davis Candy Academy.3 This interpretation led to the somewhat curious result that the order of priority would shift according as to whether or not a claim. for excise tax existed. Where no excise tax exists the order of ranking is, first, the landlord's right to rent; second, the Trustee's remuneration and costs; but where such excise tax does exist the priorities are as follows: (1) the Trustee's remuneration and costs, (2) the excise tax, (3) the landlord's right to rent. The Appellate Court, to get over this somewhat anomalous situation, construed Section 17 so as not to affect or modify the landlord's rights in any way and held its effect was merely to change the priorities between the Crown and the Trustee and leave the rights of the landlord as before. In arriving at this result the learned Judge who delivered the judgment of the Court prefaced his conclusion by stating that law is neither mathematics nor logic, invoking the dictum of Lord Halsbury in Quinn v. Leathem*:-"I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas, every lawyer must acknowledge that the law is not always logical at all." Lord Halsbury, in making this comment, was simply referring to the impossibility of logically following all the implications of legal decisions. In rendering this decision the Appellate Division made no reference to the decisions In re Solomons Bochner Fur Company and Re Davis Candy Academy (supra), but virtually over-ruled them without any express reference to them. If we keep in mind the express language of Section 17 and the decisions above mentioned, it is respectfully submitted that whatever was intended, Parliament has stated what these decisions have declared it to have stated, and it was rather for Parliament to amend 23 C.B.R. 753. 3 24 C.B.R. 698. |