Thus it has been said:

"Where the legislature has authorized a proprietor to make a particular use of his land, and the authority is in the strict sense of the law, permissive merely, and not imperative, the legislature must be held to have intended that the use sanctioned is not to be in prejudice to the common law rights of others. ' '39

And, so, where a statute provided that a municipality should construct certain gas pipes "so as not to endanger the public health," it was held that the statute was no defence in an action for damages suffered by one of the public. Here the statutory authority was limited, and the municipality had gone beyond such limits in constructing the work so as to endanger the public health. It was therefore without statutory authority or exemption with respect to the work so constructed and consequently liable under the rule in Rylands v. Fletcher. Similarly a statutory authority to erect a small-pox hospital was held conditional upon the hospital being erected on some site where it would not become a nuisance."1

40

In the earlier stages of English legal history the general rule of the common law in the sphere of torts was that a man acted at his peril, that is, he was under an absolute responsibility for his voluntary acts, irrespective of the existence of any negligence or wrongful intention. Speaking generally we may say that this rule has been reversed, and that the prevailing modern theory is that liability depends on the existence of some degree of fault on the part of the defendant or his servants. To this modern theory of liability the Rule of Rylands v. Fletcher constitutes an anomalous

"C. P. Ry. v. Parke, supra, at p. 544.

Raffan v. Can. Western Gas Co., 18 D. L. R. 13 (affirmed in Supreme Court of Canada (1915) 8 W. W. R. 676); Town of Cardston v. Salt, 49 D. L. R. 229 (Alta. C. A.).

"Metropolitan Asylum v. Hill, 6 App. Cas. 193; Rapier v. London Tram Co., [1893] 2 Ch. 588.

exception and perpetuates (in an age of ethical standards of conduct) what Professor Ames has called "the unmoral standard of acting at one's peril.

1942

"No decision in the law of Torts has done more to prevent the establishment of a simple and uniform system of civil responsibility.""

The decision was in line with some of the then accepted doctrines of liability in tort, being merely a generalization of the law relating to escaping cattle and fire. It is, however, instructive to notice that at the date when Blackburn, J., formulated the Rule, the doctrine of negligence was still in its infancy, for "that law is very modern so modern that even the great judges who sat in Rylands v. Fletcher can have had but an imperfect sense of its reach and power.""

"If the wide scope and far-reaching effect of the law of negligence had then been fully appreciated, it is quite probable that the courts would not have thought it necessary to retain any part of the old law of absolute liability

9945

Inasmuch as the Rule is based on a theory of liability no longer consistent with the general law of torts, it is not surprising to discover that it has been rejected by the weight of American authority and that the

"tendency of the later (English) decisions has been rather to encourage the discovery of exceptions than otherwise. "46

9946

In a very interesting and suggestive essay, Professor Jeremiah Smith of the Harvard Law School has argued that" at the present time it is generally unnecessary, in order to do justice to a plaintiff (in this class of cases) to adopt the doctrine of acting at peril;"" that the same result may be reached by apply

ing the ordinary doctrine of negligence with its standard of care proportioned to risk. There is, indeed, high authority for the view that Rylands v. Fletcher itself could have been decided on the ground of negligence, in that the defendants, though not personally negligent, were responsible for the negligence of the contractors employed by them. In attempting to prove negligence for permitting the escape of the dangerous agency it has been suggested that the principle "res ipsa loquitur" is available to the plaintiff." For, as Sir Frederick Pollock observes,50

"one does not see why the policy of the law
might not have been satisfied by requiring the
defendant to insure diligence in proportion
to the manifest risk
and throwing the
burden of proof on him in cases where the matter
is peculiarly within his knowledge."

It is submitted that, without in any way impeaching the authority of the case of Rylands v. Fletcher, such a course is still open to the Courts; it is still possible to dispose of this class of case by applying the general doctrine of liability based on the absence of due care and invoking, where necessary, the suplementary principle of "res ipsa loquitur." The adoption of such a course by the courts would render unnecessary the application of an irrational and out of date standard, and the extension of the general theory of liability to instances hitherto regarded as exceptional would result in the removal of one of the chief obstacles to the development of a logical and symmetrical doctrine of responsibility for torts.

"Referring to Kennard v. Cory, [1922] 1 Ch. 265, 2 Ch. 1, a correspondent in the Law Quarterly Review for October, 1922 (38 L. Q. R. p. 405), remarks that the combined actions

are an

admirable illustration of the proposition, that every case decided upon the principle of Rylands v. Fletcher could have been decided upon a different ground of liability."

"Pollock on Torts, Preface, 143 Rev. Rep. pp. v, vi; Smith, 30 Harv. L. Rev. 410; Thayer, 29 Harv. L. Rev. 801.

"Pollock on Torts, 11 ed., p. 493.

C.B.R.-VOL. I.-11

A Bill has been introduced into the Dominion Parliament entitled "An Act to amend and consolidate the Acts relating to Patents of Invention," which, if it becomes law, will be, in effect, a new Patent Act containing many provisions radically different from those of the old Act. The principal changes have to do with the conditions which an applicant must fulfil in order to obtain a patent, and those which he must comply with in order to maintain his patent in force. The prohibition against importation of the patented invention after one year from the date of the patent is removed, and new manufacturing and license provisions introduced.

The present Patent Act in its main provisions, has remained substantially unchanged since 1869, when it was drafted with the United States Act of 1836 as a model. Since that date the only material change that has been made has been the introduction in 1903 of the Compulsory License System, as a substitute for working, with respect to certain classes of inventions.

From time to time there has been a suggestion that the Canadian Patent Act should be amended in order to permit Canada to become a member, and so secure the advantages, of the International Convention for the Protection of Industrial Property (Signed at Paris, March 30, 1883; Revised at Washington June 2, 1911). The principal advantage to be obtained by the Convention would be, that contained in Article IV thereof which provides:

"Any person who has duly applied for a patent, industrial design or model, or trade-mark in one of the Contracting States shall enjoy, as regards registration in the other States, and reserving the rights of third parties, a right of priority during the periods hereinafter stated."

The period stated with respect to patents is one year. Canada by its present Act gives the same protection as the Convention does to all foreign applicants, but receives nothing in return. The principal bar to Canada becoming a member of the Convention has been that contained in Section 38 of The Patent Act which prohibits importation after one year, this being contrary to Article V of the Convention which provides:

"The introduction by the patentee into the country where the patent has been granted of objects manufactured in any of the States of the Union shall not entail forfeiture.

"Nevertheless, the patentee shall remain bound to work his patent in conformity with the laws of the country into which he introduces the patented objects.

The revision of the working requirements proposed in the Bill would enable Canada to become a member of the Convention, with the result that inventions made by Canadian inventors would be protected during a period of one year in all countries of the International Union, these countries including at the present time: Austria, Belgium, Brazil, Cuba, Denmark, Dominica, France, Germany, Great Britain (with Australia, Ceylon, New Zealand, Trinidad, and Tobago), Holland, Hungary, Italy, Japan, Mexico, Norway, Portugal, Servia, Spain, Sweden, Switzerland, Tunis and United States.

The conditions which an applicant for a patent under the present Patent Act (R. S. C. 1906 Chap. 69) must meet are set forth in Section 7 thereof which reads:

"7. Any person who has invented any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement in any art, machine, manufacture or composition of matter, which was not known or used by any other person before his invention thereof, and which has not been in public use or on sale