rights" and the fullest "capacity" which the legislature could bestow (Honsberger v. Weyburn Townsite Co., 59 Can. S. C. R. 281); and section 14 did not add anything to such "capacity."

Per Idington, J. (dissenting).-The corporate powers and capacity of the respondent company rest upon "The Companies Act" entirely, and section 14 impliedly gives to it the capacity and power to make promissory notes.

Judgment of the Court of Appeal ([1922] 2 W. W. R. 1211), affirmed, Idington, J., dissenting.

Appeal dismissed with costs.

Present: Sir Louis Davies, C.J., and Idington, Duff, Anglin, Brodeur and Mignault, JJ.

On Appeal from the Court of King's Bench, Quebec.

SMITH v. LEVESQUE.

Constitutional law Succession duty-Bank stock-Company shares-Head office-Situs of property-" Succession Duty Act," R. S. Q. (1909), Acts 1375 and 1376, as amended by 4 Geo. V., ch. 9-Art. 6 C. C.

The respondent, acting on behalf of the Province of Quebec, claimed from the appellants, executors of the estate of the late W. Smith, domiciled at his death in Halifax, succession duties on the following: First on 2,076 shares of the Royal Bank of Canada, having its head office in Montreal, but having established at Halifax a local registry under section 43 of the Bank Act"; and secondly on 100 shares of the Montreal Trust Company, incorporated by the Quebec Legislature, and 175 shares of the Abbey Fruit Salts Company, incorporated under a Dominion charter, both having its head office in Montreal.

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Held, that the executors were not liable to pay succession duty on the shares first mentioned, which have already been declared by a judgment of this court to be situate in the Province of Nova Scotia: Smith v. The Provincial Treasurer for the Province of Nova Scotia (58 Can. S. C. R. 570).

As to the shares secondly described, this court was equally divided: Davies, C.J. and Idington and Anglin, JJ., holding that these shares were not liable to Quebec succession duty as they were not "actually situate within the province." Duff, Brodeur and Mignault, JJ., contra.

Appeal allowed in part with costs.

Present: Sir Louis Davies, C.J., and Idington, Duff, Anglin, Brodeur and Mignault, JJ.

On appeal from the Court of Appeal for British Columbia.

REID v. LINNELL.

Negligence -Excavation in land to border line-Adjoining owner falling into from his own land-Absence of warning or protection-Liability.

The appellant Reid, intending to build upon his lot, No. 17, let a contract to the appellant Campbell, who in turn let the work of excavation to the appellant Fisher. The respondent was a sub-lessee of certain premises situate on the adjoining lot, No. 18. The excavation was made at the back of buildings already existing, up to the lane and extending to the border line of the two lots; but it was not shored up and was left without fence, or railing, or warning lights. The respondent, while passing at night through the yard back of his house, fell into the excavation, which was not known to him, was injured and sued the appellants for damages. The action was tried as one of negligence, and was submitted as such to the jury, who brought in a general verdict for the respondent.

Held, Davies, C.J., dissenting, that the appellants were liable.

Per Duff, J.-The grounds raised by the appellants not having been suggested at the trial, it must be assumed upon the evidence that the jury, under a proper direction, would have found that the situation created by the excavation in the place in which it was, constituted, in the absence of protection or warning, a danger to persons who might be present in the vicinity of it in the ordinary enjoyment without negligence of their right to be there under the authority of the owner of the adjoining property.

Per Anglin and Mignault, JJ.-Although there was no absolute duty to guard independently of negligence, the exercise by the appellants of their rights to excavate entailed an obligation to do for the protection of those who they knew might be expected to make use of the adjoining yard, what a prudent and reasonable man would regard as requisite, or usually sufficient, to prevent a person using ordinary care from falling into the excavation while moving about the yard as was customary; and the verdict of the jury implies both the existence of this duty and the omission to discharge it, constituting actionable negligence.

Per Brodeur and Mignault, JJ.-The contract between the appellant Reid and his contractors enacted specifically for lights and railings being put in order to avoid any accident, and their failure to provide same renders them liable.

Per Davies, C.J. (dissenting).-The excavation was made by the appellant Reid, or with his authority, on his own land, in the exercise of his rights to the ordinary enjoyment of his land; and there was no evidence of negligence which could justify the verdict of the jury.

Judgment of the Court of Appeal ([1923] 1 W. W. R. 900), affirmed, Davies, C.J., dissenting.

Appeal dismissed with costs.

2. EXCHEQUER COURT OF CANADA.

Toronto Admiralty District.

HODGINS, L.J.A.

May 12th, 1923.

STEAMER HAMONIC AND OWNERS, PLAINTIFFS v. THE SHIP ROBERT L. FRYER.

Shipping-Collision-Breach of rules-Onus of proof-Speed, handiness, equipment and assistance a factor-Turning in a narrow channel-Right of way.

This was an action brought by the Steamer Hamonic for $5,000 damages alleged to have been sustained by a collision between that vessel and the defendant ship in the Kaministiquia River, part of the harbour of Fort William.

Trial before Mr. Justice Hodgins, L.J.A., who held, that the right of way given to a vessel by virtue of Rule 25 of the Rules of the Road for the Great Lakes (adopted by Order-inCouncil of the 4th February, 1916) does not absolve a vessel from neglect to observe other rules governing the situation created by the circumstances surrounding the operation.

2. In a case of collision the condition of the vessels as to equipment, handiness, speed and assistance rendered by tugs should be taken into consideration in determining the responsibility of each vessel, especially when such conditions are known to the Masters of the vessels colliding.

Action dismissed.

HODGINS, L.J.A.

EXCHEQUER COURT OF CANADA.

Toronto Admiralty District.

May 10th, 1923.

STEAMER WESTMOUNT AND OWNERS, PLAINTIFFS v. THE SHIP ROBERT L. FRYER.

Shipping Collision-Observance of rules-Negligence of both vessels-Division of damages.

This is an action by the plaintiffs against defendant ship claiming damages by reason of a collision which occurred in the slip between the Davidson & Smith Elevator and the Government Dock in Port Arthur.

Trial before Mr. Justice Hodgins, who held, that rules 27, 37 and 38 of the Rules of the Road for the Great Lakes adopted by Order-in-Council of February, 1916, apply to a case where vessels are working in and out of a narrow congested channel into a slip between docks or while within the water space between docks. These rules apply to vessels until they are clear of the slip and the dock next to which they were made fast.

2. When both colliding vessels are found equally blameable and damage results, each vessel is liable to pay one-half the damages sustained by the other.

As the Court found both equally at fault, judgment was given, dividing the damages equally between the two ships.

HODGINS, L.J.A.

EXCHEQUER COURT OF CANADA.

Toronto Admiralty District.

April 23rd, 1923.

CANADA STEAMSHIP LINES LIMITED, PLAINTIFFS V. CANADIAN NORTHERN RAILWAY, DEFENDANT.

Shipping-Collision-Negligence caused by using a protection for a dock for purpose not intended-Risk thereby undertaken.

This was an action by plaintiffs for damages to their ship Emperor when coming into a dock at Port Arthur, the property

of the defendant, and a counterclaim by the defendant against the plaintiffs for injury done to the dock.

Mr. Justice Hodgins found that the Master of the ship Emperor in making a landing at the defendant's dock came purposely in contact with a cluster of piles placed in the water by the defendant to protect the angle of the dock and about three feet distant therefrom, intending to use them to shove the bow of his ship outward so as to clear the angle, with the result that the ship and dock were both injured, and

Held, that such an obstruction to navigation cannot be made use of by the Master of a ship for a purpose other than that for which it was intended, except at his own risk, and the Master is not absolved from blame by the fact that the obstruction is insufficient to fulfill the object for which it was designed. In the result the plaintiffs' action failed and the plaintiffs were held liable for the damage to the dock.

The following cases were referred to and considered in this case: The Bearn (1906), P. D. 48; The Moorcock (1889), 14 P. D. 64; The Queen v. Williams (1884), 9 A. C. 418; The Calliope (1891), A. C. 11; Butler v. McAlpine (1904), 2 Ir. R., Q.B.D. 445; Scrutton v. Attorney-General of Trinidad (1920), 90 L. J. P. C. 30 (N. S.); Great Lakes S.S. Co. v. Maple Leaf Milling Co. (1922), 22 Ont. W. N. 203 (1923), 3 D. L. R. 308.

HODGINS, L.J.A.

EXCHEQUER COURT OF CANADA.
Toronto Admiralty District.

April 26th, 1923.

CANADIAN DREDGING COMPANY, PLAINTIFF v. THE NORTHERN NAVIGATION COMPANY AND THE CANADIAN TOWING AND WRECKING COMPANY, DEFENDANTS.

Shipping-Collision-Negligence-"One Ship"-Joint liability -Necessity for proper lookout.

This was an action in personam against defendants for damages resulting from a collision of defendant ship, which was towed or propelled by a tug owned by the other defendant, with a dredge owned by the plaintiff company.