powers and mental faculties which the owner, at the time he gave the license, knew or ought to have known the licensee possessed." And so an occupier may be bound to take greater precautions in the case of a child than of an adult. The posting of a notice or the giving of a warning will excuse him only where he proves that such notice was understood or such warning was effectively brought home to the mind. and intelligence of the child; a notice or warning which the child could not read or understand will not be sufficient. Similarly in considering what is a "trap" or concealed danger it must be remembered that "trap" is a relative term and that dangers obvious to adults may be unappreciated by infants. "In the case of an infant, there are moral as well as physical traps. There may accordingly be a duty towards infants not merely not to dig pitfalls for them, but not to lead them into temptation." Still the duty is not to make the premises safe for children, but merely one of reasonable care in respect of unusual dangers. Accordingly in Latham v. Johnson P2 the occupier escaped liability where a child injured itself whilst playing with a heap of paving stones in broad daylight, there being no trap and nothing inherently dangerous in the stones.

Inference of License.-Habitual entry and user of the land by children with the knowledge and acquiescence of the occupier may give them the status of licensees, but they will remain trespassers if the occupier always drives them off and makes them aware that they have no business there. And even where such a license can be inferred it protects them only when upon that part of the premises to which it extends; as to other parts they are trespassers.95 The leading case of Cooke v. Midland Ry. Co., as explained in subsequent cases, was one in which the children entered upon the premises and played with the fatal turntable with the tacit permission of the occupier, and were therefore licensees. While the Courts have been astute to find evidence of a license from habitual acquiescence yet they incline to limit the permission to children able to take care of themselves and to hold that where the child is too young to understand danger the license ought not to be held to extend to such a child unless accompanied by a competent guardian."

96

97

89 Cooke v. Midland Great West. Ry.. [1909] A. C., 229 at 238.

Do Hardy v. Central Ry., supra, at 465; Cf. Cooke v. Midland Ry., where a notice board conveyed no impression to the children.

91 Latham v. Johnson, at p. 415.

** [1913] 1 K. B., 398; Plawiuk v. Advance Co. (1922), 70 D. L. R. 533. 93 Cooke v. Midland Ry. Co., supra; Lowery v. Walker, [1911] A. C., 10. Hardy v. Central Ry., supra.

95 Jenkins v. Great West. Ry. Co., [1912] 1 K. B., 525.

E.g., Glasgow Corp. v. Taylor, [1922] 1 A. C., at 53; Latham v. Johnson, supra, per Hamilton, L.J.

Burchell v. Hickisson (1880), 50 L. J. C. P., 101; Schofield v. Mayor of Bolton (1910), 26 T. L. R., 230; Latham v. Johnson, supra, at pp. 407, 414.

66

Allurement" Cases.-Cases where children are injured through dangerous premises or agencies thereon are usually termed "attractive nuisance" or "allurement" cases, and it has been repeatedly argued that where an occupier has on his premises machinery or objects which are attractive and tempting to children-his duty to them is thereby increased. It is submitted, however, that there is no distinct or higher positive duty imposed by law in respect to, such allurements as such. His duty to trespassers is merely to refrain from wanton or deliberate injury, and children who are tempted. to invade an occupier's premises because of some tempting object thereon cannot recover for injury sustained thereby: "It is hard to see how infantile temptations can give rights, however much they may excuse peccadilloes. A child will be a trespasser still if he goes on private ground without leave or right, however natural it may have been for him to do so."9s In Hardy v. Central London Ry. Co." a moving staircase outside a station was so attractive to children that they repeatedly used it in spite of being constantly warned off by officials, and yet they were held to be trespassers, there being no evidence of leave or license.

66

Extent of "Allurement" Doctrine.-The fact that the premises or objects thereon are attractive or alluring to children is an important factor, however, in deciding two issues: viz.: (a) The existence of a trap," and (b) the presence of leave and license. As to (a) it has been said, 66 the allurement may arise after he (a child) has entered with leave or as of right. Then the presence in a frequented place of some object of attraction, tempting him to meddle where he ought to abstain, may well constitute a trap, and in the case. of a child too young to be guilty of contributory negligence it may impose full liability on the owner or occupier, if he ought, as a reasonable man, to have anticipated the presence of the child and the attractiveness and peril of the object it must be a matter

of law to say whether a given object can be a trap in the double sense of being fascinating and fatal."100 Where, therefore, children are present on the premises with tacit permission, or as of right, and there is an alluring object on the land it becomes the occupier's duty to take some steps to counteract the attraction or to minimize the danger. This principle was applied in Glasgow v. Taylor,101 where a boy died from eating the berries of a poisonous shrub in some public gardens in Glasgow. The berries were tempting and harmless

"Latham v. Johnson, supra, per Hamilton, L.J., at 415.

99 [1920] 3 K. B., 459.

in appearance and constituted a concealed danger in a spot frequented by children; the defendant corporation was held liable for breach of its duty to give definite warning or to take adequate precautions to protect them against the danger. As to (b)-(the quality of allurement as a determinant of permission), Warrington, L.J., observed in the Hardy case:102 "Much stress was laid in argument on the allurement" afforded by the moving staircase. Such a fact may be material element in considering whether under all the circumstances leave and license is to be inferred, but where . . . leave and license is distinctly negatived, the fact cases to be relevant."103 VINCENT C. MACDONALD.

Halifax.

SUCCESSION DUTIES IN CANADA.
(Concluded.)

NATURE AND CONSTITUTIONALITY.

Part II: Constitutionality of the Tax.

In the United States of America the constitution requires that taxation must be uniform or without discrimination. None of the Canadian legislatures, Dominion or provincial, are subject to a restriction of this character. In case of the abuse of the powers of taxation or other powers possessed by these legislatures, the only remedy is an appeal to the electorate.30

Under the provisions of section 92 of the British North America Act, the taxing powers of provincial legislatures are subject to two express limitations, namely:

1. The taxation must be direct; and

2. It must be within the province.

102 [1920] 3 K. B., at 470.

10 The duty of occupiers to children was considered in the following Canadian cases:

Pedlar v. Toronto Power Co. (1913), 15 D. L. R., 684; affirmed 19 D. L. R., 441 Robinson v. Village of Havelock (1915), 20 D. L. R., 537; 32 Ont. L. R., 25; Vick v. Morin (1915), 22 D. L. R., 29; 30 W. L. R.. 412; Geall v. Dominion Creosoting Co., Ltd. (1916), 55 Can. S. C. R., 587; Fulton v. Randall (1918), 3 W. W. R., 331; (application of Cooke v. Midland Ry. to trespassing horses): McLean v. Y. M. C. A. (1918), 3 W. W. R., 522; Shilson v. Northern Ontario Light & Power Co. (1919). 48 D. L. R., 627: affirmed in Supreme Court of Canada (1920), 50 D. L. R.. 696: 59 Can. S. C. R.. 443; Burbridge v. Star Mfg. Co. (1921), 56 D. L. R., 658; Wallace v. Pettit, 25 Ont. W. N.. 364.

The American cases on this subject are collected and discussed in learned articles in (1898) 11 Harv. L. Rev., 349; (1923) 36 Harv. L. Rev., 826; (1923) 57 Amer. L. Rev., 321, and 875.

30 Fisheries Case (1898) A.C. 700; 67 L. J. P. C. 90.

1. DIRECT TAXATION.

The judgment of the Privy Council in Rex v. Cotton31 contains the following passage: "Their Lordships are of opinion that these decisions have established that the meaning to be attributed to the phrase 'direct taxation' in sec. 92 of the British North America Act, 1867, is substantially the definition quoted above from the treatise of John Stuart Mill, and that this question is no longer open to discussion." Mill's definitions of direct and indirect taxes are as follows:

"A direct tax is one which is demanded from the very persons who it is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another."

Before proceeding to consider the application of these definitions to provincial succession duties, it may be well, in the first instance, to refer briefly to certain decisions of the Judicial Committee upon tax statutes bearing upon the question of what constitutes direct taxation.

In Attorney-General of Quebec v. Reed,32 a duty payable in stamps upon papers filed in court in the course of litigation was held to be indirect, on the ground that the legislature in imposing the tax could not have had in contemplation the ultimate determination of the suit or the final incidence of the burden, whether upon the person who had to pay it at the moment when it was exigible, or upon anyone else. Therefore it could not be a tax demanded " from the very persons who it is intended or desired should pay it."

In Bank of Toronto v. Lambe33 a tax imposed upon banks which carry on business within a province, varying in amount with the paidup capital, and with the number of its offices, was held to be direct taxation. The judgment of the Privy Council proceeds:

"Whether the probabilities of the case or the frame of the Quebec Act are considered, it appears to their Lordships that the Quebec Legislature must have intended and desired that the very corporations from whom the tax is demanded should pay and finally bear it. It is carefully designed for that purpose. It is not like a customs' duty which enters at once into the price of the taxed commodity. There the tax is demanded of the importer, while nobody expects or intends that he shall finally bear it."

In the year 1897, the same question came before the Privy Council in a very similar case, Brewers' and Maltsters' Association of Ontario v. Attorney-General for Ontario.34 In this case, the Privy Council held

31 (1914), A. C. 176: 83 L. J. P. C. 105.

32 10 App. Cas. 141: 54 L. J. P. C. 12.

(1887), 12 App. Cas. 575; 56 L. J. P. C. 87.

34 (1897), A. C. 231.

valid as direct taxation a provincial Act imposing a license fee on brewers and maltsters and other persons (although duly licensed by the Dominion) for leave to sell within the province the liquors manufactured by them.

Succession Duties: Direct and Indirect.

In Cotton v. The King35 it was held by the Privy Council that the taxation imposed by the Quebec Succession Duties Act, 1906, was indirect, and that the statute was accordingly ultra vires of the provincial legislature. The Act in question provided that: "All transmissions owing to death, of the property in, usufruct or enjoyment of, moveable or immoveable property shall be liable to the following taxes, etc." Commenting upon the provisions of the statute, Lord Moulton says: "The method of collection appears to be as follows: There is nothing corresponding to probate in the English sense, but there is under art. 1191 (g) an obligation on every heir, universal legatee, legatee by general or particular title, executor, trustee and administrator or notary before whom a will has been executed' to forward, within a specified time, to the collector of provincial revenue a complete schedule of the estate, together with a declaration under oath setting forth various matters relating thereto. Although this is an obligation on each member of each of the above classes, it is provided that the declaration duly made by one of the above-named persons relieves the others as regards such declaration.' On receipt of such declaration the following provisions with regard to the payment of the duty come into force:

"(4) . . . the said collector shall cause to be prepared a statement of the amount of the duties to be paid by the declarant.

(5) Such collector of provincial revenue shall inform the declarant of the amount due as aforesaid, by registered letter mailed to his address, and notify him to pay the same within thirty days after the notice is sent; and, if the amount is not then paid to him on the day fixed, the collector of provincial revenue may sue for the recovery thereof before any court of competent jurisdiction in his own district."

In view of the personal liability imposed upon the declarant, their Lordships held that the tax was indirect, being demanded not from the person intended to bear it but from someone who was expected to be recouped by someone else.

At the conclusion of his judgment in the Cotton case, Lord Moulton makes the following general observations in regard to the Quebec Succession Duty legislation then in force: "The whole struc

(1914), A. C. 176: 83 L. J. P. C. 105.