Such

concern him, he owes a lesser degree of care than to invitees. persons are called "bare" or " mere" licensees and the occupier owes them the duty not to expose them to any concealed danger of which he is aware, without warning them of the peril or trap.35 He must not intentionally and wrongfully allow a person to enter premises on the faith of his permission when such premises are to the occupier's knowledge unsafe, and subject to some hidden risk. Such conduct would be practically a fraud on the licensee. The grantor of a license is in a position analogous to that of the donor of a gift, and the principle of law as to gifts is that the giver is not responsible for damage resulting from the insecurity of the thing unless he knew its unsafe character at the time, and omitted to caution the recipient. There must be something like fraud on the part of the donor before he can be made answerable. Accordingly it was held in the leading case of Gautret v. Edgerton36 that the defendant was not liable for the death of a person who, while crossing defendant's land with his tacit permission, fell through a bridge which was on the defendant's land and out of repair. The injured person was a bare licensee, and the defendant had been guilty of no active negligence and had not set the trap.

Who are Licensees.-Salmonds defines a licensee as "a person who enters on the premises by permission of the occupier, granted gratuitously in a matter in which the occupier has himself no interest." He is, therefore, as remarked by Willes, J., in Indermaur v. Dames, one "whose complaint may be said to wear the colour of ingratitude so long as there is no design to injure him." The permission to the licensee may be express or it may be implied from conduct such as tacit acquiescence in the licensee's use of the premises or his habitual coming upon them to the knowledge of the occupier.38 Thus, e.g., the occupier may expressly grant another person the right to cross the land; or he may have suffered him to do so, without objection, for a greater or lesser period, in which latter case the invader is not a trespasser but secures the status of a licensee. It is, of course, otherwise where the occupier has always objected to such user or intrusion.3 Social guests, and servants are classed as licensees.

40

39

35 Gautret v. Edgerton (1867), L. R. 2 C. B. 371; Carlson v. C. P. R. (1920), 51 D. L. R. 250 (Alta.); Perdue v. C. P. R., 1 0. W. N. 665. 36 Supra.

Salmond on Torts, 5th Ed., p. 410.

38 Hounsell v. Smyth (1860), 7 C. B. (N.S.) 731; Lowery v. Walker, [1910] 1 K. B. 173, [1911] A. C. 10: Gilbert v. Southgate, (1915) 24 D. L. R. 202, per McPhillips, J.A.: Latham v. Johnson, [1913] 1 K. B. at 440; Halliday v. Hewitt, 8 Brit. R. C. 573.

39 Hardy v. Central Ry., [1920] 3 K. B. 459 (where the fact that children were always driven away when found on the premises resulted in their being treated as trespassers).

Southcote V. Stanley (1856). 1 H. & N. 274.

41 Priestly V. Fowler (1837), 3 M. & W. 1: King v. Northern Navigation Co. (1912), D. L. R. 69; (a boy on railway premises with a view to employmen:

Extent of Duty.-There is no duty resting on the occupier to keep the premises reasonably safe, but only to warn of the existence of hidden dangers. As to all obvious or ordinary dangers which the licensee would anticipate on such premises, or of which he is actually aware, the licensee takes his chances.42 The position of a licensee is thus summarized in the judgment of Scrutton, L.J., in Haywood v. Drury Lane Theatre. "A bare licensee who has no common interest with the owner of the premises but is there by the owner's permission, takes the premises as he finds them, with all their dangers and traps,-a trap being a danger which a person who does not know the premises would not avoid by reasonable care and skill. The owner is under no liability as to existing traps unless he intentionally set them for the licensee, but must not create new traps without taking precautions to protect licensees against them." The mere fact that a person is the owner of land on which there is a trap" does not make him liable for damages to a bare licensee, suffered by reason of the trap, if the owner had no knowledge of the existence of the trap.**

45

A licensee having received permission to enter or cross or otherwise use another man's premises must accept the permission with all its concomitant conditions and dangers, and must take the premises as he finds them. He cannot complain if he suffers injury on the premises when exercising the permission, unless the injury is caused by some hidden danger of which the occupier was aware when he granted the permission, and of the existence of which he gave no warning. In such an event the occupier has misled him by something like "fraud" in permitting him to enter the premises and expose himself to the danger of a "trap" without warning."

Warning of Existing Traps.-The duty of the occupier is to warn the licensee of all traps which he knows exist on the premises at the time the permission is given, and he will not be liable for injury sustained by reason of the fact that the premises subsequently became dangerous through non-repair. "If I dedicate a way to the public which is full of holes, the public must take it as it is. If I dig a pit in it I may be liable for the consequences; but if I do nothing, I am not." But the occupier is liable if he knowingly or actively or negli

was considered a licensee in Collier v. Michigan Ry. (1900), 27 Ont. A. R. 630; and see McGuire v. Bridger (1910), 49 Can. S. C. R. 632.

2 Loiselle v. The King (1921), 56 D. L. R. 397; Latham v. Johnson, [1913]

1 K. B. at 411; King v. Northern Navigation, supra.

43 [1917] 2 K. B. at 913.

"Martle v. Nor. Life Assurance Co., [1920] 3 W. W. R. 228.

Blackmore v. Toronto Street Railway (1876), 38 U. C. R. 172, 216;

Hounsel v. Smyth (1860), 7 C. B. (N.S.) 731.

Robinson v. Dodge (1918), 39 D. L. R. 679 (Man.); King v. Northern Navigation Company (1912), 6 D. L. R. 69.

731.

Gautret v. Edgerton at p. 373; Hounsell v. Smith (1860), 7 C. B. (N.S.)

48

gently creates a new "trap" or danger on the premises after the permission has been granted and is being exercised, and gives no warning. "The grantee (i.e., the licensee) must use the permission as the thing exists. It is a different question, however, where negligence on the part of the person granting the permission is superadded. It cannot be that, having granted permission to use a way subject to existing dangers, he is to be allowed to do any further act to endanger the safety of the person using the way. The defendant took the permission to use the way subject to a certain amount of risk and danger, but the case assumes a different aspect when the negligence of the defendant is added to that risk and danger." So, in the leading case of Lowery v. Walkers it was held that the defendant was liable where, without any warning, he put a savage horse in his field which he knew to be habitually used by the public as a short cut. The horse attacked the plaintiff whilst he was crossing the field, and it was held that the placing of the horse in the field without warning of his vicious nature was in effect the setting of a trap.51

Halifax.

VINCENT C. MACDONALD.

48 Thyken v. Excelsior Life Co. (1917), 34 D. L. R. at p. 538. Gallagher v. Humphrey (1862), 6 L. T. (N.S.) at p. 685; Corby v. Hill (1858), 9 Q. B. D. 80.

50 [1911], A. C. 10.

81

Cf. Robinson v. Dodge (1918), 39 D. L. R. 679; Halliday v. Hewitt, 8 Brit. R. C. 573; Breen v. City of Toronto (1911), 18 O. W. R. 522.

(To be continued).

TWO VALUABLE LITERARY RELICS.

Recently, having had a little time to spare while in the City of Woodstock, Ontario, I made my way to the magnificent Court House there in quest of possible information. A building containing a library is seldom a disappointment, and Court Houses usually house valuable and sometimes unique collections of books. That edifice was erected. about the year 1890, and is a splendid structure of entirely modern design. It is built of the same sort of reddish brown sandstone that is used in the construction of the Provincial Parliament Buildings at Toronto. The principal apartment in the building is the great Court room, which occupies a considerable part of the first floor of the building, and unlike many Court rooms, contains a most unusually large space for the accommodation of the general public. The building occupies the site on which its predecessor rested, that ancient structure having long outlived its usefulness by the year 1890. The large spaceprovided for the public was probably suggested by the fact that at the time the new edifice was being erected the world-renowned Birchall trial was in progress, and the thousands of people who were denied admittance then led the architects to devise conditions whereby there would not be so many disappointed persons in case any new trial of great renown should happen to be held in the Woodstock Court House in the future.

The Birchall trial certainly did attract multitudes from great distances. Thousands of persons, all eager to obtain entrance to the Court room during the progress of the trial, were turned away while that singular character was being tried for his life. Court was held then in the City Hall, on the market square. An incident illustrative of the sensation that trial created, not only in Woodstock, but elsewhere, was told to me recently. A man after much struggling forced his way to the entrance door, and presenting himself to the stalwart. but immovable guard panted forth:-"Let I in: let I in; I walked all the way from Chatham to see he." But the pilgrim's long trip of nearly one hundred miles was in vain, for there was no space for him in that room which was already crowded to its utmost capacity.

Near one of the entrance doors to the new Court room hangs a. portrait of Sir Oliver Mowat-the one which was presented to him in 1887 by his political supporters in the Ontario legislature. After that illustrious statesman's death, his family presented the painting to the County of Oxford, in touching remembrance of the long and unbroken.

C.B.R.-VOL. II.-3

fidelity preserved by that County to the man who was so long the brilliant and well-beloved premier of Ontario, made so in part by Oxford's unswerving devotion to him.

But it was not to the magic touch of mason and architect, nor the deft skill of the artist, that attention was principally directed on this occasion of a visit to the County buildings of Woodstock and Oxford. Finding my way unhindered about the building I soon located the well lighted rooms which contain the Oxford law library. There, after some little rambling, my eyes rested on two perfect literary treasures. To me they were of immeasurable interest, and thinking they might be not less so to others, I venture to bestow upon them a little consideration.

The first of these treasures was a book, of quite unusual size for a treatise on one of the many branches of the laws of the land. It bore the title "The first part of Simboleology, which may be better termed the art and description of instruments and presidents: collected by William West, of the Inner Temple, Esquire. At London, printed by Thomas Wright, A.D. 1603."

The book is in two parts, and strange to say, the second part bears imprint of the year 1601. Just how it happened that the second part of the volume bears an earlier date by two years than the part preceding, was not apparent by anything either in the printing of the book or in its binding.

On the title page is written in a firm and exceedingly plain hand, in that ink of long centuries ago, which seems never to fade nor to grow dim, the words:-" Matthew Lyne, ejus liber." Elsewhere this mark of ownership as well as its genealogy is elaborated thus:"Matthew Lyne, his book, the gift of Mr. James Stenhouse, 1766."

The word "simboleography" does not appear in any of our modern publications-it occupies no place in dictionary or lexicon. But, in addition to the definition suggested by the extended title, the word may be translated with a close approach to accuracy into the phrase," precedents in litigation and conveyancing." In this connection it is interesting to observe that in the beginning of the seventeenth century it was apparently not an improper method of spelling the principal word in the author's definition as "presidents."

The "precedents" contained in this ancient volume are both numerous and extensive. Much of their circumlocutionary phraseology existed in legal documents until within a few years ago. More recently, however, both the wisdom of verbal condensation as well as common sense combined to cause legal papers to reduce their formidable length from thirty or forty pages each to one-tenth or one-twentieth of those dimensions.