NEGLIGENCE-DEFECTIVE RAILWAY WAGGON-MASTER AND SERVANT-INJURY TO SERVANT ARISING FROM DEFECTIVE WAGGON BELONGING TO THIRD PARTY.

The Caledonian Ry. Co. v. Mulholland (1898), A.C. 216, was an appeal from a Scotch court in an action of negligence. The facts were as follows: The Caledonian Ry. Co. had a contract with the gas commissioners at Glasgow to deliver coals at Dumfries station, and the Glasgow & S. W. Ry. had a contract with the gas commissioners to haul the coal from the Dumfries station to the gas works: for the convenience of transport, the coals were not unshipped at the Dumfries station, but remained in the Caledonian Ry. Co.'s waggons, and these waggons were then taken possession of by the Glasgow & S. W. Ry. Co., and hauled by horses under the control of their men to the gas works. One of the waggons of the Caledonian Ry. Co. had a defective break, and in consequence of this defect the plaintiff's husband, who was in the employment of the Glasgow & S. W. Ry., was killed. The action was brought against both railway companies, and upon a proceeding in the Scotch Court, somewhat in the nature of a demurrer, they were both held to be liable. The Caledonian Ry. Co. appealed to the House of Lords (Lords Halsbury, L.C., and Herschell, Macnaghten, Morris and Shand), and their appeal was unanimously allowed. The case seems to establish the proposition, that when a deceased person comes to his death by reason of a defect in a vehicle or other apparatus of another, who owed him no duty to have such vehicle or apparatus in an efficient condition, there is no liability on the part of such other person to the representatives of the deceased. Heaven v. Pender, 11 Q.B.D. 503, was relied on by the respondents, but was considered by Lord Herschell to rest on the ground that in that case the third party had in effect invited the person injured to use the defective staging.

CRIMINAL LAW-MARITAL COERCION--(CR CODE, SS. 12 13).

Brown v. Attorney-General (1898) A.C. 234, was an appeal from the Court of Appeal of New Zealand in a criminal case. The appellant, a married woman, had been tried for unlawfully using instruments with intent to procure an abortion. The New Zealand Criminal Code includes provisions similar to those in Cr. Code ss. 12, 13, and the jury at the trial without any evidence except the fact of marriage, had found that the prisoner had acted under the coercion of her husband, notwithstanding this finding the prisoner was convicted, and her conviction was affirmed by the Court of Appeal. The Judicial Committee of the Privy Council (The Lord Chancellor, and Lords Watson, Hobhouse and Davey and Sir R. Couch), affirmed the decision, being of opinion that the point sought to be raised by the appeals, viz., whether under the Code the fact that the offence was committed under the control or by command of the husband was a defence, was not open to the appellant on the facts, inasmuch as there was no evidence of any such control or command.

TRADE NAME INJUNCTION " FLAKED OATMEAL "-TERM OF ORDINARY DESSCRIPTION IDENTIFICATION OF NAME WITH GOODS BY USER.

Parsons v. Gillespie (1898), A.C. 239 was an action to restrain the use of the trade name of "Flaked Oatmeal," by the defendant in connection with goods not sold or manufactured by the plaintiffs. The plaintiffs relied on Reddaway v. Banham (1896) A. C. 199 (see ante vol. 32 p. 578), but the Judicial Committee, while approving of that case, nevertheless held that the plaintiffs were not entitled to succeed, because they had failed to prove that the name had become so identified with the goods manufactured by them, that its use by the defendants was calculated to have or did have the effect of enabling them to pass off their goods as those of the plaintiff, and the judgment of the Supreme Court of New South Wales dismissing the action, with damages resulting from the granting of an interim injunction, was affirmed.

QUEEN'S COUNSEL-R.S.O. 1877, c. 139,-VALIDITY OF-B.N.A. ACT, s. 92,

SUB-SECS. I, 4, 14.

In Attorney-General of Canada v. Attorney-General of Ontario (1898), A.C. 247, the Judicial Committee of the Privy Council (the Lord Chancellor and Lords Watson, Macnaghten, Morris. Davey, Sir Henry DeVilliers and Sir Henry Strong) have affirmed the validity of R.S.O. (1877) c. 139, enabling the Lieutenant-Governor of Ontario to appoint Queen's Counsel and to confer patents of precedence on members of the Ontario Bar. Lord Watson, who delivered the judgment, defines the position of a duly appointed Queen's Counsel as follows: "It is in the nature of an office under the Crown, although any duties which it entails are almost as unsubstantial as its emoluments, and it is also in the nature of an honour or dignity to this extent, that it is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred. But it does not necessarily follow that, as in the case of a proper honour or dignity, the elevation of a member of the Bar to the rank of the Queen's Counsel cannot be delegated by the Crown, and can only be effected by the direct personal act of the Sovereign." In thus defining the principle on which the honour is conferred, Lord Watson, in view of the past practice of Her Majesty's advisers in Canada, must be presumed to be speaking from an ideal rather than an actual point of view, Having now, however, such an authoritative statement' of the principles which ought to guide the selection of Queen's Counsel, we may, perhaps, hope that in the making of future appointments to this office in Canada there will be an honest effort to act up to them. The power of the Provincial Legislature to deal with the matter was held to be derived from the B.N.A. Act, s. 92. sub-secs. I, 4, 14.

A correspondent has obligingly drawn our attention to a slight inaccuracy in the note of Paget v. Paget (1898), 1 Ch. 47, ante p. 153. It is there stated that we have in Ontario no counterpart of the English Act enabling the Court to relieve a wife's property from restraint against anticipationOur correspondent points out that in R.S.O. (1897) c. 163, s. 9, the section in question is enacted.

Correspondence.

To the Editor of the Canada Law Journal.

DEAR SIR,-I observe that you have referred lately to a remarkably able work of Mr. Dicey's on the "Conflicts of Law," I do not think the work is sufficiently appreciated. It is without doubt the ablest work upon the subject of which it treats in the English language, and the day is probably not very far distant when it will be quoted in our courts on a similar footing as "Preston on Conveyancing."

While referring to this matter, will you also allow me space to refer to "Pollock & Maitland's History of English Law" and "Maitland's Domesday Book and Beyond"? I suppose the every-day lawyer would not take a great deal of interest in such works and yet no person can appreciate and understand the history of English law, its development and present status, without reading just such works as these, and certainly Pollock & Maitland's publication is one that should be read by every person whose aim is to be anything better than an office lawyer. I am not overlooking the fact that the lawyer who is busy in court day by day has but little spare time, and might, perhaps, doubt the utility of his wasting much of his valuable time upon works of this character, and yet, the curious person will, if he reads Pollock & Maitland, see that the case of Queen v. Millis, 10 Clark & Finelly 534, was improperly decided. The Court went astray because it misapprehended the legal effect of some old cases referred to by the respondent's counsel. See note 1, p. 370, vol. 2, Pollock & Maitland.

St. Catharines.

W. H. McCLIVE

REPORTS AND NOTES OF CASES

Dominion of Canada.

SUPREME COURT.

Quebec.]

RIOU v. RIOU.

[Dec. 9, 1897. Deed-Construction of-Servitude-Roadway-User-Art. 549 C.C.

In 1831 the owners of several contiguous farms purchased a roadway over adjacent lands to reach their cultivated fields beyond a steep mountain, which crossed their properties, and by a clause inserted in the deed to which they all were parties they respectively agreed "to furnish roads upon their respective lands to go and come by the above purchased road for the cultivation of their lands, and they would maintain these roads and make all necessary fences and gates at the common expense of themselves, their heirs and assigns." Prior to this deed and for some time afterwards the use of a road from the river front to a public highway at some distance farther back, had been tolerated by the plaintiff and his auteurs, across a portion of his farm which did not lie between the road so purchased over the spur of the mountain and the nearest point on the boundary of the defendant's land, but the latter claimed the right to continue to use the way. In an action (négatoire) to prohibit further use of the way.

Held, that there was no title in writing sufficient to establish a servitude across the plaintiff's land over the roadway so permitted by mere tolerance; that the effect of the agreement between the purchasers was merely to establish servitudes across their respective lands so far as might be necessary to give access to each of the owners to the road so purchased from the nearest practicable point of their respective lands across intervening properties of the others for the purpose of the cultivation of their lands beyond the mountain. Appeal dismissed with costs.

Langelier, Q.C., and Choquette, for appellant. Pelletier, Q.C., and Riou for respondent.

DELORME V. Cusson.

[Dec. 9, 1897.

Quebec.] Appeal— Jurisdiction—Title to land-Petitory action- Encroachment—Con. structions under mistake of title-Good faith-Common error-Demolition of works-Right of accession-Indemnity-Res judicata-Arts. 412, 413, 429 et seq., 1047, 1241 C.C.

An action to revendicate a strip of land upon which an encroachment was admitted to have taken place by the erection of a building extending beyond the boundary line, and for the demolition and removal of the walls and the eviction of the defendant, involves questions relating to a title to land, inde