Imágenes de páginas
PDF
EPUB

the only means by which this very important branch of the law can be brought into harmony with the views which have come into vogue since its foundations were laid-a remark which, it may be observed in passing, is to some extent applicable to our own country as well as to the United States, to which the article has a more special reference, though the doctrine of assumption of risks has, so far as the English colonies are concerned, been deprived of much of its sting by the well-known case of Smith v. Baker (1891) A.C. 325, whilst the "Workmen's Compensation Act" has done away with a few of the more odious results of the defence of common employment.

We have recently given the profession in this Dominion the benefit of the learned writer's views on a recent judgment of the Court of Appeal for Ontario, touching on another point in the law of Master and Servant. (See ante, p. 587). Letters received show that his very able criticism has, in the opinion of at least some of the leading members of the profession, seriously impaired the value of the decision referred to.

ENGLISH CASES.

EDITORIAL REVIEW OF CURRENT ENGLISH
DECISIONS.

(Registered in accordance with the Copyright Act).

FRAUD JUDGMENT OBTAINED BY-PRACTICE-ACTION TO SET ASIDE JUDGMENT

OBTAINED BY FRAUD.

Cole v. Langford (1898) 2 Q.B. 36, was an action brought to set aside a judgment in a previous action which had been obtained by false and fraudulent evidence. The action was undefended. The motion for judgment in default of defence was heard before a Divisional Court (Ridley and Phillimore, JJ.), who, after hearing argument, held that there was jurisdiction to entertain the action, and judgment was granted as, prayed; Phillimore, J., referring to Priestman v. Thomas (1884) 9 P.D. 210, where similar relief was granted.

JOINDER OF PLAINTIFFS-SEPARATE CAUSES OF ACTION-PRACTICESTRIKING OUT STATEMENT OF CLAIM AS EMBARRASSING, Ord. xvi. r. 1—(Ont. RULE 185).

In Stroud v. Lawson (1898) 2 Q.B. 44, a motion was made to strike out the statement of claim as embarrassing. The statement of claim alleged as a cause of action that the plaintiff had been fraudulently induced to take shares in a company of which the defendants were directors, and claimed damages against them in consequence. It also alleged that the defendants had paid a dividend on the shares so subscribed for by the plaintiff when there were no profits, and he claimed on behalf of himself and all other shareholders, a declaration that such payments were ultra vires and illegal, and judgment for repayment by defendants of the amount of such dividend to the company. Darling, J., had affirmed the order of a master refusing the application, but the Court of Appeal (Smith, Chitty and Williams, L.JJ.) were of opinion that notwithstanding the alteration made in the Rule, ord. xvi., r. 1 (Ont. Rule 185) consequent on Somurthwaite v. Hannay (1894) A. C. 494, a plaintiff could not join two causes of action in different capacities, unless he could show that they both arise out of the same transaction. In this case the right which the plaintiff claimed in his representative capacity was held to be quite independent of any fraud on the part of the defendants in inducing him to subscribe for the stock, and therefore the two causes of action did not arise out of the same transaction within the meaning of the Rule. The order of Darling J., was therefore reversed, and the statement of claim was ordered to be struck out unless the plaintiff elected as to which of the two causes of action he would proceed for.

LIBEL-NEWSPAPER-PLEADING-PAYMENT INto Court-Libel Act, 1843 (6 & 7 VICT., C. 96), s. 2—(R.S.O., c. 68, ss. 6, 7).

Oxley v. Wilkes (1898) 2 Q.B. 56, was a libel case against a newspaper. The defendant pleaded under s. 2 of the Libel Act, 1843 (see R.S.O., c. 68, ss. 6 and 7), that the libel was published without actual malice and without gross negligence, and payment into Court of £5. At the trial the jury found the publication was without actual malice, but not

without gross negligence, and they assessed the damages at £5. Upon these findings the judge at the trial gave judgment for the plaintiff for £5, and the Court of Appeal (Smith and Williams, L.JJ.), held that this was right, as the defence had failed as to the question of negligence, and the payment having been made as part of the defence under the Libel Act it could not be treated as a general payment into Court, so as to entitle the defendant to judgment on the ground that the plaintiff had not recovered more than the amount paid in. Owing to the difference between the English and Ontario Statutes and Rules it may, however, perhaps be doubtful whether this case would necessarily be followed in Ontario.

SALE OF GOODS-BILL OF LADING-SALE BY PERSON HAVING BILL OF LADING -PASSING PROPERTY-POSSESSION OF GOODS-Sale of Goods Act, 1893 (56 & 57 VICT., c. 71), s. 19, S.-S. 3; S. 25, s.-S. 2-FACTORS ACT, 1889 (52 & 53 VICT., C. 45), S. 2, S.-S. 2-(R.S.O., c. 150, s. 5).

Cahn v. Pocketts B.C.S.P. Co. (1898) 2 Q. B. 61, was an action to recover goods sold by a person without authority of the owners, under the following circumstances: The goods in question consisted of a quantity of copper sold by Steinmann & Co. to one Pintscher. The copper was shipped on the defendants' steamer, and Steinmann forwarded the bill of lading to Pintscher, together with a bill of exchange for acceptance. Pintscher refused to accept the bill, but kept the bill of lading and, in fraud of Steinmann, sold the copper to the plaintiffs, in whose favour he indorsed the bill of lading. Steinman thereupon stopped the delivery of the copper; and the question was whether under the Sale of Goods Act, 1893, and the Factors Act, 1889 (see R.S.O., c. 150, s. 5), the plaintiffs had acquired a good title as indorsees of the bill of lading. By the Sale of Goods Act, s. 19, s.-S. 3, where a seller of goods draws on the buyer for the price, and transmits the bill of exchange with the bill of lading, if the buyer does not accept the bill of exchange he is bound to return the bill of lading to the seller. This, however, merely gives statutory sanction to the decision of the House of Lords in Shepherd v. Harrison, L.R. 5 H.L. 116, but it was claimed by the plaintiffs, notwithstanding, that under the Factors Act, the buyer

having in his possession the bill of lading was an agent entrusted therewith, and competent to confer a title; but Mathew, J., was of opinion that he was not an agent within the meaning of the Act, and not entrusted with the bill of lading "with the consent of the seller" within the meaning of s. 25, s.-S. 2 of the Sale of Goods Act, 1893. How far this case may be of authority for the construction of R. O., c. 150, s. 5, needs some consideration, owing to the difference in the statute law of England and Ontario. The case is, however, one which can hardly be neglected in considering the Ontario Act.

CHATTEL MORTGAGE-MORTGAGEE TAKING POSSESSION FOR DEFAULT IN PAYMENT OF INSTALMENT-RIGHT OF MORTGAGOR ΤΟ REDEEM-REDEMPTION -ACCELERATION OF PAYMENT OF PRINCIPAL.

Ex parte Ellis (1898) 2 Q.B. 79. In this case a chattel mortgagee had taken possession of the mortgaged property for default in payment of an instalment of interest, whereupon the mortgagor claimed the right to redeem the mortgage, which did not become due until the end of two years. Darling, J., held that he was so entitled; but the Court of Appeal (Smith & Williams, L.JJ.) held, that as the mortgagee had merely taken possession for the purpose of enforcing payment of the interest in arrear, and not for the purpose of recovering the principal, the mortgagor had no right to accelerate the payment of the principal.

BY-LAW-REASONABLENESS-PREVENTION OF STREET SINGING AND MUSICDIVISIONAL COURT DECISION OF, WHEN NOT BINDING ON ANOTHER DIVISIONAL COURT.

In Kruse v Johnson (1898) 2 Q.B. 91, a strong Divisional Court (Lord Russell, C.J., Jeune, P.P.D., Chitty, L.J., and Wright, Darling, Channell and Mathew, JJ., was called on to determine the validity of a municipal by-law prohibiting any person playing music or singing in any public street within fifty yards of any dwelling house after being requested by any constable, or an inmate of such house, or his or her servant, to desist. The Court held that the by-law was valid, Mathew, J., dissenting, and, in doing so, the majority of the

Court lays down the principle that in considering the validity of by-laws made by a public representative body like a county council the Court ought to be slow to ajudge them unreasonable, unless they find them to be partial and unequal in their operation as between different classes, or manifestly unjust, or made in bad faith; or involving oppressive and gratuitous interference with the rights of those subject to them, as would in the minds of reasonable men be without justification. Mathew, J., suggests that in cases where there is no appeal from the decision of a Divisional Court, the decisions of one Divisional Court are not binding on another. This view was recently acted on by the Chancery Divisional Court in Ontario, sitting as a Court for Crown Cases reserved, when it differed from a previous decision of a similar court composed of the Judges of the Queen's Bench Division. See Queen v. Hammond, 29 Ont. 211.

INSURANCE-BURGLARY-LOSS BY THEFT-ENTRY BY OPENING DOOR-ACTUAL

FORCIBLE AND VIOLENT ENTRY.

In re Goldsmiths and General Burglary Ins. Co. (1898) 2 Q.B. 136, a special case was stated by an arbitrator in this case. A policy of insurance was expressed to be made against "loss or damage by burglary and housebreaking as hereinafter defined," and witnessed that if the property, which was jewellery, should be lost by theft following upon actual forcible and violent entry upon the premises wherein the same was situate, the insurers should pay. The jewellery was in a shop, the front door of which was shut, but not locked or bolted, and access could be gained by turning the handle of the door. In the absence of the porter, before the shop was opened for business in the morning, somebody opened the front door, entered the shop and stole the jewellery. The question was whether this was a loss covered by the policy. Wills and Kennedy, JJ., held that it was, and that the words "actual forcible and violent entry" excluded a constructive entry, but were satisfied by an actual entry, although not accompanied by any great degree of force or violence— provided it was such as to constitute housebreaking or burglary of the premises, and was equivalent to "breaking and entering."

« AnteriorContinuar »