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do not agree upon the plans on which the dam may be built such plaós may not be referred to the commission for its approval under said Article IX.

The application must be dismissed.
Opinion by Mr. Casgrain.
Mr. Tawney, Mr. Streeter, and Mr. Turner concur.
Mr. Powell and Mr. Magrath dissent.

The matter of the above application having been heretofore fully argued by counsel upon objections to the jurisdiction of the commission to hear and determine the said application, and, after full consideration, it appearing to the commission that it has no jurisdiction to hear and determine the said application, it is now

Ordered, that the same be, and hereby is, dismissed.


The gist of the decision of the Divisional Court last week in the case of the Pall Mall Gazette is that a head-line in a newspaper may amount to a contempt of Court, as being calculated to interfere with the course of justice, although there be nothing in the printed matter to which the headline refers which could afford sufficient ground for complaint. The Pall Mall Gazette had grouped together the head-lines relating to a writ in Chancery, issued by shareholders against the managing director of the Marconi Company (for libelling whom Mr. Cecil Chesterton was then undergoing his trial) with the other directors, in respect of certain dealings with American shares in which the Company was interested, and the head-lines referring to the criminal trial. It was said, on behalf of the Gazette, that newspapers frequently group together the head-lines relating to the same or kindred subjects; but the Court held that this practice could not justify the combination of the head-lines relating to the civil proceedings and to the report of the criminal trial, as it might tend to prejudice the minds of the jury trying the case. No doubt the head-lines may influence the reader, especially as in these days of hurry and hustle many men only peruse the contents of their newspapers in a very perfunctory fashion, But the prosecution was not, in fact, prejudiced, a conviction being secured against Mr. Cherterton, and, the gravamen of the offence being the mixing up of the criminal and civil proceedings as if they had some real connection, in fact the opinion of the Court was sufficiently marked by an order against the respondents to pay the whole costs of the proceedings—a heavy enough punishment, even if there was no wilful contempt.

Law Journal (Eng.)


does a

It is believed no case can be found, in which recovery has been had by a child suing for negligence culminating in injury after birth. There are, however, several cases in which recovery has been claimed, in only one of which, however,

Court hold squarely that an action for such an injury does not lie. An example of the principle that an action might lie is found in Nugent v. Brooklyn Heights Co., 139 N. Y. Supp. 367, decided by New York Supreme Court in Appellate Division. Recovery was denied in this case, however, because it was said there was no relation of passenger between the defendant carrier and the then unborn plaintiff.

The case refers greatly to and quotes abundantly from Walker v. Great Northern Ry. Co., 28 Irish Law Reps., Q. B. & Ex. Div. 69. In this case it is rather to be thought that three of the four Judges considered that no action would lie, whatever the character of the negligence, but it really went off on the ground of there being no relation of pagsenger between the carrier and the plaintiff in her pre-natal state. The Chief Justice said he wished it to be clearly understood that he does not go the length of saying that: “If a person, knowing that a woman is enciente, willfully inflicts injuries on her with a view to injuring the child and the child is born a cripple, or after its birth becomes a cripple, owing to the injury so willfully inflicted, an action does not lie at the suit of the child so crippled.”

This seems not a very large reservation, and one not altogether in accord with what we understand to be the spirit of American decision. Such would not qualify matters so greatly in favour of one guilty of wanton injury. We understand the American rule to be, that contemplation of consequences is not narrowed greatly in favor of a wilful tort fea sor. In other words, American decision would not stop to inquire whether he knew a woman was enciente or not, nor whether there was “a view to injuring the child.” We can understand very readily, therefore, that a judge making no broader exception than this would readily yield to the fact that a foetus was not a passenger, though it be admitted that a child too young to pay is a passenger, when accompanying its parent, or other person in whose care it is. Austin v. Great Western Ry. Co., L. R. 2 Q. B. 442.

But how the New York Court can follow the Irish Court in this is not clear. It has been squarely held in this country, that a child accompanying another in whose care it is, is passenger under its caretaker's ticket and here the rule of consequential injury is not so hedged about as in British decision. For cases as to child being a passenger see Rawlings 1. Wabash Ry. Co., 97 Mo. App. 515, 71 S. W. 534; Ball v. Jobile L. & R. Co., 146 Ala. 309, 39 So. 584, 119 Am. St. R. 32.

Our observation seems pertinent in view of the following language by the New York Court: “ To the conclusion that an unborn child is not in existence so as to be entitled to the protection of his person and his property, 'I dissent. It is not helpful to characterize its existence as fictitious as to property rights. The rights are accorded to it. The indisputable fact is that one is answerable to the criminal law for killing an unborn child, who to that end is regarded as in esse, and the further fact is that the unborn child, so far as the property interests are concerned, is regarded as an entity, a human being with the remedies usually accorded to an owner.”

We confess to disappointment in seeing a Court proceeding so admirably and then turned away by saying that: “ The (unborn) child in its distinct entity was not a passenger, and the company owed it no duty in the matter of safe carriage.” How could want of " distinct entity " be any more assumed than in the case of a non-fare child accompanying a passenger in whose care it is ?

In Allaire v. St. Luke's IF ospital, 184 Ill. 359, 48 L. R. A., 225, 75 Am. St. Rép. 176, the suit was by the child for negligence toward its mother in and about the plaintiff being born so as to cause it serious injury after its birthi. This

case squarely denies all right of recovery upon grounds stated by one of the Judges in the Walker case, to the effect that a child before its birth is, in fact, a part of its mother and is only severed from her at birth, and that it is a mere legal fiction” that it may be regarded as in esse for some purposes.

In Massachusetts the reasoning leaned to the Illinois view. It was held, however, that, whether this was the right view or not, an unborn child was not contemplated by the particular statute upon which the suit at bar was based. Dietrich v. Northampton, 138 Mass. 14.

It is to be noted that there was a dissenting opinion in the Allaire case. It claims that the question has never been quarely decided in England, and it is argued that it is not absolutely true that at all stages dependent upon her living. If there is, therefore, a distinct life there of gestation a child is so a part of the mother, that its viability is entirely a distinct entity and to this injury is done.

This reasoning, we think, accords best with American view, that where a wrong has been done mere technical considerations shall not forbid recovery. Whether we speak of the child's entity being a mere legal fiction or not, it is a fiction founded on a fact in nature and the supposed fiction, if invention in such a thing is necessary, is for the benefit of the child. A wrongdoer has no claim for objecting to its operation against him. The reason of the law prevents the vesting of estates in others, through this supposed fiction. Is it not much less to give it recognition against a tort feasor, wilful or otherwise ? Has not the state as much interest in the protection of one about to be born, in his pursuit of life, liberty and happiness, as in the case of one already born? The law of torts, we believe, has a wider sweep in this country than before 1776 in England, and the technical refinements of the common law, as to which Courts both English and American differ more than a hundred years thereafter, should not greatly control the latter in this kind

We may well suppose that here is a subject for treatment under vastly different enviroment than obtaining prior to American independence. Some Courts seem afraid to accord relief if there may result a rule diffcult of proper limitations-a seeming reflection upon their efficiency as tribunals of justice.—New Jersey Law Journal.

of a case.


OCTOBER 14TH, 1913.



Constitutional Law-Insurance-Foreign Company Doing

Business in CanadaDominion License-9 & 10 Edw.
VII. ch. 32, secs. 4 and 70.

Held, per FITZPATRICK, C.J., and DAVIES, J., that sections 4 and 70 of The Act 9 & 10 Edw. VII. ch. 32 (the “ Insurance Act, 1912”) are not ultra vires of the Parliament of Canada. IDINGTON. DUFF, ANGLIN, and BRODEUR,

JJ., contra.

Held, per FITZPATRICK, C.J., and DAVIES, J., that section 4 of said Act operates to prohibit an insurance company incorporated by a foreign state from carrying on its business within Canada, if it does not hold a license from the Minister under the said Act, and if such carrying on of the business is confined to a single province.

Per IDINGTON, J.:--Section 4 does so prohibit if, and so far as it may be possible to given any operative effect to

clause bearing upon the alien foreign companies, as well

others within the terms of which is embraced so much that is clearly intra vires.

Per DUFF, ANGLIN, and BRODEUR, JJ. The section would effect such prohibition if it were intra vires.



Newcombe, K.C., and Lafleur, K.C., for Attorney-General of Canada.

Nesbitt, K.C., Aimé Goeffrion, K.C., Bayly, K.C., and Christopher C. Robinson, for Ontario, Quebec, New Brunswick and Manitoba.

S. B. Woods, K.C., for Alberta and Saskatchewan.
Wagenest, for the Manufacturers' Association of Canada.
Gandel, for the Canadian Insurance Federation.

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