New The law as to custody of infants is dealt with in " The Supreme Brunswick. Court in Equity Act," Con. S. N. B. 1903, c. 112, ss. 186-198. Nova As a general thing the Court will award the custody of the child to the father unless satisfied that it would not be for the child's welfare (a). A father cannot as a rule by mere agreement deprive himself of his right to the custody of his child (b). The custody of infants is dealt with by R. S. N. S. 1900, c. 121 (c). COMPENSATION TO CHILD FOR DEATH OF PARENT (d). The law in Ontario relating to this is governed by R. S. O. 1897, c. 166. C. O. N. W. T. 1898, c. 48. Ontario. Alberta and Saskatche wan. British R. S. B. C. 1897, c. 58. HUSBAND AND WIFE: LOSS OF CONSORTIUM (9). A husband may sue his father-in-law where the latter has without sufficient cause, by a display of force, taken the wife away from the husband's house (h). (a) In re Armstrong, an Infant, 1 Eq. 208. (b) In re Annie E. Halpeld, an Infant, 1 Eq. 142; cf. In re Era Coram, 25 N. B. R. 404. (c) See In re James William Black, Congdon's N. S. Digest, 647, for jurisdiction of Court. See also R. S. N. S. c. 122, the Adoption of Children; amended N. S. Laws, 1901, c. 47. (d) P. 5, supra. (e) See Van Wart v. New Brunswick R. Co., 17 S. C. R. 35. See Runciman v. Star Line Steamship Co., 35 N. B. R. 123, (1900) as to principle on which damages should be assessed. (f) Formerly held that action must be brought by executor or administrator: Pearson v. Canadian Pacific R. Co., 12 Man. L. R. 112 (1898), Dubuc, J. Brother of deceased took out administration and refused to sue; wife sued. But see s. 4 of the R. S. M. 1902, c. 31. It has been held that damages must be calculated with reference to a reasonable expectation of pecuniary benefit from continuance of life; see Davidson v. Stuart, 14 Man. L. R. 74 (1902), affirmed 34 S. C. R. 215. ASHBY v. WHITE: REFUSING TO ACCEPT VOTE (a). Generally. The statutes relating to Parliamentary elections usually provide penalties for returning or deputy returning officers improperly refusing votes (b). The success of the aggrieved person in recovering will depend on whether the refusal was ministerial or judicial (c), and whether the officer was malicious or honest in his refusal (d). The returning officer is not protected as a public officer under R. S. O. 1897, c. 88 and c. 89 (e). A deputy returning officer de facto, although his appointment Manitoba. may have been informal, is liable to the statutory penalties (ƒ). In Anderson v. Hicks (g) the Court was evenly divided on the Nova questions whether the D. R. O. was acting in a judicial or Scotia. ministerial capacity, and whether, on the theory of proof of malice being necessary, the circumstances were sufficient evidence of the refusal being wilful and corrupt. If there is an intention to proceed against the returning officer in an election trial he should be served with a copy of the petition (h). STRAYING CATTLE (): FENCES. In the earlier cases in Upper Canada there was a disinclination Ontario. to hold the common law applicable to the circumstances of the Colony (k). Thus it was held that a landowner in Upper Canada must fence against cattle (1). But trespass was held maintainable against the owner of a bull which had broken into the plaintiff's close and there killed his mare, the defendant being present or aware of the act (m). (a) P. 6, supra. The doubt raised by Clerk and Lindsell as to whether "the political franchise, like other franchises, was to be regarded as a right of property," has not yet reached some parts of this Dominion. (b) E.g., R. S. O. 1897, c. 9, s. 194; R. S. B. C. 1897, c. 67, s. 196; C. S. N. B. 1903, c. 3, s. 100; R. S. N. S. 1900, s.110. See also R. S. N. S., c. 4, s. 40, amended by N. S. Laws, 1901, c. 19, 8.5 (d) as to "revisers." C. O. N. W. T. c. 3, s. 128; R. S. M. 1902, c. 52, s. 275. (c) Walton v. Apjohn, 5 O. R. 65 (1884), Hagarty, C.J. (d) Johnson v. Allen, 26 O. R. 550 (1895), Boyd, C.; see Hastings v. Summerfelt, 30 O. R. 577 (1899), Falconbridge, J., acts committed" wilfully." (e) McVittie v. O'Brien, 27 O. R. 710 (1896), Meredith, C.J. (f) Reg. v. Holman, 10 Man. L. R. 272 (1894); case under R. S. C. c. 8, ss. 30 and 100. (g) 35 N. S. R. 161 (1902), name on voters' list, plaintiff refused ballot by D. R. O. (h) McNeil v. McNeil, 7 R. & G. 67 (1886), McDonald, J. (i) See pp. 10, 11. (k) See article on Fences, by Mr. R. M. Macdonald in 15 C. L. T. at p. 151. (1) Spafford v. Hubble, M. T. 2 Vict. Dig. Ont. Case Law, p. 2785. (m) Mason v. Morgan, 24 U. C.R. 328 (1865), Hagarty, J.; cf. Ites v. Hitchcock, Dra. 247 (1830), where there was a ruinous fence and no knowledge on part of owner of escaping animal. Ontario. Alberta and At the present time the ground is pretty well covered by legislation. R. S. O. 1897, c. 272 (an Act respecting Pounds), provides, s. 2: "The owner or occupant of any land shall be responsible for any damage caused by any animal under his charge and keeping, as though such animal were his own property, and the owner of any animal not permitted to run at large by the by-laws of the municipality shall be liable for any damage done by such animal although the fence enclosing the premises was not of the height required by such by-laws" (a). 3 Edw. VII. c. 19 (Ont.), s. 548 ("The Consolidated Municipal Amendment Act, 1903 ") makes provision for by-laws by municipalities settling the height, extent and description of fences along highways, division fences, barbed wire fences, and other fences. Sect. 546 makes provision for by-laws providing for pounds and for restraining and regulating the running at large or trespassing of animals (b). R. S. O. 1897, c. 284 (The Line Fences Act), imposes on adjoining owners a duty to "make, keep up and repair a just proportion of the fence which marks the boundaries between them," and provides machinery for enforcing the performance of the duty. Rule of Liability in Ontario.-"When it is not the duty of either party to keep up any particular and defined portion of the division fence, the one whose cattle trespasses on his neighbour's land is answerable for the trespass; that is, he must keep his cattle from his neighbour's land at his own risk” (c). A provision similar to that in the Ontario Pound Act is in Saskatche- force: C. O. N. W. T. 1898 (The Pound District Ordinance), c. 79, s. 15. This practically enacts the common law (d). wan. British Columbia. The Municipal Ordinance, C. O. N. W. T. 1898, c. 70, s. 95, provides (sub-s. 75) for by-laws "restraining and regulating the running at large or trespassing of any animals," &c. The Fence Ordinance, O. N. W. T. 1903, c. 28, establishes a duty on adjoining owners to contribute (e), and a liability of the owner of any domestic animal breaking into lawfully fenced lands (f). The Ordinance provides machinery for settling differences. R. S. B. C. 1897, c. 77 (Fence Act), defines a lawful fence (s. 3), and provides that as to lands unprotected by a lawful fence the (a) This in effect enacts the common law. See Crowe v. Steeper, 46 U. C. R. at p. 92. (b) This authority extends no further than to allow the running at large upon the roads and highways of the munici pality: Fensom v. C. P. R., 8 O. L. R. 688 (1904), per Osler, J.A. (c) Buist v. McCombe, 8 A. R. 598 (1882), followed in Barber v. Cleare, O. L. R. 215 (1901), MacMahon, J. (d) See also c. 80 (Estray Animals); c. 81 (Herds); c. 78 (Entire Animals). (e) s. 6. (f) s. 7. straying of cattle is not a trespass (s. 4), and as to lands British enclosed by a lawful fence the owner of the cattle is liable for Columbia. damages (s. 5). R. Š. B. C. 1897, c. 76 (Line Fences and Watercourses Act), establishes a duty to fence as between adjoining owners and a procedure in case of disputes. R. S. B. C. 1897, c. 144 (Municipal Clauses Act), provides, s. 50 (24), for by-laws establishing pounds and regulating the running at large of any animals. See s. 50 (47), defining a lawful fence within the boundaries of the municipality. See also R. S. B. C. 1897, c. 7 (Animals Act); c. 41 (Cattle Ranges Act); c. 114 (Breeding Stock Act). R. S. M. 1902, c. 13 (Boundary Lines Act), provides a procedure Manitoba. for surveying and erecting line fences. R. S. M. 1902, c. 116 (The Municipal Act), s. 636, authorises by-laws settling what is a lawful fence along highways or boundary lines; s. 643, for impounding and regulating the running at large of any animals and appraising the damages for their trespassing; s. 644, for establishing pounds, limiting the right to recover damages for trespass by cattle, and restricting the running at large of cattle. See also c. 5 (The Animals Act), prohibiting certain animals running at large. Common Law and Statutory Liability.-The provision in the Boundary Lines Act does not supersede the common law liability of an owner of cattle for all their trespasses except such as are due to defects in fences which the complainant is bound as between himself and such owner to keep up; and he must show that the complainant was bound to keep up and repair the particular part of the fence through which the cattle entered (a). C. S. N. B. 1903, c. 187 (Fences, Trespasses, and Pounds), defines New lawful fence (s. 2); provides a procedure as to line fences Brunswick. (ss. 8-14); provides for pounds (ss. 15-34); fixes the rules as to liability for trespass by cattle (ss. 35-38). C. S. N. B. 1903, c. 165 (The Municipalities Act), provides power to make by-laws, s. 95 (37) regulating the running at large of animals; s. 95 (48) preventing trespasses by cattle and preventing cattle from going at large. 4 Edw. VII. c. 20 (N. B.), Act relating to cattle running at large. R. S. N. S. 1900, c. 93 (Fences and Impounding of Cattle), defines fences (s. 2); provides procedure for division fences (ss. 6-13); establishes rules of liability for damages (ss. 14-19); provides for pounds (ss. 20-26). R. S. N. S. 1900, c. 70 (The Municipal Act), gives power to make by-laws, s. 134 (24) restraining and regulating the running (a) Garrioch v. McKay, 13 Man. L. R. 404 (1901). Nova Scotia. Prince Edward Island. Dominion. Ontario. British New Brunswick. at large of any animals; s. 134 (22) establishing pounds; 14 Vict. c. 14 (Stray Cattle), continued by 46 Vict. c. 8. LIABILITY OF RAILWAY TO FENCE. 3 Edw. VII. c. 58 (Can.), The Railway Act 1903 establishes the duties of such railways as are under the Dominion jurisdiction in the matter of fences, gates and cattleguards (a). Some of the provinces have their own enactments, but a railway company under the Dominion jurisdiction is not bound to comply with the provincial legislation (b). R. S. O. 1897, c. 207 (The Railway Act of Ontario), s. 30, fences; ss. 103-105, cattle at large; s. 106, crossings to be fenced. R. S. B. C. 1897, c. 163 (British Columbia Railway Act), s. 30, fences; s. 102, cattle at large; s. 103, crossings to be fenced, R. S. M. 1902, c. 145 (The Manitoba Railway Act), ss. 32-38, fences. R. S. M, 1902, c. 146 (The Manitoba Railway Act), ss. 27-28, cattle claims. The liability of a railway to fence arises by statute only, and exists only in favour of the owners or occupants of lands adjoining the railway (c). Where the land adjoining the railway is unoccupied the railway is not bound to fence that part (d). On the other hand, the fact that cattleguards are full of snow is evidence of negligence (e). A railway is not liable in damages for the death of an animal unless actually struck by train or engine (ƒ). C. S. N. B. 1903, c. 91, s. 19, fences, &c. The obligation to fence has been held general, and not merely as against the occupiers of land adjoining the railway (g). Where the statutory obligation is to fence where the railway passes (a) Ss. 199, 200, 201. See the cases collected in MacMurchy & Denison, Canadian Railway Act, 1903, pp. 308 320. (b) Madden v. Nelson R. W. Co., 5 B. C. R. 541 (1899), A. C. 626; cf. Grand Trunk R. W. Co. v. Therrien, 30 S. C. R. 485. (c) Westbourne Cattle Co. v. Manitoba and North Western R. Co., 6 Man. L. R. 553 (1890), Taylor, C.J. (d) Mc Fie v. Canadian Pacific R. Co., 2 Man. L. R. 6 (1884), Ardagh Co. J.; cf. McMillan v. Manitoba and North Western R. Co., 4 Man. L. R. 220 (1887); Ferris v. Canadian Pacific R. Co., 19 Man. L. R. 501 (1894); case under Railway Act of Canada, 51 Vict. c. 29, s. 194, as amended by 53 Vict. c. 28, s. 2 and ss. 196, 198. (e) Phillips v. Canadian Pacific R. Co., 1 Man. L. R. 110 (1884) (f) McKellar v. C. P. R., 14 Man. L. R. 614 (1904). (g) St. John R. Co. v. Montgomery, 21 N. B. R. 441; decision on 41 Vict. c. 92, s. 22. |