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fixed on a sum equivalent to a $100 per day counsel fee as a fair amount. It was further held that the evidence of members of the profession was not properly receivable to guide the taxing officer in the exercise of his discretion. No order was made as to costs.

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General Powers-Remoteness. In a note to an article on General Powers by Mr. J. H. Thorndike in the Harvard Law Review for May (noticed infra. p. 544) the Ontario case of Re Phillips, decided by Mr. Justice Middleton, is commented on. The learned writer states that in applying the rule laid down in Wollaston v. King and Morgan v. Gronow a strange confusion was made. The testator, who died in 1910, gave his residuary estate in trust for his wife during her life or until her second marriage, and, after her death or marriage, in trust for his children then alive in equal shares, the issue of any then deceased child standing in its parent's place, with direction to pay to each of them the income of his or her share, and on the death of each to pay over his or her share as such child or grandchild should by will appoint, and in default of appointment to the persons entitled to his or her personal estate by statute in case of intestacy. He left surviving him a wife and seven children, all of whom seem to have been still alive. Mr. Thorndike says: "It is plain that, if a grandchild born after the testator's death should become entitled to a share, the limitation of his share to objects to be ascertained by his will or otherwise at his death would be too remote, and accordingly the power would be void as to such grandchild, and the judge so held, quoting (p. 97), the passage in Halsbury's Laws of England, vol. 22, p. 355. But he went on to say that the opposite view was taken in Farwell on Powers, 2nd ed., p. 287, although in fact that book expresses exactly the same view (at p. 292) as the quotation from Lord Halsbury's book, and the passage at p. 287 relates to an entirely different subject, viz., the time from which the legal period runs in the case of an appointment under a general power to appoint by will, where the power is valid. He also thought he struck "a discordant note" in Rous v. Jackson, and in Re Flower, but those cases also relate only to this latter question, and Lord Hals

(1913) 28 O. L. R. 94. .
* (1885) 29 Ch. D. 521.
(1885) 55 L. J. Ch. 200.

bury's book at p. 356, states the law exactly in accordance with them and with Farwell on Powers. It is clear, however, that, although the power of appointment would be invalid in the case of an afterborn grandchild, this did not affect its validity as to the shares of any of the children or of grandchildren living at the testator's death, for all the shares will be ascertained at the wife's death, or marriage, and the power applies to each of them separately, according to all the cases from Griffith v. Pownall, to In re Russell. The law is stated in Lord Halsbury's book at p. 346, and is the same here Hills v. Simonds,8; Dorr v. Lovering. But the judge somehow got the impression from In re Bence,10 that the clause containing the power could not be split up, and accordingly held that the power and the alternative limitation were entirely void, and that the shares of the children and grandchildren must go to them absolutely under the original gift."

Maritime Law-Tug and Tow. The Supreme Court of Canada by a three to two judgment has laid down the principle that where a tug and tow are, through the fault of the tug, in collision with another vessel, the tow having neither propelling power, nor steering apparatus, and the navigation of both being controlled by the officers and crew of the tug, in such case the tug and tow must be regarded as one ship, and in proceedings in rem each is liable for the consequences of the collision and may be condemned. The tug and tow were both owned by the same person. Though the majority of the Court notice "The American" and "The Syria," where it is stated that the question of liability is not affected by the fact that tug and tow are the property of the same owners, we cannot but feel that if the ownership of tug and tow had been in different persons the decision of the Court might have been the other way and unanimous. "The American" and "The Syria" is distinguished; it would perhaps be going too far to say that it was ignored. The Chief Justice says (p. 42): "Both the defendant ships belong to the same owners and were at the time of the collision being jointly navigated for their benefit by the same crew. The

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servants of the owners on board the tug had possession and control of the tow by their authority. It is true that the governing power and the navigation were in the hands of the tug, but the carrying capacity upon which the profit of their joint exploitation depended was in the tow, . Here we have two vessels necessarily connected for the purpose of the particular business in which both were engaged for the benefit of their common owner and both in the possession and under the control of the same crew for all the purposes of their navigation. As a result of the way in which that navigation was carried on, a collision occurred to which both vessels contributed. I fail to see how we can distinguish between the vessels: "The A. L. Smith" and "Chinook " v. Ontario Gravel Freighting Co.12

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Fire Insurance-Cancellation. In Nakata v. Dominion Fire Ins. Co.1 the point considered was the interpretation of the statutory condition relating to cancellation by notice and tender. The condition which was to the same effect as the Ontario statutory condition No. 11 read: The insurance may be terminated by the company by giving notice to that effect, and, if on the cash plan, by tendering therewith a rateable proportion of the premium for the unexpired term. Notice may be given by registered letter

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and the policy shall cease after such tender and notice aforesaid. .. (R. S. O. 1914, ch. 183, sec. 194). Notice of cancellation was given to the plaintiff by the Company; but no tender was made of the proportion of the premium for the unexpired term; nor was any offer made to her either directly or indirectly to return any portion of the premium. The buildings having subsequently been burnt by fire it was held by the Appellate Division of Alberta that the insured could recover on the policy; as the insurance had not been terminated. The judgment apparently suggests that if the defendant company had offered to account to the plaintiff for the premium the insurance would have been terminated. Whether the suggestion is well founded or not is immaterial for the facts in question called for no expression of opinion. on that point.

Trade Marks. In the last number of the Exchequer Court Reports we have two more careful judgments by

12 (1915) 51 S. C. R. 39, 42, 44.

13 (1915) 31 W. L. R. 136.

Cassels, J., on the subject of Trademarks. In re Vulcan,14 disposes so far as the Exchequer Court is concerned of a troublesome dictum of Proudfoot, V.C., in Smith v. Fair,15 and we have no doubt that the rule laid down in Gegg v. Bassett,16 that a trade mark can not be assigned in gross and adopted by Cassels, J., in In re Vulcan is no longer open to doubt. It is also well settled that registration confers no title; but is a mere pre-requisite to the right to sue for infringement. The applicant for registration must be the proprietor, and applying these rules we move a step forward towards a definition of a "general trademark." By registration of a mark as a general trademark no blanket right to the user of that mark in connection with every conceivable form of article is conferred, but it would seem the mark is a general and a valid trademark only so far as there has been user. The record case of Mickelson Shapiro Co. v. Mickelson Drug and Chemical Co.,17 decides that the written application is the important part of the description and it cannot be extended by reason of something appearing on the drawing which has not been claimed in the description. We do not think the reference to patent law very happy; for specifications there are merely illustrations. In trademark cases that which is desired is the mark as represented, not as described. It is often very difficult to draft the description so as to cover all parts of a complicated mark. The second point in this case is one which has been decided before: that the Exchequer Court has no jurisdiction in passing-off cases. It is unfortunate that such is the case; for we have here divided jurisdiction: provincial Courts being seized of one phase of the subject, Dominion Courts of the other. The matter is the more difficult because not unfrequently a plaintiff may fail in an infringement action, but on the same evidence succeed in a claim for passing-off. This divided jurisdiction, will in such case, make necessary two actions and two trials.

L. D.

We append a note of a recent Supreme Court decision.

14 15 Ex. C. R. 265.

15 14 O. R. 736.

16 3 0. L. R. 263.

17 Ibid. 276.

QUE.]

SUPREME COURT OF CANADA.

[MARCH 15TH, 1915.

CANADIAN PACIFIC R. W. Co. v. PARENT AND CHALIFOUR.

Present:-SIR CHARLES FITZPATRICK, C.J., and DAVIES, IDINGTON, DUFF, ANGLIN and BRODEUR, JJ.

Railways-Shipping contract-Carrying person in charge of live stock-Free pass-Release from liability-Approved form Negligence Conflict of laws "Railway Act," R. S. C., 1906, ch. 37, sec. 340.

Action by dependents

The shipping bill for live stock, to be carried from Manitoba to its destination in the Province of Quebec, was in a form approved by the Board of Railway Commissioners and provided that, if the person in charge of the stock should be carried at a rate less than full passenger fare on the train by which the stock was transported, the company should be free from liability for death or injury whether caused by the negligence of the company or of its servants. C. travelled by the train in charge of the stock upon a Live-stock Transportation Pass," and signed conditions indorsed in English thereon by which he assumed all risks of injury and released the company from liability for damages to person or property, while travelling on the pass, whether caused by negligence or otherwise. While the train was passing through the Province of Ontario, an accident happened and C. was killed. In an action by his dependents, instituted in the Province of Quebec, it was shewn that C. could neither read nor write, except to sign his name, and that he only understood enough English to comprehend orders in respect of his occupation as a stock-man; there was no evidence that the nature of the conditions was explained to him.

Held, FITZPATRICK, C.J., dissenting, that the railway company was liable for damages in the action by the dependents. Per DAVIES, IDINGTON, DUFF and BRODEUR, JJ. (FITZPATRICK C.J. and ANGLIN, J., contra), that, as C. could not have known the nature of the conditions or that they released the company from liability, and the company had not done what was reasonably sufficient to give him notice of the conditions on which he was being carried, the company was liable in damages either under the law of Ontario or that of Quebec. Per ANGLIN, J.-Although no action would lie in Ontario unless the deceased would have had a right of action, had he survived, and such an action would have been barred there by the contract signed by him, nevertheless, in Quebec, where there is no such rule of law, the action would lie, though the wrongful act had been committed in Ontario, as it was of a class actionable in Ontario. Machado v. Fontes, ( (1897), 3 Q. B. 231), applied.

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