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stand the American rule to be, that contemplation of consequences is not narrowed greatly in favor of a wilful tort feasor. 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 a 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 v. Wabash Ry. Co., 97 Mo. App. 515, 71 S. W. 534; Ball v. Mobile 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 Hospital, 184 Ill. 359, 48 L. R. A., 225, 75 Am. St. Rep. 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 birth. 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 of a case. 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.

SUPREME COURT DECISIONS.

OCTOBER 14TH, 1913.

IN RE SECTIONS 4 AND 70 OF CANADIAN
INSURANCE ACT, 1910.

Constitutional Law-Insurance-Foreign Company Doing Business in Canada-Dominion 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 a clause bearing upon the alien foreign companies, as well as 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.

OCTOBER 14TH, 1913.

IN RE INCORPORATION OF COMPANIES.

Constitutional Law-Incorporation of Companies—“ Provincial Objects"- Limitation - Doing Business Beyond the Province-Insurance Company-" Insurance Act, 1910;" 9 & 10 Edw. VII. ch. 32, sec. 3 sub-sec. 3-Enlargement of Company's Powers-Federal Company-Provincial Licence-Trading Companies.

By sub-sec. 11, sec. 92, of "The British North America Act, 1867," the Legislature of any province of Canada has exclusive jurisdiction for "The Incorporation of Companies with Provincial Objects."

Held, per FITZPATRICK, C.J., and DAVIES, J., that the limitation defined in the expression "Provincial Objects" is territorial and also has regard to the character of the powers which may be conferred on companies locally incorporated.

Held, per IDINGTON, DUFF, ANGLIN, and BRODEUR, JJ.: -That such limitation is not territorial but has regard to the character of the powers only.

Held, per FITZPATRICK and DAVIES, JJ.:-That a company incorporated by a provincial Legislature has no power or capacity to do business outside of the limits of the incorporating province, but it may contract with parties residing outside those limits, as to matters ancillary to the exercise of its powers.

Per IDINGTON, ANGLIN, and BRODEUR, JJ.:-Such company has, inherently, unless prohibited by its charter, the capacity to carry on the business for which it was created, in any foreign state or province whose laws permit it to do

So.

Per DUFF, J.-A provincial company may conduct its operations outside the limits of the province creating it, so long as its business, as a whole, remains provincial.

Held, per FITZPATRICK, C.J. and DAVIES, J., that a corporation constituted by a provincial Legislature with power to carry on a fire insurance business with no limitation as to locality has no power or capacity to make and execute contracts for insurance outside of the incorporating province, or for insuring property situate outside thereof.

Per IDINGTON, DUFF, ANGLIN, and BRODEUR, JJ.:Such a company has power to insure property situate within or without the incorporating province and to make contracts within or without, the same to effect any such insurance. In respect to all such contracts, it is not material whether the owner of the property insured is, or is not, a citizen or resident of the incorporating province.

Held, per FITZPATRICK, C.J. and DAVIES, J.:—A provincial fire insurance company may make contracts and insure property throughout Canada by availing itself of the provisions of sec. 3, sub-sec. 3, of 9 & 10 Edw. VII. ch. 32 (“The Insurance Act. 1910") which is intra vires of the Parliament of Canada.

Per DUFF, and BRODEUR, JJ.:-Such enactment is ultra vires of Parliament.

Per IDINGTON, J.:-Part of said sub-section may be intra vires, but the last part providing for a Dominion license to local companies is not.

Per ANGLIN, J.:-The said enactment is ultra vires, except in so far as it deals with companies incorporated by or under Acts of the Legislature of the late province of Canada.

Held, that the powers of a company incorporated by a provincial Legislature cannot be enlarged, either as to locality or objects, by the Dominion Parliament, nor by the Legislature of another province.

Held, per FITZPATRICK, C.J. and DAVIES.:-The Legislature of a province has no power to prohibit companies incorporated by the Parliament of Canada from carrying on business within the province, without obtaining a license so to do from the provincial authorities and paying fees therefor, unless such license is imposed in exercise of the taxing power of the province. And only in the same way can the Legislature restrict a company incorporated for the purpose of trading throughout the Dominion in the exercise of its special trading powers, or limit the exercise of such powers within the province. DUFF and BRODEUR, JJ. contra.

Per IDINGTON, J.-A company incorporated by the Dominion Parliament in carrying out any of the enumerated powers contained in sec. 91, and a company incorporated for the purpose of trading throughout the Dominion cannot be prohibited by a provincial Legislature from carrying on business, or restricted in the exercise of its powers, within the province, except by exercise of the exclusive jurisdiction to

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