Schoolmasters and artisans, for the damage caused by their pupils or apprentices while under their care.

The responsibility attaches in the above cases only when the person subject to it fails to establish that he was unable to prevent the act which has caused the damage.

Masters and employers are responsible for the damage caused by their servants and workmen in the performance of the work for which they are employed.

Applying the principle laid down in these Articles to every case that comes up for decision, the solution will depend upon the answer to be given to two questions: (1) Was there a fault on the part of the defendant; (2) Were the damages proved wholly or partly the result of that fault.

Having before them this broad principle, some of the best known and most firmly settled doctrines of the common law have never been recognized or adopted in the Courts of the Province of Quebec.

I will now consider some instances of this.

Master and Servant.

Apart from the effect of the Employers' Liability Acts, no doctrine is more firmly settled in English law than that of common employment, the rule being that a master is not liable to his servant for injury received from any ordinary risk of or incident to the service, including acts or defaults of any other person employed in the same service.

No such doctrine appears to exist in the law of any other country in Europe. (Pollock, p. 89.)

"A servant when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as servant of him who is the common master of both." (Erle, C. J., in Tunney v. Midland R. W. Co., L. R. 1 C. P. p. 296.)

The same doctrine has been laid down in the American leading case of Farwell v. Boston R. W. Co., 4 Met. 49.

This rule of English law has not adopted in the Quebec Courts.

"The doctrine of common employment has no place in the law of Quebec." (Sir Henry Strong, C.J., The Queen v. Filion, 24 S. C. R. 482.)

According to the French law common employment is no defence, and does not exonerate the employer from liability for the negligence of a servant who may by his negligence have caused an accident from which another servant has suffered." (Asbestos Company v. Durand, 30 S. C. R. 292.)

The doctrine of the law of the Province of Quebec upon this point has been very forcibly put by the late Judge Ramsay in the case of Robinson v. Canadian Pacific R. W. Co., M. L. R. 2 Q. B. 25:—

"It seems to be well settled in this country that the employer is liable for the want of skill of a fellow-servant. We assimilate the want of skill of a fellow-workman to defective plant. (1054, C. C.) It is evident that the employer is not a garant for the wilful wrong-doing of his servant, but why he should not be liable for his negligence in the performance of the duties he is set to do because his victim is a fellow-servant baffles all reason to explain."

It may be noted that before the Code the doctrine of common employment obtained some recognition in the Quebec Courts. See Fuller v. Grand Trunk R. W. Co., 1 L. C. Jur. 68; Bourdeau v. Grand Trunk R. W. Co., 2 L. C. Jur. 186; but it is difficult to see how such a doctrine can ever be recognized while Art. 1054 remains in its present form.

Escape of Dangerous Things.

"If the bringing the dangerous thing upon the occupant's land be effected, under sanction of legislative authority, the fact that it results in damage to the party's neighbour by purely natural escape or by authorized channels, and not by reason of negligence attributable to the occupant, will not render the occupant liable." (Vaughan v. Taff Vale R. W. Co., 5 H. & N. 679.)

This well settled rule of English law was invoked in an action against the Canadian Pacific Company for damages by fre. (Roy v. Canadian Pacific R. W. Co., Q. R. 9 Q. B. 551.)

The trial Judge held that the fire was caused either by sparks from the engine or originated in some way from the

train-he did not determine which-and that this created a presumption of negligence which the defendants had not rebutted.

On appeal the defendants contended that their use of engines being in the exercise of a statutory right, it devolved upon the plaintiff to prove affirmatively that the appellants had been guilty of negligence, either by using a defective engine or by shewing carelessness or a want of skill in its management. But the Court held that the French law, and consequently the law in the Province of Quebec, is that the railway company are responsible, notwithstanding the adoption of every means of precaution known to science, and that the English authorities are not binding in a case pertaining to civil rights and liberties.

In an earlier case (1889) of Leonard v. Canadian Pacific R. W. Co. (15 Q. L. R. 93), Mr. Justice Andrews used the following words: "If it be admitted that the defendants have used the best and safest engines obtainable, I think they are nevertheless liable, on the same principle on which anyone exercising a calling dangerous to his neighbours would be condemned to repair any damage he might thereby cause, even though his calling were lawful, and he had used his best endeavours to render it harmless."

The learned author of "The Railway Law of Canada" (Professor Abbott, K.C.) sums up what he conceives to be "the true doctrine which should be adopted in such cases, that the railway company's liability must depend upon the presence or absence of negligence in the operation of the railway; they being held to the strictest possible diligence, consistent with the practical operation of the railway in the exercise of their statutory powers; and that so long as these powers are exercised without negligence, and with all due and proper precautions, the company should not be held liable"-p. 417. And this view seems to be sustained by the judgment of the Judicial Committee in the appeal in the Roy case (Canadian Pacific R. W. Co. v. Roy, [1902] A. C. 220, 1 Can. Ry. Cas. 196), where it was held that a railway company authorized by statute to carry on its undertaking in the place and by the means adopted, is not responsible for damages for injury not

caused by negligence, but by the ordinary and normal use of its railway, and that Art. 356 of the Code does not on its true construction contemplate the liability of a railway company acting within its statutory powers.

Malicious Prosecution.

"In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution." (Per Bowen, L.J., Quartz Hill Mining Co. v. Eyre, 11 Q. B. D. 674, p. 690.)

The reasons generally given for this rule are: There are three sorts of damage any one of which will support an action for malicious prosecution, namely, (1) damage to a man's fame, as if the matter whereof he is accused be scandalous; (2) damage done to the person, as where a man is put in danger to lose his life or limb, or liberty; (3) the third sort of damage which will support such an action is damage to a man's property, as where he is forced to expend his money in necessary charges to acquit himself of the crime of which he is accused. (Saville v. Roberts, 1 Raym. 374.)

Now the bringing of an ordinary action maliciously and without reasonable or probable cause does not necessarily involve any one of these three heads of damage so as to enable the defendant to bring a subsequent action against the plaintiff.

At the trial his fame will be cleared, if he deserves to be; the bringing of the action involves no injury to his person; nor, thirdly, is there necessarily any damage to his property, as if he succeeds he will be awarded the costs of the action, if he deserves them. Sir Frederick Pollock has pointed out that the third reason by which the costs awarded in an action are a sufficient solatium for injury to the pocket is an amiable fiction; he assigns as a more logical reason for the rule, the necessity ut sit finis litium.

There are exceptions to this general rule of a limited character, which need not be specified here.

But in the Province of Quebec no such rule is recognized. In the case of Montreal Street R. W. Co. v. Rit

chie, 16 S. C. R. 625, Mr. Justice Strong states that "by the law of the Province of Quebec an action can be maintained by a defendant, who has succeeded in a civil action, against one who maliciously and without reasonable and probable cause, or, in other words, against one who having no real interest has, in bad faith and with the malicious intention of harassing his adversary, unsuccessfully prosecuted the action.

"The law of the Province of Quebec in this respect differs. from the law of England, according to which such an action will not lie, unless there has been by means of civil process some unwarrantable interference with the person or property of the party defendant in the original action." (pp. 629-630.)

Contributory Negligence.

Another well known and well settled common law doctrine is not altogether in harmony with Arts. 1053-4 of the Civil Code, and is therefore not recognized in the Province of Quebec, that of contributory negligence, according to which a plaintiff cannot recover damages if but for his own negligence or that of the person who represents him, the accident would not have happened. In the Province of Quebec contributory negligence may or may not be a bar to recovery according to the facts proved.

In the case of Cardieux v. Canadian Pacific R. W. Co., M. L. R. 3 Q. B. p. 315, the late Chief Justice Dorion said: "I am of opinion that when the two parties are in fault the damages should be divided between them.

Nevertheless this rule has never been adopted in this country, although I think it is a better rule."

The same Judge in the case of Desroches v. Gauthier, 5 L. N. p. 404, speaking of the English doctrine of contributory negligence, says: "Such a rule does not exist in our law." This has since been held in many cases, of which the following may be mentioned:

"Under our law the person who suffers damage from an accident does not lose his recourse against the auteur of that accident because his own negligence contributed to it. The Court will inquire what is the primary cause, and if they find that to be the negligence of the defendant they will hold