of Quebec) is not of that binding and conclusive character which attaches to it in England, where a probate granted in solemn form after due citation of parties would operate "as a judgment in rem or a judgment inter partes," and does not prevent the heirs from impugning the validity of a will in their defence to an action brought by a legatee under the will.

And in a recent case decided by Mr. Justice Tait in the Superior Court, St. George's Society v. Nichols, Q. R. 5 S. C. 274, it was held that the admission of a will to probate does not create any presumption in its favour when it is contested, by reason of the provision contained in Art. 858.

(2) Letters of Administration.

The entire absence of letters of administration is peculiar to the law of the Province of Quebec. Neither in case of intestate nor in testamentary succession is the granting of letters of administration or any similar procedure recognized. The old French maxim "Le mort saisit le vif" obtains in full force in the Province of Quebec. The heirs-at-law, if there is no will, are seized of the succession by the law alone (Civil Code, Art. 607); legatees are seized by the operation of the will (Art. 891); and executors are seized in the same manner (Art. 918.) The only case in which the intervention of the Court is necessary is when there are no heirs-at-law and the succession is claimed either by the surviving consort (who has no rights of heirship under Quebec law) or the Crown, in which case application may be made for what is technically called "Envoi en Possession" (Art. 607.)

(3) Executors.

The position of an executor under the law of the Province of Quebec differs in some important respects from that of an executor under English law. The testator may in his will give him what powers he pleases, but, in the absence of such extended powers being granted, he can do very little without the consent of the heir or legatee who receives the succession. The following points may be noted:

The executor need not be sworn or give security. (Art.

If there are several executors, all must act together. (Art. 913.)

The executor must render an account of his administration to the heir or legatee. (Art. 918.) He can not even pay the debts and legacies or sell movable property for that purpose without the consent of the heir or legatee, or, in default thereof, judicial authorization. (Art. 919.)

An executor's powers do not pass to his heirs or other successors. (Art. 920.)

In view of the very limited powers which executors possess, a testator usually avails himself of the provision of Arts. 916 and 921 and extends the powers of his executor much beyond the limits allowed him by the Code, and may free him altogether from the control of the heir both in regard to accounting and alienation of the property; otherwise the executor is little more than the attorney (with very restricted powers) of the heir or legatee.

OFFENCES OR ACTIONABLE WRONGS.

There is a striking difference between the rules of the civil law and those of the common law of England in regard to offences or actionable wrongs.

This is owing to the fact that the Code in Arts. 1053 and 1054 lays down a broad rule or principle which is applicable to all cases of this kind.

Art. 1053-"Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive art, imprudence, neglect, or

want of skill."

Art. 1054-"He is responsible not only for the damage caused by his own fault, but also for that caused by the fault of persons under his control and by things which he has under

his care.

The father, or, after his decease, the mother, is responsible for the damage caused by their minor children.

Tutors are

responsible in like manner for their pupils.

Curators or others having the legal custody of insane persons, for the damage done by the latter.

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 comemployment 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 nized while Art. 1054 remains in its present form.

Escape of Dangerous Things.

recog

"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 fire. (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