warrant of possession the learned Judge was acting as a Court, and the matter was res judicata, and in view of the amended section 230 of the Railway Act his order granting the warrant in question can only be attacked by way of appeal.

The plan, profile and book of reference in question have been duly approved by the Board of Railway Commissioners in pursuance of the procedure laid down in sections 222, 223, 224 and 225 of the Railway Act, and the order obtained from the Railway Board approving the plan, profile and book of reference and duly filed in the registry office is conclusive evidence that the defendant company has sufficiently complied with the provisions of the Railway Act to entitle it to expropriate the lands covered by the warrant in question.

The learned Judge reserved his decision.

March 31, 1909. STUART, J.-The facts of this case are practically the same as existed in the case of Marsan v. The Grand Trunk Pacific Railway Company, in which judgment was recently given by the Court en banc.

Following the decision in that case, I hold that the plans in question in this action do not comply with the provisions of the Railway Act. This being so, it is quite unnecessary for me to deal with the question as to whether the plaintiff Clovis Girouard was properly served with the notice to expropriate, and the notice of the application for the warrant of possession.

Some question was raised as to whether or not there was not a right of appeal from the order granting warrant of possession, and it was contended that as there was such a right of appeal, an appeal should have been taken to the Court en banc instead of bringing an action. As the matter presents itself to me now, it seems to me quite clear that even if there were a right of appeal from the order of Mr. Justice Beck granting the warrant of possession, that certainly would not deprive the owner of the land from the right of bringing an action; because, just as in this case, a question of damages for wrongful trespass might be raised. If

the order were improperly given, then there would be at least technically a trespass, and it is easy to imagine a case in which the damages might be substantial. An appeal from the order giving the right of possession would allow no redress for such damages. Even, therefore, if there be a right of appeal owing to the terms of section 220 of the Railway Act, as to which I now say nothing more, as I did in my judgment of Marsan v. The Grand Trunk Pacific Railway Company, I think the owner has still a right to bring an action such as he has done here. It, of course, may be objected that if Mr. Justice Beck was acting as a court and not as persona designata, then the matter is res judicata. That principle, however, only applies where the Court giving the judgment invoked had jurisdiction in the premises: Attorney-General for Trinidad v. Enriche, 63 L.J.P.C. 6, L.R. (1893) A.C. 518, 1 R. 440, 69 L.T. 505. But the result of the decision of the Court en banc in the Marsan case, is, as it seems to me, this, that Mr. Justice Beck had no jurisdiction to make the order for the issue of the warrant, because the filing of proper plans, is, I think, a condition precedent to the existence of any jurisdiction to issue a warrant : Brooke v. Toronto Belt Line Ry. Co., 21 O.R. 401. Of course, if the matter were before me alone I should hesitate to question the decision of a brother Judge on the matter of jurisdiction or to decide that he had acted without jurisdiction when he had inferentially at least decided that he had jurisdiction. But as I have the decision of the Court en banc now to follow, the case is different, and I am able, I think, without scandal, to hold now that Mr. Justice Beck acted without jurisdiction. The consequence is that the principal of res judicata cannot apply.

In the case of Marsan v. The Grand Trunk Pacific R.W. Co., 2 Alta. L.R. 43, which was a stated case, nothing was before us, in so far as the proper relief was concerned, except the question whether or not the owner was entitled to an injunction. Nothing was said in the stated case about the possibility of granting damages. In the present case damages are claimed. In view of the decision in the Marsan case, I do not see how it is possible to

avoid giving the plaintiffs at least nominal damages. The result of the decision in that case is that the defendants here entered upon the plaintiff's land without any legal authority. I am not quite satisfied, however, that the plaintiffs have proved any substantial damage. The husband put his damages at one hundred dollars, but I am not satisfied that he was not making an unjus tifiable claim in naming that amount. All he said was that his fences were cut and his cow got out from the pasture a number of times, and that some grading was done through his land. I think the justice of the case will be met by giving the plaintiffs fifteen dollars damages.

With regard to the claim for an injunction, nothing needs to be added to what I said in the Marsan case. Upon the defendants giving a similar undertaking to that which was exacted from them in that case, the injunction will be refused, but the plaintiffs are to have the same rights as were given to the plaintiff in the case referred to in so far as further applications may be concerned.

Nothing further needs to be said in regard to the plans of subdivision filed, shewing streets and lanes. What was said in the Marsan case is equally applicable here.

The plaintiffs are, I think, entitled to their costs of this action. I distinguish the present case from the second of the Marsan cases, in which the Court allowed no costs to either party, in this respect, that in the present case I hold that the plaintiffs are entitled at least to some small damage, and that, I think, is sufficient to carry costs. In the Marsan cases no question of the existence of damage was raised at all, and no claim for damage was made in the stated case. The whole matter rested upon the point whether or not the plaintiffs there were entitled to an injunction, and that was refused. It will be observed also that an obligation is placed upon the defendants by this judgment to file proper plans as a condition of being relieved from an injunetion. Personally I now feel somewhat inclined to give more weight to this consideration in dealing with the question of costs

than was given to it in the judgment in the Marsan case and costs being in the discretion of the trial Judge I think this may furnish an additional reason for giving the plaintiffs their costs in this action. I think, however, they should be taxed on the lower scale, and the judgment will so direct.

Judgment accordingly.

Edwards & Madore, solicitors for the plaintiffs.
Henwood & Harrison, solicitors for the defendant.

CANADA.]

INFANT-NEGLIGENCE.
EGLIGEN

[SUPREME COURT.

SYDNEY AND GLACE BAY R.W. Co. v. LOTT.

(42 S.C.R. 220.)

Operation of tramway-Negligence-Injury to infant-Reckless running of car.

APPEAL from the judgment of the Supreme Court of Nova Scotia. 41 N.S.R. 153, reversing the judgment of Meagher, J., at the trial, and maintaining the plaintiff's (respondent's) action with costs.

Upon seeing a child (aged one year and eleven months) approaching the tracks, the motorman sounded the whistle of the car he was driving; the child stopped for a moment and looked towards the car; the motorman then applied full speed without waiting to see whether the child retreated or making any effort to remove it from the dangerous position: the child moved quickly towards the tracks, was struck by the car and received the injuries for which damages were claimed by the action. By the judgment appealed from, it was held that the conduct of the motorman was recklessness for which the company was liable,

that failure to take proper precautions to avert injury to the child was not to be excused by the alleged necessity of complying with the time-table and preventing delay to passengers and that the failure of the company to provide its car with a fender was evidence of negligence.

On November 25th and 26th, 1907, the appeal was heard before Sir Charles Fitzpatrick, C.J., and Girouard, Davies, Idington and Duff, JJ.

After hearing counsel on behalf of the appellants and without calling upon counsel for the respondent, the Supreme Court of Canada dismissed the appeal with costs.

Appeal dismissed with costs.

Mellish, K.C., for the appellants.

W. B. A. Ritchie, K.C., and Tobin, for the respondent.

NOTES.

Affirming the judgment of the Court below, 41 N.S.R. 153, 8 Can. Ry. Cas. 276.

In Cooke v. Midland Great Western R.W. Co. of Ireland (1909), A.C. 229, the House of Lords had to consider the question of actionable negligence towards an infant between four and five years old playing with other trespassing children on a turntable (left unlocked and therefore dangerous). It was held that there was evidence for the jury of actionable negligence on the part of the railway company. The authorities are fully collected: See the following cases and notes thereon: Farrell v. Grand Trunk R.W. Co., 2 Can. Ry. Cas. 249; Tabb v. Grand Trunk R.W. Co., 8 O.L.R. 203, 4 Can. Ry. Cas. 1; Potvin v. Canadian Pacific R.W. Co., 4 Can. Ry. Cas. 8; Cormier v. Dominion Atlantic R.W. Co., 36 N.B.R. 10, 3 Can. Ry. Cas. 304; Newell v. Canadian Pacific R.W. Co., 12 O.L.R. 21, 5 Can. Ry. Cas. 372; Coley v. Canadian Pacific R.W. Co., Q.R. 29 S.C. 282, Q.R. 16 K.B. 404, 8 Can. Ry. Cas. 269, 274; Burtch v. Canadian Pacific R.W. Co., 13 O.L.R. 632, 6 Can. Ry. Cas. 461.