From the examples given above, it will appear that neither of the combinations will explain how the rate dealt with in the bill for undercharges was arrived at. To my mind the material point is the admission of the assistant traffic manager of the Great Northern in his letters of August 5th and August 10th, 1909, on file with the Board, that the Great Northern has no through rate between Nelson and Gateway, B.C. Section 335 of the Railway Act states that: "When traffic is to pass over any continuous route from a point in Canada through a foreign country into Canada, such route is operated by two or more companies whether Canadian or foreign, the several companies shall file with the Board a joint tariff for such continuous route." The matter falls within the scope of this section. (1) There is a continuous route. (2) The provisions as to operation by two or more companies, whether Canadian or foreign, are met because we have a route made up as follows: (a) Nelson & Fort Sheppard Railway to the boundary. (b) Spokane Falls & Northern, thence to Spokane. (c) Great Northern, thence to Rexford. (d) Montana & Great Northern, thence to the boundary. (e) Crow's Nest Southern, to destination. The mandatory provision of this section that a joint tariff shall be filed as a condition precedent to the traffic passing over the continuous route in question has not been complied with. Not only is there not at present a through rate between Nelson and Gateway, B.C., there never has been filed with the Board a tariff of class or other rates between these points. The collection of tolls between Nelson and Gateway, B.C., is, until sec. 335 is complied with, in clear violation not only of this section, but also of sec. 314, sub-sec. 5; "nor shall the company charge, levy or collect any money for any services as a common carrier, except under the provisions of this Act." The tariffs on file with the Board shew that no joint tariff from Nelson covers the stations on the Crow's Nest Southern from Gateway, B.C., to Cedar-Valley Lumber Company's spur inclusive. Whether traffic passes between Nelson and these points does not appear. From the correspondence on file it would appear that the neglect to comply with the provisions of sec. 335 is to some extent due to a confusion as to the respective terms of the Railway Act and of the Act to regulate commerce. No order need at present issue. It is sufficient to state that until the provisions of sec. 335 are complied with, it is illegal to collect tolls on the traffic falling within the scope of the section. The other members of the Board concurred. END OF VOLUME IX. DIGEST OF CASES. ABSORPTION. cation of Terms in Contract.] Terminal Charges - Competi- See ANIMALS AT LARGE, 7. tion Between Ocean Ports and Carriers United States and Canada Refunds - Retroactive TERMINAL ACQUIESCENCE. By City and Public-Jurisdiction of Board-Highway Crossings Fences Not Legally ANIMALS AT LARGE. 1. Fence Ordinance (N.W.T. 1903, 2nd session, ch. 28), secs. 2, 7 Railway Act (R.S.C. 1906), ch. 37, sec. 254-Damage to Crops by Animals Gaining Access from Right of WayLiability of Railway CompanyRight of Way Not Fenced.]— Closed Stile Substitute Section 254 of the Railway Act Order-Review, Rescind or Vary requires the railway to fence its -Reasonable Convenience of the right of way under certain conPublic--Conditions as to Safety ditions, and sub-sec. 3 provides -Highway to be Kept Open-"such fences . . . shall be suitRailway to Construct-City to able and sufficient to prevent Maintain and Make Safe.]-See cattle and other animals from getHIGHWAY CROSSINGS, 1. ADMINISTRATOR. Workmen's Compensation Right to Give Notice Before Issue of Letters-Ignorance of Law.] See MASTER AND SERVANT, 1. AGREEMENT. ting on the railway." Section 427 provides that "every company omitting to do any act or thing required to be done. is liable to any person injured thereby for the full amount of damages sustained by such omis sion." Held, that where the railway company had not fenced its right of way adjacent to the plainFor Use of Siding-Construc- tiff's lands, and cattle came in tion Protection of Railway on such lands and caused damfrom Animals - Negligence age to crops by reason of the Gate Left Open-Escape and company's neglect to erect Destruction of Animals-Impli- fences, the railway company is 34-C.RY.C. liable notwithstanding that the ever kind resulting from the rest of the lands are not en- omission to fence. closed by a "lawful fence." Remarks on Fence Ordinance (N.W.T. 1903, 2nd session, ch. 28), sub-secs. 2, 7. Winterburn v. Edmonton, Yukon & Pacific R.W. Co., 1. Held, affirming the judgment of Harvey, J., ante p. 1, that: "Where the railway company had not fenced its right of way, adjacent to the plaintiff's lands, and cattle came in on such lands, and caused damage to crops, by reason of the company's neglect 2. Railway Law-Railway Act to erect fences, the railway com[R.S.C. (1906) ch. 37], secs. pany is liable notwithstanding 254, 427-Fences-Omission to that the rest of the lands are not Fence Right of Way-Liability enclosed by a 'lawful fence.'” of Company for Damage to Ad- Per Stuart, J. :-The Fence Orjoining Landowner Occasioned dinance (N.W.T. 1903, 2nd sesby Animals Gaining Access from sion, ch. 28) has no application Right of Way-History of leg- to a case where it is the duty of islation Fence Ordinance the person charged with damage (N.W.T. 1903, 2nd session, ch. to maintain that portion of the 28), secs. 2, 7-Pleading-His- fence through which animals dotory and Effect of Pleas of "Not Guilty," and "Not Guilty by Statute"-Necessity of Noting in Margin Statutes Relied onConstruction of Statutes.]-Per CURIAM: Where a statutory duty is imposed, neglect of the duty gives the party damnified thereby a right of action, unless the person damnified is excluded from a particular class of persons who are alone intended to be benefited by the statute. The fences required to be venienti in respect of these pleas: erected by the railway company Toll v. Canadian Pacific R.W. under sec. 254 of the Railway Act [R.S.C. (1906) ch. 37] are for all purposes which they may serve, and consequently, by vir tue of sec. 427, the company is 3. Defective Fence-Cattle at liable for all damage of what- Large-Animal Killed by Fall ing damage have entered. makes no difference whether the rest of the lands are fenced or not. History and effect of the pleas of "Not guilty," and "Not guilty by statute," traced and discussed. The necessity of noting in the margin of the plea, the statute permitting the plea, and the particular statute relied on, discussed, with remarks ab incon Co., 1 Alta. L.R. 244, 8 Can. Ry. |