PRAISE NOT UNDESERVED.-Having occasion to refer to Cook on Corporations recently, it was gratifying to find there the following tribute to law-making in England:

"We have much to learn from the English in the way of Corporation Statutes. They have shaken down more ripe fruit from the tree of knowledge than any other people, and have not been cast out of the Garden of Eden either."

While it is not so lyrical in expression, yet the above praise of England is comparable in fair measure with that of Shakespeare when he puts the following lines into the mouth of John of Gaunt in King Richard II.:—

"This royal throne of kings, this sceptered isle,

This earth of majesty, this seat of Mars,

This other Eden, demi-paradise."

66

THE "BILINGUALS" IN PARIS, 1924.

Pardonnez-moi, Mushoo, mais quoi est cette bâtiment-là?

"Je ne connais pas. J'ai juste venu a Paris."

66

Oh, je pensait que vous étais un Parisienne. Ou est-ce que vous vennez de?"

"Parry Sound. Et vous?"

"Medicine Hat."

"Good Lord! Good old Chapeau de Médecin! Shake!"

18th Ed. (1923) Vol. 5 p. 4162

J. D. S.

NOTES.

ARBITRATION-ABANDONMENT-ONTARIO HYDRO-ELECTRIC POWER COMMISSION ACT-FIAT TO SUE.-In the case of Beach v. Hydro-Electric Power Commission,1 the Beach Estate, the owners of a power plant at Iroquois on the St. Lawrence River, entered into a contract in the year 1915 to supply power to the Rapids Power Company. This agreement, which expired on the 31st March, 1916, was assigned by the Rapids Power Company to the Hydro-Electric Power Commission. After the expiration of the Rapids Power Company's contract, the Beach Estate continued to supply power direct to the Commission until May 1st, 1919, but no definite agreement was arrived at. Beach Estate demanded $16.00 per H.P. and the Hydro was willing to pay only $12.00 per H.P. During all this period the Beach Estate rendered bills charging for power on the basis of $16.00 per H.P., and the Commission paid for power delivered on the basis of $12.00 per H.P. The result was that the Beach Estate claimed a balance for power supplied of $8,190.78 over and above the amount the Commission had paid, and for this amount brought an action against the Commission in the Supreme Court of Ontario.

Prior to the plaintiffs commencing their action they obtained a consent, dated the 30th January, 1922, from the Attorney-General, pursuant to the provisions of "The Power Commission Act," R. S. O. 1914, chapter 39, in which the amount in dispute was stated to be the sum sued for.

Before the action came to trial, counsel for the parties signed an agreement to refer the matters in question in the action to Mr. J. M. Robertson, an engineer of Montreal, to determine what reasonable and just price should be paid to the plaintiffs for the power furnished to the defendant. This agreement contained a provision that the plaintiffs should not be prejudiced by any claims made by them in the writ of summons or pleadings in the action. It contained a further provision that the Arbitration Act should not apply.

The arbitrator in due course proceeded with the arbitration and made an award in favour of the plaintiffs amounting with interest to $51,861.75.

The defendant moved to set aside this award on a number of

1

Reported at first instance in (1924) 4 D.L.R. 995 and 56 O.L.R. 35.

grounds. When the motion came on for hearing counsel for the plaintiffs took a preliminary objection to the jurisdiction of the Court, claiming that as the Arbitration Act did not apply, the defendant could not proceed by way of motion to set the award aside, and that its only remedy was to bring an action for that purpose. Judgment was reserved on this objection and the plaintiffs, without waiting for delivery of judgment, obtained a further consent from the Attorney-General and commenced an action to enforce the award. The writ in this action was specially endorsed for $52,554.25, the amount of the award and interest.

The motion to set aside the award was referred to the trial Judge, and both the motion and action came on for hearing before Mr. Justice Wright, who dismissed the plaintiffs' action to enforce the award, and allowed the defendant's motion to set aside the award on the ground that mistakes both of law and of fact appeared on the face of the award.

An appeal by the plaintiffs was dismissed by the unanimous judgment of the Appellate Divisional Court, which held that the reference to arbitration was ultra vires and the award a nullity.

The Court further held that the consent given by the AttorneyGeneral on the 30th January, 1922, would not justify an action for a larger sum.

The judgment points out:

"It never could be intended that a claimant by setting up a claim for a small sum and obtaining thereby a consent from the AttorneyGeneral to bring an action for that sum could claim at the trial a larger sum as to the propriety of permitting action for which to be brought the responsible officer of the Crown had not given a decision. And the defendants are not entrusted with any power to give a valid and effective assent; not they but the Attorney-General plays the watch-dog's part in this matter. However that may be, the defendants with their strictly limited powers could not have the right to assent to proceedings that would or might result in increasing the amount for which they would become liable."

The Court further held that the nullity of January 30th, 1922, could not be given life by the second fiat" if for no other reason this belated consent allows an action for the sum alleged to be due Janųary 30th, 1922,' and that we have seen was $8,190.78 and no more."

The Court in this case further held that even were the submission to arbitration valid the award could not possibly stand; that it was

40 C.B.R.-VOL. III.

perfectly obvious that the Arbitrator had approached the consideration of the question from a wrong angle.

Counsel for the plaintiffs has intimated that he intends to appeal from this decision to the Judicial Committee of the Privy Council.

G. F. H.

ONUS IN NEGLIGENCE-FAULTY HIGHWAYS.-When you sue a public body, search the scriptures diligently. The onus may prove a deceitful thing. Horsfield v. Rural Municipality of Cana.1

One night H. was driving along the public highway on a grade 20 feet wide. Another car approached, and H. obeyed the law and turned into the right half of the road. But, alas, that half of the road was "up," and H.'s car went over the grade to its destruction. It was no fault of H.'s. The grade at that spot had been narrowed from 20 feet to 9 feet without any sufficient warning. The fault lay with the contractor or his employers. Undoubtedly H. had a right to compensation. But from whom?

Of course I won't go against a mere contractor when I can get recourse against a public body, said H., and wrote the Rural Municipality saying "If the road is a government road then, of course, this claim will be passed on to the Minister of Highways. On the other hand, if it is a road for which your municipality is responsible I ask you kindly to notify your council of my claim."

The municipality neither at this stage nor at the trial laid any stress on this matter of "Government road." The road was a municipal road, and control was assumed to be in the municipality. As a matter of fact the Provincial Government was paying for the repairs, but the council of the municipality was understood to have given its authority; and, since no specific evidence for or against this assumption was offered, the trial judge said, naturally enough, "Well, the accident certainly occurred on a public road within the municipality; if the municipality will not show me that it was ousted from control, I must decide it was in control; and I decree damages against it."

An appeal on this point went in favour of the municipality. No, said the Court of Appeal; the litigant must bring himself inside the statute: he must by some affirmative evidence connect the negligence with the council; the fact itself won't speak; the statute definitely allows the Provincial Government to enter the municipality to upkeep

119 Sask. L.R. 378.

the highways; and here the government had temporarily entered, and while it was there the municipality was absolved.

But, because the council had neither before suit nor at the trial laid the blame where it deserved, it had to pay its own costs of both trial and appeal.

Even at that it got off lightly. The innocent man who lost his car and nearly lost his life had to meet his own costs in two courts. G. C. T.

LIEN NOTES-REPOSSESSION.-The vendor of an automobile which had owing to it $827 on a lien note has deservedly found itself out of luck, the penalty of arbitrariness. At first blush the merits were with the vendor. The buyer had abandoned her house and furniture and departed in the car for Vancouver, leaving no known property in Saskatchewan. Not unnaturally the agent of the vendor in Vancouver repossessed the car. "Why?" asked the buyer; "I am not in arrears: I am even willing to pay some of my monthly instalments ahead of time. Release my car!"

But the vendor persisted. It seized (1) because the car had been removed out of Saskatchewan, and (2) because the buyer had broken a condition by disposing of her landed property.

In point of fact the buyer had the verbal permission of the salesman to take the car to Vancouver; and she had " abandoned" a trifling equity in real estate, and not "disposed" of it. Could the vendor excuse itself because it considered the note insecure? It had not declared itself to that effect, and apparently had not given the insecurity, per se, a thought. Query: in any case, could a limited company consider a note insecure without some formal resolution? And surely some sort of formal intimation would be needed. Anyhow the grounds of its seizure were mistaken, and the buyer collected adequate damages for inconvenience, humiliation and deprivation. Harman v. Gray-Campbell Ltd. G. C. T.

CRIMINAL PROSECUTION-DELAY-MANDAMUS TO PROCEED WITH TRIAL. In the case of Rex v. Pepall, a motion was launched by the accused, returnable by special leave before Mr. Justice Rose for a mandamus to the Crown Attorney of the County of York and to W. N. Tilley, K.C., and McGregor Young, K.C., special counsel assigned for the trial of this case, directing them to proceed with the trial of the accused with reasonable diligence at the general sessions for the

119 Sask. L. R. 526.