judgment; that the consent to the order for sale covered all that could follow in the ordinary course of practice. Per Mignault, J.-D., was estopped from raising this question by failing to appeal from the Saskatchewan judgment. Held further, that the finality of the foreign judgment could not be raised by D. in this action. Appeal dismissed with costs. On appeal from the Appellate Division of the Supreme Court of Ontario and from the judgment of Mr. Justice Orde. McLEOD v. CITY OF WINDSOR. June 15th, 1923. Present: Sir Louis Davies, C.J., Idington, Duff, Anglin, Brodeur and Mignault, JJ. Assessment and taxes-Trustee under will—Income to be accumulated-Unknown beneficiaries Constitutional Law Direct or indirect taxation Assessment Act, R. S. O. (1914), c. 195, ss. 13 (1) and 83. By sec. 13 (1) of the Ontario Assesssment Act "every agent, trustee or person who collects or receives or is in any way in possession or control of, income for or on behalf of a person who is resident out of Ontario shall be assessed in respect of such income." Held, reversing the judgment of the Appellate Division (50 Ont. L. R. 305), Idington, J., dissenting, that a trustee under a will cannot be assessed for income received which, as directed by the will, had to accumulate for a designed term of years, and then apportioned among testator's children, since neither the identity of the beneficiaries nor the amount which they would receive can be presently ascertained. Per Duff, J. This is indirect taxation and ultra vires of the Ontario Legislature. By sec. 83 of the Act every tribunal or judge to which an appeal may be taken can determine whether any person or things are or are not assessable or were legally assessed or exempted from assessment. Held per Duff, J.,, that notwithstanding these provisions a person assessed may, after the assessment has been upheld, bring action for a judgment declaring it illegal on the ground that the legislation professing to impose it is ultra vires. Idington, J., contra. Per Davies, C.J. and Anglin, Brodeur and Mignault, JJ.The judgment of this court declaring the assessment illegal deprives the trustee of any interest he may have had to challenge the validity of the provisions of the Assessment Act assuming to impose it, and the judgment dismissing the action for a declaratory judgment (52 Ont. L. R. 562), should be affirmed. Appeal from Appellate Division allowed with costs. On appeal from the Appellate Division of the Supreme Court of Alberta. Present: Sir Louis Davies, C.J., and Idington, Duff, Anglin, Brodeur and Mignault, JJ. CHURCH v. HILL. Will-Construction-Specific devise of land-Effect of subsequent sale-Proceeds falling into residue "Land Titles Act" (Alta.) [1906] c. 24, s. 41-" An Act respecting the transfer and descent of land," (Alta.) [1906] c. 19, s. 2. Where a testator in his will makes a specific devise of land but before his death sells same under agreement for sale, the devise is rendered inoperative; the devisee is not entitled to any part of the unpaid purchase money, which falls into residue. Per Davies, C.J., and Idington, Duff, Anglin and Mignault, JJ.-This effect is not altered by the provisions of sec. 2 of ch. 19 of "The Transfer and Descent of Land Act," (Alta.) [1906], which assimilate the course of descent of real estate to that of personalty. Per Idington, Anglin and Mignault, JJ.-The settled jurisprudence in this matter applies notwithstanding the provisions of section 41 of "The Land Titles Act," (Alta.) [1906] ch. 24. Per Duff, J.-The amendment to "The Land Titles Act" made by sec. 7 of ch. 39 [1921] in regard to executions does not affect this application of such jurisprudence. Appeal allowed with costs payable by estate. Court of Appeal. Trade-union 2. PROVINCE OF MANITOBA. September 24th, 1923. CHASE ET AL. v. STARR. Claim on behalf of members for accounting by former official" Restraint of trade"-Public policy in regard to trade-unions as indicated in legislation. In an action brought by certain persons as representative of the members of a trade-union not registered under the Dominion Trade-Unions Act, against a former official thereof for an accounting of moneys received by him while holding office, it was held by Galt, J., at trial (1923), 1 W. W. R. 1393, that the provisions in the constitution and ritual of the union relating to strikes were in direct restraint of trade and rendered it an unlawful trade-union to the extent of preventing the plaintiffs from enforcing their claim in a Court of law. This decision was reversed by the Court of Appeal, Fullerton, J.A., dissenting. Russell v. Amalgamated Soc. of Carpenters and Joiners (1912), A. C., 421, distinguished-Dennistoun, J.A., distinguishing it with regard to the characteristics of "closed shop" and "massed funds," neither of which was a characteristic of the union in the case at bar. It is well settled that at common law agreements in restraint of trade are not unlawful unless such restraint be both unreasonable and contrary to public policy (per Dennistoun, J.A.). Public policy clearly supports the formation of associations in the nature of trade-unions, as shown in the public statutes (per Dennistoun and Trueman, JJ.A.). Section 42 of The Trade Unions Act, R. S. C., 1906, ch. 125, providing that "the purposes of any trade-union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawful, so as to render any member of such trade-union liable to criminal prosecution for conspiracy or otherwise, or so as to render void or voidable any agreement or trust" is applicable generally to all trade-unions, whether registered or not, (per Perdue, C.J.M.). Whether or not said section 32 is applicable to unregistered trade-unions, it is an indication of what public policy approves, viz., that the trust funds of associations, even such as are in restraint of trade, are to be protected; and the immunities granted by The Criminal Code extend to unregistered tradeunions the provisions of said section 32 in so far as criminal prosecution is concerned-and, that being so, it follows that the agreements or trusts of such trade combinations are no longer void or voidable, merely because the purposes of the association are in restraint of trade; and in the absence of any provincial legislation dealing with the subject from the point of view of property and civil rights, there is no bar to an action to enforce a trust created by a trade-union whose purposes are in restraint of trade, unless it clearly appears that such restraint is unreasonable and contrary to public policy (per Dennistoun, J.A.). Whether or not said section 32 applies to unregistered tradeunions, effect may be given to the section and to the provisions of the Criminal Code for interpreting the policy of the law towards all trade-unions, which policy is also manifested in The Industrial Disputes Investigation Act, 1907, Dom., and The Industrial Conditions Act, Man., 1919, ch. 43 (and its amendment, ch. 57 of 1920, providing for collective bargaining) (per Trueman, J.A.). In determining what is now public policy in respect to the operations of trade-unions, in respect to lawful and unlawful strikes, and in respect to collective bargaining, care must be taken to consider the effect of recent legislation. Collective bargaining, now approved by provincial legislation, would seem to involve reasonable coercive measures as a matter of internal regulation of the conduct of members (per Dennistoun, J.A.). Per Fullerton, J.A., dissenting: The union not being registered under The Trade Unions Act, Dom., cannot avail itself of any of its provisions (sec. 5). Although certain sections of The Criminal Code show that workmen combined for their own reasonable protection, though their purposes are in restraint of trade, cannot be indicted for conspiracy, it does not follow because they are not guilty of a crime that their objects may not be in restraint of trade and unlawful in the sense that the Court will not aid them in enforcing their agreements. Whether the union is an unlawful association or not must depend upon the common law. Whether or not a trade-union is unlawful or not at common law depends upon the construction of its rules and the question is whether the objects of the union, as evidenced by its rules, involve an illegal restraint of trade. Many of the rules of the union in question relied on by defendant are in retraint of trade and render it an unlawful association in the sense that the Courts can render it no assistance. RECENT LITERATURE. Publishers desiring reviews or notices of Books and Periodicals must send copies of the same to the Editor, care of THE CARSWELL COMPANY, LIMITED, 145 Adelaide Street West, Toronto, Canada. A Treatise on the System of Evidence in Trials at Common Law. By John Henry Wigmore. Second Edition in five volumes. Boston: Little, Brown and Company, 1923. Pp. lxxxvi., 1-1140; xxxvi., 1-1069; xxxiv., 1-1002; xxxii., 1-972; XXX., 1-1141. Quarto. When this work first appeared eighteen years ago it was hailed by Professor Beale as "the most complete and exhaustive treatise on a single branch of our law which has ever been written." It may confidently be asserted that the present edition, which contains numerous improvements and brings the work down to date, remains in practically all respects unequalled by any legal text-book in the English language. If this seems unduly high commendation, the reviewer's answer is that it is difficult to appraise this treatise and avoid the use of superlatives. In the first place, it is a monumental work of five thousand pages, and contains citations of more than 55,000 judicial decisions and 15,000 statutes. These figures give some idea of the immensity of the task accomplished by Dean Wigmore and of the amount of research required by the undertaking. No book, however, is to be judged by its avoirdupois nor by its having a long index of authorities, and the great merit of this one in fact lies in those features to be later mentioned which place it in a category far above the average legal text-book manufactured out of head notes and dicta strung end to end without comment, or at any rate without any adequate discussion of the principles underlying the decisions. Professor Thayer, whose disciple Dean Wigmore is grateful to be, points out in his Preliminary Treatise on Evidence that ours is a rational mode of trial which has emerged from the formal and mechanical tests employed by our forefathers. The present work is accordingly dedicated to the proposition that the Anglo-American law of evidence is a system of reasoned principles and rules, and that the judicial and other precedents may be aligned as the consistent product of these principles and rules. If this aim is to be achieved, it is obvious that every |