On the whole, then, as regards the application of the doctrine of Lloyd v. Grace, Smith & Co. to torts other than fraud, we may venture to summarize the present position of the authorities as follows:

(a) If the servant is clearly acting within the scope of his employment, the fact that he is acting for a purpose of his own will not exonerate the master; but

(b) If there is something in the facts themselves to show a "departure" from the sphere of the servant's employment, the fact that the servant acted for a purpose of his own may be used as evidence of that departure; or

(c) If the manifest facts are ambiguous and there is a question whether the servant was acting from misguided zeal for his master's interest or from some extraneous motive of his own, then the intention of the servant being found as a fact will, as Sir Frederick Pollock puts it, "turn the scale" and relieve the master of liability.

THE PRACTICAL SIDE OF STATUTE MAKING.

BY M. J. GORMAN, K.C.

When I was invited by the Editor to contribute an article to the first number of the REVIEW, I declined on the ground that I had nothing in mind to write about. At his request, however, I reconsidered my decision, with the result that I am putting forward some views upon the practical or business side of the enacting of our Statutes. My Canadian experience of this has been confined to the legislation of the Dominion and the Province of Ontario, but I assume that the general conditions will be more or less similar throughout the other Provinces.

In 1913, Sir Courtenay Ilbert, Clerk of the British House of Commons, delivered a series of lectures in Columbia University, and these were subsequently published in book form under the title of The Mechanics of Law Making, which name I was tempted to borrow for the heading of this article. This little book should be carefully read by all Canadian officials who are entrusted with the duty of drafting Statutes. At page 35, he humorously remarks that "Our Revised Statutes are not popular reading, nor do they belong to the class of books which, according to the book-seller, no gentleman should be without." He states that there have been two Revisions of the Statutes in England, but he points out the distinction made there between revising the Statute law and consolidating it. He adds that, in these editions, Statutes or parts of Statutes which remain unrepealed, are arranged in chronological order, but that no attempt has been made to digest their contents or to group or arrange them under appropriate heads. He shows that by "consolidation" they mean the process which we in Canada have come to describe as "revision," and he explains at length the difficulties in the way of the adoption of this step in England,

C.B.R.-VOL.I.-6

while commending the work that has been done in this direction by the self-governing Dominions. In chapter viii he deals at length with the question of codification, but states that only four codifying Acts have been passed by the British Parliament, namely: The Bills of Exchange Act of 1882, The Partnership Act of 1890, The Sale of Goods Act of 1893, and The Marine Insurance Act of 1906. He apparently does not consider the Judicature Act and Rules as being in the nature of a Code of Civil Procedure. He points out, however, that various branches of the law have been codified in India, embodying substantially the rules of English Law.

In

With regard to the question of Statute revision, I think it is to be regretted that the laudable rule of decennial consolidations, that was adopted in Ontario after the first revision of 1877, and continued for the two succeeding decades, was abandoned in 1907. a large and populous Province like Ontario, ten years seems a sufficiently long time between revisions. In the State of Illinois, when I practiced there, the Statutes were revised after every session, and promptly issud in the revised form.

Possibly the Provincial Government of the day was not entirely to blame for the whole of the delay that took place in the third revision, as the Commission for this purpose was appointed early in the year 1906. Of course it could hardly have been expected that the work could then be completed by the end of 1907, but on the other hand, it seems unreasonable that eight years should have elapsed between the appointment of the Commission and the issue of the Revised Statutes in 1914. I have not heard anything as yet about. the appointment of a new Commission to make a further revision, so I suppose it is not the intention to restore the decennial rule. The revision of the Statutes of Quebec was commenced two years ago, and the completion of the work is promised within another year. Some work was done informally under the late Government, on the overdue revision of the Dominion

Statutes, but no formal Commission has yet been appointed for that purpose.

In the 1877 revision of the Ontario Statutes, Appendix "B" shows the Acts and parts of Acts consolidated, from the Consolidated Statutes of 1859 down to and including the Statutes of 1877. With the assistance of this table, one could readily find just where any particular Statute or section of it was to be found in the new revision, or if it was effete, the reason why; and if it had been repealed or superseded, the particular Act and section by which that had been done. The same plan was followed in the revisions of 1887 and 1897, thereby enabling one to trace the disposition that had been made of any of the Statutes contained in the previous revision, as well as those enacted in the intervening ten years. When however the latest revision was undertaken, a different method was adopted. During the five or six years that preceded the completion of the revision, the principal Statutes then in force were from time to time revised and embodied in the annual Statutes for these years. When the revisers came to compile the present Schedule "B" to the Revised Statutes of 1914, the references in such schedule were made only to these temporary revisions of the Statutes, and not to the original Acts. The result is that it is practically impossible to follow the dislocations that have been caused by sections having been dropped, amended or transferred to other Statutes in the revision. Mr. Holmested has, in "Table I" prefixed to his last annotated edition of the Judicature Act, carefully performed this very important work, so far as that particular Act is concerned.

It is true that, in the volume of Statutes for 1913, there is appended a "Table of Acts," giving an alphabetical list of the Acts in the Revised Statutes of 1897 and in subsequent annual volumes, and showing where they are to be found. It is expressly pointed out, however, that "this table is merely for general reference, and does not purport to deal with the

entire subject of each enactment." An illustration will best convey my meaning as to the unsatisfactory nature of this work. In the Ontario Judicature Act, which formed Chapter 31 of the Revised Statutes of 1897, subsections (7) and (8) of section 58 contained respectively the provisions as to when stipulations are not to be of the essence of contracts, and as to when part performance of an obligation should be held to extinguish the obligation. One can find no trace of these subsections in the Judicature Act, now Chapter 56 of the Revised Statutes of 1914, nor do any of the tables or schedules prepared by the revisers indicate what had become of them. One learns however from Mr. Holmested's "Table I," that these provisions now form sections 15 and 16 of Chapter 133 of the Revised Statutes of 1914. On examining these sections, one is referred for their origin to 1 Geo. V. c. 17 s. 41, and on turning up the "Statute Law Amendment Act, 1911," one finds that these subsections were, by section 41 of that Act, reenacted as amendments to the Mercantile Law Amendment Act. This particular piece of legislation is inexcusably crude, as it does not even give any numbers to the new sections, or attach them to any already existing section, but merely designates them as (a) and (b). In adition to this, no corresponding legislation was passed, removing these subsections from the Judicature Act, so they continued to appear in it until it was revised in 1913. The 1906 revision of the Dominion Statutes contains, in "Appendix I," the history and disposal of Acts, and in "Appendix II," a table showing where each section and part of section of every Act is consolidated. It is to be hoped that this will be continued in the next revision.

My next subject of consideration is the delay in the issuing of the annual volumes of the Statutes, and in this again, my experience is practically confined to those of the Dominion and of the Province of Ontario. As regards the former, an improvement was noticeable in the issuing of the comparatively