RECENT DECISIONS.

SUPREME COURT OF CANADA.

On Appeal from the Chancery Division of the Supreme Court of
New Brunswick.

Judges present:-Idington, Duff, Anglin, Mignault and Malouin, JJ.

6th June, 1924.

THE NEW BRUNSWICK AND CANADA RAILROAD COMPANY

(PLAINTIFF), APPELLANT;

and

THE NEW BRUNSWICK RAILWAY COMPANY (DEFENDANT)
RESPONDENT.

In 1882 the N. B. and Can. Rd. Co. leased its railway to the N. B. Ry. Co. for 999 years and the lessee covenanted, inter alia to pay 'all taxes that may be lawfully assessed upon the (lessor) and upon the real and personal estate taken under this lease" and a rental of $35,000 per

annum.

Held, affirming the judgment appealed from (50 N. B. Rep. 376) Idington, J., diss., that the covenant as to taxes only applied to those imposed in respect of the property demised and did not oblige the lessee to pay taxes imposed on the lessor under the Dominion Income War Tax Act, 1917, and amendments.

Appeal dismissed with costs.

On Appeal from the Appeal Division of the Supreme Court of
New Brunswick.

Judges present:-Idington, Duff, Anglin, Mignault and Malouin, JJ.

18th June, 1924.

THE KING v. ASSESSORS OF TAXES FOR THE TOWN OF
WOODSTOCK.

Assessment and taxes-Bank branch-Personal property-Situs—Transmission of deposits to head office or other branches-Arbitrary assessment.

Of the deposits by customers of the branch of the Bank of Nova Scotia at W., sufficient is retained by the branch to meet the requirements

of its local business and the surplus transmitted to the head office or another branch to be used there.

Held, per Idington and Duff, JJ., Anglin and Malouin, JJ., contra, that the money so transmitted by the branch is not an asset of the bank localized at W. and cannot be taxed by the municipality as personal property.

The bank was assessed by the Municipality of W. on personal property valued at $65,600.

Held, per Mignault, J., that no justification is given for such assessment which must have been made arbitrarily and without consideration of the real value of the personal property of the branch and cannot be allowed to stand.

Judgment of the Supreme Court of New Brunswick (50 N. B. Rep. 435) reversed, Anglin and Malouin, JJ., diss.

Appeal allowed with costs.

On Appeal from the Court of Appeal for Manitoba.

Judges present:-Idington, Duff, Mignault and Malouin, JJ.

STARR v. CHASE.

18th June, 1924.

Trade union-Provisions of Constitution-Unlawful purposes-Restraint of trade-Protection of property-Resort to courts-Necessity to plead illegality.

The Secretary-treasurer of an unregistered trade union was removed from office but declined to hand over to his successor a fund which he held for payment of certain expenses and salaries. In an action on behalf of the union for the amount:

Held, per Duff and Malouin, JJ., Idington, J., contra and Mignault, J., expressing no opinion, that though some of the purposes of the union may be illegal as being in restraint of trade the union was not thereby deprived of its right to hold a beneficial interest in the fund and to invoke the aid of the courts for its protection.

Per Mignault, J. In the absence of a plea raising the defence that the union is an illegal association and the necessary proof to support it such defence should not be considered.

Per Duff, J. Illegality was not pleaded and the claim cannot be rejected on that ground unless it has before it all the matter germane to the question so that it can see that some purposes are illegal in the sense that the law will not aid them and are so interwoven with the others that the legal and illegal parts cannot be separated. But the constitution and rules of the union do not shew that any of its purposes are in unreasonable restraint of trade or, if any can, the whole constitution is not thereby affected with illegality.

One section of the constitution provides for expulsion of any member who takes the place of a striker.

Held, per Duff, J., that this cannot be pronounced oppressive or ureasonable without hearing such explanations as might have been given if illegality had been pleaded.

Judgment of the Court of Appeal (33 Man. R. 233) reversed, Idington, J., dissenting.

Appeal dismissed with costs.

On Appeal from the Appellate Division of the Supreme Court of Ontario. Judges present:-Idington, Duff, Anglin, Mignault and Malouin, JJ.

18th June, 1924.

VERSAILLES sweets, limited, (defENDANT) APPELLANT,

and

THE ATTORNEY-GENERAL OF CANADA, (PLAINTIFF)

RESPONDENT.

Assessment and taxes-Excise tax-Dominion Sales Act, 5 Geo. V., c. 8, s. 19, amended by 11-12 Geo. V., c. 5, s. 19 BBB. and 12-13 Geo. V., c. 47, s. 13-Tax on manufacturers-Sale direct to consumers.

By the Special War Revenue Act of 1915 as amended in 1921 and 1922 a tax is imposed on sales by manufacturers to consumers the purchaser in each case to be given an invoice.

Held, that notwithstanding the difficulty of furnishing invoices of sales for very small amounts, and that in such cases the exact amount of the tax cannot be collected from the purchaser, the manufacturer of candy for sale over the counter at 30 cents and 40 cents per pound is liable for the amount of the prescribed tax on each such sale.

Appeal dismissed with costs.

BOOKS AND PERIODICALS.

Publishers desiring reviews or notices of Books and Perodicals must send copies of the same to the Editor, care of THE CARSWELL COMPANY, LIMITED, 145 Adelaide Street West, Toronto, Canada.

Oxford Studies in Social and Legal History. Edited by Sir Paul Vinogradoff, M.A., D.C.L., LL.D., Dr. Hist., Dr. Jur., F.B.A., Corpus Professor of Jurisprudence in the University of Oxford, Vol. VII. Toronto: The Oxford University Press. Price $5.50, postpaid.

The seventh volume of these studies consists of a critical study by Miss B. H. Putnam, of Mount Holyoke College, Massachusetts, of the development of the practice of self-government in England from the end of the fourteenth to the beginning of the sixteenth century as illustrated by the judicial and administrative functions discharged by the Justices of the Peace. As Sir Paul Vinogradoff points out in his preface to the work, "the institution of the Justices of the Peace is undoubtedly one of the most remarkable creations of English administrative history." The important part in securing peace and order and stable government played by those holding Commissions of the Peace in the North American Colonies is well known to students of legal history; and for them Miss Putnam's labours in reviewing the ancient records appertaining to the office of the Justice of the Peace will have especial value. At p. 194, the author shows that there was a good deal of ignorance displayed by the critics of the English Act of 1919 enabling women to hold Commissions of the Peace. It was contended when that legislation was before Parliament that women were under a common law disability to hold such commissions. Miss Putnam is able to quote from Thomas Marowe's Reading on the Peace in 1503, and other early authorities, establishing that women, whether single or married, were competent in this behalf. She frankly states, however, that "the paucity of evidence certainly proves that there were not many instances of women Justices of the Peace." And she adds: "But it is very probable that further research will show that the age of the 'Monstrous Regimen of Women' witnessed a few women on the Bench, and that their 'common law disability' was a doctrine of later years."

The volume before us is a further testimony of the fine share being taken by American scholars in the work of revealing the sources of English legal and political institutions. C. M.

*

Leading Cases in Constitutional Law Briefly Stated. With Introduction and Notes. By Ernest C. Thomas. Late Scholar of Trinity College, Oxford, and Bacon Scholar of the Hon. Society of Gray's Inn. Fifth Edition by Hugh H. L. Bellot, M.A., D.C.L., London: Sweet and Maxwell, Limited, 1924. Price $3.25.

In his preface Dr. Bellot explains: "Since the fourth edition appeared in 1908, a considerable number of highly important constitutional issues has been raised in the Courts, due in a large measure to the War

of 1914. Within the limits of space and time allotted to me, I have end avoured to bring this little book up to date by including some of the most important of these cases; by adding some pre-war cases overlooked in previous editions; by appending to both classes of cases explanatory notes; by amplifying the existing notes where necessary, and by deleting some statements which appeared incorrect. . . . The Introduction has been almost entirely re-written."

In so editing the work Dr. Bellot has greatly enhanced its value. For instance, that portion of the Introduction which distinguishes and comments upon the several functions of government, i.e., the Legislative, the Executive and the Judicial, presents a great deal of information in a very small compass (pp. XVIII. to XXV.). Again, at pp. 80-82, there is an instructive note on Remedies against the Crown. I venture to quote a passage (p. 81).:-"In cases where it has been alleged that executive officers of the Crown have failed to perform their duties and have thus occasioned damage to members of the public, attempts have not unfrequently been made to induce the High Court of Justice to enforce the performance of those duties by the issue of. a writ of mandamus. Occasionally, no doubt, such writs have been issued, but it appears now to be well settled that, although in cases where servants of the Crown have been constituted by statute agents to do particular acts a mandamus will lie against them as individuals designated to do those acts, yet where they are acting merely as servants of the Crown, and owe no legal duty to the applicant, he cannot ask for a mandamus to compel them to do their duty to the Sovereign their employer."

At p. 145, commenting on the case of Ford v. Blurton (38 T.L.R. 801), where the right of a judge to dispense with a jury in certain cases under recent legislation in England was considered, the learned editor says: "The provisions giving this arbitrary power to a judge to refuse a jury would appear to be in line with the other numerous acts of both Parliament and the Executive in overriding without any mandate from the electorate the fundamental rights of the subject. Under the American Constitution this would be impossible, and if the old principle of the English common law that even an Act of Parliament cannot deprive the subject of his fundamental rights under the Constitution were restored, it would be impossible in the United Kingdom. This principle the New England colonists carried with them across the Atlantic, and it is embodied in the Constitution of the United States. In the above case Atkin, L.J., doubted whether the rule issued under the statute was valid."

C. M.