as constitute the accepted standard of proper human behaviour in the community to which they are applied.

If the question were how cOULD the Code be made useful throughout Canada in development of such rules and regulations, from the view point of the lawyer practising in Quebec, the obvious answer would be by adopting it and applying it throughout Canada. (Laughter).

But the question is how CAN it be so made useful, and it implies, I take it, not only a theoretical but rather a practical possibility, and the view point of the lawyer practising in Quebec is not so restricted as to prevent him from sensing the almost insuperable difficulties of bringing the whole of the people throughout Canada to realize, not only that some good can come out of Quebec, but that its general system of laws could, by any stretch of imagination, be considered preferable to the untrammelled "course of justice flowing in large streams from the King, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom are plentifully watered and refreshed." No that is not a practical possibility, and I do not wonder at it nor do I quote Blackstone and his beautiful imagery with any other feeling than one of profound admiration, both for his immense contribution to the more even flow of that stream of common law justice, and for the Anglo-Saxon's steadfast attachment to the customs and processes of the great nation from which he is descended. (Applause.)

But there is a practical possibility of making the Code useful outside of Quebec without departing from the customs and processes dear to Anglo-Saxon jurists of every age.

Did not Blackstone himself in England, and afterwards Kent in America, frequently point out in their lectures and writings, side by side with the rule of the common law, that which obtained among the civilians, and did they not thereby tend to make clearer their exposition of the former and secure a better comprehension of the principle underlying it and a surer guide in how it should be applied?

Could not those who, to-day, profess and teach the common law in the English speaking provinces of Canada find it to the advantage both of the practitioner and of the student to compare the solutions of our Code to those of the leading cases and of the recognized text books?

A rule that has been tried and not found wanting when Rome was developing, in its republican centuries, the sway of reason over the dealings of men, which still commanded and was still obeyed when all else was bending to the omnipotent authority of the imperial Caesars, which lived through the upheaval of that great Empire's disruption, which still served as a sure guide to just solutions when kingly courts again displaced

ordeals and combats in settling the disputes of contending litigants, which did not perish when a mighty but overwrought people arose in its fury and cast off all that was looked upon as oppressive and fettering, which on the contrary found its way into the first modern codification of municipal laws for free citizens, such a rule may not be expressed in words that find their exact counterpart in any of the precedents of the year books, but it cannot be a rule which violates any recognized canon of elemental justice. And every time the lawyer's mind, grappling with a given set of facts, succeeds in working out the true relations which they should in justice bear to each other, both his mind and the administration of the law are benefitted thereby, no matter what the Courts may, for a time, decide.

If then one bears in mind that the civil system of the Code, besides its intrinsic worth as a mirror of good human behaviour, presents to the Canadian lawyer the additional feature of being the law which obtains in the oldest and one of the largest of the provinces of his country, and has put, on the people of that province, an impress which they esteem it their proud duty to preserve, has he not, in his quest for rules of business and commercial transactions that shall overreach provincial boundaries and provide solutions acceptable from one end of the country to the other, an interest stimulated both by the desire to choose that which is best and by the desire to choose that which is practicable, to familiarize himself with the principles and processes of that Code.

It would be the height of presumption for me to attempt to underscore any of the rules of the civil law as more specially worthy of consideration in this regard, and it is simply by way of illustration I venture to point out that in the conflict between the doctrine of the vendor's implied warranties and the maxim caveat emptor, the rules of the Code have been fitted to numerous applications not inconsistent with the good faith required between man and man nor yet too restrictive of commercial enterprise; that the debtor's control over the assets which are his own, but which his debts have bound to his creditors as the tangible substance of their claims against him, has called for solutions which have stood the test both of civil convenience and of good conscience; that the civil law doctrine of a master's liability for the faults of his servants, even though he have several and it be one of them who has suffered, has not prevented industrial development along the shores of the St. Lawrence and did perhaps blaze the way to some of the beneficial provisions of our various Workmen's Compensation Acts. Would not such chapters of the Code afford to the common law jurist dealing with like problems even though it be under a different system, matter for interesting and useful comparative study?

And may one not go further? The view point of the Canadian lawyer wherever practising his profession cannot but embrace the wider problems which confront us all as citizens of a state, young but fast developing, whose footsteps are already set in the paths which only nations may safely tread. If we hope to ever see a broad national spirit weld our people more closely together, should we not be mindful that such a spirit must involve the pride of the individual in the well ordered state of social conditions throughout the whole of Canada, as well as in the natural beauties and incomparable resources of its far flung provinces.?

A national spirit cannot attach to the soil alone; it must comprise the men who dwell upon it, the institutions which make them a body politic and also the private laws which crystallize their attitude towards each other and their methods of realizing human progress.

These men are not, nor need they be exact copies one of another; their social institutions do and they well may reflect the special characteristics of the various groups; so may their private laws and their local rules of individual behaviour, but if there is not a wide spread feeling that in spite of such differences, perhaps even at times because of such differences, all these things are good to conserve, are worthy of mutual respect, constitute something for the whole nation and for each individual to take pride in and which enriches the national heritage, how can we have a national spirit?

We are all of one country and though had it been given to us to choose, some might have preferred less heterogenous groupings, those groupings do constitute the mass of the Canadian people and the only material out of which a Canadian nation can grow.

May we not then by meeting one another on common Canadian ground, by learning to know one another better and by recognizing in each other preordained partners in a necessary society, hope to discover in each other and in the two great systems of jurisprudence that have been handed down to us by the experience of centuries, some of the good that is in us and in them both, and find that good sufficient to outweigh the misgivings we are too prone to feel for that which is not of ourselves and our own surroundings.

Than that object and that aim none can be worthier of the best efforts of every Canadian lawyer as a true Canadian citizen, and I know that all who are here to-day, and I venture to hope that many who have not come, soon will recognize the yearly meetings of the Canadian Bar Association as most fitting occasions to promote that "greater unity of spirit among all Canadian people by better understanding among lawyers.' (Applause.)

SOME PHASES OF CANADIAN COMPANY LAW

THOMAS MULVEY, K.C.

When the decision of the Judicial Committee of the Privy Council in The John Deere Plow Company v. Wharton (1) came to hand, it was thought by those who had been following the subject that substantial advances had been made to solve the difficulties in company legislation which had been under discussion since the year 1906. It soon appeared, however, that the difficulties were to be increased. The Appellate Division of the Province of Ontario refused to follow this decision, and a similar attitude was taken by the Courts of some of the Western Provinces.

Then followed the decision of the Judicial Committee of the Privy Council in the Bonanza Creek Gold Mining Company, Limited, v. The King (2). This decision upset all well-settled views regarding the capacity and character of companies created under the Dominion Companies Act and of companies under Provincial legislation when created by Letters Patent. This was accentuated when several Provinces enacted legislation declaring that all companies incorporated under their respective authority be deemed to have the general capacity which the common law attaches to corporations created by charter (3). No definition of a common law company or chartered company was given and no provision was made for engrafting the peculiarities of a common law company upon the statutory companies created by these Provinces.

Then followed the decision of the Appellate Division of Ontario holding in Edwards vs. Blackmore (4) that the directors of a company have authority to carry on any business whatsoever, notwithstanding the limitations of the purposes and objects set out in the charter. Next the decision of the same Court in Weyburn Townsite Co., Limited, vs. Honsburger, (5) that a Provincial company has no authority to carry on business outside the incorporating Province unless duly authorized by a foreign jurisdiction. Undoubtedly this view was condemned by the Supreme Court of Canada, but it may be open to state that this precise question was not raised before that Court and the decision on the subject may be obiter.

(1) 1915, A.C. 330.

(2) 1916, 1 A.C. 566.

(3) Ontario, 1916, 6 Geo. V, c. 35, s. 6. Manitoba, 1917, cap. 12. Saskatchewan, 1917, cap. 34, s. 42.

(4) 1918, 42 O.L.R. 105.

(5) 1918, 43 O.L.R. 451.

Perhaps the most disconcerting situation is raised by a direct deduction from the decision of the Judicial Committee of the Privy Council in the Insurance Case (1), where it is held that foreign companies, Extra Canada, are to be considered as aliens and exclusive jurisdiction respecting them rests with the Federal Parliament.

The result of these decisions undoubtedly is that no exact opinion can be given (1) with respect to the capacity of a Dominion company or of a Provincial company incorporated by Letters Patent or with respect to the authority of the directors of such a company; (2) with respect to the capacity of a Dominion company in any Province with the exception of Quebec and Alberta; (3) with respect to the capacity of a Provincial company carrying on business outside its incorporating Province; and (4) with respect to any foreign company carrying on business in Canada.

It may be of assistance to consider briefly the development of Company Law in Canada. A complete statement of this growth in the Dominion and all the Provinces is unnecessary, as the questions under consideration arose in Ontario or in Ontario legislation, and our attention need be directed to legislation of Ontario and the Dominion alone.

The first general legislation of the Province of Canada was enacted in 1850 (2). In preparing this legislation precedents of the United States were taken, not those of the United Kingdom. General legislation passed in the United Kingdom in 1845 (3), was the first general Act for the incorporation of joint stock companies. That this legislation was not followed in the Canadian Act of 1850 is shown by the fact that its two main features were not adhered to. Under that Act there was provisional registration, and complete incorporation was granted only after the filing of a deed of settlement. It has been suggested that the methods of the United Kingdom were followed in Canada because the proceedings for incorporation were initiated by the filing of a document. This suggestion does not go to the root of the matter. The essential difference in the two methods of incorporation is not created by the filing of a document or the issue of the so-called Letters Patent. It is created by the fact that in one case all the constating interests of the company are not public documents and in the other they are. The Act of 1850 provides for the enactment of by-laws, private documents. This is the method which has been followed throughout in the United States. Under all British legislation a memorandum of association or deed of settlement, together with articles of association, were required to be filed with a public officer.

(1) Attorney General for the Dominion vs. Attorneys Genera ifor Alberta, et al., 1916, A.C. 588.

(2) 13 and 14 Vic., c. 28.

(3) 7-8 Vic., c. 110.