gained by constant reference has proved to be most convenient. The changes made in the law, whether by statute or by judicial decision, have been embodied in the present edition.

The book covers the entire field of this most intricate and often troublesome subject.

Under the heading of "Leases" a clear and practical definition of a lease is given, its essentials, and the distinction between lease and license explained.

The law as set out in this work in relation to flats is most complete and will be found of inestimable value to the conveyancer at the present time, when the erection of apartment houses is so greatly on the increase. This is well exemplified by the clear manner in which the rights involved under the covenant of quiet enjoyment is explained.

The law of fixtures, distress, forfeiture, and relief against forfeiture, as modified by recent decisions, is explained and a comparison made with the law as previously existing.

The subjects of mines and mining leases are also exhaustively dealt with.

The decision of the Privy Council appears to indicate that a provincial statute which deals with a subject within the jurisdiction of the Legislature, but which has, as one of its effects, a prejudicial operation upon a right of action existing outside the province, is ultra vires. That is a new and a very disturbing idea. May I take the liberty of respectfully doubting its validity?

The facts of the case, so far as they are necessary for comprehension of the reasons given for the judgment, can be briefly stated. The Province of Alberta incorporated a railway company; made an agreement with it for construction of its road; and guaranteed its bonds. The bonds were sold in England. The proceeds were to be deposited in the Edmonton branch of the Royal Bank (head office in Montreal) to the credit of the Provincial Treasurer. No specie was actually sent to the branch. Probably no specie was handled by anybody in connection with the transaction. The bank, through its head office officials, obtained the credit from Morgan & Co. in New York, and, at the same time that the Province handed over the bonds it received a memorandum in which the bank assured the government that the money was on that day "to the credit of the Province of Alberta-Alberta and Great Waterways Railway special account-in the Royal Bank of Canada, Edmonton." As between the bondholders, the bank and the Province, therefore, the money was within the jurisdiction of the Legislature of the Province. It was to be paid out as the work of construction proceeded.

The work commenced but had not got very far when the Province passed a statute which, after reciting that the company had made default in its work, and in the pay

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ment of interest on its bonds, (1) directed the bank to pay over the money to the government, and (2) assumed direct, instead of indirect, liability for the bonds. It said nothing about the work or the company's relation to it.

The Privy Council held that this legislation was ultra vires. Their Lordships said:-—

"It appears to their Lordships that the special account was opened solely for the purposes of the scheme and that when the action of the government in 1910 altered its conditions, the lenders in London were entitled to claim, from the bank at its head office in Montreal, the money which they had advanced solely for a purpose which had ceased to exist. Their right was a civil right outside the Province and the legislature of the Province could not legislate validly in derogation of that right."

"In the opinion of their Lordships, the effect of the statute of 1910, if validly enacted, would have been to preclude the bank from fulfilling its legal obligation to return their money to the bondholders, whose right to this return was a civil right which had arisen, and remained enforceable, outside the Province. The statute was on this ground beyond the powers of the legislature of Alberta, inasmuch as what was sought to be enacted was neither confined to property and civil rights within the Province nor directed solely to matters of merely local or private nature within it.”

Argument had been made on behalf of the bank that, inasmuch as the proceeds of the bonds were not transmitted to Edmonton in actual specie, there was no property in Alberta with which the legislature could deal; but their Lordships intimate no opinion as to the validity of the argument. They probably thought it immaterial, for, in any case, there was a civil right of the government and the railway, in respect of the liability of the bank, within the Province. The decision proceeds upon the ground that the Province had no power to deal with "property and civil rights within the Province" in such a way as to affect a civil right outside the Province.

In relief of the counsel who represented the Province before the Judicial Committee, and who possibly might be thought to have overlooked what (I respectfully believe) are the obvious answers to the view of their Lordships, it is only fair to say that none of the bank's advisers either in Canada or England had imagined that there could be any

validity in the point decided; that it was not referred to in the pleadings; that it was not mentioned in either of the two arguments in Canada; that it was not suggested in the opening speeches of the bank's counsel in London; that it was never hinted at by anybody until leading counsel for the Province had delivered two-thirds of his address; that it was then put forward, not by the bank but by Lord Macnaghten; and that counsel for the Province, without a moment for reflection, had to deal with it as best he could. His answer was that if the Province could deal with the subject-matter of the money-either as property or as a civil right-its jurisdiction would not be ousted because of an effect produced outside of the Province. That I believe. to be sound, but it was merely negativing the contrary suggestion. The point was not further argued; and there is nothing in the reasons for judgment read by the Lord Chancellor that tends to indicate that their Lordships had considered, or even thought of the various points which, to my mind, make their conclusion impossible of acceptance.

In the first place, there was neither pleading nor proof of the facts which are now alleged as subversive of the jurisdiction of the Province. The bank had pleaded that the statute was ultra vires, and could therefore have raised any objection which appeared upon its face. But, if the bank, in support of its assertion, relied upon the existence of certain extraneous facts, it ought to have pleaded and proved them. The alleged right of the bondholders might or might not have existed. It would not necessarily result from the mere fact that the legislature had changed the place in which the money was, and their Lordships do not say that it would. They hold that the money was raised “for the purposes of the scheme, and that when the action of the Government in 1910 altered its conditions, the lenders in London were entitled to claim from the bank, at its head office in Montreal, the money which they had advanced solely for a purpose which had ceased to exist." And they say that the removal of the money from the bank to the Province" would have been to preclude the bank from fulfilling its legal obligation to return their money to the bondholders."

But what was the alteration in the scheme? There is no sign of it in the statute. There is no trace of it in the evidence. There is no suggestion of it in the pleadings.

Their Lordships attribute it to the "Government." What did the Government do? As far as we can see, the Government did nothing and had no power to do anything. Even if there had been some alteration, the necessary result would not be the creation of a right in the bondholders to return their money. We should have to ascertain very carefully, what the alteration was; whether it affected prejudicially the position of the bondholders;1 the circumstances under which the bondholders advanced their money; how far the work of construction had proceeded; whether the bondholders had in any way (by accepting interest from the Government, or otherwise) precluded themselves from bringing an action for the return of the money, and so on. In short, the bank should have pleaded all the facts necessary to shew the existence of the bondholders' cause of action; the Government would then have pleaded such facts as were thought to be material in deference; and at the trial, the question for decision would have been the one question that, at the trial, nobody mentioned, and nobody imagined to be of the slightest importance.

Perhaps this point is of little constitutional importance -unless, indeed as a ground for consideration of the advisability of continuing the practice of settling our law-suits outside of Canada; and unless as a ground upon which the compliment that their Lordships were good enough to pay to the Canadian Judges may fairly be returned: "Elaborately as the case was argued in the judgments of the learned Judges in the Courts below, their Lordships are not satisfied that what appears to them to be the fundamental question at issue has been adequately considered."

First Point: As preliminary to discussion of the decision, let us ask whether several statutes passed by the Manitoba Legislature, re-arranging the financial affairs of municipalities-reducing or postponing or otherwise dealing with their bonded obligations, are or are not intra vires? The bonds were sold outside the province, and their holders

1 During the argument it was stated to their Lordships that the bonds had a higher market value after the statute than before.

2 The case upon which their Lordships proceeded (National Bolivian &c. v. Wilson, 5 App. Cas. 176) is easily distinguishable, for, there, the bondholders' money was in the hands of "trustees for the bondholders." It had never been paid over! Counsel for the Province had little time to unravel the intricate facts of that case, and no attempt was made to argue its effect.