of Mansfield is to be held in honour for his achievements in the cause of human freedom. [R. W. S.]` A RELIC OF THE PAST.-In all properly made gowns for the Outer Bar a small appendage is attached to the left-hand shoulder. If this is examined it will be found to be in the shape of a diminutive cowl or hood, which recalls the fact that in olden times the practice. of advocacy was mainly in the hands of clerics, so that in those days. it was commonly said "nullus clericus nisi causidicus." These clerical advocates were accustomed to wear a robe and round their necks was suspended their cowl, which served the double purpose of head gear in case of need and also as a receptacle into which the client might deposit a fee whereby to stimulate the zeal of the advocate. The practice of depositing fees in cowls, however, has given way to a more effective method, and the relic of the ancient cowl no longer serves any purpose except as a reminder of the past. It is somewhat analogous to the little square piece of linen which used to be inserted in the wigs of Sergeants at law as a relic of the coif or white cap which used to be worn. [LEX.] THE ASSOCIATION OF IDEAS. Among the strange things in the mental make-up of most men is the fact that certain things have the effect of recalling to the mind other things which have happened in the past with which they have no sort of connection. A curious instance of this was related to me the other day. I was in the company of an old lawyer, an octogenarian who was engaged in the prosaic and common-place proceeding of eating an apple, and he said to me: “Do you know that this simple matter in which I am now engaged has the effect of recalling to my mind a murder, and an ingenious argument offered in defence of the accused; and the last of the Barons, who, it so happened, was his counsel? You may perhaps wonder how the eating of an apple can produce any such results, and it comes about in this way: The murder I refer to was committed by a man named Tawall, who posed as a Quaker and philanthropist, and his victim was a young girl whom he had seduced, and prussic acid was the cause of her death. The case was a memorable one, owing to the fact that the electric telegraph, which had been only recently introduced, was used in order to effect the arrest of the culprit. It appeared at the trial that the girl was very fond of apples, and it was suggested by Sir Fitzroy Kelly that by eating a large quantity of apples the deceased might have poisoned herself 18-C.B.R.-VOL. IV. by means of the prussic acid contained in the pips. This ingenious suggestion did not prevail and the accused was found guilty, but the learned counsel earned for himself the sobriquet of " Applepip Kelly." He subsequently was elevated to the Bench and has the distinction of having been the last of the Barons of the Exchequer. As I am fond of eating apple pips, you now see why in so doing my mind is apt to go back to Tawall and his counsel whenver I am so engaged." [Lex.] · 275 CASE AND COMMENT DIRECT OR INDIRECT TAXATION.-The question of whether taxation is direct or indirect, and therefore whether or not it falls within the jurisdiction of the provinces, has repeatedly arisen and has been discussed in a number of well-known leading cases; nevertheless, it still crops up occasionally. The question was before the Court in Re Grain Futures Taxation Act, Attorney-General for Manitoba v. Canada. The Province of Manitoba passed a statute in 1923 providing that on every contract of sale of grain for future delivery, made on an exchange or similar place of business in Manitoba, the seller, his broker or agent, should pay a tax of twelve cents per thousand bushels of flax seed, six cents per thousand bushels of wheat and three cents per thousand bushels of oats, barley or rye. After providing for certain exceptions, which need not be considered, the Act went on to say that "The tax imposed by this Act shall be a direct tax upon the person actually entering into the contract of sale, whether such person is the principal in the contract or is acting only in the capacity of a broker or agent for some other person." The Provinces of Alberta and Saskatchewan petitioned for. disallowance of the Act, and the matters in issue were referred by the Governor-General in Council to the Supreme Court, which pronounced the measure ultra vires. On appeal to the Privy Council this finding was upheld in the report cited above. After a short review of the authorities, Viscount Haldane pointed out that the tax was to be paid by brokers and agents, factors and elevator companies, and he declared that it was impossible to doubt that it was imposed in a form which contemplated that some one else than the person who paid should bear it. "The amount will, in the end," he said, "become a charge against the amount of the price which is to come to the seller in the world market, and be paid by some one else than the persons primarily taxed." A more recent case is Rex v. Caledonian Collieries, Ltd.,2 in which The Mine Owners Tax Act, 1923, of Alberta was before the Court. That Act imposes upon mine owners a tax at a rate to be 2 [1925] A.C. 561, pp. 564 and 568; (1925) 2 D.L.R. 691. (1926) 1 W.W.R. 96; (1926) 1 D.L.R. 287. determined by the Lieutenant-Governor in Council, but not exceeding two per cent. upon the gross revenue from the mine, and it was held valid as direct taxation. The defendants urged that the measure was ultra vires, contending, no doubt, that since the gross revenue of the mine owner is the aggregate of his sales the tax is essentially a tax upon commodities, and that the natural result would be an immediate addition to the price; but the Court thought otherwise. The form of the statute was considered as showing that the Legislature was demanding payment from the very persons who, it was intended and expected, would bear the burden, notwithstanding that they might find means to shift it upon others. The reasoning by which the above result was reached may be compared with the views expressed by Middleton, J., in Treasurer of Ontario v. Canada Life Assurance Co. The statute there in question increased the rate of taxation imposed upon insurance companies from one per cent. to one and three-quarters per cent., calculated on the gross premiums received by the company in respect of business transacted in Ontario. In the course of his judgment Middleton, J., said: "It is true that this taxation may indirectly cause insurance companies to raise the premium upon insurance, either in the case. of participating or in the case of non-participating policies, or perhaps both. It is by no means clear that this will be so, for the profits divided greatly exceed the amount of taxation; but, even if so, in the great majority of instances taxation which no one doubts is direct. does enhance the price of commodities, and so the burden is, in some more or less circuitous way, passed on to the ultimate consumer. A business tax or a tax upon business turn-over or a tax upon business premises is undoubtedly regarded by the merchant or manufacturer as a part of the overhead charges which must be considered in fixing the price of the goods manufactured or sold. In this way it is in one sense passed on to the consumer; but the dominant intention of the Legislature is to impose a direct tax on the merchant, leaving him to recoup himself if he can devise the means, and as best he can. Therefore, the tax is direct." There is, of course, a marked difference between insurance, a business the great bulk of which is effected on the participating plan, profits being divided between shareholders and stockholders, and the sale of coal to the general public. (1915) 22 D.L.R. 428 at p. 433. R. W. S. HUSBAND AND WIFE-MATRIMONIAL DOMICILE-COMMUNITY, A very important judgment was recently given by Mr. Justice Mowat, in a Will case of Re Parsons, a summary of which is reported.1 The question in issue was the applicability to personal property in Ontario, of the Quebec law of "Communauté de biens," where the parties had been domiciled and married in the Province of Quebec without a marriage contract. This is the first judgment on the question that has been delivered in Ontario, though the legal effect in this Province, of a marriage contract made in the Province of Quebec, has been before our courts in several cases. In this case the husband subsequently came to live in Ontario, where he accumulated some personal property, and had assumed to dispose of it by a Will. An application was made to the court for advice as to the administration of the estate, which apparently consisted entirely of personalty, and an affidavit of a member of the Quebec Bar was filed, showing that, in a case of this kind in Quebec, any personal property owned by the husband should be held in common. It was therefore declared that the widow was not bound by the terms of the husband's will, and that the husband's estate in Ontario was limited to one-half of the personal property, after the payment of his debts. This decision followed that of Kekewich, J., in De Nicols v. Curlier, which was reversed by the Court of Appeal, but restored by the House of Lords. It is to be regretted that Mr. Justice Mowat's decision is not to appear in the regular Ontario Law Reports, as it is entitled to more publicity than has been given to it. Possibly the publishers of the Dominion Law Reports will see their way to reporting the judgment in full, with suitable annotations. The above mentioned De Nicols case had been expressly limited, by consent of the parties, to the question of movable property, and it was therefore on all fours with the Parsons case. There was, however, also a question between the same parties, as to certain real estate in England which the husband had purported to dispose of by his Will, and this was subsequently dealt with in a separate action, by Kekewich, J., whose decision is reported. In the latter case, the learned judge applied the previous decision of the House of Lords, and held that the principle therein approved as to personalty, governed real estate acquired in England, subsequent to the mar 129 O.W.N. 430. [1898] Ch. 403. * [1898] 2 Ch. 60. [1900] A.C. 21. |