CASE AND COMMENT

CONTRACTS BETWEEN WORKMEN AND LABOUR UNIONS.-In the April number of the University of Pennsylvania Law Review (at pp. 523-551) Mr. Horace Stern discusses with much learning the question of the validity of a contract between a workman and his labour union whereby the workman agrees for a period of two years not to work in a non-union shop. After premising that the question is a novel one and fraught with moment to capital and labour, he examines a number of American cases supporting certain propositions formulated by him, which we venture to summarize as follows:

(1) If the contract is unreasonable as between the parties it will not be upheld.

(2) Even if the agreement be reasonable inter partes, it will be void if it is not consistent with public policy-which, to quote Mr. Stern's words, "is necessarily a matter of more or less vagueness, and fluctuates with changing social economic and industrial conditions."

(3) If by reason of the contract some members of a particular craft are practically excluded from pursuing their calling in the vicinity, or if the employer is restricted in his choice of workmen to an inadequate group, the contract would be invalid on the theory that it is in restraint of trade.

Upon the applicability of the rule of public policy to contracts in the sphere of capital and labour Mr. Stern enlarges as follows:"Whatever may be the force of abstract reasoning, if a broad view of public policy will seem to allow a judicial approval, or on the other hand to necessitate a judicial disapproval of an arrangement which might be likely to result in capital and labour both seeking to sign up each workman as he attains his majority and then and there to align him for a definite period upon the side of trade-unionism or against it, there is little doubt that the courts will not hesitate to hold such an agreement legal or illegal accordingly."

There is no doubt that public policy is to be regarded as one of the most arbitrary and indeterminate doctrines that appear in the books. More than a hundred years ago the common law judges endeavoured to restrain its intrusions. In Richardson v. Mellish,1 1 (1824) 2 Bing. 252.

Burrough, J., likened it to " a very unruly horse, and when once you get astride of it you never know where it will carry you." And he added: “It may lead you from the sound law. It is never argued at all but when other points fail." A. L. Smith, M.R., in Driefontein Consolidated Mines, Ltd. v. Janson,2 practically used the "unruly horse" simile of Burrough, J., without giving him credit for it-a venial plagiarism for which his subconscious mind was doubtless responsible. Obviously at the present moment in social history when the conflicting interests of industrialism are seeking an equilibrium it would be stupid to oppose sheer dogmas of the law to any salutary extensions of the freedom of contract.

There is much relevancy to the subject discussed by Mr. Stern in the following views expressed by Jessel, M.R., in Printing and Numerical Registering Co. v. Sampson 3:-"It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by courts of Justice. Therefore, you have this paramount public policy to consider-that you are not lightly to interfere with this freedom of contract."

The item in this department of the REVIEW entitled "Co-operative Marketing Bodies," post, p. 344, may be referred to as discussing a more or less cognate matter in the law of contract.

C.M.

RESERVATION OF MINES AND MINERALS.-The interesting, and in western Canada practically important, question which was before the Supreme Court in Gutschenritter v. Ball et al.,1 namely, the right of a purchaser of land to repudiate the contract because of the vendor's inability to convey mines and minerals, has come up again in two

recent cases.

2

In Jaegle et al. v. Feuerborn, it appeared that the purchaser knew that the vendor, who was suing for specific performance, had migrated from Illinois into Saskatchewan in 1904 and taken up the land in question as a homestead. It was held by the Court of

Appeal that, since by the Dominion Order-in-Council of September 17, 1889, mines and minerals were reserved to the Crown and excepted from future grants, and since a knowledge of that law must be imputed to the purchaser, the absence of title in the vendor to the mines and minerals was no ground for repudiation by the purchaser and he was accordingly compelled to complete his contract.

In the Gutschenritter case there was an agreement by the purchaser to accept the plaintiff's title, and Mr. Justice Duff pointed out that such an agreement protected the vendor against liability for any defect in the title so long as he disclosed all material facts within his exclusive knowledge and which the purchaser, exercising the care commonly used in such transactions and with the opportunities for investigation available to him, could not be expected to discover for himself. There was no such agreement in the case under review; nevertheless, applying the general principles laid down by the Supreme Court, the Court of Appeal was of opinion. that the purchaser's position was made no stronger by that fact. By The Land Titles Act of Saskatchewan every certificate of title is, unless the contrary is expressly declared, subject to "any subsisting reservations or exceptions contained in the original grant of the land from the Crown," and the purchaser's right to a good title was similarly qualified.

The other case, Stankievich et al. v. Armacost et al., was somewhat different. In the Saskatchewan case, the mines and minerals. were reserved in the Crown grant, but in this case they were reserved by the grantees, the railway company, and there was no condition in the agreement of sale for acceptance of title by the purchaser. Mr. Justice Ives held these circumstances to be immaterial. The plaintiffs entered into possession under their agreement to purchase and farmed the land for five years. They then repudiated the contract and asked for rescission on the ground that their vendors, who had bought from the railway company, could not give title to the mines and minerals. The judge quotes from Mr. Justice Duff the following language: "The plain common sense of the business seems to be that a purchaser, if at all concerned to have a title of a different character-in other words, if concerned to have a title more absolute than this typical title-might be expected himself to inquire about the nature of the title the vendor could give."

The judge then comments: "The typical title here is subject

to mineral reservations; that is the rule and the exceptions are comparatively very few. This has been so for 36 years. The plaintiffs,” he continues, "wanted title to farm lands and they may have it. They bought the lands to farm and have farmed them for five years. They do not want the minerals now, but do want to be let out of their bargain scatheless. They demand relief from further payment of their purchase; they demand return of moneys paid on account, knowing that their vendors can convey to them all that they expected to get when they agreed with them. Surely, if they were concerned in having a title more absolute than the typical title of this province they might be expected themselves to inquire of its nature."

This judgment carries the law with regard to the absence of power to convey mines and minerals, as not necessarily constituting a material defect in the vendor's title, to the farthest point it has yet reached.

An appeal from the judgment mentioned has been allowed by the Appelate Division in Alberta.*

R. W. S.

IRREGULARITIES IN AFFIDAVITS.-In Blamey v. Blamey, an affidavit sworn in the United States, not intituled in any cause or matter and beginning "Personally appeared before the undersigned, etc.," was admitted in evidence.

Stewart et al. v. Ross, turned upon the sufficiency of an affidavit in support of a garnishee summons, and the full court of Saskatchewan, following a decision of Wetmore, J., in Marcy v. Pierce,3 permitted its use, although it was sworn before the writ was issued. This judgment is rather remarkable inasmuch as the rule of court regulating the procedure read: Any plaintiff in an action for a debt or liquidated demand, before or after judgment, and any person who has obtained a judgment or order for the recovery or payment of money, may issue a garnishee summons in the form or to the effect of Form C in the schedule hereto. Such summons shall be issued by the clerk upon the plaintiff or judgment creditor, his advocate or agent, filing an affidavit, etc." At the time when the affidavit proffered was sworn there was no plaintiff or judgment creditor,

so that the court assumed authority to disregard the clear language. of the rule in deference to the earlier decision.

The Appellate Division of Alberta refused to follow the last mentioned case in McParland v. Seymour, holding that the fact that the affidavit in support of a garnishee summons was sworn before the action was begun, although on the same day on which the statement of claim was issued, is ground for setting the garnishee summons aside.

In delivering the judgment of the court, Harvey, C.J., discussed with some fulness the English practice in injunction matters as well as the practice in both England and Upper Canada when capias proceedings were in vogue.

In Francome v. Francome, the Lord Chancellor, who rejected an affidavit tendered on an application for an injunction because sworn before the action was begun, nevertheless stated that if it had been sworn on the same day it could have been received. Harvey, C.J., commenting upon that case, points out that "that was for use on an application to a judge, which was a judicial proceeding, as regards which no notice is taken of portions of a day," but that in the case before him "the affidavit was to procure the performance of a ministerial act in the issue of a garnishee summons respecting which the actual hour is regarded." Clarke v. Bradlaw.

In Green v. Prior, however, where an affidavit in support of an application for an injunction was sworn two days before the issue of the writ, an order was made on plaintiff's undertaking to have the affidavit re-sworn and filed. And this practice is now followed in the Chancery Division, the undertaking being embodied in the order. The effective affidavit in these circumstances is the one sworn after the action is begun.

R.W.S.

THE JUVENILE Delinquent Act, 1908, in VanCOUVER.-A rather novel situation with regard to the Juvenile Court in Vancouver has been brought to light in Rex v. Slinn (as yet unreported), decided 1st February, 1926. In that case Hunter, C.J.B.C., on habeas corpus proceedings, held that the Juvenile Delinquents Act, 1908, had never been brought into force in Vancouver and released some thirteen prisoners committed by Mrs. MacGill, Judge of the Juvenile (1925) 3 W.W.R. 666.

(1865) 11 Jur. 123, 11 L.T. 757. *8 Q.B.D. 63, 51 L.J.Q.B. 1.

*W.N. (86) 50.

* Annual Practice, notes to rule 522.