Delinquents Court there. It was apprehended by the Crown officers that as this decision would affect all commitments made by Mrs. MacGill during many years, it would occasion a general gaol delivery, but to date no other prisoners have taken advantage of it. The decision of Hunter, C.J., was given after Morrison, J., had already refused a similar application by the prisoners. In brief, the decision turned on the efficacy of a proclamation by the Governor in Council under the above Act, being ch. 40 of the statutes of Canada for 1908. By sec. 34 of that Act: "This Act may be put in force in any province, or in any portion of a province, by proclamation, after the passing of an Act by the legislature of such province providing for the establishment of Juvenile Courts, or designating any existing courts as Juvenile Courts, and of detention homes for children." By section 35 of the same Act: "This Act may be put in force in any city, town, or other portion of a province, by proclamation, notwithstanding that the provincial legislature has not passed an Act such as referred to in section 34 of this Act, if the Governor in Council is satisfied that proper facilities for the due carrying out of the provisions of this Act have been provided in such city, town, or other portion of a province, by the municipal council thereof or otherwise." On the 25th February, 1910, the British Columbia legislature passed an Act called the "Juvenile Courts Act, 1910," being ch. 10 of that year, to bring the Federal statute into force in British Columbia, and provided for this being done as to any portion of that province by proclamation of the Lieutenant-Governor in Council. On 15th June, 1910, such a proclamation was made by the Lieutenant-Governor in Council as to Vancouver. These facts were apparently not brought to the attention of the Federal authorities, and on the 9th July, 1910, a proclamation was made by the Governor in Council, which after reciting section 35 of the 1908 Act, and that the British Columbia legislature had passed no Act such as referred to in section 34, but that the Governor in Council was satisfied of there being proper facilities for carrying out the Act in Vancouver, directed that the Act come into force in Vancouver. The reasons for judgment of Hunter, C.J.B.C., were as follows: "The Dominion Act is not in force because it was not proclaimed as required by section 34 after the passing of the Provincial Act. The Dominion proclamation produced, being made under section 35 is futile because it could only be made if no provincial Act had been passed. "The result has been to create an impasse, but the court is urged to hack a way through by declaring the recitals in the proclamation to have been made by mistake, and that it should stand in lieu of the proper one which ought to have issued under section 34. This would be, presumably, by applying the maxim that the court looks on that as done which ought to have been done, but powerful as this maxim is, I cannot see that it is powerful enough to enable the court to usurp the function of the executive." This reasoning seems a little hard to follow. The proclamation was made by the authority having power to make it, the operative part of it is exactly the same as if it had been made with knowledge of the facts, but it is held to be nugatory because it is made under a misapprehension, and because the recitals show this. In other words, the proper authority has done "what ought to be done," but has assigned a wrong reason for doing it. But is the reason material? It is submitted that the sole questions for decision were whether there was the necessary power to proclaim the Act in force, and whether it was so proclaimed, neither of which propositions seems to have been disputed. D. M. G. CO-OPERATIVE MARKETING BODIES.-Co-operative marketing by means of producers' "pools" that is, organisations whose members bind themselves by contract to sell their wares only through the pool, a recent development of commerce, is coming before the courts and calling for the consideration and application of established principles under new conditions. In McEllistrim v. Ballymacelligott Co-operative Agricultural and Dairy Society Ltd., the respondent was a registered co-operative society affiliated with the Irish Agricultural Organisation Society. Under the rules, a member could not withdraw without the consent of the committee, and was forbidden to sell milk from his cows grazed upon lands within the co-operative area to any creamery other than a creamery of the society, or to any company, society, person or persons selling milk or manufacturing butter for sale: and a member committing a breach of the rule was to pay to the society "as and for liquidated damages, and not by way of pen[1919] A.C. 548. alty, the sum of one shilling per cow per day for every cow's milk sold contrary hereto." Held, that the rules imposed upon members a greater restraint than was reasonably required for the protection of the society, and was illegal as in restraint of trade and ultra vires the society. Lord Birkenhead, L.C., stated the law to be that "A contract which is in restraint of trade cannot be enforced unless (a) it is reasonable as between the parties; (b) it is consistent with the interests of the public;" and, after summarising the rules, he declared the result to be that "an unwilling member is likely to find himself precluded for life from disposing of the raw materials of his trade to anyone. but the respondents (with the exceptions already noted) within a radius which may easily include every neighbouring centre of population which affords him the slightest prospect of a valuable market." The question of liquidated damages came up in Associated Growers of British Columbia Limited v. British Columbia Fruit Lands Limited et al. There the grower agreed to pay "as liquidated damages, and not as a penalty" for all fruits withheld or sold or consigned otherwise than through the pool the sum of twenty-five cents per package. In delivering judgment, Macdonald, J., said: "I am satisfied, upon the evidence, and from a perusal of the agreement, and notwithstanding that evidence was given that in the case of certain fruits the price obtained was very low and in fact under 25 cents per box, that the parties, with a full realisation of the practical impossibility of ascertaining the amount of damages to be suffered in case of a breach of the contract, honestly endeavoured to pre-estimate such damage and that the rate of 25 cents per box is to be looked upon as liquidated damages and not as a penalty. The Judge also held that the contract, although signed by growers representing 80 per cent. of the estimated production of fruit and vegetables in British Columbia, was not in restraint of trade within the terms of The Criminal Code. Both questions were before the court in Saskatchewan Co-operative Wheat Producers, Limited v. Zurowski, under a somew hat similar contract for delivery of grain. There Embury, J., held that a provision for payment by the grower as liquidated damages of twenty-five cents per bushel, for all of his wheat not delivered to the Association, was a penalty. With regard to the objection that the contract was in restraint of trade the judge, after discussing Weidman v. Shragge, came to the conclusion that there was not sufficient evidence upon which to decide that point. R. W. S. * CAPACITY OF PROVINCIAL COMPANIES.-The effect of an Act passed by the Province of Manitoba after the decision of the Privy Council in Bonanza Creek Gold Mining Company, Limited v. The King, which enacts that every provincial company “shall, unless otherwise expressly declared in the Act or instrument creating it, have and be deemed to have had from its creation, the general capacity which the common law ordinarily attaches to corporations by royal charter under the great seal," was considered, In Re Northwestern Trust Company and The Winding-up Act (Pure Oil Company's Claim).2 This Act is one of several passed in consequence of the judgment in the Bonanza Creek case, one of them being an amendment to the Ontario Companies Act, which came before the court in Edwards v. Blackmore. Two of the judges, Lennox and Ferguson, held that in consequence of its provisions, a company was endowed with all the capacity which a corporation created by charter had at common law-that is, almost unlimited power to contract; that statements in the letters patent defining the objects of incorporation did not take away that capacity; and even that express restrictions in the charter did not take it away, but should be treated as a declaration of the Crown's pleasure in reference to the purposes beyond which the capacity of the corporation was not to be exercised, a breach whereof gave the Crown a right to annul the charter. Sir William Meredith, C.J., thought differently. That "a company incorporated in this Province for the purpose of aiding in the propagation of the Gospel may spend all its energies and means in aiding in the propagation of infidelity, or in the manufacture or sale of cards and dice and other appliances which are commonly employed in gambling," seemed to him incredible, and quite unwarranted by the judgment on which reliance was placed. In his opinion the decision of the Board was limited to this: that a provincial company is capable of vitality beyond the territorial limits of the province which (1912) 46 S.C.R. 1; (1912) 1 W.W.R. 330; 20 C.C.C. 117. [1916] 1 A.C. 566, 26 D.L.R. 273. (1926) 1 W.W.R. 426; (1926) 1 D.L.R. 689. 3 42 O.L.R. 105, 42 D.L.R. 280. created it. The broad expressions used by Lord Haldane must, he though, be read subject to the predominant consideration that companies are created for particular purposes, and whatever powers are conferred upon them must be in furtherance of those purposes. The decision of the Supreme Court of Canada in Canadian Bank of Commerce v. Cudworth Rural Telephone Company, Limited,* was in accord with the opinion of the Chief Justice given above, Mr. Justice Duff expressing the view that every memorandum of association for the incorporation of a company under The Rural Telephone Act of Saskatchewan "must * * * be read, however general its language may be, as incorporating by reference the objects of the company as shown by the petition and the permission of the Minister." In the case under review, a trust company incorporated by private Act purported to guarantee payment of a debt proposed to be incurred by one trading company to another, no authority for that purpose being given by the Act, and the statute conferring the capacity of companies incorporated by royal charter under the great seal was invoked to support the guarantee; but the Court of Appeal for Manitoba, following the Cudworth case, decided otherwise. The issue was raised by a claim upon the liquidator of the trust company for the amount guaranteed, but, the court holding the guarantee ineffectual, the claim was dismissed. Even with respect to a common law company, there are means available to shareholders of keeping it within bounds. In delivering the judgment of the Privy Council in the Bonanza Creek case Lord Haldane said: "In the case of a company created by charter, the doctrine of ultra vires has no real application in the absence of statutory restriction added to what is written in the charter. Such a company has the capacity of a natural person to acquire powers and rights. If by the terms of the charter it is prohibited from doing so, a violation of this prohibtion is an act not beyond its capacity, and is therefore not ultra vires, although such a violation may well give ground for proceedings by way of scire facias for the forfeiture of the charter." In much of the discussion which has followed that decision, it has been assumed that scire facias was a shareholder's only remedy where such a company entered into transactions beyond the scope of its charter, but a recent decision shows that such is not the case. (1923) S.C.R. 618; (1923) 3 W.W.R. 458; (1923) 4 D.L.R. 16. |