Divorce Law-What is Cruelty? 34 In Thompson v. Thompson, it was held by the Supreme Court in Michigan, that a husband's insistence on his wife living in the home of his mother, who subjected her to "abuse and vile epithets," is extreme cruelty, although it was proved that there was no other house available in which the husband could place his wife within a radius of several miles of the place where he was employed to earn a living for both of them. The mother-in-law has caused more ruptures in domestic life than all the shortcomings of the immediate parties concerned. Searing or extracting her tongue might be made a condition precedent to marrying the daughter or the son as the case might be. Divorce Practice. In Smith v. Smith 35 the Court laid it down as a sine qua non, that the affidavit of Service of a Petition and Citation must not merely swear to the service, but to the identity of the persons served with the Respondent and Co-respondent mentioned in the documents. Alimony. The inability of a wife to sue for alimony independent of a contract for a separate maintenance or of a Matrimonial Suit for Divorce, Restitution, &c., was again affirmed in Balfour v. Balfour 36 by the Court of Appeal. There was a pretence of a contract in that case. It was a friendly arrangement made by the husband, whose duties called him abroad, with his wife, who was detained through illness at home, that pending her joining him he would pay her £30 per month. They never joined one another but agreed to live apart. Yet the Court held the arrangement was not a contract or agreement adapted for or applicable to the conditions of separation which subsequently ensued; and held the wife had no right to alimony except through the Divorce Court. 84 205 Mich. 124. 171 N. W. 347. 35 25 Solicitors' Journal 24. January, p. 226. Workmen's Compensation Acts - Future increases reckonable. The Court of Appeal in Sheldon v. Butterly," laid down the rule that in assessing compensation payable to a person in part dependent upon the earnings of a deceased workman, the Court should take into consideration the possibility of a future increase in the earnings if the workman had lived. The Canadian Acts are nearly the same, and should be compared on this point with the English Act 1906, c. 58. Fraudulent Preference. The nomenclature of Scotch Reports is regrettable for often they contain splendid Law. 38 In Munro v. Rothfield as it is after an exhaustive examination of the Statute of Elizabeth, laid down by Division No. 1 of the Supreme Court, that "null and void" in section 5 does not mean pactum illicitum, but that the preference is voidable not by either of the parties to it, but by the creditors who have suffered or may have been induced by its concealment to do what otherwise they would not have done-make a composition for instance. To the creditors it is pactum illicitum if they do not condone it by accepting and acting upon it after they know of its existence. Bankers' Lien-Estoppel by Silence. Lazard v. Union Bank 3" is a case of importance. The plaintiff had made an advance to a man named Du Vernet, the owner of 200 shares in the Union Bank. This advance was to be secured by Du Vernet depositing the script for the shares with the Bank upon trust for the loan. Du Vernet died and the loan remained unpaid. Lazard claimed the shares from the bank. It refused to hand them over, claiming that it had a lien of its own equal to or exceeding the value of the shares. This lien no doubt, according to the finding of the Judge, existed; but it had not been disclosed 37 1919 K. B. II. p. 600. 381 Scot. Law Times, p. 53. when the transaction relating to the plaintiff's loan had been carried through, and when it agreed to act as Trustee on behalf of the plaintiff of the script for the shares. On the authority of Savage v. Foster, Nicholson v. Hooper," Re Shaver," Judge Middleton held the Bank was estopped from raising the lien, having in the original transaction concealed it; and ordered a delivery up of the script to the plaintiff. Can Crop Payments be Accelerated? That was the question before the Court of Appeal of Saskatchewan in Wellington v. Selig," and the question was practically left where it was by two of the Justices-Haultain, C.J.S., and Elwood, J.A.-holding that the payment was accelerated and that the full purchase price was payable in cash owing to default in the crop payments under the terms of the Agreement of Sale, while the other two Justices-Newlands and Lamont, JJ.A.-held in accordance with Sherrin v. Wiggins," that it was grotesque to talk of accelerating crop payments. The Chief Justice and Elwood, J.A., did not overlook this case, but distinguished it and held that default had arisen on payment of interest, and like a provision to accept purchase money by instalments, the provision to accept the price in instalments of crops was at an end by the default. On the other hand Judge Lamont made it clear that the principle of acceleration was excluded by the defects of the Agreement itself, and that without remoulding it in the form in which it might originally have been drawn but was not, the Court could not give effect to the acceleration principle. Provincial Legislation and Dominion Property. In Martinello v. McCormick," the Supreme Court of Canada held that the Provincial Temperance Act of 40 9 Mod. 35. 41 4 My. & Cr. 179. 42 3 Ch. Chr. 379. 43 1920 W. W. R. vol. 1, pt. 4, p. 224. 44 27 Man. R. 572. 45 1920 W. W. R. vol. 1, pt. 3, p. 192. Nova Scotia authorizing an Inspector to seize and confiscate liquors in the possession of a carrier did not extend to liquor in the possession of the Dominion or the Crown as the owner and operator of the Intercolonial Railway, where the liquor in question was seized by the authorized inspector. The Trial Judge, Chisholm J., held that the Provincial Act, not having expressly included the Dominion or Crown within the definition of a carrier, did not inferentially include the Crown Railway, and that the seizure was a trespass ab initio. The point is elemental, and is supported by Rex v. McLeod, Gorton Local Government v. Prison Commissioners; and Maxwell on Statutes, p. 220. 47 But the Provincial Appeal Court reversed the decision; and it in turn was reversed by the Supreme Court unanimously. It was in this case so precisely centred on one point that Judge Idington made the caustic remarks on the Bar on which we comment elsewhere. 46 8 S. C. R. 1. 47 1904 2 K. B. 165. B. T. BOOK REVIEWS. The Obligations of Contracts. By Warren B. Hunting, Ph.D. Baltimore: The John Hopkins Press. Toronto: The Carswell Company, Limited Price, $1.25. This is one of a series of John Hopkins University Studies in Historical and Political Science; and though it ostensibly deals with the Obligations of Contracts Clause in the United States Constitution, it is a veritable gold mine of legal expositions on the subject of Contractual Obligations in general. Some 24 pages are devoted to this subject alone-the obligations with the correlative rights in rem and in personam; and they are not only readable and instructive, but they are so complete and lucid and clothed in such apt and piquant words that they are truly fascinating. The State's relations to contracts and their obligations; and whether a Grant, a Franchise or other privilege made or conferred by the State is an obligation, are next taken up in order and elucidated prior to discussing the inviolability of National Contracts either by their cancellation, or alteration without the consent of the donee or holder. The celebrated Dartmouth College Case which exhausted all the legal talent of America at the time, including that of Daniel Webster himself, is unfolded, discussed, and subjected to analytical criticism which is splendid in its luminousness quite apart from the wealth of information which one acquires, and which in our own country the Lawyer will constantly find of enormous value to him when there is a Governmental interference with anything in the nature of a Private or Chartered right acquired from the Crown. We have read the book with pleasure and profit and are sure that others will reap the same reward. One feels in travelling through the pages the delights of a companion who is a masterful exponent of our cherished heritage-the Common Law of England. B. T. |