He was duly exacted for three successive Courts of Quarter Sessions and on the first day of Easter Term, 1816, the Sheriff made his return, whereupon by virtue of section 9 of the Act of 1815, 55 Geo. III. c. 2 (U. C.) Phelps incurred the same forfeiture and disabilities as in cases of outlawry by the criminal law of England.1 15 This was, however, not the only ground upon which the Crown could claim that the land of Phelps was forfeited. The Legislature in 1814 passed an Act 5 reciting that many persons inhabitants of the United States had claimed to be British subjects and had obtained lands in the Province, but since the declaration of war had withdrawn from their allegiance into the United States; and the Act declared that they should be taken and considered as aliens born and incapable of holding lands in the Province. The Act further provided for an Inquisition by a Commissioner "by the oaths of twelve good and lawful men as to the persons so offending and their lands as of July 1, 1812. All persons interested were to have a 1815, and Exigent and Proclamation issued "on return of alias capias non est inventus"; on the same day, also granted against Nos. 5, 6, 7, 9. 10, 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 44; the reason of this duplication of process does not appear. On Saturday, April 13th, 1816, Easter Term, 56 Geo. III. (Scott, C.J., Powell and Campbell, JJ.), D'Arcy Boulton, Attorney-General, obtained "Duplicate Writs of Exigent against the undermentioned persons (on Mr. Sheriff's affidavit of the loss of the original writs) :— 1-Danl. Phillips, 2-Wm. James, 3-Ira Bentley, 4-Asa Bacon, 5-Epaphrus Lord Phelps, 6-Joseph Lovett, 7-Ebenezer Kelly, 8Phineas Howell, 9-Abram Markle, 10-William Merritt, 11-Abram Harding, 12-George Cain, 13-Gideon Frisbee, 14-William Wallace, 15-William Markle. These writs all issued 26th April, 1816. Another prosecution appears from the following entry in Term Book No. 6. In Hilary Term, 57 Geo. III., Friday, January 10th, 1817, before Scott, C.J. and Campbell, J. Motion for Writ of Exigent in the above Cause tested of the first day of Hilary Term instant. Issued 20th January, '17. Motion of D'Arcy Boulton, Attorney-General." "See the Return made by Attorney-General Boulton, May 27th, 1817. Canadian Archives, Sundries, U.C., 1817. 15 (1814), 54 Geo. III., c. 9 (U.C.), passed March 14th, 1814. year after the finding of the Inquisition, or one year after the conclusion of Peace to traverse the Inquisition; peace was declared after the Treaty of Ghent December, 1814, but the Commissioner to enquire concerning the lands of Phelps and others did not sit until January 28, 1818. The Commissioner presiding was Abraham Nelles; he called a jury of twelve men whose foreman was William Nelles, and they found that Phelps was seized of the unexpired portion of the lease of 999 years from Captain Brant. No claim was made at the time against the right of the Crown; nor was any made under the Act of November 27, 1818,10 vesting the estate of such "aliens" in Commissioners and giving all interested the right to claim within a limited time before the Commissioners with an appeal to the Court of King's Bench. But when the Commissioners began to take possession of the land there was trouble at once. The land had been leased by Brant, May 1, 1804, to Phelps for 999 years for providing for his wife Esther, a Mohawk woman, and three children born to them. The wife and children were likely to lose their support; Brant indeed was dead, but the chiefs of the Six Nation Indians were alive to the importance of the matter. An Act was procured from the Legislature, April 14, 1821, giving Esther six months to traverse the Inquisition.17 Dr. William Warren Baldwin was retained by the Indians; he was Treasurer of the Law Society and had been in this high position five separate years and was to be such again. Baldwin filed a traverse claiming that the Six Nations were allies and not subjects of King George III., a distinct though feudatory people, that the land given them by Sir Frederick Haldimand October 25, 1784,18 was theirs to dispose of as they 16 (1818), 58 Geo. III., c. 12 (U.C.), November 27th, 1818. 18 A so-called Treaty-see Morris' Indian Treaties-whereby, October 25th, 1784, Haldimand, then Governor-General of Canada, at the direction of the Home Government did "authorize and permit the Mohawk Nation and such others of the Six Nation Indians as may wish to settle in that quarter to take possession of and settle upon the banks of the would, that the lease was in accordance with Mohawk custom, that Phelps had such an estate as he could not forfeit, a trust limited to him providing for Esther Phelps and her children. 19 The case was argued before the two Puisne Justices, Boulton and Campbell, JJ. (the Chief Justice, Powell being absent) by Baldwin for the Traverser and Henry John Boulton, Solicitor-General, for the Crown in Michaelmas Term, 4 Geo. IV., 1823. The report shows that it was well argued on both sides. The Solicitor-General took the position that the "supposition that the Indians are not subject to the laws of the country is absurd; they are as much so as the French Loyalists who settled here after the French Revolution" (the De Puisaye Settlers). The Court held for the Crown, and the Indian wife was left to the care of her tribe. river commonly known as the Ouse or Grand River, running into Lake Erie, allotting to them for that purpose six miles deep from each side of the river ... which they and their posterity are to enjoy for forever." 19 Taylor's Reports, Court of King's Bench of Upper Canada, p. 47. THE DOCTRINE OF ULTRA VIRES IN RELATION TO INCORPORATED COMPANIES IN CANADA. BY BRAM THOMPSON, B.A., BARRISTER-AT-LAW. There has recently grown up a feeling or a notion -it may be in fact an opinion or even a convictionamong the Legal Profession that by the co-operative effect of the Privy Council decision in the Bonanza Creek Case, and the statutory amendments made in consequence of it to the various Companies Acts of the Provinces, the principle or doctrine of ultra vires has been effaced or demolished so far as it relates to Provincially formed Corporate Companies in Canada. It has been assumed that the Bonanza Creek Case established, or at all events revealed, the principle that Companies in Canada constituted by Letters Patent of the Crown are invested with the capacities of Common Law Corporations and are unrestricted either in their operations or in their contractual obligations by the terms of their Charters or even by the Acts under which they are so formed. Violation of these terms, it is said, renders the Charter cancellable at the instance of the Crown; but until cancelled, these Letters-Patent Companies have the full capacity of an individual person in regard both to the sphere of their operations and to their contractual obligations, which cannot be impugned upon any of the grounds or principles known to us as ultra vires. The advantageous position of Charter or Letters Patent Corporations thus becoming conspicuous, quickly all the Provinces which incorporated Companies by methods other than Letters Patent enacted amendments investing such Companies with the capacities of companies incorporated by Letters Patent. Thus, it is thought, all Provincial Companies have been equalized, and they may do what they list and no 11916 A. C. 566. C.L.T.-64 one can say them Nay. Nor is it any one's business to ask whether they keep within or wander outside their prescribed limits. I propose to examine this revolution in Law. Let me first say neither my remarks nor the opinions referred to apply to Companies formed without Letters Patent and entirely under Dominion Statutes which have not been amended as have been, in the way stated, those of the Provinces. There are the Banks, for instance, whose Charters are the Bank Act itself. That the doctrine of ultra vires is in full force as to them was made clear in my article in the CANADIAN LAW TIMES of May, 1920, Vol. 40, page 361, where I discussed "The Bank Act: a Fraud Generator." The two cases which formed the basis of that article-Banbury v. Bank of Montreal, and Stevens v. Merchants Bank of Canada, showed that the doctrine of ultra vires enabled Banks in Canada to not only evade obligations, but to perpetrate acts which approximate as near as can be to actual fraud. I assailed the law that enabled them to do so, and concluded my article with these suggested remedies: "Now I think it is plain the Public must be protected against the incursions of the Artificial Person into fields beyond its prescribed sphere; and I suggest that we put its obligations in Statutory form as a Bill of Wrongs supplemental of its Bill of Rights or Charter. Thus: 1st. Where a Corporate Body has constituted a representative— manager or other functionary-ostensibly authorized to act for it, all his acts done for it, in its name or on its behalf or in his official capacity, should be the acts of the Corporate Body, and whether those acts were done within its Charter or ultra vires, or in violation of some restriction in his authority or power of which the other party to those acts had no notification. 2nd. A Corporate Body should be declared liable for its acts ultra vires, just as it is for those intra vires, unless it proves that before the transaction was entered upon at all, the other party had been apprized in writing or verbally in presence of at least one witness, who should not be an employee of either party, that the contemplated transaction was beyond the capacity of the Corporation or beyond the scope of the representative's authority as the case might be. 21918 A. C. 626. 3 Man. Rep., Vol. 30, p. 46. |