greatest number of cases falling within it though hardship may occasionally occur. Cases of hardship, however, should not go unregarded and law is defective when it fails to provide for them. One might hope to free the law not from uncertainty but from occasional injustice if we got away from too slavish a devotion to. precedents and traditional authority and enquired whether or not they conform to the fresh and changing facts of life. It is our boast that the unfailing vitality of the Common Law lies in its flexibility and power of adaptation to new conditions no matter how various and novel they may be. A competent opinion in the profession is that much of whatever confusion and uncertainty are to-day in law is due to the failure of the judges to follow precedent and to leave reformation of the law to the action of the legislature. I have heard lawyers upbraiding strong judges for disregarding cases which apparently were on all fours with the one in hand. May it not be that that is a notion which must be left behind in this moving world as it is by some of the best judges, who decline to allow their judgments to be put in the iron framework of a Procrustean bed?

Thinking of a judge whose good sense and revolutionary ideas one admires however much one may deprecate his impatience with precedents even of his own making, one is induced to paraphrase very slightly some lines in Tennyson's "In Memoriam": "Our little precedents have their day; They have their day and cease to be; They are but broken lights of thee;

And thou, my Lord, art more than they."

Moreover, the worthwhileness of a decided case or its application to modern conditions cannot be tested unless it is addressed to the facts in hand. A decision. however suitable to a business transaction in England fifty or a hundred years ago, may do complete injustice if enforced against the business man of Western Canada to-day. The occasion may demand the making of a new precedent that springs from the loins of a living

system of law. Lord Bacon in his essay on Judicature says, The law cannot meet all cases; it is framed to suit those things which for the most part happen; but Tine (as has been said by the Ancients) is the most fertile of things; every day the author and inventor of new circumstances." The modern view is that the law can meet all cases and that it has not been arrested in its growth. Particularly is this true of the law merchant which Cockburn, C.J., in Goodwin v. Robarts,1 observes is not fixed and stereotyped and is not incapable of being expanded and enlarged so as to meet the wants and requirements of trade in the varying circumstances of commerce. Pointing out that commercial transactions have altered in character and increased in complexity, Bowen, L.J., in Jacobs v. Crédit Lyonnais, says "there can be no hard and fast rule by which to construe the multiform commercial agreements with which in modern time we have to deal." The criticism is not well founded that the law is out of joint with the times on the supposed ground that it does not give effect to the plain morals of a case or that judges invariably dispose of cases on high and dry grounds of legal necessity. Until recent years this was no doubt true. To-day there is a recognized and appreciable tendency to enforce moral duties such as fair dealing between man and man, though they have no root in legal obligation. The tendency is remarked by Sir John Paget in his work on "Banking" in which he makes reference among other cases that illustrate it to the case of Ewing v. Dominion Bank, decided by the Supreme Court of Canada, and practically affirmed by the Judicial Committee. There is, however, no reason why this tendency should be invoked to decide a case against a suitor because his private morals are bad where the merits of the case are in his favour.

It is, therefore, evident that the frontiers of law are being advanced to new out-posts of vantage ground,

1 L. R. 10 Ex. 346.

212 Q. B. D. 601.

and that liberalizing influences are at work bringing the law into harmony with modern needs, and making it a useful instrument for the service of the business world.

The attitude of business men towards the administration of law would also undergo considerable change if they found Counsel in Court abandoning forensic competition and over-reaching methods and engaging in an impartial effort to bring out facts and to have justice done. The idea of the public about lawyers is too often that of Tulliver in "The Mill on the Floss." Though he had full faith in the honesty of his case he proposed "to employ the best game cock with the sharpest spurs he could get to fight for his rights." We allow the spirit of partizanship to animate us too much and we allow our clients to expect it of us. A lawyer who is not zealous for his client's interests is set down as weak, particularly if the lawyer on the other side is tenacious and overbearing. This spirit has become so much second nature that instances are freshly in our minds where even Crown Attorneys were accused of a desire to secure convictions. The profession would act more in consonance with its dignity as a great calling, would be truer to itself, and would in the long run deserve better of the public if it considered that its duty in matters of commercial litigation lies not in worsting the opposite side but in helping the Court to arrive at a proper conclusion.

All that commerce has of security it derives from the law. Step by step there has been laid down for it by the great sages of the profession the stones of foundation principles that define and safeguard its rights. Upon them there has been built up the great fabric of credit and mutual confidence that has brought the vast world of commerce into being. The work which began long years before Lord Mansfield sitting in the Guildhall gave statement and cohesion to the mercantile law of England, can never end. Law penetrates every commercial transaction just as commercial needs are

the essence of mercantile law. To interpret the law, to advise upon it, to enforce it, to put it to right uses, remains the business of the lawyer. It is also for him to mould the law to meet the changing needs of commerce in order that commerce may not outstrip law and be without its protection.

The profession in the west and especially in Winnipeg is bound to keep its mind hospitable towards all ideas that make for the advancement of the profession and that commend it to general esteem. Opportunities of unusual appeal confront the profession in the west by reason of the tremendous development that is bound to take place in Western Canadian commerce. Winnipeg as the centre of the grain trade of the Country, has taken its place as a great commercial metropolis. That position is constantly becoming more established and augmented. One cannot doubt that it is destined to be if not in population at least in importance one of the first commercial cities of the Dominion. As a railroad centre and terminus it will hold an outstanding place not only in Canada but on the Continent. It will be as it is fast becoming-one of the great banking capitals of America. These elements of great commercial activity are already in Winnipeg and to their growth there hardly seems to be any bounds. The place of the profession in a community with these potentialities and this achieved position should be an enviable and commanding one. I try to think of the part lawyers will play in the history of Western Canada. can see the activities of the profession taking on manifold form and overflowing in fruitful channels for the enriching and confirming of the national life. But in the end, the most enduring and beneficent contribution of any the profession will have made will be in making and keeping law the great auxiliary of the Country's vast commercial interests. Fortunate will be the man, who looking at his share in the labour of it, will be able to say, The work of my hands is there."

Winnipeg.

W. H. TRUEMAN.

I

MEMORANDUM RE UNIFORMITY IN COMPANY LAW.1

The task of the Canadian Bar Association in relation to the subject of Company Law is to secure amongst the different laws in force in the various parts of the Dominion the greatest measure of uniformity consistent with satisfying any diversities of need or convenience. Many, perhaps most, of the differences in form and substance in the company laws of the different provinces are the result rather of accidents of draftsmanship than of any deep-seated diversity of circumstance and need. It is the removal of these accidental differences, for the greater convenience of lawyers and of business men throughout the Dominion, that will be the immediate concern; though it may be possible at the same time also to effect improvements in the law which will meet with general acceptance.

The result of recent decisions of the Judicial Committee of the Privy Council has been an increase in the proportion of companies incorporated under Dominion authority. This is more particularly true of the Province of Ontario where provincial charters for commercial and manufacturing companies were much more the vogue than in other provinces. Certain classes of companies, however, will doubtless continue to operate under provincial companies Acts. Any proposal of uniformity amongst these Acts ought to embrace the Dominion Act as well, and there appears no reason why the principles, and to a large extent the details, of the Dominion and the provincial Acts should not be the same.

The suggestion has indeed been made of dealing at once with the problem of uniformity and the constitu

1A Committee of the Canadian Bar Association of the Western Provinces has had under consideration Company Law, and the following Memorandum was prepared by Mr. F. W. Wegenast as a basis for its deliberations. The reader is asked to consult a letter from Mr. Wegenast to appear in our next issue, being too late for this.