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ish North America Act inserted. Looked at from this point of view, it seems quite clear that the qualifications and disqualifications of appointees to judgeships and the duties of judges fall within provincial authority just as much as the jurisdiction of the Court.

To turn to the position of Royal Commissioners, suppose the provincial legislature enlarged the jurisdiction of the Superior Court and the Court of Appeal to include the holding of investigations into any public or private matter that the Government or private individuals cared to refer to it and whether it involved the finding of any money judgment or the granting of any other civil remedy, or not. That would not interfere with the Dominion power to appoint the judges and fix their salaries. No Royal Commissions would then issue, but the work of Royal Commissions would be discharged by the judges. Would a judge perform these services as part of his judicial duties? What difference is there whether there is one Act or two? Does it matter whether the duty is imposed by the King's Bench Act or by the letters patent under the Inquiries Act; or by a special Act of the legislature embracing the provisions of letters patent and the Inquiries Act? Is there any difference now except that Royal Commissioners need not at present be judges? The province surely can provide in one way what it could undoubtedly provide in another.

The Legislature might impose a penalty on anyone who refused to act as a commissioner. Could any person escape on the plea that he was a judge?

If a judge performs his judicial duties as defined by the provincial Government there can be no ground of complaint on the part of the province or of the Dominion. If he is guilty of misconduct in office, the Dominion may impeach and remove him under section 99 of the British North America Act.

The Dominion Parliament may impose new duties upon provincial Courts, as has been done in the case

of the Dominion Controverted Elections Act. In such case the Court becomes a new Court with new jurisdiction created by the Dominion Parliament and not the old Court with some superadded jurisdiction."" But this does not say that the Dominion can interfere with the jurisdiction of the provincial Courts or the jurisdiction of the judges fixed by the province under the 14th sub-section of section 92.38

It is submitted that there can be no question as to the power of the province to have a judge as a Royal Commissioner even though the Dominion attempted in express terms to prohibit it.

In any event, even if my argument may eventually be rejected, it is certainly not clear that the Dominion had power to enact section 33: and if it did, it certainly is not clear that it prohibits a judge from acting as a Royal Commissioner, nor that any law prohibits him from accepting remuneration therefor. In these circumstances, it is submitted, the section can not be assumed to impose these prohibitions, unless and until its meaning and its constitutionality have been settled by the decision of a competent Court. Clearly, judges who have acted as commissioners or have performed any extra-judicial services under provincial authority, relying upon such authority and believing that section 33 was not intended to apply in such case, cannot be accused of wilfully" breaking the law in either acting as a Royal Commissioner or receiving remuneration therefor. It is a blot on our public life that such a charge can be made with impunity by a Minister of the Crown.

Winnipeg.

37 Valin v. Langlois, 5 A. C. 115, 121.

J. B. COYNE.

3 See judgment of Fitzpatrick, C.J.C., quoted above in note 18.

VOL. XXXVII. C.L.T.-29

THE PRESENT TRANSFER OF GOODS TO BE ACQUIRED IN THE FUTURE.

An interpleader issue of Jacobson and Weitzer, Claimant, and International Harvester Company, execution Creditor, has recently come before the Alberta Supreme Court and upon appeal to the Appellate Division, judgment was rendered on June 20th last, reported in 10 W. W. R. 955, upon which some comments are set forth in this Article, and more particularly upon the probable application of sec. 5 (3) of "The Sale of Goods Act," which is as follows:

"Where by a contract of sale the seller purports to effect a present sale of future goods, the agreement operates as a contract to sell the goods."

The point decided as expressed by the headnote' was as follows:

"A present assignment for value of goods not then in existence is operative in equity upon the goods coming into existence, and an execution against the assignor affecting only his beneficial interest will not bind the interest of the assignee (Holroyd v. Marshall, 10 H. L. Cas. 191; Tailby v. Official Receiver, 13 App. Cas. 523, and Jellett v. Wilkie, 26 S. C. R. 282 followed)."

In addition to the headnote we quote the following statement of the facts as set forth in the decision at p. 956.

"That agreement was in substance that if Weitzer would pay Jacobsen $400 Weitzer should be entitled to a one-third of the gross produce of the crop which Jacobsen would thereupon proceed to put in on the cultivated portion-about 100 acres of his farm. The $400 was paid and the crop was put in."

From these facts it is quite apparent that this was a case involving an agreement "whereby the seller purports to effect a present sale of future goods,' and the very pertinent query arises why the sub-section above quoted does not apply and why, in view of the force of this provision and in consequence of its declaration the purported sale was not declared to "operate as a contract to sell the goods."

Right here it may be well for the purpose of clarity of thought to set forth the different ideas legally involved in the two expressions, "a contract of sale" and "a contract to sell." In brief it may be said that the first conveys the meaning of a completed transaction, that title has passed. The second that an agreement has been completed to pass title. One is a present sale, the other is a contract to sell in the future. The test is, has title passed? Title may pass even though the price has not been paid. On the other hand, the price may be paid and, if title has not passed for any reason, there is but a contract to sell.

Both of these terms are defined in the Sale of Goods Act as follows:

Section 3. "Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time, or subject to some condition thereafter to be fulfilled, the contract is called 'an agreement to sell.'

Section 4. "An agreement to sell becomes a sale when the time elapses, or the conditions are fulfilled, subject to which the property in the goods is to be transferred."

Applying, therefore, these definitions to the terms employed in sec. 5, subs. 3, namely, 'where by a contract of sale the seller purports to effect a present sale of future goods the agreement operates as a contract to sell the goods,' it becomes clear that the meaning of the term "a contract to sell" as used in this section is that such a contract can only "become a sale when the time elapses, or the conditions are fulfilled subject to which the property in the goods is to be transferred."

And applying in turn sec. 5, sub-sec. 3, to the facts of the principal case under discussion, it follows presumably that, as there was an agreement purporting to effect a present transfer of future goods, under the operation of this section it could be effective merely "as a contract to sell," and as a contract to sell is opposed to the idea of "a contract of sale" and such "an agreement to sell can only become a sale when the time

elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred," title to the goods in dispute could not have passed to the claimant until long after the seizure was made by the execution creditor.

We have purposely made use of the expression, "until long after the seizure," for very good reason, the occasion of which will appear in more extended statement later on. It is pointed out here, however, that the subject-matter of the sale in the principal case was that of fungible goods. And not only were the goods fungible, but the agreement was to transfer one-third of an undetermined or unascertained mass. It does not call for extended explanation to make it apparent "that the agreement to sell could not become a sale until the time had elapsed, or the conditions were fulfilled" that permit of the mass being determined and the particular one-third of such an ascertained bulk specified.

The term "presumably" has also been used because there are no authorities as yet interpreting this section, and while the decision of the principal case is opposed to the conclusion above outlined, still as the particular point was not raised in the argument and the Court has made no reference to the statute in its decision, the question may still be considered unsettled.

We repeat, therefore, that presumably the operation of the section is such that the agreement which forms the subject of litigation was limited to a contract to sell and that title could not have passed until the subject-matter of the agreement became specified.

As the legal title was in the execution debtor, the seizure was a valid one and applied to the entire crop. It does not require citations to support so evident a conclusion. It could not matter that the price had been paid. Even in cases where title has passed and the consideration has been paid in full, the property is still subject to valid levy by the execution creditors

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