Page images
PDF
EPUB

At a meeting in the near future, if not at the present meeting, a faculty of law will be appointed. Several additions will also be made to the pedagogic staff of the Department of Agriculture.

At this morning's meeting the appointment of Mr. G. H. Cutler, Mr. A. N. Smith, and Mr. R. K. Baker were made to the Faculty of Arts. These gentlemen will start their work in the very near future.

“Both Mr. Bowerman's and Mr. Engen's gifts are just what we want at the University,” said Mr. Murray. “We could not possibly have a better thing than the latter, and the gift could hardly have taken a happier form than that in which Mr. Engen has given it to us.

“The Government has made provision for original research in agriculture and this will be devoted to the scientific side of political economy. Its effect should be great and far-reaching on the constructive life of the University.”

In addition to these two bequests there has been a number of gifts of books and various sums of money, all of which have been received with appreciation by the University.

Frank J. Keith, partner in the law firm of McColl and Keith, Cobourg, has just died suddenly at his home from agina pectoris. He arrived home from his office about 6 o'clock, apparently in his usual health, but shortly after supper he was suddenly stricken, passing away about 11.30 p.m.

The late Mr. Keith was a rising young lawyer of the town and was very well known here. His partner, Mr. McColl, was Liberal member for Cobourg in the Laurier Government.

LAw SOCIETY OF MANITOBA HOLDS TRIENNIAL ELECTION.

The triennial election of Benchers of the Law Society of Manitoba took place at the Court House recently when the ballots were opened and counted by the scrutineers. Those selected to act as scrutineers were C. P Wilson, N.C., the treasurer, F. P. Garland, and A. B. McAllister.

The Benchers elected for the Eastern Judicial District were: L. Campbell, K.C., A. B. Hudson, C. P. Milson, K.C., I. Pitblado, K.C., E. Anderson, K.C., A. J. Andrews, K.C., J. H. Munson, K.C., J. A. M. Aikins, K.C., J. S. Tupper, K.C., W. R. Mulock, K.C. The Bencher elected for the Central Judicial District was A. Meighen; for the Western Judicial District, Hon. G. R. Coldwell, K.C.; for the Southern Judicial District, A. W. Bowen; for the Northern Judicial District, H. F. Maulson. The results are now announced of the March examinations conducted by the Incorporated Law Society of British Columbia, and as will be seen, the legal profession of the Province is increased by a number of gentlemen from both the east of the Dominion and also from the English, Scotch and Irish Bars. . Preliminary: Messrs. Roy T. Stewart, F. E. Clough, J. G. Mackinlay, John Greig, C. I. Cameron, D. R. Walker, and J. L. Pyke. First Intermediate: Messrs. F. S. Cunlife, A. J. Fisher, R. L. Stultz, G. S. Selman, R. W. Lane, L. W. Cottingham, G. J. Boyd, W. S. Lane. Second Intermediate: Messrs. Adair Carss, A. R. McLeod, R. C. Crowe, C. J. Cameron, A. D. King. Students for call: Messrs. M. A. van Roggen, J. F. Mather, R. L. Maitland, J. D. McPhee, C. H. Kearns, H. N. Lidster. Articled clerks for admission: Messrs. J. F. Mather, M. A. van Roggen, R. L. Maitland, J. D. McPhee, H. N. Lidster, A. Donaghy, C. H. Kearns. British Columbia barrister for admission: Mr. O. Lawrence Bancroft. British Columbia solicitors for call: Messrs. A. H. Boulton, J. A. Davidson, Donald Smith, Hugh Campbell. Eastern Canadian barristers and solicitors for call and admission: Messrs. F. W. Wilson, T. E. Parke. English barristers for call: Messrs. S. T. Hankey, G. B. Duncan. English solicitors for admission: Messrs. A. Hallgate-Hills, T. J. Baillie, G. B. D. Scale, E. Herne. Irish barrister for call: Mr. D. J. O’Neill. Irish solicitor for admission: Mr. W. J. Bradley. Scotch solicitor for admission: Mr. W. G. C. Stevenson. Messrs. R. M. Grant, M. J. Coady, Miss Cecelia R. Green, Messrs. R. R. Holland, J. G. White, and Eric P. Dawson, graduates; and Messrs. A. R. Creighton, H. W. Green, Roy T. Ledingham, E. S. Davidson, and R. P. Maltby, matriculants, were entered as students under Rule 41.

LAW SocIETY ELECTS BENCHERs.

The Law Society of British Columbia has elected as its Benchers for the current year Messrs. R. T. Elliott, K.C., L. G. McPhillips, K.C., J. H. Senkler, K.C., A. P. Luxton, K.C., G. E., Corbould, K.C., E. P. Davis, K.C., W. C. Moresby, E. V. Bodwell, K.C., and Sir C. Hibbert Tupper.

Is THE DOCTRINE OF CONSIDERATION SENSELESS AND II, LOGICAL 2

In a recent article Dean Ashley, a distinguished authority on contracts, takes the somewhat paradoxical position of being at the same time counsel for the defence and also prosecutor of the doctrine of consideration. While defending it against various relaxations and modifications which have been suggested to accomplish more rational and just results, which he denounces as subterfuge and unwarranted usurpation of legislative power by the Courts, he also, as it were, saws off the branch he is sitting on, by contending that the time has now come, either for the Courts themselves to overrule the entire doctrine, or for the Legislature to act and by a brief statute declare that the doctrine of consideration is hereby abolished." Is the doctrine of consideration “a technicality existing simply because of the historical development” of contract; a legal rule “which is unnecessary, and which frequently works rank injustice;” is it one of the “outgrown doctrines" which lead the people to regard law and lawyers with suspicion and which neither Courts nor writers understand or are willing to apply consistently 2 If this accusation is true, it is indeed a severe indictment, and it is worth while to inquire whether there is not any intelligible reason, purpose or policy underlying the requirement of consideration by our Courts, by which it has been enabled to survive for over three centuries as a basic doctrine of the most important branch of our law; and whether if there are serious defects in the test of consideration, they can not better be corrected by relaxations and modifications, than by an entire abolition of this fundamental requirement. If we look for a moment at the history of the law we shall find that the consideration came to be recognized as one of the elements of simple contract by a more or less accidental and obscure historical evolution.” It was evolved in the judicial process of furnishing a remedy to those cases which could be brought within the theory of the action of special assumpsit. This form of action was a branch of trespass on the case, which called for a remedy where there was a wrong or injury inflicted, on the principle ubi jus, ibi remedium. Assumpsit was not originally founded on the idea of enforcing a promise like covenant, but of redressing a wrong. No wrong is ordinarily done by the breach of a merely gratuitous promise, or nudum pactum. The consideration then is the ground of enforcement; that which renders a promise not merely gratuitous, but one resting on a just and obligatory basis with a sufficient reason for enforcement. The doctrine of consideration is a not very successful attempt to generalize and reduce to a rule of thumb that reciprocity which must exist in an agreement to make non-performance a legal wrong on the part of the promisor. It is not a mere arbitrary, unreasoning technicality, a mere requirement of obsolete procedure. The common law, in requiring a consideration, treats all simple contracts as resting primarily on the basis of bargain, as contrasted with those promises which are simply gratuitous and in which there is no mutuality of concession or benefit flowing to each party. The typical contract in the common law may be defined as an obligation arising from a bargain. All business dealings consist, in the last analysis, of bargains or arrangements for present and future exchange. Without some positive sanction for the expectation that bargains will be honestly fulfilled, men would be unable to do business or make reliable arrangements for the future.” Dean Ashley asserts that this is not the reason of the rule, and seems to believe that consideration exists for its

* Clarence D. Ashley, Doctrine of Consideration, 26 Harv, L. Rev. 429, March. 1913.

* See e. g. Debt, Assumpsit and Consideration, W. S. Holdsworth, XI Mich Law Rev. 347. * Wald's Pollock on Contracts, 3rd ed. 1, 2.

own sake. But nothing operates as a consideration which is not regarded or treated as an item of exchange by the parties. It must be offered by one party and accepted by the other as the “conventional inducement” or reciprocal concession for what is promised.* The phrases, “at defendant's request,” “in exchange for the promise,” “in consideration of,” unmistakably point to the fact that the rules of consideration find their object, their reason for existence in the law, primarily as a test whether the engagement of the parties is put on the basis of bargain, or whether it is gratuitous, and so lacking any ground of enforcement. Incidentally, the “legal detriment” part of the definition of consideration is a secondary test as to whether the thing given or to be given in exchange has any possibility of value in the eye of the law sufficient to afford any real reciprocity. The reciprocal nature or business basis of the transaction is that of which the apparently arbitrary and technical rules of consideration furnish the touchstone or test, and is that which makes the application of the doctrine of consideration not so irrational and lacking in any intelligible purpose as Dean Ashley would have us think. It may be admitted that the strict and orthodox doctrine, which takes bargain (as the universal and only sufficient legal reason for enforcing a promise, is not an entirely valid generalization of all the grounds that should be recognized for the enforcement of simple promises. Bargain is not the only reason which makes the enforcements of promises justly imperative, but as Professor Samuel Williston has suggested to the writer, “why should not a promise be enforced, if the promisor might reasonably suppose the promisee would act in reliance on the promise, and if the promisee has in fact done so?” In other words, he favors the extension of the doctrine of consideration by a theory of quasi-estoppel adopted in some states, and especially in the subscription paper cases.” In these cases a promise originally gratuitous, which has been relied and acted upon

* Fire Insurance Association v. Wickham, 141 U. S. 564, 579; see also Holmes Com. Law, 202: Williston on Sales, 958; Wald's Pollock on Contracts (3rd ed.) 323, n. S.

* In Private correspondence.

* Beatty v. Western College, 177 Ill. 280: Simpson College W. Tuttle, 71 Iowa 596: I) crocmon v. Shaw. 60 Md. 199: Steele v. Steele, 75 M(l. 577; Ricketts v. Scothorn, 57 Neb. 51.

« PreviousContinue »