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to seven per cent.; that that construction of the previous Act was rendered necessary by the presence in the same Act of another clause in which the same language (practically) was used; that this other clause was omitted, from the Revised Statutes, merely because (by reason of another statutory change) it had become unnecessary; and that, therefore, the construction of the words under consideration must necessarily be the same after revision as it was before. The following are the two clauses as they appeared in the earlier Bank Act:

"80. The bank shall not be liable to incur any penalty or forfeiture for usury, and may stipulate for, take, reserve or exact any rate of interest or discount not exceeding seven per cent. per annum, and may receive and take in advance any such rate, but no higher rate of interest shall be recoverable by the bank; and the bank may allow any rate of interest whatever upon money deposited with it.”

(Note that the italicized words do not appear in the Revised Statutes).

"81. No promissory note, bill of exchange or other negotiable security, discounted by, or indorsed, or otherwise assigned to the bank, shall be held to be void, usurious or tainted by usury, as regards such bank, or any maker, drawer, acceptor, indorser, or indorsee thereof, or other party thereto, or bona fide holder thereof, nor shall any party thereto be subject to any penalty or forfeiture by reason of any rate of interest taken, stipulated or received by such bank, on or with respect to such promissory note, bill of exchange, or other negotiable security, or paid or allowed by any party thereto to another in compensation for, or in consideration of the rate of interest taken, or to be taken, thereon by such bank; but no party thereto, other than the bank, shall be entitled to recover or liable to pay more than the lawful rate of interest in the Province where the suit is brought, nor shall the bank be entitled to recover a higher rate than seven per cent. per annum; and no innocent holder of, or party to, any promissory note, bill of exchange or other negotiable security, shall in any case be deprived of any remedy against any party thereto, or liable to any penalty or forfeiture by reason of any usury or offence against the laws of any such Province respecting interest, committed in respect of such note, bill or negotiable security, without the complicity, or consent, of such innocent holder or party."

We have then, in sec. 80 of this prior statute, the exact language which formed the subject of discussion before the Judicial Committee. We have, too, in sec. 81, language of precisely similar import. And if, therefore, we can tell by collocation of these two clauses what was meant prior to the revision, we shall know what it was afterwards-unless the omission of sec. 81 from the Revised Statutes had the effect of giving, to the language under discussion, a meaning opposed to that which it had before.

There is no room for difference of opinion as to sec. 81. It relates to bills and notes which (like the mortgage in question) reserved more than the legal rate-more than seven per cent. in the case of a bank, and more than six per cent. in favour of others; it declares that these instruments when discounted or assigned to a bank, shall not be void; and that "no party thereto, other than the bank, shall be entitled to recover or liable to pay more than the lawful rate of interest in the Province where the suit is brought; nor shall the bank be entitled to recover a higher rate than seven per cent. per аппит."

Very clearly the effect of this clause is that persons other than a bank, suing upon bills or notes which reserve more than legal interest, may recover six per cent.; and that a bank may recover seven per cent. And if that was the meaning of sec. 81, it was, necessarily, the meaning also of sec. 80.

It is perfectly clear, therefore, that if the present action had been brought before the revision of the statutes, the bank would have been entitled to recover seven per cent.-that that was the effect of the above quoted sec. 80. And the only question that remains is whether precisely the same language in the Revised Statutes can be given a contrary interpretation. To that question no lawyer in Canada would suggest an affirmative reply.

If it be said that sec. 80 in the earlier Act was given the meaning which I have ascribed to it only because of the presence of sec. 81, the sufficient reply is that sec. 81 did not change the meaning of sec. 80, but proved, merely, the sense in which Parliament had used the words; and that the meaning, thus proved, must be held to be that which was intended by continuation, in the Revised Statutes, of precisely the same language.

The omission, from the Revised Statutes, of section 81 had no special significance. The reason for it is clear. Prior to the date of the passage of the earlier Bank Act, the statute relating to interest (R. S. C. 1886, ch. 127, sec. 11), had declared void all bills, notes, etc., whereupon a greater interest than six per cent. was reserved; and had fixed a penalty for taking a higher rate. It was necessary, therefore, in legislation with reference to banks, to exempt their transactions from the effect of the interest statute. And it was for that reason that the first few words of sec. 80, and the whole of sec. 81, were inserted in the earlier Bank Act. Before the revision took place, however, the usury clauses of the interest statute had been repealed; the introductory words of 80, and the whole of 81, had for that reason become unnecessary; and they were accordingly omitted from the Revised Statutes.

This conclusion is no mere inference, nor does it depend upon a process of reasoning. It is placed beyond dispute by a memorandum which appears in the Revised Statutes themselves (vol. 4, p. 19), declaring that sec. 81 is 66 unnecessary in view of 53 Vict. ch. 34, sec. 2, and recommended for repeal." This 53 Vict. ch. 34, sec. 2, is the clause which repealed the usury clause of the Interest Act.

We may take it then as indisputable that the words "but no higher rate shall be recoverable by the bank," must have the same meaning in the Bank Act of the Revised Statutes as they had in sec. 80 of the previous Bank Act from which they were taken. It is indisputable, also, that the meaning of these words in section 80 must be the same as practically the same words in sec. 81, by which it was accompanied. And it is indisputable that under sec. 81, banks would be entitled to seven per cent.

That is the argument. It appears to be clear, simple, and conclusive. It was placed fully before their Lordships. They make no comment upon it. They do not even refer to it.

Sometimes, I suppose our Supreme Court goes astray. But, at least, its Judges always give the defeated suitor the satisfaction of a little explanation.

GENERAL SUMMARY.

In the preceding numbers of this journal, criticism has been made of six of the decisions of the Judicial Committee.

In one case a surprising limitation of provincial legislative authority was declared in the absence of any pleading or evidence sufficient for the discussion of the point; in the absence of any objection by the party in whose favour the decision was given; in the absence of any effective argument; and without attention to considerations, which obviously, necessitated a contrary holding (Rex v. Royal Bank).

In the second case, their Lordships declared that counsel had not contested a certain point; although the point had been most elaborately argued; and although, even if not argued, the law was clearly contrary to the decision (City of Winnipeg v. Winnipeg Street Railway Company).

In the third case, their Lordships held that the construction of language in a consolidated statute was the exact opposite of that which was its meaning prior to consolidation; and gave not a hint of the reason for so holding. (McHugh v. Union Bank).

In the fourth case, their Lordships held that purchases by one partner without the consent of his fellows, with moneys wrongly withdrawn from the firm (and, therefore, the firm's), were made on account of the firm; although the fact that they were not so made was admitted; although they could not have been so made (because outside the scope of the partnership); and although some of them resulted in losses (Kelly v. Kelly).

In the fifth case, the two reasons given by their Lordships for their decision in a thirteen million-dollar case were based upon clearest misapprehension (Rex v. Grand Trunk Pac. Ry. Co.).

In the sixth case, counsel for appellant practically abandoned a certain point; counsel for respondent was told that he need not pursue his answer to it; and their Lordships, in their reasons for judgment, proceeded upon the ground that the appellant was right. Their Lordships also proceeded upon an interpretation of the word "bridges" in the statute from which a company derived power to build bridges; but

they referred to the wrong statute; and, in the right statute, the word "bridges" did not appear. Finally, from power given to a company to do a certain sort of work, their Lordships inferred the existence of a contract to do particular work of that class (Rex v. Alberta Ry. Co.)

I do not say that all the decisions of the Committee are as flagrantly and indisputably wrong as these six. Some of their Lordships are able men, and, considering the handicaps under which they labour, they do surprisingly good work. But I do mean that these six decisions are all of very recent date (all within two years); that anybody can easily add to the list; and that the record is a complete reply to those who tell us that our own Courts cannot be trusted, that, in order to be secure, we must have the right of taking our cases to London, that Canadian lawyers cannot satisfactorily dispose of Canadian law-suits.

Were I the first to feel dissatisfaction with the operations of the Committee, I should remain silent; but when I know that I am but reiterating what has been many times said before, I feel that I need not hesitate to express my views. For example, the present Lord Chancellor (prior to his accession to that office) during the debate on the Australian Commonwealth Bill in 1900, said:

"If there are two tribunals sitting for the despatch of the same business, the one is starved in order to keep up the other, and the judicial strength inevitably gravitates toward the House of Lords; and until you make the colonials feel that the tribunal to which they come, is the same as that to which you yourselves appeal, you will never get their confidence.

"The result has been that though the Privy Council is considered good enough for the colonies, it is not allowed in Great Britain and Ireland to be good enough for us."1

In a pamphlet published in 1905, Mr. Haldane, said:"Again the state of the Supreme Court of Appeal is unsatisfactory. Just now it is split into the House of Lords, which acts for England, Scotland and Ireland, and the Judicial Committee which acts for the rest of the King's dominions. The neglect of statesmen has led to the second being starved for the sake of the first. It is no part of the business of the Colonial Office to look after it, and there are murmurs, loud and long, every now and then, over the

Commonwealth of Aus. Constitution Bill, pp. 34, 5.

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