given him, and without even tendering the purchase money required by the option to be paid.

6

This seems to be in antagonism with a prevailing opinion in the Legal profession, and with certain dicta. Vide Roots v. Carey. But the Law as stated by Harvey, C.J., seems correct, "that as soon as the Defendant notified the Plaintiff of his repudiation of the agreement, the Plaintiff might, I think, have brought his action and have had it tried before March"-that is before the period prescribed by the option had expired.

Sunday Contracts.

In Dutchzean v. Bronfman, the Court of Appeal in Saskatchewan mero motu held that a Contract for the Sale of an Automobile made on a Sunday was void.

The point seems not to have been pleaded, nor was it raised on the Trial.

The Appeal Court was unanimous and Lamont, J.A., delivered the judgment relying upon the Provincial "Act to Prevent the Profanation of the Lord's Day," commonly called the Lord's Day Act, R. S. S. cap. 69. No mention was made of the Lord's Day Act, R. S. C. cap. 153, nor of the fact that in 1903 the Privy Council held to be void and ultra vires of the Provincial Legislature, the Ontario Lord's Day Act, which corresponded with the Saskatchewan Act, solely relied upon by Judge Lamont, and from which it was copied verbatim.

Of course the section of the Act which merely declared a contract made on a Sunday to be void, might be argued to be within the competence of the Province as a matter of "property and Civil Right" if it were enacted in a separate form. But then we must remember that the Ontario Act had a similar section, and that the whole Act passed out of sight after the decision of the Privy Council to which I have referred. Ontario never attempted to re-enact it, and in the Revision of

1914 it was excluded. How can it be valid in the Western Provinces formed since 1867?

The whole Law in relation to Sunday Observance is distinctly criminal; and it would seem that the Provinces have to rely either on the old Statutes of England, passed in 1448, 1625, 1677 and 1780, or else on the Dominion Act, R. S. C. 1906, cap. 153.

At all events, some of the Courts of Appeal relying on the Provincial Lord's Day Acts might favor us with their views as to the validity of what the Privy Council has held to be invalid; and Judge Lamont had an opportunity of doing this when he relied on the section of the Saskatchewan Act nullifying a Contract made on a Sunday.

Summary Convictions.

In Rex v. Gartshore, on a case stated to the Supreme Court under the Summary Convictions Act, 1915, cap. 59, by a Police Magistrate at Vancouver from a conviction committing the Defendant to prison for unlawful sale of liquor contrary to section 10 of the Prohibition Act, 1916, chapter 49, the Chief Justice of British Columbia (Hunter, C.J.) held February 7th, 1919, that the offence had not been proven and ordered the prisoner's discharge.

The Crown appealed to the Court of Appeal, whereupon the accused's counsel contended that, that Court had no jurisdiction to hear an appeal. The Summary Convictions Act, 1915, enacting that the decision of the Supreme Court should be "final and conclusive"This objection was over-ruled and the Court of Appeal (McPhillips and Eberts, JJ.A., dissenting) on May 20th, 1919, reversed the order of the Chief Justice and upheld the Magistrate's conviction.

On the accused being again taken into custody under the Court of Appeal decision, he now applied, October 15th, 1919, on habeas corpus to the Chief Justice (Hunter, C.J.B.C.) for his discharge.

* (1919) 3 W. W. R. 757.

Held by Hunter, C.J., that the prisoner was entitled to his discharge. The Court of Appeal Act, 1911, chapter 51, section 6, sub-section 4 (e), providing that an appeal lies to the Court of Appeal, is annulled by the 1915 Summary Convictions Act, which provides that the Order of the Supreme Court on a case stated shall be final and conclusive.

A Statutory Appellate Court cannot confer jurisdiction on itself merely by declaring that it has jurisdiction. In a case concerning the liberty of the subject, it is the clear duty of a judge of the Supreme Court not to follow a decision of the Court of Appeal if the Appellate Court had no jurisdiction at all. In such a case the decision is void in the absolute sense, and imposes no obligation or right and the principle of stare decisis is not applicable. Where a decision of an Appellate Court is plainly in violation of a Statute, it must be deemed to have been given per incuriam, and it is the duty of a Judge to carry out the Statute.

Service Ex Juris.

Johnson v. Taylor recently decided by the House of Lords, xxxvi., L. T. R., p. 62, is of immense importance in Canada where a Province has either the English O. xi. r. 1 (e) or an order identical in terms or corresponding to it.

The case was one where a vendor resident abroad sold goods to a purchaser in England under a C. I. F. contract. He was to ship the goods abroad and deliver or tender the shipping documents in England to the purchaser. He failed to do either. Leave to issue the Writ and serve it out of the Jurisdiction was obtained; and the Writ was served. Defendant then entered a conditional appearance, and applied to set the Writ aside. The application was refused by Mr. Justice Coleridge, whose decision was affirmed by the Court of Appeal.

The House of Lords however unanimously reversed the Court of Appeal and set the Writ aside.

The decision applies to similar Contracts made in the different Provinces of Canada.

The House of Lords held that Axel Johnson had committed two breaches of contract. The first consisted in not shipping the goods, the second in not tendering the documents. The first of these could only be performed physically outside the jurisdiction, namely at Stockholm; the second was to be performed within the jurisdiction, namely at the English end of the voyage. The obligation to be performed outside the jurisdiction, namely the shipping of the goods, is of such a character that its breach destroys completely the whole substratum of the contract. Hence the breach within the jurisdiction namely, non-delivery of the documents, is only an ancillary and consequential obligation. Therefore breach of this latter cannot be relied on to give the Court jurisdiction; the case must be regarded as one of a contract which is to be performed wholly outside the jurisdiction. The result is that the second breach within the jurisdiction cannot be relied on as a ground for obtaining leave under Order XI., Rule (e), to serve the defendant with a writ out of the jurisdiction. The contract is not one which "according to the terms thereof ought to be performed within the jurisdiction."

This decision has been much criticised and it may result in changing the rule.

A case in support of the Plaintiff Rein v. Stein, 1892, 1 Q. B. p. 757, was quoted where Lord Justice Lindley in a somewhat similar application said the rule did not require the whole contract to be performed in the jurisdiction, but that it was sufficient if a part had to be so performed and that in respect of that part there had been a breach within the Jurisdiction. This was the authority on which the Court of Appeal acted. But the House of Lords gave Lord Lindley's judgment an interpretation of their own, holding that the part to be performed within the jurisdiction must be a part which was susceptible of independent performance,

and not merely something subsidiary to the main part of the Contract which was to ship the goods C.I.F.

The Law Lords all concurred in this interpretation, and held that the main Contract was for the Sale of the Goods abroad, and for their shipment abroad, and that the failure to ship was the breach and not the delivery of the shipping documents, though they indicated that if the goods had been shipped and the Plaintiff had merely failed to deliver the documents in England, he could have been sued for that breach in England, and that leave to serve him ex juris would have been in compliance with the rule.