THE CROWN AS A TRUSTEE.

In the recent case of Henry v. The King, 9 Ex. C.R. 417, Burbidge, J., in the Exchequer Court, had to consider the question of the enforcement of a trust against the Crown. The petition filed by the suppliants, representing the Mississaugas of the Credit, a band of Indians residing on their reserve in the counties of Brant and Haldimand, sought to obtain a declaration that a sum amounting to over twenty-nine thousand dollars, deducted by the Department of Indian Affairs from certain capital funds held in trust for the Indians, be repaid or restored to such funds. It is not our purpose to discuss the merits of the case here, but we append the following extracts from the learned judge's reasons because they appear to us to be an adequate statement of the Crown's position both as regards this particular trust and trusts in general. We quote from p. 440:

:

"It does not follow that because the Crown is a trustee for the Indians in respect of such lands or moneys, that the Court has jurisdiction to enforce the trust, or to make any declaration as to the rights of the parties. That authority, if it exist, must be found in the statutes which give the Court jurisdiction. There are a number of authorities and cases in which the question as to whether the Crown may be a trustee has been considered, and there has been some difference of opinion on the subject. But the real question in any such case is not, it seems to me, whether the Crown may or may not, be a trustee, but whether the Court has any jurisdiction in respect of the execution of the trust. Where the jurisdiction to grant the relief sought is expressly given by statute no difficulty arises in respect of either question." At p. 443 he further says:

"The Crown does not in respect of Indian lands and moneys stand in the position of an ordinary trustee. In the first place the Crown does not personally execute the trust. Its administration thereof is vested in a department of Government, over which a Minister of the Crown responsible to Parliament presides. That has been the position of Indian affairs since the year 1860,

when by virtue of the Act 23 Vict. c. 151, s. 1, the Commissioner of Crown Lands became the Chief Superintendent of Indian Affairs. After the Union, the Secretary of State was Superintendent-General of Indian Affairs from 1868 to 1873, and since the latter year the office has been held by the Minister of the Interior. Subject to the terms and conditions of the several agreements or treaties with the Indians, or of the surrenders from them, and to the provisions of the statutes from time to time in force respecting Indians and Indian Lands, the Superintendent-General of Indian Affairs has, under the Governor-inCouncil, the management and control of Indian lands, property and funds.

"For the manner in which the affairs of the Indians are administered the Government of the Dominion and the Superintendent-General are at all times responsible to Parliament; and whenever in respect of such matters any power, authority or discretion is vested in and exercised by the Governor-in-Council, or in the Superintendent-General of Indian Affairs, Parliament alone has the authority to review the decision come to or the action taken. In all such cases the Court has no jurisdiction. Then there is this further difference between the Crown as a trustee and an ordinary trustee; the Crown is not bound by estoppels; and no laches can be imputed to it; neither is there any reason why it should suffer from the negligence of its officers. In short it adds nothing to the argument to state that the Crown is a trustee. Where it is a trustee the Court has no jurisdiction to impose any obligation upon it, or to declare that any such obligation exists, unless the statute gives jurisdiction, and where the statute gives jurisdiction it is immaterial whether in the particular case the Crown is held to be a trustee or not."

RE-MARRIAGE OF DIVORCED PERSONS.

The canon on the re-marriage of divorced persons recently passed by the General Synod of the Church of England in Canada is one that has attracted considerable attention at home and abroad. The Bishop of Albany has spoken of it with unqualified approval, and has expressed regret that the principle it affirms is not the law of his own diocese. There are, of course, many Anglicans opposed to the canon; and possibly the great majority of Protestants view it with disfavour. To put it shortly the canon explicitly forbids any clergyman of the church to re-marry either party to a marriage dissolved by the civil Courts so long as the other party to such marriage is living. This is an inhibition of a very drastic nature when we consider the debatable moral ground upon which it is imposed; but there is no doubt that it has been the law of the Church of England since the time of Elizabeth at least. Canon CVII. of 1603, while recognizing the validity of divorces a mensâ et thoro by the ecclesiastical Courts, directed that sentence or decree in such cases should contain the following caution:

"That the parties so separated shall live chastely and continently; neither shall they during each other's life contract matrimony with any other person." So that the canon of the Synod of the Canadian church is merely declaratory of the old common law of the church.

Whatever may be said of the moral warrant for the re-marriage of divorced persons, it is certain that anything tending to the indissolubility of marriage in the present state of society is to be welcomed at least by the lover of his country. It has been well said that the State is founded upon the hearthstone; and the hearthstone we all know is itself founded upon the marital union of man and woman. Cardinal Manning once said, "That which makes a people is domestic life. The loss of it degrades a people to a horde." More than this, history teaches us that when laxity of the marriage tie lays hold upon a people it is one of the certain signs of national decay. Divorce was unknown in Rome down to the time of the second Punic War. In the time of Augustus marriage was a custom more honoured in the breach than in the observance.

CONTRACTS FOR DISPLAY ADVERTISEMENTS ON BUILDINGS AND OTHER STRUCTURES.

This is the age of advertising. The above title indicates one of the multitudinous modern modes. It has, of course, to come before the Courts like everything else, from "pitch and toss to manslaughter." A writer in the Central Law Journal thus discusses it:

1. Nature of Such Contracts.-I recently had occasion to investigate this question, and I was surprised at the result of my investigation, and believe that there are others who, never having examined the question, will find this article interesting and instructive; and it may be the means of relieving some of erroneous opinions as to what the law is on this question. This class of contracts is becoming more prevalent each year, consequently the attorneys and the Courts will be called upon more frequently to consider the question. I classify the subject generally under the head of contracts for want of a better classification under the present state of the decisions on the question. I was of the opinion that such contracts were mere leases, and was proceeding on that theory; but, to my surprise, I found that the higher Courts have unanimously decided that such contracts are not leases and possess none of the characteristics of leases (a), but

(a) Wilson v. Tavener, L.R. (1901), c. 578; Reynolds v. Van Beuren, 155 N.Y. 120; Goldman v. New York Advertising Co. (N.Y.), 29 Misc. Rep. 133; Lowell v. Strahan, 145 Mass. 1; R. J. Gunning v. Cusack, 50 Ill. App. 290. In Wilson v. Tavener, L.R. (1901), c. 578, by the terms of a written agreement, the owner of buildings agreed to allow another to erect a boarding upon the forecourt of a building, and to use the gable wall of a building for bill-posting purposes, at a stipulated sum payable quarterly, and the court held that this was not a lease from year to year; but that it was a mere license which could be revoked on reasonable notice, and that a quarter's notice which terminated at the end of the current year was a reasonable notice. In the opinion the court said that the written agreement "did not confer on the plaintiff any right to the exclusive possession of any property or building of the defendant, and therefore I think there was no demise or lease, and that the relation of landlord and tenant was never created between them. The effect of the documents, in my opinion, was to give the plaintiff a license which was always revocable at any time, subject to the terms of the express contract."

that the right acquired by such a contract is a mere license (b). In other cases it is spoken of as an easement; the Court in one case saying, "both parties have argued this case upon the theory that the papers signed by Schilling were leases, and that the use of the wall under them was possession. That is a mistake. The right to use the wall "was a burden or servitude in the nature of an easement,' carrying with it the right to such access as might be necessary to make the burden of value' (c). And other cases hold that such a contract amounts to a simple contract or bargain for the right to place a sign upon the wall for a compensation, and is not a lease (d). Consequently a failure of the advertiser to erase the sign after the termination of the contract does not render him liable as a tenant holding over(e). Nor are the advertisers liable for injuries to third persons from the falling of a bill board used, but not erected by the advertisers, on the building

(b) Lowell v. Strahan, 145 Mass. 1; Reynolds v. Van Beuren, 155 N.Y. 120. In the latter case the defendants acquired from the tenants of a building the right to use a bill board erected upon the roof of the demised premises for a stipulated compensation, and in the course of the opinion the court said: "It is apparent, therefore, that the defendant's liability must be sustained, if at all, upon what must be conceded to be a very close and doubtful construction of a written license granted to them by the tenant in possession to use the sign for a limited time for a specified purpose."

(c) R. J. Gunning Co. v. Cusack, 50 Ill. App. 290. See also Willoughby v. Lawrence, 116 Ill. 11, 4 N.E. Rep. 356, where the right acquired was "all the surface of said fences" surrounding a race track, and the court held that the right acquired related to inside as well as the outside of the fence, and that the privileges accorded, "if not actually an easement, was a burden of servitude in the nature of an easement."

(d) Goldman v. New York Advertising Co. (N.Y.) 29 Misc. Rep. 133, which was an action against the defendant, an advertising company, on the theory that it was liable as a tenant holding over after termination of a year, for failure to erase the sign from plaintiff's wall, and the court said: "It is unnecessary for the determination of this appeal to decide whether the paper here in question created a license or an easement, or were merely a simple contract between the parties. It is sufficient that it is not a lease. Treated as a simple contract, there was no obligation on the part of the defendant to remove the advertisement at the end of the year."

(e) Goldman v. New York Advertising Co. (N.Y.) 29 Misc. Rep. 133.