son of the lady's first marriage, the court on the principle that the object generally of such marriage settlements is primarily to bar the husband, would have construed the provision to mean in default of appointment by the settlor upon trust for her next of kin as if she had died without having married her second husband in contemplation of which marriage only the settlement was made. This would have given the property to the son as her sole next of kin, her first husband being divorced. The provision for the son of the first marriage gave the settlement the other construction. It does not look like law. It smacks of expediency; and it certainly looks more logical to read a clause dealing with a marriage in contemplation as referring to that marriage alone, and not referring to an anterior marriage by which there had been issue who should not be barred by a mere hypothesis. Fishing Rights in Tidal Waters; Dominion and Provincial Power. In the Attorney-General of Canada v. AttorneyGeneral of Quebec questions once more arose for solution by the Privy Council as to the relative rights and powers of the Dominion and the Province in regard to Fishing Rights in Tidal and Navigable Waters. The case in its presentation, at all events before the Courts of Canada, was distinguished from the cases of A.-G. of B.C. v. A.-G. of Canada 10 and the case of A.-G. of Canada v. A.-G. of Ontario 11 by reason of the fact that the Common Law of England does not prevail in Quebec But before the Privy Council this view disappeared, and the case was determined upon the basis of the statutory enactments of the old colonies of Quebec and Lower Canada before Confederation, and upon the effect of the provisions of the B. N. A. Act, 1867. 'T. L. R. vol. 37, p. 140. 10 (1914) T. L. R. vol. 30, p. 144; 1914 A. C. 153. 11 1898 A. C. 700. The questions submitted to the Court of King's Bench, Quebec, by the Lieutenant-Governor were: 1. Has the Government of Quebec power to grant the exclusive right of fishing either by affixing engines in the soil or otherwise in the tidal waters of the Province and of the high seas washing its coasts to a distance of 3 miles from the shore. (a) Between high and low water mark. 2. Can the Provincial Legislature authorize the Government of the Province to grant the exclusive right of fishing set forth in the preceding question? 3. If restrictions exist upon the granting of exclusive rights, and if these restrictions are abolished, are the fisheries, after such abolition, the property of the Province, and has the Legislature then the powers mentioned in question 2? To these questions the Court of King's Bench of Quebec gave an affirmative answer. To the first two questions the Privy Council gave a negative answer; and to the third it said that restrictions in the interest of the public on the granting of exclusive rights of fishing in tidal waters still exist under the old enactments, and the question did not properly arise for decision in this case. N.B. This case in several of its parts once more brings into prominence the difference between the proprietary right of the Province in the solum or land within its boundary and an administrative or regulative control by the Parliament of Canada. This distinction lies at the root of the ownership by the western Provinces of their lands. When Rupert's Land and the North-West Territories were made entities of the Confederation their lands were vested in the Crown in right of the new entities; but the Dominion got a pro tempore legislative and administrative control; because the entities had no machinery for exercising their rights. It lost that control when these entities got their machinery by being established as Provinces; and the western Provinces have their lands by this establishment alone. It is their own stupid fault that has kept them subordinates when they are in fact in full possession of their dominium and entitled to their full status and rights in spite of any enactment to the contrary by the Parliament of Canada. Divorce Covenant not to Sue for Restitution. We often meet in divorce proceedings agreements of separation whereby the wife agrees to waive her right to alimony and to sue for restitution. Williams v. Williams 12 is a case in point. The deed of separation, dated in 1916, provided for payment of £180 per annum to the wife for support of herself and her two children, and she covenanted not to take any proceedings to enforce a restitution of conjugal rights. In January, 1920, the wife wrote to the husband in the interest of the children to return and resume their life together. He refused. This action for restitution ensued. It was undefended. The Court being satisfied that the wife was sincere in her request for restitution, granted her a decree in spite of the existence of the separation deed, holding that the husband had failed to set up the deed by a defence, and that the Court was not bound of its own motion to enforce it. 14 13 The cases of Tress v. Tress 13 and Kennedy v. Kennedy were cited and followed, and the Judge, Sir Henry Duke, discussed and explained a number of apparently contradictory decisions like Crabb v. Crabb,15 and Mathews v. Mathews,16 and Morrall v. Morrall.17 This is an important decision in Western Canada. 12 T. L. R. vol. 37, p. 131. 13 12 P. D. 128. 14 1907 P. 49, 23 T. L. R. 139. 15 L.R. 1 P. & D. 601. 161 Sw. & Tr. 499. 176 P. D. 98. Divorce-Condonation of Adultery. Forgiveness is not condonation unless it is followed by the reinstatement of the party forgiven. It is most important to remember this in the parts of Canada where there is divorce law. The case of Crocker v. Crocker is the most recent exposition of the subject. 15 The petitioner had been a soldier whose wife then in England gave birth to a child on 6th May, 1918, of whom he could not be the father. In July, 1918, the wife wrote and asked forgiveness and on the 11th of July the husband replied that after considering everything he agreed to forgive her on the condition that she would leave Bournemouth, where she had been living. He added, "I will come to you and forgive everything." On the 14th of July the wife wrote a letter accepting the offer absolutely; but before its receipt the husband had received a letter from his father which caused him to instantly write to his wife refusing to have anything more to do with her. The President of the Divorce Division following the case of Keats v. Keats 19 held that forgiveness was not condonation unless it was followed by reconciliation and reinstatement. And the Court of Appeal affirmed this, the Master of the Rolls citing Lord Chelmsford as saying: "I am willing to adopt an expression which was happily used by Mr. Justice Wightman in the course of the argument and to say that in my judgment there can be no condonation which is not followed by conjugal cohabitation." The Master of the Rolls explained this thus: "Lord Chelmsford, the Lord Chancellor, meant there that he was not adopting a meaning of conjugal cohabitation which necessarily meant sexual intercourse. It must be a resumption of conjugal cohabitation so as to restore the wife to her former position." 18 37 T. L. R. 137. Cases also cited: Hall v. Hall,20 Bernstein v. Bernstein.21 NOTE. Cohabitation does not necessarily mean sexual intercourse; and the distinction often becomes material in settling questions of condonation. The re-establishment of a wife forgiven might be made in the eyes of the world by resumption of cohabitation-living in one house though sexual intercourse was withheld. Divorce-Petitioner's Own Adultery. Angels sometimes weep, and Judges sometimes relent as is shown by the case of Barbour v. Barbour.22 The petitioner was married in 1908 and shortly after that she and her husband went to Jubbulpore, where a son was born in 1910. In 1911 the wife committed adultery and some months after admitted the fact to her husband, after which the cohabitation was continued as before. The husband was, it seemed, a drunken kind of man, but in 1914 he joined the forces and went to France. Between May and December, 1919, he committed adultery with a Frenchwoman. In July, 1919, the wife got an order for restitution of conjugal rights, but the husband refused to obey it. This action ensued for dissolution. Mr. Justice Horridge, first of all, refused to exercise his discretion in such a case, observing that the wife was "a woman in good position who had outraged her husband's home. She is not like a poor woman who goes on the street to get food or shelter." But on the application of her counsel the Judge allowed the petitioner to be recalled and then she told such a tale of the husband's besotted habits that the Judge gave this decision. "I have heard further evidence and I think the petitioner had some excuse. She has had a very narrow escape. A woman who does this sort of thing does not deserve much sympathy. There will be a decree nisi with costs and custody." 20 7 T. L. R. 590. 19 T. L. R. 639. 22 37 T. L. R. p. 139. |